Jewell, William v. United States Department of Homeland Security, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
WILLIAM ANDREW JEWELL,
Plaintiff, OPINION AND ORDER
v.
24-cv-490-wmc
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, UNITED STATES
IMMIGRATION AND CUSTOMS
ENFORCEMENT, and UNITED STATES
DEPARTMENT OF JUSTICE CRIMINAL
DIVISION,
Defendants.
Plaintiff William Andrew Jewell, who is incarcerated at the Federal Correctional
Institution in Oxford, Wisconsin (“FCI-Oxford”) and represents himself, was granted leave
to proceed with a complaint against the United States Department of Homeland Security
(“DHS”), United States Immigrations and Customs Enforcement (“ICE”), and the United
States Department of Justice Criminal Division (“DOJ”), alleging that they failed to
respond to his requests under the Freedom of Information Act (“FOIA”) for records related
to his criminal conviction. (Dkt. #8.) Defendants have filed a motion for summary
judgment, arguing that plaintiff cannot prevail because each agency responded to his
requests and complied with FOIA. (Dkt. #31.) For the reasons explained below, the court
will grant defendants’ motion for summary judgment and close this case.
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UNDISPUTED FACTS1
A. Background on Plaintiff William Andrew Jewell
In 2011, plaintiff William Andrew Jewell was charged with conspiracy to distribute
child pornography using an internet bulletin board known as the “Dreamboard.” (Dkt.
#37, at 1.) Plaintiff pleaded guilty to one count lodged against him in a superseding
indictment and is currently incarcerated at FCI-Oxford, where he is serving a 240-month
sentence. (Id. at 1-2.) Plaintiff alleges that he made FOIA requests related to the
investigation that led to his conviction, but that defendants failed to respond as required.
(Id. at 2.)
B. Plaintiff’s FOIA Request to the Department of Homeland Security and Its
Response
On March 16, 2021, DHS received a FOIA request from plaintiff at its “Privacy
Office.” (Id.) That request, which was dated March 10, 2021, sought records regarding:
1. The times and dates of all content/no-content based postings, of all
private messages associated with the defendant’s participation in the
“Dreamboard” conspiracy (a.k.a. U.S. Department of Homeland
Security’s “Operation Delego”).
2. The full-text of all content/non-content-based postings, of all private
messages associated with the defendant’s participation in the
“Dreamboard” conspiracy (a.k.a. U.S. Department of Homeland
1 The following facts are drawn from the parties’ proposed findings of fact in compliance with the
court’s procedures on summary judgment, which were provided to the parties during the
preliminary pretrial conference. (Preliminary Pretrial Packet (dkt. #23) Proc. to be Followed on
Mot. For Summ. Judg., §§ I-II). To the extent that plaintiff has not put into dispute the facts
proposed by defendant, the court treats those facts as undisputed. (Id. § II(C)); Hedrich v. Bd. of
Regents of Univ. of Wisconsin Sys., 274 F.3d 1174, 1178 (7th Cir. 2011) (courts are to consider only
evidence set forth in proposed finding of fact with proper citation); Rivera v. Guevara, 319 F. Supp.
3d 1004, 1018 (N.D. Ill. 2018) (disregarding “submissions that make legal arguments and assert
legal conclusions”).
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Security’s “Operation Delego”).
3. An unmodified/unabridged/unredacted copy of all materials (written
and/or recorded) associated with defendant’s November 27, 2012
debriefing with Assistant U.S. Attorney John Luke Walker, Special Agent
Leslie Williams of the U.S. Department of Homeland Security, and
defense counsel Craig Lynn Bass of the Bass Law Firm (Longview, TX).
(Id.) DHS reviewed this request (2021-HQFO-00729) and determined that it concerned
records relating to an investigation and operation conducted by ICE and the Homeland
Security Investigations (“HSI”) program. (Id. at 3.) Therefore, DHS referred the request
to ICE and provided plaintiff with the relevant contact information. (Id. at 5-6.)
C. Plaintiff’s FOIA Request to ICE and Its Response
On April 6, 2021, ICE received the referred FOIA request from DHS. (Id. at 7.)
