Casa De Maryland, Incorporated v. United States Department of Homeland Security; United States Internal Revenue Service

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1264
CASA DE MARYLAND, INCORPORATED,
Plaintiff - Appellee,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES
INTERNAL REVENUE SERVICE,
Defendants - Appellants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:08-cv-03249-PJM)
Argued: October 27, 2010 Decided: January 31, 2011
Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and Damon J.
KEITH, Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Jeffrey A. Clair, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants. Sebastian Gabriel Amar, CASA
DE MARYLAND, INCORPORATED, Hyattsville, Maryland, for Appellee.
ON BRIEF: Tony West, Assistant Attorney General, Leonard
Schaitman, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for Appellants.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
The United States Department of Homeland Security appeals
from an order of the district court ordering the disclosure of
certain information pursuant to the Freedom of Information Act
(“FOIA”). See 5 U.S.C. § 552. We affirm.
On January 23, 2007, agents of the United States
Immigration and Customs Enforcement Agency (“ICE”) arrested 24
Latinos suspected of being in unlawful immigration status in a
raid at a Baltimore-area 7-Eleven store where day laborers
gathered. Non-Latino individuals seeking day labor were also on
the premises, but agents neither questioned nor detained them.
Believing that ICE agents targeted Latino males solely on the
basis of their race, Appellee CASA de Maryland (“CASA”), a
Latino community advocacy group, filed a complaint with ICE and
requested an investigation of the incident.
The complaint was referred to ICE’s Office of Professional
Responsibility (“OPR”) for an internal investigation into the
racial profiling allegations. After OPR conducted its
investigation,
[a] report was prepared by an Agency Fact Finder.
Cases that are referred to a Fact Finder for
investigation are called “Administrative Inquiries.”
As such, they are purely internal reviews of an
allegation of misconduct . . . [that] are provided to
Agency managers for use in determining appropriate
disciplinary action and programmatic changes, if
needed. These reports are . . . generally not

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disclosed outside the Agency except through a FOIA
request with appropriate redactions . . . .
J.A. 27. The report concluded that “the allegation that the
civil rights of the individuals arrested at the 7-Eleven store
on January 23, 2007, were violated is unsubstantiated.” J.A.
109. The report included affidavits from ICE agents who
participated in the raid; video surveillance recordings obtained
from 7-Eleven and Baltimore Police; and a narrative of events
based on interviews of the agents and documents reviewed by the
Agency Fact Finder.
In September 2008, CASA sent ICE a formal FOIA request
seeking records related to the January 2007 7-Eleven arrests or
the investigation of that incident. FOIA provides that federal
agencies shall “upon any request for records which . . .
reasonably describes such records . . . make the records
promptly available to any person,” 5 U.S.C. § 552(a)(3)(A),
unless a statutory exemption applies, see 5 U.S.C. § 552(b). In
this case, ICE asserts that two privacy-based exemptions apply:
Exemptions 6 and 7(C). Exemption 6 protects information
contained in an agency’s “personnel and medical files and
similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(6). Exemption 7(C) authorizes agencies to withhold
“records or information compiled for law enforcement purposes,

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but only to the extent that the production of such law
enforcement records or information . . . could reasonably be
expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C).
In response to CASA’s FOIA request, ICE released a redacted
copy of OPR’s internal investigation report. Relying on FOIA
Exemptions 6 and 7(C), ICE redacted from the report the names
and initials of individuals, including ICE agents involved in
the raid, deportation officers who were involved in subsequent
removal proceedings, but did not participate in the operation,
and various other agents identified in the report.
Additionally, ICE redacted from the report the identity of the
“Agency Fact Finder” who prepared the report, the identities of
other agency employees involved in the internal investigation,
and the identity of the 7-Eleven employee who provided the video
surveillance tape. ICE justified withholding the names and
identities of the various individuals on the basis that
“[d]isclosure of such information would lead to their
identification” and “could subject these individuals to unwanted
contact by the media and others, and/or expose them to
unreasonable annoyance, harassment, or threats of reprisal.”
J.A. 29. ICE claimed that “[t]he privacy interests of the
individuals are substantial” and outweigh “the public interest
in disclosure” because revealing the “personnel names and other

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identifying information would not should light on how ICE
carries out its statutory duties.” J.A. 29-30.
CASA filed suit under FOIA asking the district court to
order disclosure of, among other things, any documents, records
and information related to the 7-Eleven raid that CASA had
requested from ICE. See 5 U.S.C. § 552(a)(4)(B). In
particular, CASA sought disclosure of OPR’s report in unredacted
form.
The government moved for summary judgment, arguing that the
redacted names were statutorily exempt from disclosure because
the disclosure of these names would constitute an unwarranted
invasion of the personal privacy of the ICE agents and other
individuals named in the report.
The district court denied the motion for summary judgment
with respect to the names included in OPR’s report and ordered
that the “redacted information in the referenced documents must
be disclosed.” J.A. 436. With respect to both Exemption 6 and
Exemption 7(C), the district court “balance[d] the privacy
rights of the individuals [named in the report] versus the
public interest[] in knowing the names.” J.A. 427. The
district court concluded that CASA came forward with sufficient
facts to suggest that government impropriety occurred and that
the public interest in such information outweighed the privacy
interests asserted by ICE.

