Shem-Tov v. Department of Justice ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LORI SHEM-TOV,
Plaintiff,
v. Civil Action No. 17-2452 (RDM)
DEPARTMENT OF JUSTICE, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Lori Shem-Tov, who is currently being criminally prosecuted in Israel, filed this
Freedom of Information Act (“FOIA”) action against Defendants the Criminal Division of the
U.S. Department of Justice (“Justice Department”), the Department of Homeland Security
(“DHS”) and INTERPOL Washington (“Interpol Washington” or “USNCB”). Dkt. 1. She seeks
the release of records of Defendants’ communications with the Israeli government regarding the
requests of Israeli law enforcement for assistance from the United States under the Treaty on
Mutual Legal Assistance in Criminal Matters (“MLAT”) between the United States and Israel.
Dkt. 1-4 at 2–3. She also seeks records of Defendants’ efforts to secure information pertaining to
several blogs from Automattic, Inc. Id.
Defendants DHS and Interpol Washington now move for summary judgment, asserting
that they have completed reasonable searches for records responsive to Plaintiff’s requests and
have either released the responsive documents or withheld them in whole or in part in
accordance with various FOIA exemptions. Dkt. 34. The Court has also construed Plaintiff’s
opposition to Defendants’ motion for summary judgment as her own cross-motion for summary
judgment as to those two Defendants. Dkt. 41; Minute Order (Aug. 9, 2019) (treating Plaintiff’s
opposition to Defendants’ motion for summary judgment as a cross-motion for summary
judgment). The Justice Department, however, remains engaged in searching for and producing
responsive records, see Dkt. 59, and therefore does not participate in the instant motion. For the
most part, Plaintiff does not take issue with the methodologies of the searches Defendants
performed but, instead, confuses the completed searches conducted by DHS and Interpol
Washington with the search still being conducted by the Justice Department and then faults the
Justice Department’s (not yet completed) search. She also argues that, as a criminal defendant in
the Israeli case, she is entitled to all relevant documents in the possession of all Defendants under
Brady v. Maryland, 373 U.S. 83 (1963).
The Court concludes that DHS and Interpol Washington have carried their burdens of
establishing that they performed adequate searches for documents responsive to Plaintiff’s FOIA
requests and have demonstrated that some of their withholdings were proper under the FOIA
exemptions. The have failed, however, to satisfy their summary judgment burden of
demonstrating that their withholdings of information pursuant to Exemption 7(D) were
appropriate. Accordingly, the Court will GRANT in part and DENY in part Defendants’ motion
for summary judgment, Dkt. 34; and will DENY Plaintiff’s cross-motion for summary judgment,
Dkt. 41.
I. BACKGROUND
Plaintiff attests that she is a “journalist specializing in welfare stories since 2009.” Dkt.
41-1 at 1 (Shem-Tov Decl. ¶ 2). She states that she was “arrested in Israel on charges of
‘insulting public officials’” in February 2017, id. (Shem-Tov Decl. ¶ 3), and asserts that the
Israeli government has improperly handled her case in numerous ways, including subjecting her
to a “political arrest” that was “intended to coerce [her] into changing [her] position on
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corruption in the Israeli welfare and justice systems,” id. (Shem-Tov Decl. ¶ 4). Defendants
offer a different account of Plaintiff’s criminal case in Israel. They claim that she “disparage[d]
judicial and government officials and private persons who had any role in the . . . proceedings” in
which she lost custody of her children and that she “published [on the internet] personal
information about those . . . persons” and accused them on her blog “of sexually or physically
abusing” children. Dkt. 47 at 1. This alleged misconduct, according to Defendants, “forms the
basis of the criminal prosecution of Plaintiff under Israeli law.” Id. at 2.
All agree that Israeli law enforcement authorities submitted a request to the United States
pursuant to the Treaty on Mutual Legal Assistance in Criminal Matters (“MLAT”) between the
two countries, seeking aid in the Israeli criminal investigation of Plaintiff. See Dkt. 34 at 1; Dkt.
41-1 at 2 (Shem-Tov Decl. ¶ 8). Various U.S. government agencies appear to have been
involved in rendering that assistance, at least in part by asking third parties to release to them
information including “sites” or “blogs” maintained by certain “user[s].” See, e.g., Dkt. 34-1 at
26, 37, 40, 44, 52, 61; see also Dkt. 34-2 at 22, 24–25, 28, 31–33; Dkt. 47-2.
On September 15, 2017, Plaintiff, through R. David Weisskopf, who she had authorized
as her “power-of-attorney . . . to make FOIA requests on her behalf,” submitted to the Justice
Department, DHS, and Interpol Washington requests for records pursuant to FOIA. Dkt. 1 at 1–
2 (Compl. ¶¶ 1, 6–7); Dkt. 1-3 at 2 (Ex. 3); Dkt. 1-4 (Ex. 4); Dkt. 1-5 (Ex. 5). Interpol is the
International Criminal Police Organization, which “was created to ensure and [to] promote the
widest possible mutual assistance between all criminal police authorities within the limits of the
law existing in the organization’s member countries.” Dkt. 34 at 4 (Def.’s SUMF ¶ 1). Each
Interpol “member country designates a national law enforcement agency . . . as the member
country’s point of contact for all Interpol matters.” Id. at 4–5 (Def.’s SUMF ¶ 2). The United
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States has designated the National Central Bureau (“USNCB”) as its point of contact.1 Id.
USNCB is itself a component of the Department of Justice. See id. at 5 (Def.’s SUMF ¶ 3).
Plaintiff’s FOIA request sought the following:
1. Any correspondence and records exchange[d] between the State of
Israel and U.S. Department of Justice (DOJ) and/or Department of Homeland
Security (DHS) and/or Interpol concerning the request of the Government of
Israel pursuant to Article 7 of the Treaty on Mutual Legal Assistance in Criminal
Matters related to data from WordPress.com web blogs, and release of such data
to the DOJ, DHS, [Interpol] and/or the Israeli Ministry of Justice and/or the
Israeli Police including application, attachment, responses, emails and all proof
attached.
2. All correspondence exchanged between the DOJ and/or DHS and/or
Interpol and Automattic Inc. concerning the web blogs:
http://lory-shemtov.com
http://mishpatsheker.com
http://mother-cry.com
http://motileybel.com
http://horimisrtael.wordpress.com
http://rackmanbarilan.wordpress.com
including demands and letters, Automattic’s responses and anything exchanged
regarding these web blogs.