ICE had previously received a FOIA request (2021-ICFO-32566) from plaintiff for the
same records on January 18, 2021, which it acknowledged by letter. (Id. at 8.) ICE closed
the request as duplicative, which constituted a final determination. (Id. at 6.) Nearly two
years later, plaintiff appealed, and ICE informed him that it had searched HSI records in
a manner that was adequate and reasonably calculated to uncover all relevant documents
but had located no responsive records. (Id. at 7.) ICE then sent a final response letter to
plaintiff regarding his first FOIA request (2021-ICFO-32566), informing him that it found
no responsive records after conducting a search. (Id.) Plaintiff appealed again, but ICE
administratively closed this appeal as duplicative of the one already adjudicated. (Id. at 7-
8.)
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D. Plaintiff’s FOIA Request to DOJ and Its Response
DOJ also received a FOIA request for records from plaintiff on ______, which was
identical to his FOIA request to DHS (2021-HQFO-000729) and ICE (2021-ICFO-
32566). (Id. at 12-13.) DOJ acknowledged plaintiff’s request and verified his identity.
(Id. at 13.) DOJ informed plaintiff by letter that it was conducting a search in the “sections
most likely to contain responsive records” and would be extending the time limit beyond
the ten-day statutory period because the request presented “unusual circumstances.” (Id.
at 14.) DOJ also informed plaintiff that another component of the department could
maintain the sought-after records and routed the request to the Executive Office for United
States Attorneys for processing and direct response. (Id.)
Nearly two and a half years later, plaintiff submitted an administrative appeal citing
DOJ’s lack of a final response determination. (Id.) Without a final determination, there
was no action for DOJ to consider on appeal. (Id.) DOJ eventually issued a final response
determination to plaintiff’s request on March 12, 2025. (Id. at 14-15.) Specifically, DOJ
determined that plaintiff sought records pertaining to his criminal case, which was
prosecuted by DOJ’s Child Exploitation and Obscenity Section (“CEOS”). (Id. at 17.)
DOJ advised plaintiff that it had located 11 pages of responsive records, but that they were
being withheld under FOIA Exemptions 6, 7(C), and 7(F), which are set forth at 5 U.S.C.
§§ 552(b)(6), (b)(7)(C), and (b)(7)(F), because disclosure would constitute an
unwarranted invasion of personal privacy or could reasonably be expected to endanger the
life or physical safety of an individual. (Id. at 14-15, 18.)
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OPINION
As noted above, this court granted plaintiff leave to proceed on his claims that DHS,
ICE, and DOJ violated FOIA by failing to respond to his requests and improperly
withholding requested records. (Dkt. # 8, at 4). Defendants move for summary judgment,
accompanied by affidavits and declarations from officials in the FOIA offices of DHS, ICE,
and DOJ. (Dkt. # 31, at 1).
Summary judgment is proper “if 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.” Fed. R.
Civ. P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). To survive summary judgment, however, the nonmovant
“must go beyond the pleadings (e.g., produce affidavits, depositions, answers to
interrogatories, or admissions on file) to demonstrate that there is evidence upon which a
jury could properly proceed to [reach] a verdict in [his] favor.” Burton v. Kohn Law Firm,
S.C., 934 F.3d 572, 579 (7th Cir. 2019) (citation and internal quotation marks omitted).
Although pro se litigants are entitled to liberal construction of their pleadings, they,
too, have the burden to come forward in response to a motion for summary judgment with
evidence that demonstrates a genuine issue of material fact. Arnett v. Webster, 658 F.3d
742, 760 (7th Cir. 2011) (“[A plaintiff’s] pro se status doesn’t alleviate his burden on
summary judgment.”) (citation omitted). Further, while the court views the record “in the
light most favorable to the nonmovant and constru[es] all reasonable inferences from the
evidence in his favor,” Moore v. Western Ill. Corr. Ctr., 89 F.4th 582, 590 (7th Cir. 2023),
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a nonmovant is only entitled to favorable inferences that are supported by admissible
evidence, not those based upon mere speculation or conjecture, Grant v. Trustees of Ind.