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“The basic purpose of FOIA is to ensure an informed
citizenry, vital to the functioning of a democratic society,
needed to check against corruption and to hold the governors
accountable to the governed.” NLRB v. Robbins Tire & Rubber
Co., 437 U.S. 214, 242 (1978). FOIA promotes a broad policy of
transparency in government—“disclosure, not secrecy, is the
dominant objective of the Act.” Department of the Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).
Nevertheless, although FOIA generally mandates disclosure of
information contained in public records, it also “expressly
recognizes that ‘public disclosure is not always in the public
interest,’” Spannaus v. United States Department of Justice, 813
F.2d 1285, 1288 (4th Cir. 1987) (quoting Baldrige v. Shapiro,
455 U.S. 345, 352 (1982)), as “legitimate governmental and
private interests could be harmed by release of certain types of
information,” FBI v. Abramson, 456 U.S. 615, 621 (1982). To
this end, FOIA specifies nine exemptions from its general
disclosure scheme. See 5 U.S.C. § 552(b). Given the
overarching disclosure policy, FOIA exemptions must be narrowly
construed to favor disclosure. See Bowers v. United States
Dep’t of Justice, 930 F.2d 350, 354 (4th Cir. 1991). The burden
of demonstrating that requested information falls under an
exemption rests on the government. See 5 U.S.C. § 552(a)(4)(B);

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City of Virginia Beach, Va. v. United States Dep’t of Commerce,
995 F.2d 1247, 1252 (4th Cir. 1993).
For the application of FOIA Exemptions 6 and 7, the Supreme
Court employs a balancing approach that weighs individual
privacy interests against the public interest in disclosure.
See United States Dep’t of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 762 (1989); Department of
the Air Force v. Rose, 425 U.S. 352, 373 (1976). Although both
exemptions require courts to balance individual privacy and
public interests, “Exemption 7(C)’s privacy language is broader
than the comparable language in Exemption 6” in that “Exemption
6 requires that the invasion of privacy be ‘clearly
unwarranted,’ a requirement omitted from the language of
Exemption 7(C). Reporters Comm., 489 U.S. at 756. Thus,
“although both exemptions require the court to engage in a
similar balancing analysis, they ‘differ in the magnitude of the
public interest that is required to override the respective
privacy interests protected by the exemptions.’” Lahr v.
National Transp. Safety Bd., 569 F.3d 964, 974 (9th Cir. 2009)
(quoting United States Dep’t of Defense v. Federal Labor
Relations Auth., 510 U.S. 487, 496 n.6 (1994)).
As noted above, a government agency may withhold FOIA
information under Exemption 6 or 7(C) only if disclosure would
constitute an “unwarranted invasion of personal privacy.”

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However, once a legitimate privacy interest is implicated, the
burden shifts to the requester to (1) “show that the public
interest sought to be advanced is a significant one, an interest
more specific than having the information for its own sake,” and
(2) “show the information is likely to advance that interest.”
National Archives & Records Admin. v. Favish, 541 U.S. 157, 172
(2004).
The district court correctly determined that ICE identified
a legitimate privacy interest. As we have explained:
FBI agents, government employees, third-party
suspects, and other third parties mentioned or
interviewed in the course of the investigation have
well-recognized and substantial privacy interests in
the withheld information. Among other things, these
individuals have a substantial interest in the
nondisclosure of their identities and their connection
with particular investigations because of the
potential for future harassment, annoyance, or
embarrassment.
Neely v. FBI, 208 F.3d 461, 464-65 (4th Cir. 2000).
Against this privacy interest, CASA asserts the public’s
interest in shedding light on improper Agency conduct. CASA
faces more than a minimal obstacle to establish the right to
disclosure:
[W]here there is a privacy interest protected by
Exemption 7(C) and the public interest being asserted
is to show that responsible officials acted
negligently or otherwise improperly in the performance
of their duties, the requester must establish more
than a bare suspicion in order to obtain disclosure.
Rather, the requester must produce evidence that would

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warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred.
Favish, 541 U.S. at 174.
CASA submitted affidavits from thirteen of the arrestees
which all suggested that government agents arrested them without
first obtaining any information about their immigration status
and ignored non-Latino day laborers. CASA also submitted the
declarations of ICE agents given during removal proceedings for
some of the arrestees indicating that arrests were made after
the arrestees admitted being present or seeking work illegally.
CASA asserted that these unredacted declarations differed
markedly from the affidavits included in OPR’s Administrative
Investigation report. Additionally, the report contained
statements from an ICE agent indicating that supervisory
personnel suggested that he should not admit that the 7-Eleven
raid was intentional: “[The supervisor] came into the . . .
[o]ffice later in the afternoon, and asked me if we had stopped
in the 7-11 parking lot for a break and a soda. I felt this was
a half-truth. I was tired and did not wish to debate the
situation . . . anymore, so I said sure. [The supervisor] said
good, and reminded me again that we had stopped in for a drink.”
J.A. 272. The agent also indicated that he believed the
operation was “close to being out of line with current service
policy.” J.A. 279.

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Having reviewed the record, we agree with the district
court that the public interest outweighs the privacy interest
asserted by ICE in this case. Accordingly, we affirm the
decision of the district court.
AFFIRMED

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