3. Any correspondences received or exchanged with third parties
regarding these web blogs accounts, including, but not limited to, other officials
in the DOJ, DHS, Interpol, Israeli or American diplomats, politicians, officials
in embassies or foreign offices relating to or in any way mentioning your activity
vis a vis Automattic’s above mentioned web blogs.
4. Any legal opinions composed by the DOJ, DHS, Israeli officials or
Interpol concerning the mutual legal assistance and whether there are sufficient
grounds for the U.S. to invoke section 2703 and act on behalf of the Government
of Israel. I specifically request records clarifying why assistance to a foreign
government relying on criminal offenses not recognized in the U.S. outweigh a
journalist’s Freedom of Expression protected under the First Amendment to the
U.S. Constitution in this matter.
5. All records, including but not limited to notes, from the day of initial
contact by the Government of Israel regarding the Automattic Inc. web blogs. I
also request all records by anybody from the U.S. authorities concerning the
1
Because of this structure, the Court will refer to Defendant Interpol Washington and USNCB
interchangeably.
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handling of the request from Israel, including but not limited to OIA Ref: 182-
54139.
6. All records of any application to any court or judicial authority to
issue a search warrant or any other type of warrant to compel Automattic Inc.,
to release any documents preserved related to any criminal investigations against
Ms. Shem-Tov. If no application to a court was made, any document or legal
opinion why such application was denied.
Dkt. 34-1 at 9 (Dembkowski Decl. ¶ 19).
At the time that Plaintiff submitted her FOIA request (and at the time she initiated this
suit), she was incarcerated in Israel pending trial.2 Dkt. 1 at 2 (Compl. ¶ 4). She sought the
requested records “for use to defend herself in [her] criminal trial.” Id. On September 19, 2017,
DHS initially responded that Plaintiff’s request was overly “broad in scope or did not specifically
identify the records” sought and asked that Plaintiff resubmit a narrowed request. Dkt. 1-7 at 2–
3 (Ex. 7). The other Defendants also failed substantively to respond to her request. Dkt. 1 at 2
(Compl. ¶¶ 8–10); Dkt. 1-8 (Ex. 8) (Sept. 21, 2017 Interpol Washington Response). Plaintiff
alleges that, on October 2, 2017, Weisskopf filed an administrative appeal based on Defendants’
failures to release records in response to her FOIA request. Dkt. 1 at 2 (Compl. ¶¶ 6, 11); Dkt. 1-
10 (Ex. 10). Interpol Washington later informed Plaintiff that it had at least 72 responsive pages
and released 45 of those pages to her with some information redacted pursuant to FOIA
Exemptions (b)(6), (b)(7)(C), and (b)(7)(D). Dkt. 1 at 3 (Compl. ¶¶ 12–13); Dkt. 1-11 at 3 (Ex.
11) (Oct. 10, 2017 Interpol Washington Response). Interpol Washington also redacted and then
forwarded to DHS 16 pages that it had uncovered so that DHS could determine whether their
release was appropriate. Dkt. 1 at 3 (Compl. ¶ 13); Dkt. 1-11 at 4 (Ex. 11) (“The remaining 16
2
Plaintiff has since been released from physical custody in Israel. Dkt. 41 at 10.
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pages concern[] [DHS], Immigration and Customs Enforcement (ICE). [The agency] is referring
these documents to ICE for determination of releasability in accordance with the FOIA.”).
On November 13, 2017, Plaintiff initiated this FOIA action against the Justice
Department, DHS, and Interpol Washington. Dkt. 1 at 1. She alleged that Defendants had
violated the FOIA by failing to respond to her FOIA request, withholding some documents, and
redacting certain portions of other documents. Dkt. 1. She further alleged that Defendants
violated her rights as a criminal defendant under Brady v. Maryland in the Israeli prosecution.
Id. at 2, 4 (Compl. ¶¶ 5, 13(g)).
Plaintiff moved for summary judgment and a temporary injunction on November 14,
2018, Dkt. 19 at 1, and Defendants opposed Plaintiff’s motion, Dkt. 29. On May 31, 2019,
Defendants DHS and Interpol Washington filed their own motion for summary judgment. Dkt.
34. On the same day, the third Defendant, the Justice Department, informed the Court that it had
not yet “finished processing plaintiff’s FOIA request to it.” Dkt. 35 at 1. The Court then ordered
Plaintiff to respond to DHS and Interpol Washington’s motion for summary judgment. Dkt. 36.
On August 1, 2019, Plaintiff filed her response. Dkt. 41. Soon thereafter, the Court
denie[d] without prejudice Plaintiff’s [November 14, 2018] motion for summary
judgment[,] [which asked the Court to order] the release of all records requested
under FOIA, on the ground that the motion was premature in light of (1) the
documents that Defendants have since released to Plaintiff, (2) the ongoing
process described in the latest status report submitted by the Department of
Justice, and (3) the fact that two of the [D]efendants have now set forth the
grounds for their withholdings [in their own motion for summary judgment].
Minute Order (Aug. 9, 2019). The Court announced that it would “treat Plaintiff’s opposition,
Dkt. 41, to Defendants’ motion for summary judgment as a cross-motion for summary
judgement as to the Department of Homeland Security and Interpol Defendants.” Id. It noted
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that it would allow Plaintiff to “file an additional motion for summary judgment as to the
Department of Justice when the ongoing process is complete.” Id.
Defendants DHS’s and Interpol Washington’s motion for summary judgment, Dkt. 34,
and Plaintiff’s cross-motion for summary judgment, Dkt. 41, are ripe for decision. The
remaining Defendant, the Justice Department, in contrast, remains engaged in searching for,
processing, and releasing responsive documents to Plaintiff, see Dkt. 35, Dkt. 57, and therefore
has not participated in the instant motion.
II. LEGAL STANDARD
Under FOIA, when an agency receives a request that “reasonably describes” records
sought, 5 U.S.C. § 552(a)(3)(A), it must “conduct[] a search reasonably calculated to uncover all
relevant documents,” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).
The agency must produce to the requester responsive records but may withhold material that falls
within one of FOIA’s nine statutory exemptions. Judicial Watch, Inc. v. U.S. Dep’t of Def., 847
F.3d 735, 738 (D.C. Cir. 2017). “[T]he vast majority of FOIA cases can be resolved on
summary judgment.” Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).
Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate when “the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”
In considering a motion for summary judgment, the Court must review the record de
novo to determine whether there remains a genuine dispute of material fact concerning the
reasonableness of the searches performed or the propriety of any withholdings. Cause of Action
Inst. v. IRS, 316 F. Supp. 3d 99, 105 (D.D.C. 2018). An agency proves its entitlement to
summary judgment through affidavits or declarations, including a Vaughn index, explaining its
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searches and withholdings. See Wilson v. DEA, 370 F. Supp. 2d 282, 284 (D.D.C. 2005). “The
[C]ourt may grant summary judgment based on information provided in an agency’s affidavits or
declaration[s] when they are relatively detailed and non-conclusory and not controverted by
either contrary evidence in the record nor by evidence of agency bad faith.” Coffey v. Bureau of
Land Mgmt., 277 F. Supp. 3d 1, 6 (D.D.C. 2017) (internal quotations and citations omitted).
When a FOIA requester opposes a motion for summary judgment or cross-moves for summary
judgment, mere conclusory or speculative statements contradicting the factual content of the
defendant’s affidavits or declarations will not suffice; instead, the plaintiff must offer
countervailing “affirmative evidence.” See Broaddrick v. Exec. Office of President, 139 F. Supp.
2d 55, 65 (D.D.C. 2001); see also id. (quoting Paul Kadair, Inc. v. Sony Corp. of Am., 694 F.2d
1017, 1030 (5th Cir. 1983)) (“A ‘bare assertion’ that the evidence supporting a plaintiff’s
allegation is in the hands of the defendant is insufficient to justify a denial of a motion for
summary judgment.”).
III. ANALYSIS
Defendants argue that they are entitled to summary judgment because they have
demonstrated that (1) they conducted searches reasonably calculated to uncover all responsive
documents; and (2) any withholdings of responsive documents were properly made pursuant to
the FOIA exemptions. Plaintiff’s arguments are largely unresponsive to Defendants’
contentions. Her cross-motion primarily asserts that: (1) there are additional responsive
documents owed to her by the Justice Department; and (2) she is entitled to all documents in
Defendants’ possession based on her rights as a criminal defendant under Brady v. Maryland.
The Court cannot deem Defendants’ motion for summary judgment “conceded” due to
the lack of on-point opposition, however, and must instead evaluate “for itself whether the record
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and any undisputed material facts justify granting summary judgment.” Winston & Strawn, LLP
v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (second quote quoting Grimes v. District of
Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring)). The Court will,
accordingly, determine (1) the adequacy of the searches performed, and (2) the propriety of the
withholdings. In doing so, it will address Plaintiff’s arguments where they are relevant to those
questions. It will then address Plaintiff’s remaining arguments.
A. Search Adequacy
“An agency fulfills its obligations under FOIA to conduct an adequate search ‘if it can
demonstrate beyond material doubt that its search was reasonably calculated to uncover all
relevant documents.’” Canning v. U.S. Dep’t of State, 346 F. Supp. 3d 1, 13 (D.D.C. 2018)
(quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.2d 321, 325 (D.C. Cir. 1999)). Affidavits
and declarations offered to demonstrate the reasonableness of the search performed must be
“‘relatively detailed’ and nonconclusory’ and . . . submitted in good faith.” Weisberg, 705 F.2d
at 1351 (D.C. Cir. 1983) (citations omitted). Although no single formula governs every case, the
required details often “include search methods, locations of specific files searched, descriptions
of searches of all files likely to contain responsive documents, and names of agency personnel
conducting the search.” Ferranti v. ATF, 177 F. Supp. 2d 41, 47 (D.D.C. 2001).
Once the agency has provided adequate explanations of the searches conducted, “the
burden shifts to the FOIA requester to produce ‘countervailing evidence’ suggesting that a
genuine dispute of material fact exists as to the adequacy of the search.’” Pinson v. Dep’t of
Justice, 313 F. Supp. 3d 122, 126 (D.D.C. 2018) (quoting Morley v. CIA, 508 F.3d 1108, 1116
(D.C. Cir. 2007)). Courts afford agencies’ declarations “a presumption of good faith” which the
plaintiff’s “purely speculative claims about the existence and discoverability of other
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documents” alone will not undermine. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (second quote quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.
Cir. 1981)).
1. Interpol Washington (USNCB)
Interpol Washington has carried its summary judgment burden of demonstrating that its
search in response to Plaintiff’s FOIA request was adequate. In support of its motion for
summary judgment, Interpol Washington submitted the declaration of Daniel P. Dembkowski, a
“Government Information Specialist for . . . [Interpol] Washington, U.S. National Central
Bureau” who is “assigned to duties relating to the [FOIA] and Privacy Act,” Dkt. 34-1 at 1
(Dembkowski Decl. ¶ 1), and is “familiar with the USNCB’s procedures for responding to
requests under the FOIA,” id. at 2 (Dembkowski Decl. ¶ 5). “The USNCB system of records
consists of electronic and hard copy records of criminal and non-criminal case files.” Dkt 34-1
at 5 (Dembkowski Decl. ¶ 11). USNCB also “maintains administrative files consisting of non-
investigative topical files of hard copies of records and correspondence; for example, files of
FOIA requests and responses, records of litigation documents, and documents related to various
policy issues.” Id. (Dembkowski Decl. ¶ 12). USNCB further explains that, in response to
FOIA requests, it searches for records using “computerized queries” in “two separate search
engines: 1) ‘Envoy Database Search’, and 2) ‘USNBC Case Document Search’.” Id. at 6
(Dembkowski Decl. ¶ 13). The first search engine searches previously indexed information
about investigative requests “such as[] names of individuals (including suspects, witnesses,
victims) . . . , etc.” Id. The second search engine “is a web-based database search that finds any
word or word sets located within Envoy cases, provided the term is contained in [files in certain
formats].” Id. After Defendant queries these search engines, the resulting “files are then
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examined for information and documents responsive to the FOIA request,” and additional
searches are performed of USNCB administrative files. Id. at 7 (Dembkowski Decl. ¶ 13).
The Dembkowski declaration explains that “any potential records” that were responsive
to the first five categories of information that Plaintiff sought “would constitute investigative and
administrative records” and that “[r]equests for investigative assistance from domestic and
foreign law enforcement agencies are transmitted to the USNCB’s Command Center,” at which
point “the Command Center opens a case in Envoy and indexes appropriate information.” Dkt.