Univ., 870 F.3d 562, 568 (7th Cir. 2017), or upon “[c]onclusory statements, not grounded
in specific facts,” Bordelon v. Bd. of Educ. of the City of Chicago, 811 F.3d 984, 989 (7th Cir.
2016).
For all these reasons, FOIA cases are typically and appropriately decided on motions
for summary judgment. Media Rsch. Ctr. v. U.S. Dep’t of Just., 818 F. Supp. 2d 131, 136
(D.D.C. 2011). However, a court may grant summary judgment based only on information
provided in an agency’s affidavits or declarations when they “describe 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 evidence of agency bad faith.” Larson v. Dep’t of State, 565
F.3d 857, 862 (D.C. Cir. 2009). The court gives these affidavits or declarations a
presumption of good faith that cannot be rebutted by purely speculative claims. SafeCard
Servs., Inc. v. SEC, 962 F.2d 1197, 1200 (D.C. Cir. 1991). Under FOIA, the agency has
the burden to sustain its action, which the district court reviews de novo. Dep’t of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).
The purpose of FOIA is to “pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976). Under FOIA, “each agency, upon any request for records which (i) reasonably
describes such records and (ii) is made in accordance with published rules . . . shall make
the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Federal courts
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have jurisdiction to order the production of any improperly withheld records. Reporters
Comm., 489 U.S. at 755.
Construed leniently, as required for a pro se pleading, the court understands him to
assert that DHS, ICE, and DOJ violated FOIA by failing to conduct an adequate search of
their records in good faith or that they have improperly withheld records he requested.
The court will address each of these claims in turn.
I. Adequacy of the Searches
An agency’s search for records is adequate under FOIA if the agency can
demonstrate that it “made a good faith effort to conduct a search for the requested records,
using methods which can reasonably be expected to produce the information requested.”
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The question is not
whether any documents possibly related to the request might exist, but whether the search
for those documents was adequate. Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.
Cir. 1984). The adequacy of a given search is based on a standard of reasonableness and
is a fact-specific inquiry. Id.
To meet its burden, the agency may submit affidavits or declarations explaining the
scope of the search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir.
1982). At minimum, to satisfy a FOIA request, the agency must, “aver that it has searched
all files likely to contain relevant documents.” Am. Immigration Council v. Dep’t of Homeland
Sec., 21 F. Supp. 3d 60, 71 (D.D.C. 2014). As such, the agency is not required to search
every record system but must explain in its affidavits or declarations that no other record
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system would be reasonably likely to produce responsive documents. Oglesby, 920 F.2d at
68. Without contrary evidence, the agency’s affidavits or declarations are sufficient to
show that the agency complied with FOIA. Perry, 684 F.2d at 127; see also In re Wade, 969
F.2d 241, 249 n.11 (7th Cir. 1992) (“In the face of government affidavits made in good
faith, speculation would not defeat the summary judgment motion on this issue.”).
A. DHS’s Non-Search Complied with FOIA
DHS contends that it complied with FOIA by referring plaintiff’s request to ICE.
In support, defendants have submitted a declaration from Catrina Pavlik-Keenan, Deputy
Chief FOIA Officer for the Privacy Office of the DHS. (Pavlik-Keenan Decl. (dkt. # 33) ¶
1).) In this declaration, Pavlik-Keenan explains that 6 C.F.R. § 5.3(a)(2) permits a
requester to send a FOIA request to the DHS Privacy Office, which will then forward the
request to the DHS component most likely to have responsive documents. (Id. ¶¶ 8-12.)
DHS’s policy is also to notify the requester that it is forwarding the request, inform the
requester of where the request has been sent, provide the FOIA Public Liaison contact
information, and provide administrative appeal rights. (Id. ¶ 12.)
Moreover, it is undisputed that DHS followed this procedure here. First, upon
reviewing plaintiff’s FOIA request, DHS determined that ICE was the subdivision of DHS
most likely to maintain responsive records, because the FOIA request concerned records
related to an investigation and operation conducted by ICE’s Homeland Security
Investigations (“HIS”). (Id. ¶ 15.) Specifically, DHS came to this conclusion because HSI
investigates the illegal movement of people and goods into and out of the United States,
including cybercrime, which would encompass plaintiff’s federal prosecution. (Id.) Pavlik-
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Keenan explains further that no other DHS component would be likely to possess
responsive records given HSI’s discrete duties and capacities. Second, the Privacy Office
then transferred plaintiff’s request to ICE, sent a letter to plaintiff explaining the transfer,
provided contact information for ICE’s FOIA office, and informed plaintiff of his right to
contact DHS with follow-up questions. (Id. ¶¶ 15-16.) Pavlik-Keenan avers that DHS
complied with the requirements of 6 C.F.R. § 5.3(a)(2) and, therefore, its non-search was
adequate to satisfy its obligations under FOIA.
However, plaintiff argues that DHS erroneously sent its letter regarding his
transferred FOIA request to F.C.I. Elkton, rather than F.M.C. Butner, where he was
receiving medical treatment at the time the letter issued. (Dkt. # 41, at 1-2). This is
immaterial for two reasons. To begin, it is undisputed that DHS received plaintiff’s request
and made a good faith determination to refer the request to the DHS component that was
most likely to have responsive documents. Further, DHS also used the mailing address
listed on plaintiff’s FOIA request. If plaintiff had wanted communications sent to a
different address, it was his obligation to send a written request to the agency. See Pinson v.
U.S. Dep’t of Just., 177 F. Supp. 3d 56, 74 (D.D.C. 2016) (only because plaintiff made a
written request to the agency to send materials to a different address was the “erroneous
mailing [not] attributable to [plaintiff’s] action or inaction”). In any event, plaintiff fails
to show that DHS violated FOIA by failing to conduct an adequate search.
B. ICE’s Search Was Adequate Under FOIA Because it was Performed in Good
Faith and was Reasonably Expected to Produce the Requested Information
Turning to ICE’s search for responsive records following the referral from DHS,
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defendants submitted a declaration from Fernando Pineiro, the Director for ICE’s FOIA
Office. (Pineiro Decl. (dkt. # 34) ¶ 1).) Pineiro describes ICE’s standard search procedures
in response to FOIA requests, explaining that after intake staff evaluates a request to ensure
it complies with FOIA, the ICE FOIA Office identifies the program office within ICE likely
to have responsive records and tasks that office with performing searches, providing them
with a copy of the request and any pertinent, case-specific information. (Id. ¶¶ 20-23.)
Searches are next run based on the individual’s judgment on how records or routinely
maintained. (Id. ¶¶ 24-26.) Any potentially responsive records are then provided to the
ICE FOIA Office, which reviews the records for responsiveness and the application of any
appropriate FOIA Exemptions. (Id. ¶¶ 26-27.)
Here, FOIA Director Pineiro declares under oath that the ICE FOIA Office
determined HSI was the program office most likely to have responsive records, and out of
an abundance of caution, tasked the Enforcement and Removal Office (“ERO”) with
searching for responsive records, as well. (Id. ¶ 29.) Because ERO’s enforcement
authorities do not extend to prosecution of cases like plaintiff’s, however, ERO reasonably
concluded that it likely would not possess any responsive records, and thus, deferred the
search to HSI. (Id. ¶ 34.)
According to Director Pineiro, HSI received and reviewed the FOIA request, and
the special agent who worked on the criminal investigation, as named by plaintiff in his
FOIA request, conducted a search of her emails and the records management system using
the search terms, also as specified in plaintiff’s request. (Id. ¶ 37.) The agent informed the
ICE FOIA Office that no records were found, in part because the investigation was ten
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years old and because files were saved locally on a computer that had crashed. (Id. ¶ 38.)
While plaintiff would dispute the fact that there are no longer any records available,
believing HSI may still have records of the special agent’s collateral interview (dkt. # 41,
at 2), plaintiff cites no evidence in support of this belief and “speculation is insufficient to
defeat a summary judgment motion.” Flowers v. Kia Motors Finance, 105 F.4th 939, 946
(7th Cir. 2024).