34-1 at 10 (Dembkowski Decl. ¶ 21). The request is also “dispatched to the appropriate USNCB
division and assigned to a staff analyst or detailed agent.” Id. at 10–11 (Dembkowski Decl. ¶
21). Dembkowski further avers that “the USNCB does not maintain” records falling into the
sixth category of information sought by Plaintiff, so it did not search for such records. Id. at 11
(Dembkowski Decl. ¶ 21); id. at 9 (Dembkowski Decl. ¶ 19) (sixth request category covered
“[a]ll records of any application to any court or judicial authority to issue a search warrant or any
other type of warrant to compel Automattic Inc., to release any documents preserved related to
any criminal investigations against . . . Shem-Tov” and “if no application to a court was made,
any document or legal opinion why such application was denied”).
Upon receiving Plaintiff’s September 15, 2017 FOIA request, see Dkt. 34-1 at 8–9
(Dembkowski Decl. ¶¶ 17, 19) (detailing Plaintiff’s FOIA request), USNCB ran a set of search
terms through both USNCB search engines. Dkt. 34 at 8 (Def’s SUMF ¶ 16); see also Dkt. 34-1
at 11 (Dembkowski Decl. ¶ 22) (listing search terms used, which included “Lori Shem Tov,”
“WordPress.com,” and “Automattic Inc.,” among others). USNCB also searched its
administrative files using the same search terms. Dkt. 34-1 at 11 (Dembkowski Decl. ¶ 22).
USNCB located seventy-two total pages of responsive documents, including records responsive
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to the first, second, third, and fifth categories of information that Plaintiff sought. Id.
(Dembkowski Decl. ¶ 23). It released forty-five of those pages with partial redactions. Id. at 12
(Dembkowski Decl. ¶ 23). Sixteen pages “originated from ICE,” so USNCB redacted some
information in them and then “referred [them] to that agency for review and direct response” to
Plaintiff. Dkt. 34 at 8 (Def.’s SUMF ¶ 17). Eleven pages “originated with a foreign National
Central Bureau and were withheld in full.” Id.
The Dembkowski declaration, which Plaintiff has not challenged with respect to the
adequacy of the searches it describes, offers a detailed explanation of which “files [and
databases] [were] likely to contain responsive materials,” and “set[s] forth the search terms and
the type[s] of search[es] performed.” Valencia-Lucena, 180 F.3d at 325–26. The Court
concludes that it establishes “beyond material doubt that [Interpol Washington’s] search was
reasonably calculated to uncover all relevant documents.” Id. The Court will, accordingly, grant
Interpol Washington’s motion for summary judgment with respect to the adequacy of its search.
2. DHS (ICE)
The Court concludes that DHS has also carried its summary judgment burden of
establishing that it conducted an adequate search in response to Plaintiff’s FOIA request. DHS
supports its motion for summary judgment with the declaration of Toni Fuentes, Deputy Officer
of ICE’s FOIA Office, who is “immediately responsible for supervising ICE responses to
requests for records under the [FOIA].” Dkt. 34-2 at 1 (Fuentes Decl. ¶ 1).
DHS asserts that “[b]y a letter dated September 9, 2018, [its] Privacy Office (“DHS
Privacy”) referred the FOIA request it had received to ICE for processing.” Dkt. 34 at 15 (Def.’s
SUMF ¶ 40). “ICE is the principal investigation arm of DHS and the second largest
investigative agency in the federal government.” Id. at 17 (Def.’s SUMF ¶ 50). ICE’s FOIA
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Office “determined that[,] because of the subject matter of [Plaintiff’s] FOIA request,” its Office
of Homeland Security Investigations (“HSI”) was the only office “likely to have” responsive
records. Dkt. 34 at 18 (Def.’s SUMF ¶ 51); Dkt. 34-2 at 5 (Fuentes Decl. ¶ 16). “HSI
investigates domestic and international activities that arise from the illegal movement of people
and goods into, within, and out of the United States. . . . In addition to criminal investigations,
HSI oversees ICE international affairs questions and intelligence functions.” Dkt. 34 at 18
(Def.’s SUMF ¶ 52).
HSI’s Records and Disclosure Unit’s (“RDU”) FOIA/Privacy Act Section Chief
“reviewed the request, relying on subject matter expertise and knowledge of the program offices’
activities, and determined that the Cyber Crimes Center (‘C3’) should be tasked to conduct a
search.” Dkt. 34 at 19 (Def.’s SUMF ¶ 55); Dkt. 34-2 at 6 (Fuentes Decl. ¶ 19). C3 works to
“combat[] crimes committed on, or facilitated by, the Internet.” Dkt. 34 at 19 (Def.’s SUMF
¶ 56). The FOIA point of contact within C3 “reviewed the substance of [Plaintiff’s] request and,
based on their experience and knowledge of their office’s practices and activities,” tasked five
HSI Special Agents to conduct searches for potentially responsive documentation. Dkt. 34 at 20
(Def.’s SUMF ¶ 56). Those five agents searched “their computers, including their desktops, hard
drives, and shared drives, as well as their . . . email accounts” for 3.5 hours.3 Dkt. 34 at 20
(Def.’s SUMF ¶ 57). The Fuentes declaration provides the list of search terms that these five
HSI special agents used, which included Plaintiff’s name, “Automattic,” “wordpress,” and the
3
The Fuentes declaration explains that “ICE employees maintain records in several ways” and
that their determinations of “how to conduct any necessary searches [of their records] is
necessarily based on the manner in which the employee maintains his/her files.” Dkt. 34-2 at 4
(Fuentes Decl. ¶ 12).
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names of the various blogs referenced in Plaintiff’s FOIA request. Dkt. 34-2 at 7 (Fuentes Decl.
¶ 21).
The special agents did not uncover “any additional responsive records outside of the 16
pages of records that [Interpol] Washington referred to ICE on this FOIA request,” and therefore
“HSI RDU provided a ‘no additional records’ response to ICE FOIA.” Dkt. 34 at 20 (Def.’s
SUMF ¶ 57). In September 2018, ICE informed Plaintiff that the search of HSI had uncovered
no records responsive to her request. Dkt. 34 at 15 (Def.’s SUMF ¶ 41).
The Fuentes declaration, which provides a reasonably detailed account of the DHS
search, including the specific DHS subdivision searched, the file locations searched, and the
search terms used, establishes that DHS conducted a search reasonably calculated to discover all
records responsive to Plaintiff’s FOIA request. See Valencia-Lucena, 180 F.3d at 325–26.
Plaintiff does not raise any specific challenges to the adequacy of the search performed by DHS.
Accordingly, the Court will also grant Defendant DHS’s motion for summary judgment with
respect to the adequacy of its search.
B. Withholdings Pursuant to FOIA Exemptions
In moving for summary judgment on the lawfulness of its withholdings, a defendant must
proffer supporting declarations that “describe the requested documents and ‘the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by bad faith.’” Pronin v. Fed. Bureau of Prisons, 17-1807, 2019 WL
1003598, at *3 (D.D.C. Mar. 1, 2019) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C.
Cir. 2009)); see also Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973). The Court may
grant summary judgment only if these declarations “afford the FOIA requester a meaningful
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opportunity to contest, and the district court an adequate foundation to review, the soundness of
the withholding.” King v. U.S. Dep’t of Justice, 830 F.2d 210, 218 (D.C. Cir. 1987).
The Court first assesses USNCB’s withholdings and then proceeds to analyze DHS’s
withholdings. The Court concludes that Defendants have adequately demonstrated that FOIA
Exemptions 7(C) and (E) justify some of their withholdings but that their explanation for
withholding information provided by a foreign National Central Bureau (“NCB”) under
Exemption 7(D) is, at least on the present record, insufficient to satisfy their summary judgment
burden. The Court need not reach the validity of the Exemption 6 withholdings, which overlap
with the Exemption 7(C) withholdings.
2. USNCB records
USNCB redacted in part the forty-five pages that it released to Plaintiff and withheld in
full eleven pages that “originated with a foreign National Central Bureau” pursuant to the FOIA
Exemptions 6, 7(C), and 7(D). Dkt. 34 at 8 (Def.’s SUMF ¶ 17); Dkt. 34-1 at 12 (Dembkowski
Decl. ¶ 23).
a. Exemption 7 Threshold
In order to evaluate whether Exemptions 7(C) and (D) justify Defendant’s withholdings,
the Court must first determine whether the records in question satisfy Exemption 7’s threshold
requirement. Under 5 U.S.C. § 552(b)(7), “FOIA exempts from disclosure six categories of
documents that have been ‘compiled for law enforcement purposes.’” Campbell v. U.S. Dep’t of
Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (quoting 5 U.S.C. § 552(b)(7)(A)–(F)). “The term ‘law
enforcement’ in Exemption 7 refers to the act of enforcing the law, both civil and criminal.”
Pub. Emps. for Envtl. Resp. v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740
F.3d 195, 203 (D.C. Cir. 2014). In assessing whether records were compiled for law
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enforcement purposes, “it is not the nature of the agency that controls, but the character of the
records withheld.” Elkins v. FAA, 99 F. Supp. 3d 90, 98 (D.D.C. 2005).
Interpol Washington argues that the records in question meet Exemption 7’s threshold
requirement because they are “[r]equests from foreign [National Central Bureaus (“NCB”)] and
the information received and exchanged with those foreign NCBs” reflects “respon[ses] to
inquiries from foreign law enforcement agencies for sensitive information gathered in the United
States for law enforcement purposes.” Dkt. 34-1 at 14–15 (Dembkowski Decl. ¶ 31) (citing 22
U.S.C. § 263a). The Court agrees that Interpol Washington has satisfied its burden to
demonstrate that the records in question were compiled by USNCB for law enforcement
purposes, namely to aid Israeli law enforcement authorities with their criminal investigation and
prosecution of Plaintiff. See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011).
Plaintiff does not dispute Defendant’s assertion that requests from and responses to
foreign NCBs engaged in law enforcement activities are compiled for law enforcement purposes.
Rather, she responds generally that Defendants’ withholding of some documents due to “an
ongoing law enforcement investigation or surveillance” is improper because she “was already
indicted and . . . incarcerated by April 2017 and therefore the law enforcement investigation that
the Defendants invoke ended over two years ago.” Dkt. 41 at 2–3; see also Dkt. 41-1 at 4
(Shem-Tov Decl. ¶ 17). Plaintiff’s argument confuses the threshold requirement for application
of Exemption 7 with the further requirement of Exemption 7(A), which “is temporal in nature”
and can only be invoked in relation to “a concrete prospective law enforcement proceeding,”
Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice, 746 F.3d 1082 (D.C. Cir. 2014)
(second quote quoting Juarez v. Dep’t of Justice, 518 F.3d 54, 58 (D.C. Cir. 2008)). The records
compiled need not be associated with an “ongoing law enforcement investigation” for the FOIA
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law enforcement exemptions invoked here, which do not include Exemption 7(A), to apply.
Plaintiff’s argument also fails even on its own terms. Simply because Plaintiff has already been
indicted and was detained pre-trial does not mean that the Israeli law enforcement proceedings
against her “ended over two years ago,” Dkt. 41 at 2–3, and are not ongoing, see Stein v. SEC,
358 F. Supp. 3d 30, 34–35) (D.D.C. 2019) (holding that Exemption 7(A) continued to apply
while a criminal appeal had not yet concluded). As far as the Court is aware, Shem-Tov’s
criminal case is ongoing. See Dkt. 58 at 1.
b. Exemption 7(C)
Interpol Washington asserts that it withheld the names of Federal law enforcement
employees, non-law enforcement third parties, and USNCB support employees, as well as
information by which the individuals in those three groups could be identified, based on privacy
concerns. Dkt. 34 at 10 (Def.’s SUMF ¶ 22). It also withheld “information related to non-law
enforcement third parties by which those individuals could be identified.” Id. Interpol
Washington invokes FOIA Exemptions 7(C) and 6 in support of these withholdings, and the
Dembkowski declaration presents a “consolidated discussion” of the privacy and public interests
implicated by the redactions made pursuant to both exemptions. Dkt. 43-1 at 16 (Dembkowski
Decl. ¶ 39 n.1). Because the Court concludes that Exemption 7(C) covers all of the withheld
personal information, it does not assess the applicability of Exemption 6. See Cause of Action
Inst. v. U.S. Dep’t of Justice, 330 F. Supp. 3d 336, 351–52 (D.D.C. 2018) (observing that an
agency “may withhold documents or portions thereof as long as one exemption applies”).