In the end, plaintiff does not otherwise demonstrate that ICE’s search was not made
in good faith. To the contrary, as required under FOIA, ICE has presented a declaration
that described the search in reasonable detail. Moreover, FOIA Director Pineiro’s
declaration adequately describes the standard procedures for searching for responsive
documents to a FOIA request, as well as the steps actually taken by HIS to meet that
standard. Specifically, the search described by Pineiro closely follows those standard
procedures. Further, ICE represents it searched all files likely to contain responsive
documents, and that no other record system would be reasonably likely to possess those
documents. Finally, the special agent -- the person identified by plaintiff as the individual
most likely to possess responsive documents -- used the precise search terms requested by
plaintiff in her search. This is sufficient to demonstrate the reasonableness and adequacy
of ICE’s search. Oglesby, 920 F.2d at 68. Because the record demonstrates that the search
was performed in good faith and was reasonably expected to produce the requested
information, plaintiff fails to show that ICE did not conduct an adequate search in
compliance with FOIA.
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C. DOJ’s Search was Adequate for the Same Reasons as ICE’s Search
For the same reasons discussed in connection with the search conducted by ICE,
DOJ’s search of its records was also adequate. Defendants provide a declaration from
Christina Butler, Chief of the FOIA/Privacy Act (“FOIA/PA”) Unit in the Office of
Enforcement Operations within the Criminal Division of the DOJ. (Butler Decl. (dkt.
#35) ¶ 1).) The FOIA/PA Unit maintains records responsive to FOIA/PA requests received
by the DOJ Criminal Division and determines whether those records can be released in
accordance with FOIA and the Privacy Act. (Id. ¶ 3.)
Butler declares under oath that plaintiff’s FOIA request sought records as part of
the CEOS investigation of plaintiff’s child pornography criminal case and, in line with their
standard search methods, the Criminal Division also determined that records maintained
by CEOS would most likely be responsive. (Id. ¶ 18.) Therefore, it sent a search request
to CEOS, along with a copy of plaintiff’s FOIA request. (Id. ¶ 19.) CEOS then searched
the email records of the attorney directly involved in plaintiff’s criminal prosecution, as
well as the CEOS hard drives and computer database using the search terms listed in
plaintiff’s request. (Id. ¶¶ 20-21.) From this search, responsive records were located, and
the CEOS subject matter experts had no reason to search any other locations for potentially
responsive records. (Id. ¶¶ 21-22.) Accordingly, Butler declares that the search was
“reasonably calculated to uncover all potentially responsive records and that all files
identified as likely to contain relevant records were searched,” which is also sufficient to
demonstrate that the search was adequate under FOIA. Oglesby, 920 F.2d at 68.
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II. Applicability of Exemptions 6, 7(C), 7(F), and 7(E)
In fairness, plaintiff does not dispute the adequacy of the search conducted by DOJ’s
Criminal Division, but instead that the responsive records located during that search were
improperly withheld, a contention that is also unavailing for reasons discussed below. As
noted above, DOJ’s FOIA unit determined that 11 pages of records were responsive to
plaintiff’s request, but were not subject to disclosure under FOIA Exemptions 6, 7(C), 7(F),
and 7(E), which are found at 5 U.S.C. §§ 552(b)(6, (b)(7)(C), and (b)(7)(F). Specifically,
FOIA Chief Butler explains that the 11 pages of responsive records that were withheld
consist of two documents containing communications between individuals, including
plaintiff, collected by CEOS in the course of its law enforcement investigation of plaintiff
for conspiracy to disseminate child pornography. (Butler Decl. (dkt. # 35) ¶ 23).)