Exemption 7(C) “bars disclosures that ‘could reasonably be expected to constitute an
unwarranted invasion of personal privacy.’” Campbell, 164 F.3d at 33 (quoting 5 U.S.C.
§ 552(b)(7)(C)). To determine whether an agency lawfully withheld or redacted records
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pursuant to Exemption 7(C), the Court must balance the privacy interest asserted against the
“public interest in disclosure and determine[] whether the interest is strong enough to warrant an
invasion of the privacy interest at stake.” Taplin ex rel. Lacaze v. U.S. Dep’t of Justice, 967 F.
Supp. 2d 348, 354 (D.D.C. 2013) (citing U.S. Dep’t of Justice v. Reporters Comm. for Freedom
of the Press, 489 U.S. 749, 762 (1989)). The public interest in disclosure must be “significant”
and “more specific than having the information for its own sake.” Nat’l Archives & Records
Admin. v. Favish, 541 U.S. 157, 172 (2004).
The Court concludes that the privacy interests asserted outweigh any unasserted public
interest in the withheld information. First, the personal information withheld implicates
legitimate privacy interests. The D.C. Circuit has held that privacy-oriented FOIA exemptions
apply to “bits of personal information such as names and addresses, the release of which would
‘create[] a palpable threat to privacy.’” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 148 (D.C.
Cir. 2006); see also Cause of Action Inst. v. U.S. Dep’t of the Army, 16-cv-1020, 2019 WL
4750213, at *9 (D.D.C. Sept. 29, 2019) (“Low-level [government] personnel . . . have at least
some privacy interest in their names.”); Nat’l Ass’n of Ret. Fed. Emps. v. Horner, 879 F.2d 873,
875 (D.C. Cir. 1989) (“[T]he privacy interest of an individual in avoiding the unlimited
disclosure of his or her name and address is significant.”). It has also “held that not only the
targets of law-enforcement investigations, but also ‘witnesses, informants, and . . . investigating
agents’ have a ‘substantial interest’ in ensuring that their relationship to the investigations
‘remains secret.’” Roth, 642 F.3d at 1174 (quoting Schrecker v. U.S. Dep’t of Justice, 349 F.3d
657, 666 (D.C. Cir. 2003)). Second, Plaintiff has not asserted a countervailing public interest in
the names and other personal identifying information that Defendant has withheld, and none is
otherwise evident. The Court’s balancing leads it to conclude that the recognized interests in
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government employees’ and third parties’ privacy outweighs any unasserted public interest in
this information.
Plaintiff makes two arguments, but neither alters the Court’s analysis. First, she asserts
that that “[t]he names of the officials on both the Israeli side and the American side are public
information.” Dkt. 41-1 at 3 (Shem-Tov Decl. ¶ 12). To demonstrate that the individuals’
privacy interests have been waived, however, Plaintiff would have to show that the information
“(1) is ‘as specific as the information previously released’; (2) ‘match[es] the information
previously disclosed’; and (3) ‘was made public through an official and documented
disclosure.’” Boehm v. FBI, 948 F. Supp. 2d 9, 30–31 (D.D.C. 2013) (quoting McRae v. U.S.
Dep’t of Justice, 869 F. Supp. 2d 151, 165 (D.D.C. 2012)). Plaintiff’s vague and conclusory
statement about the names of some “officials” already being public does not come close to
passing this test. Second, Plaintiff challenges the redactions by asserting that none of the records
are medical in nature. Dkt. 41-1 at 3 (Shem-Tov Decl. ¶ 13). Even if that is true, it does not
advance Plaintiff’s position because the reach of Exemption 7(C) is not limited to medical
records. See 5 U.S.C. § 552(b)(7)(C).
c. Exemption 7(D)
Interpol Washington invokes Exemption 7(D) in withholding eleven full pages and
portions of other pages associated with an “investigative assistance and MLAT request” that
“originated from a foreign National Central Bureau” (“NCB”). Dkt. 34-1 at 12 (Dembkowski
Decl. ¶ 23); id. at 83–175 (Vaughn Index).
Exemption 7(D) bars disclosures that
could reasonably be expected to disclose the identity of a confidential source,
including a State, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, and, in the case of a record
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or information compiled by criminal law enforcement authority in the course of
a criminal investigation . . . information furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D). “A source counts as confidential ‘if the source provided information
under an express assurance of confidentiality or in circumstances from which such an assurance
could reasonably be inferred.’” Borda v. U.S. Dep’t of Justice, Criminal Division, 245 F. Supp.
3d 52, 60 (D.D.C. 2017) (quoting Labow v. U.S. Dep’t of Justice, 831 F.3d 523, 530 (D.C. Cir.
2016)). The agency “bears the burden of proving that [Exemption 7(D)] applies.” Labow, 831
F.3d at 531. When “an agency asserts that a source has ‘provided information . . . under implied
[rather than express] assurances of confidentiality,’ . . . the Court must consider that contention
in light of ‘four factors.’” Borda, 245 F. Supp. 3d at 60 (emphasis omitted). These factors
include “the character of the crime at issue, the source’s relation to the crime, whether the source
received payment, and whether the source has an ongoing relationship with the law enforcement
agency and typically communicates with the agency only at locations and under conditions
which assure the contact will not be noticed.” Labow, 831 F.3d at 531 (quoting Roth, 642 F.3d
at 1184).
Interpol Washington argues that Exemption 7(D) “justif[ies] the withholding of
information that would identify confidential sources, such as NCBs and the General Secretariat,
as well as any information they provided the USNCB.” Dkt. 34 at 14 (Def.’s SUMF ¶ 35). It
asserts that (1) “[o]ne of the USNCB’s most important functions is to respond to inquiries from
foreign law enforcement agencies for confidential source information gathered in the United
States for law enforcement purposes;” (2) USNCB also “requests foreign law enforcement
agencies to supply information that may be of interest to domestic law enforcement
organizations;” and (3) these functions come with an “expectation of confidentiality.” Dkt. 34 at
13–14 (Def.’s SUMF ¶¶ 33–34); Dkt 34-1 at 18–19 (Dembkowksi Decl. ¶ 43). To substantiate
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this claimed “expectation of confidentiality,” Defendant offers two single-page Interpol
resolutions from 1974 and 1988 discussing “the need to protect the confidential nature
of . . . documents, information or items [relating to criminal matters] that one NCB may receive
from another or from the General Secretariat” and “urg[ing] NCBs . . . to take all necessary steps
to ensure that such . . . information . . . [is] used solely for crime prevention, crime investigation,
and criminal proceedings.” Dkt. 34-1 at 190.
The Court concludes that Interpol Washington has not carried its burden of establishing
that Exemption 7(D) applies to the withheld documents. Labow, 831 F.3d at 531. Interpol
Washington’s memorandum of points and authorities includes a single paragraph discussing
Exemption 7(D). Dkt. 34 at 36–37. In relevant part, that paragraph merely asserts that
“Exemption (b)(7)(D) was applied in this case by INTERPOL Washington to protect from
disclosure the name(s), identifying information about, and information provided to ICE by a
confidential source” and that “INTERPOL Washington accords confidential source status to
requests for assistance from other members of INTERPOL.” Id. Defendants’ Vaughn index
clarifies that the information at issue originated with a foreign NCB. See Dkt. 34-1 at 83–175.
But even with that clarification, Defendants’ factual and legal submission is too sparse to permit
the Court to engage in any meaningful review of the decision to withhold the records. The Court
cannot discern, for example, whether Defendants contend that any record that relates in any way
to a request for information or assistance from a foreign NCB is exempt from disclosure or
whether they merely contend that the exemption applies to a subset of such records, and, if so,
how that subset is defined in this case. The factual record, moreover, says nothing about whether
the withheld information is, in fact, “confidential” or whether the foreign NCB or others have
previously revealed some or all of the information at issue. With respect to the law, Defendants’
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brief is even thinner. It says nothing, for example, about whether a foreign NCB that is seeking
information from the USNCB or from U.S. law enforcement agencies constitutes a confidential
source that has “furnished information,” 5 U.S.C. § 552(b)(7)(D). Likewise, it does not cite any
case law relating to the application of Exemption 7(D) to Interpol; does not explicate whether
Defendants are relying solely on an express assurance of confidentiality or also on an inferred
assurance; and does not explain, if Defendants are indeed relying on an inferred assurance, how
the four factor test is satisfied.
The Court cannot discharge its obligation to assess the lawfulness of the withholding on
such sparse briefing and evidence. The Court will, accordingly, deny Defendants’ motion for
summary judgment with respect to the Exemption 7(D) withholdings, but will do so without
prejudice and will permit Defendants to renew their motion upon a more substantial evidentiary
showing and more complete briefing. To the extent Defendants cannot disclose information
necessary to their motion without causing the very harm they seek to avoid, they may seek leave
to file portions of their submission ex parte and under seal. The Court will also deny Plaintiff’s
cross-motion with respect to these withholdings without prejudice, so Defendants can attempt to
better justify the withholdings.
d. Segregability
“[W]ith regard to any document an agency believes falls under a FOIA exception,” the
agency must “separate[] the exempt from the non-exempt portions of the document, and
produce[] the relevant non-exempt information.’” People for the Am. Way Found., 503 F. Supp.
2d at 296 (second quote quoting Edmonds Inst. v. U.S. Dep’t of Interior, 383 F. Supp. 2d 105,
108 (D.D.C. 2005)). The Court must, in turn, “make specific findings of segregability.” Stolt-
Nielsen Transp. Grp., Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008).
22
Dembkowski avers in a conclusory fashion that Defendant “conducted a line-by-line
review of each page of the materials identified as responsive to ensure that no additional
information could be released” and that “[a]ll releasable information has been provided” to
Plaintiff. Dkt. 34 at 14 (Def.’s SUMF ¶ 36); Dkt. 34-2 at 13 (Dembkowski Decl. ¶¶ 40–41).
However, at this juncture the Court will not pass on the segregability of any information
withheld because, as discussed above, Defendant has not yet adequately justified the
considerable withholdings made pursuant to Exemption 7(D).
3. DHS (ICE) records
USNCB referred sixteen pages of records to DHS for review. Dkt. 34 at 8–9 (Def.’s
SUMF ¶ 18). In addition to USNCB’s redactions to those records under Exemptions 6, 7(C), and
7(D), DHS redacted the sixteen pages pursuant to Exemptions 6, 7(C), and 7(E). Dkt. 34-2 at 7
n.1. The Court concludes that ICE properly redacted the records under Exemptions 7(C) and
(E); that USNCB properly redacted the records under Exemption 7(C); that the Court need not
consider the Exemption 6 redactions, which overlap with the Exemption 7(C) redactions; and
that USNCB’s explanations for its Exemption 7(D) redactions in the pages that it referred to ICE
suffer the same shortcomings discussed above and therefore fail to satisfy Defendants’ summary
judgment burden with regard to those withholdings.
a. Exemption 7 Threshold
The Court concludes that the sixteen pages in question were also compiled for law
enforcement purposes. See Campbell, 164 F.3d at 30; see also Dkt. 34-2 at 22–37. The Fuentes
declaration explains that the “records at issue pertain to the investigations conducted pursuant to
DHS’[s] law enforcement authorit[y].” Dkt. 34-2 (Fuentes Decl. ¶ 23). The Court’s review of
the portions of the sixteen pages that were released confirms that the records relate to law
23
enforcement and supports Fuentes’s description of the nature of the records at issue. Dkt. 34-2 at
22-37. Defendants have carried their burden of demonstrating that the records were compiled for
law enforcement purposes.
b. Exemption 7(C)
Pursuant to Exemption 7(C), DHS withheld “the names, phone numbers, e-mail
addresses, addresses, room numbers, initials, and signatures of federal law enforcement officers
and other government employees” as well as similar “personally identifiable information of third
parties.” Dkt. 34-2 at 9 (Fuentes Decl. ¶ 27). Fuentes avers that “ICE gave consideration to the
privacy interests of [the] federal employees in not becoming targets of harassment” due to their
“access to official law enforcement investigation information.” Id. (Fuentes Decl. ¶¶ 28–29).
ICE redacted third party information to avoid the “unwarranted invasion of personal privacy and
subject[ing] the individuals to embarrassment, harassment, and undue public attention” as well as
protecting them from “identity theft” and “unwanted contact from persons that might seek to
harm” them. Id. at 10 (Fuentes Decl. ¶ 31).