While FOIA exemptions are construed “narrowly,” FBI v. Abramson, 456 U.S. 615,
630 (1982), they are still intended to have “meaningful reach and application.” John Doe
Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). For example, it is proper for an agency
to withhold information under a FOIA exemption if it is reasonably foreseeable that
disclosure would harm an interest protected by an exemption or if it would be prohibited
by law. 5 U.S.C. § 552(a)(8)(A)(i). Moreover, while the agency has the burden of
establishing that the material falls within an exemption, Stevens v. U.S. Dep’t of State, 20
F.4th 337, 344 (7th Cir. 2021), an agency’s justification for invoking a FOIA exemption
is sufficient if it appears logical or plausible. ACLU v. CIA, 710 F.3d 422, 427 (D.C. Cir.
2013). Here, defendants’ asserted FOIA Exemptions are both logical and plausible as
explained below.
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A. Exemptions 6 and 7(C)
Exemption 6 excludes from disclosure requested records that “would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C)
excludes from disclosure records under the lower standard of “could reasonably be expected
to constitute an unwarranted invasion of personal privacy.” Id. at § 552(b)(7)(C).
According to Butler, DOJ’s practice is to assert Exemptions 6 and 7(C) together due to the
similarity of the analysis and the required balancing of interests. (Butler Decl. (dkt. # 35)
¶ 27.) While Exemption 6 protects information in “personnel and medical files and similar
files,” Exemption 7 only applies to information “compiled for law enforcement purposes.”
(Id. ¶¶ 25-26.) Here, it is undisputed that the records at issue were part of plaintiff’s
criminal investigation and were compiled for a law enforcement purpose.
Butler explains that the information withheld by DOJ pursuant to Exemptions 6
and 7(C) consists of names, identifying information, and contact information, including
specific usernames of third parties, and file and image web addresses (i.e., possible victims
of child pornography) in relation to CEOS’s underlying criminal investigation of the
Dreamboard conspiracy to distribute child pornography. (Id. ¶ 28.) According to Butler,
DOJ found that the privacy interests at issue regarding this information were substantial.
(Id. ¶ 29.) Specifically, applying Exemptions 6 and 7(C) required DOJ to balance the
privacy interests of the third-party individuals against any countervailing public interest in
disclosure. (Id.)
In this case, DOJ reasoned that the release of the information could subject third
parties, including potential victims of child pornography, to embarrassment,
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stigmatization, innuendo, retaliation, and reprisals. (Id. ¶ 30.) Moreover, DOJ determined
that all of the named individuals have a strong interest in not being identified or associated
with alleged criminal activity, and the release of these records would not likely add to the
public’s understanding of how the DOJ works or how well it performs its statutory duties.
(Id. ¶¶ 31-32.) Accordingly, DOJ concluded that there would be foreseeable harm in
disclosure and a release of that information would not serve the public interest in any
manner that outweighs the privacy interests of the individuals named in the documents.
(Id. ¶ 33.)
In response, plaintiff argues that neither FOIA Exemptions 6 nor 7(C) apply to the
11 pages of responsive documents because the information is already public on Wikipedia,
which features an entry for “Operation Delego.” (Dkt. # 40, at 4.) Plaintiff is correct that
individuals lack a privacy interest under Exemptions 6 and 7(C) when their names have
already been publicly disclosed. See O’Neill v. U.S. Dep’t of Just., No. 05-cv-306, 2008 WL
819013, at *10 (E.D. Wis. Mar. 25, 2008) (“Under the public domain doctrine, if identical
information is truly public, the enforcement of an exemption cannot fulfill its purpose.”)
(citation and quotation marks omitted). However, plaintiff bears the “initial burden of
pointing to specific information in the public domain that appears to duplicate that being
withheld.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).
Here, plaintiff provides no evidence that the individuals sought to be protected by
Exemptions 6 and 7(C) are the same names listed on the Operation Delego Wikipedia
entry. Because he merely states that this information is already publicly available,
plaintiff’s argument fails to rebut DOJ’s assertion that Exemptions 6 and 7(C) apply.
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Given that the potential for harm is significant and the benefit to the public is minimal at
best, DOJ has given a plausible justification for invoking Exemptions 6 and 7(C).