As discussed above in the context of the Interpol Washington records, government
employees and third parties have valid privacy interests in their names, addresses, and other
personal information. See Judicial Watch, 449 F.3d at 153; Cause of Action Inst., 2019 WL
4750213, at *9; Horner, 879 F.2d at 875. Disclosure of this information “could reasonably be
expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
Plaintiff has not asserted a “public interest in disclosure” of the names, addresses, and contact
information at issue. Taplin, 967 F. Supp. 2d at 354. The Court therefore concludes that the
government employees’ and third parties’ privacy interest trumps the unasserted public interest
in their disclosure, and therefore that DHS’s withholding of the information was appropriate
24
under Exemption 7(C). Again, because the Court concludes that Exemption 7(C) covers all of
the withheld personal information, it does not also assess the applicability of Exemption 6. See
Cause of Action Inst., 330 F. Supp. 3d at 351–52 (observing that an agency “may withhold
documents or portions thereof as long as one exemption applies”).
c. Exemption 7(D)
Defendant Interpol made some redactions pursuant to Exemption 7(D) in the sixteen
pages that it then referred to DHS for processing and production to Plaintiff. See, e.g., Dkt. 34-1
at 102–04) (Vaughn Index). Interpol asserts that this information “originated from the foreign
National Central Bureau.” Id. at 103–04. For the same reasons discussed above, the Court
concludes that Defendants have failed to carry their burden to demonstrate that Exemption 7(D)
applies to those records. Labow, 831 F.3d at 531.
d. Exemption 7(E)
DHS avers that “ICE applied FOIA Exemption (b)(7)(E) to protect from disclosure
information related to an internal website/url network path located at the bottom of [several
pages] referred [t]o ICE by USNCB” because it “could be reasonably expected to allow a person
to breach into sensitive law enforcement systems . . . and compromise the integrity of the data”
within. Dkt. 34 at 26 (Def.’s SUMF ¶¶ 75–76).
Exemption 7(E) allows the withholding of law enforcement records
to the extent that the production of such law enforcement records or
information . . . would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be expected
to risk circumvention of the law.
5 U.S.C. § 552(b)(7)(E). This exemption “sets a relatively low bar for the agency to justify
withholding.” Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir. 2011). It does not “requir[e] a
25
highly specific burden of showing how the law will be circumvented” but, rather, “only requires
that the [agency] demonstrate logically how the release of the requested information might create
a risk of circumvention of the law.” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir.
2009) (internal quotation marks and alterations omitted).
The Fuentes declaration explains that the relevant information is “used for the purpose of
indexing, storing, locating, and retrieving law enforcement sensitive information,” “is not
commonly known,” and could be “used to decipher the meaning of codes.” Dkt. 34-2 at 12
(Fuentes Decl. ¶ 38). Plaintiff does not dispute these factual assertions. The Court concludes
that Defendants have met their modest burden of “demonstrat[ing] logically how the release of
the [internal website/url network path] might create a risk of circumvention of the law.” Mayer
Brown LLP, 562 F.3d at 1194 (internal quotation marks and alterations omitted).
e. Segregability
As noted above, the Court will refrain from conducting its segregability analysis because
the redactions of the sixteen pages include information withheld pursuant to Exemption 7(D),
and Defendants have not yet carried their burden of establishing that these withholdings are
appropriate in the present case.
C. Plaintiff’s Other Arguments
Finally, the Court addresses two other arguments that Plaintiff advances that do not fit
squarely into the FOIA framework. First, Plaintiff asserts that “[t]his case surrounds one
straightforward issue,” which she characterizes as “her right pursuant to [Brady v. Maryland] to
have unobstructed access to every document in the Defendants’ possession that has been used to
arrest and prosecute [her].” Dkt. 41 at 1; see also id. at 3 (“Plaintiff’s FOIA request relates to
documents in the Defendants’ possession that she needs to prove her innocence . . . in criminal
26
court.”). Plaintiff is incorrect that her FOIA request implicates Brady v. Maryland. Simply put,
“the government’s obligations in a FOIA case are not the same as its obligations in the
underlying criminal case.” Petrucelli v. Dep’t of Justice, 106 F. Supp. 3d 129, 134 (D.D.C.
2015); Mingo v. U.S. Dep’t of Justice, No. 08-2197, 2009 WL 2618129, at *2 (D.D.C. Aug. 24,
2009) (noting that the government’s Brady obligation is not coextensive with the agency’s
statutory obligations under the FOIA); Marshall v. FBI, 802 F. Supp. 2d 125, 136 (D.D.C. 2011).
Here, Plaintiff’s assertion of her right to the records in question under Brady is even weaker
because the “underlying criminal case” against her, Petrucelli, 106 F. Supp. 3d at 134, was
brought in Israel, not in the United States. Any entitlement that Plaintiff has to the records under
Israeli law are not properly raised in the context of her FOIA action. See Boyd v. Criminal Div.
of U.S. Dep’t of Justice, 475 F.3d 381, 390 (D.C. Cir. 2007).
Second, Plaintiff asserts that Defendants have not finished their responses to her FOIA
requests and still owe her thousands of responsive pages. Plaintiff’s declaration references
Defendants’ representations in a July 15, 2019 status report that the Justice Department’s
Criminal Division is still processing her FOIA request, Dkt. 41-1 at 4–5 (Shem-Tov Decl. ¶¶ 19,
22); Dkt. 39 at 2, and she repeatedly states that Defendants have in their possession “100,000
pages” of documents, see, e.g., Dkt. 41-1 at 3 (Shem-Tov Decl. ¶¶ 14, 21), and therefore
challenges as insufficient the comparatively limited productions that she has thus far received.
In making these assertions, Plaintiff fails to distinguish between the Defendants presently
moving for summary judgment and the remaining Defendant, the Justice Department, which has
not moved for summary judgment and which continues to process and release records. Dkt. 47
at 4 (“The remainder of the documents responsive to Plaintiff’s FOIA request are currently being
processed by the Department of Justice Criminal Division.”). How many pages of responsive
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records the Justice Department may or may not have and to how many of those pages Plaintiff is
entitled are not questions currently before the Court.
CONCLUSION
For the foregoing reasons, Defendants Interpol Washington’s and DHS’s motion for
summary judgment, Dkt. 34, is hereby GRANTED in part and DENIED in part and Plaintiff’s
cross-motion for summary judgment, Dkt. 41; Minute Order (Aug. 9, 2019) (treating Plaintiff’s
opposition to Defendants’ motion for summary judgment as a cross-motion for summary
judgment), is hereby DENIED.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: May 25, 2020
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