B. Exemption 7(F)
Exemption 7(F) excludes from disclosure records that would endanger the lives or
physical safety of individuals. 5 U.S.C. § 552(b)(7)(F). FOIA Chief Butler explains that
DOJ asserted this exemption to protect the name and identifying information of plaintiff
himself to prevent other inmates in the federal prison system from learning about plaintiff’s
underlying criminal offense and to protect plaintiff from the risk of potential violence.
(Butler Decl. (dkt. # 35) ¶ 35.) Specifically, disclosure of this information would obviously
identify plaintiff as the target of a child pornography investigation and that disclosure
could have a real and meaningful adverse impact on his health and safety. (Id. ¶ 36.)
On the other hand, plaintiff argues that he has an “absolute right to this Brady-type
material.” (Dkt. #40, at 4). Still, at issue in a FOIA lawsuit is whether defendants
improperly withheld responsive records or failed to conduct a search of their records in
good faith, not whether they improperly withheld exculpatory evidence. See Higgs v. U.S.
Park Police, 933 F. Supp. 897, 905 (7th Cir. 2019) (“a prisoner’s interest in using FOIA as
a discovery tool in a collateral attack on his own conviction is insufficient” to show a public
interest that would overcome the government’s assertion of a FOIA exemption); Bothwell v.
United States Dep’t of Just., No. CIV-19-00500, 2025 WL 2080619, at *7 (W.D. Okla. July
23, 2025) (“A FOIA lawsuit is not the proper forum within which to relitigate a prior
criminal conviction.”). Therefore, plaintiff does not overcome the government’s interest
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in asserting Exemption 7(F), which was plausible when asserted.2
C. Exemption 7(E)
DOJ has come forward with an additional basis to exempt the records requested by
plaintiff from disclosure. Chief Butler explains that DOJ inadvertently did not initially
assert Exemption 7(E), but is asserting it now as part of its justification for nondisclosure.
(Butler Decl. (dkt. # 35) ¶ 37 n.4.) Exemption 7(E) exempts from disclosure records
pertaining to law enforcement techniques and procedures. 5 U.S.C. § 552(b)(7)(E). Butler
explains that releasing the documents requested by plaintiff would expose the utility of this
type of information to the Criminal Division and would essentially instruct criminals on
how best to avoid providing the Criminal Division with crucial evidence for its
investigations. (Butler Decl. (dkt. # 35) ¶ 38.) According to Butler, DOJ has determined
that such disclosure would allow criminals to tamper with evidence defensively, which may
become useful to the Criminal Division in the future, and allow criminals to predict the
investigative use of this kind of information in similar investigations, allowing them to
preemptively modify their behavior to avoid detection and circumvent the law. (Id.) The
court is skeptical that criminals are actually reviewing documents from these types of
investigations and gleaning insight on how to avoid detection, because DOJ has shown that
all 11 pages of responsive documents are subject to an exemption, there is necessarily no
2 Plaintiff’s bare assertion that he has a right to the information does not constitute a waiver of the
right to have his own personal safety protected under Exemption 7(F). See Mosby v. Hunt, No. 09-
1917, 2010 WL 2794250 at *1 (D.D.C. July 15, 2010) (“[T]he Court can imagine no situation in
which an individual would [knowingly] waive his or her right to physical safety-which is the right
protected by Exemption 7(F).”) (citation omitted). Even if it were, DOJ properly withheld the same
information under Exemptions 6 and 7(C).
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information that can be segregated and disclosed, despite plaintiff’s bare assertion to the
contrary. (Id. ¶ 40; Dkt. # 40, at 4).
Overall, plaintiff has failed to show that DOJ improperly withheld the documents
based on logical, plausible and applicable FOIA exemptions or that the defendants
otherwise violated his rights by failing to respond to his requests. Accordingly, defendants
are entitled to summary judgment.
ORDER
IT IS ORDERED that:
1) Defendants’ motion for summary judgment (dkt. #31) is GRANTED.
2) The clerk of court is directed to enter judgment accordingly and close this case.
Entered this 10th day of March, 2026.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
Case: 3:24-cv-00490-wmc Document #: 44 Filed: 03/10/26 Page 18 of 18