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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FLOOR64, INC., and
MICHAEL MASNICK,
Plaintiffs,
v.
UNITED STATES IMMIGRATION
AND CUSTOMS ENFORCEMENT,
Defendant.

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Civil Action No. 19-1499

DECLARATION OF TONI FUENTES
I, Toni Fuentes, pursuant to 28 U.S.C. § 1746, hereby declare as follows:
1.

I am the Deputy Officer of the U.S. Immigration and Customs Enforcement (“ICE”)

Freedom of Information Act (“FOIA”) Office. I have held this position since September 30, 2018
and am the ICE official immediately responsible for supervising ICE responses to requests for
records under the FOIA, 5 U.S.C. § 552, the Privacy Act, 5 U.S.C. § 552a (the “Privacy Act”), and
other applicable records access statutes and regulations. Prior to this position, I have held
numerous FOIA-related positions over the past 20 years to include: FOIA Director for the National
Protection and Programs Directorate at the U.S. Department of Homeland Security (“DHS”);
Government Information Specialist for Department of Justice, U.S. Marshal's Service, Office of
General Counsel; Government Information Specialist for the Department of Defense, Office of the
Inspector General's FOIA Office; FOIA Officer, Paralegal Specialist for Department of the Navy,
NAVAIR/NAWCAD's Office of Counsel; Management and Program Analyst for Department of
Homeland Security, Customs and Border Protection's FOIA Office; and FOIA Paralegal Specialist
for the National Aeronautics and Space Administration's Office of Chief Counsel.

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2.

The ICE FOIA Office is responsible for processing and responding to all FOIA and

Privacy Act requests received at ICE.
3.

My official duties and responsibilities include the general management, oversight,

and supervision of the ICE FOIA Office. I manage and supervise a staff of ICE FOIA Paralegal
Specialists, who report to me regarding the processing of FOIA and Privacy Act requests received
by ICE. Due to my experience and the nature of my official duties, I am familiar with ICE’s
procedures for responding to requests for information pursuant to provisions of the FOIA and the
Privacy Act. In that respect, I am familiar with ICE’s processing of the FOIA request dated
December 14, 2018, that was submitted by Michael Masnick and Floor64, Inc., which is the subject
of this litigation.
4.

I make this Declaration in my official capacity in support of Defendant’s motion

for summary judgment in the above-captioned action. The statements contained in this Declaration
are based upon my personal knowledge, my review of records kept by ICE in the ordinary course
of business, and information provided to me by other ICE employees in the course of my official
duties. The documents attached hereto are kept by ICE in the ordinary course of its business
activities.
5.

This Declaration describes how ICE responded to Plaintiffs’ FOIA request. In

addition, in accordance with the requirements set forth in Vaughn v. Rosen, 484 F.2d 820 (D.C.
Cir. 1973), this Declaration explains the basis for withholding portions of the requested
information pursuant to FOIA Exemptions (b)(6), (b)(7)(C), and (b)(7)(D), 5 U.S.C. § 552 (b)(6),
(b)(7)(C), and (b)(7)(D). ICE’s Vaughn Index is attached hereto as Exhibit 1.
I.

PROCEDURAL HISTORY OF THE PLAINTIFFS’ FOIA REQUEST AND THE
INSTANT LITIGATION

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6.

This suit stems from a FOIA request Plaintiffs sent to ICE on December 14, 2018.

A true and complete copy of Plaintiffs’ FOIA Request is attached hereto as Exhibit 2. The FOIA
request was processed by the ICE FOIA Office and contained a request for the following
records:
“A full list of the domain names that were seized, any related court filings regarding the
domain seizures and any email communications with the "high-profile industry
representatives and anti-counterfeiting associations" regarding those seizures, as
described in a November 26th press release, seen here:
https://www.ice.gov/news/releases/over-million-websites-seized-global-operation”
7.

By email dated December 17, 2018, the ICE FOIA Office acknowledged receipt of

Plaintiffs’ FOIA Request and assigned it ICE FOIA case number 2019-ICFO-24679. A true and
complete copy of the December 17, 2018, email is attached hereto as Exhibit 3.
8.

By letter dated February 19, 2019, the ICE FOIA Office sent a final response letter

to Plaintiffs regarding 2019-ICFO-24679. The letter provided that “ICE has conducted a search
of the ICE Offices of Homeland Security Investigations (HSI) and the ICE Office of Public Affairs
(OPA) for records responsive to your request and no records were found.” A true and complete
copy of the February 19, 2019, letter is attached hereto as Exhibit 4.
9.

By letter dated March 8, 2019, Plaintiffs appealed the ICE FOIA Office’s response

to Plaintiffs’ FOIA request. A true and complete copy of the March 8, 2019, letter is attached
hereto as Exhibit 5.
10.

By letter dated March 18, 2019, ICE’s Office of the Principal Legal Advisor

(“OPLA”) acknowledged receipt of Plaintiffs’ appeal and assigned it appeal tracking number
2019-ICAP-00275. A true and complete copy of the March 18, 2019, letter is attached hereto as
Exhibit 6.
11.

By letter dated April 2, 2019, OPLA responded to Plaintiffs’ appeal and informed

Plaintiffs that ICE was remanding the appeal to the ICE FOIA Office for processing and re-tasking
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to the appropriate office(s) to conduct a search to obtain any responsive documents. A true and
complete copy of the April 2, 2018, letter is attached hereto as Exhibit 7.
12.

On May 23, 2019, Plaintiffs filed the Complaint in this case.

13.

By letter dated July 22, 2019, the ICE FOIA Office sent a final response letter to

Plaintiffs regarding 2019-ICFO-24679, 2019-ICAP-00275, and the Complaint in this case. The
letter provided that “[a] search of the HSI located records that were responsive to your request.
For this production ICE reviewed 75 of potentially responsive records.” 1 Additionally, the letter
advised that portions of the 75 pages would be withheld pursuant to FOIA Exemptions 6, 7(C),
and 7(E). A true and complete copy of the July 22, 2019, letter is attached hereto as Exhibit 8.
14.

Upon litigation review, the ICE FOIA Office sent a supplemental final response

letter to Plaintiffs, on October 21, 2019. The letter provided that the ICE FOIA Office has
determined that the information previously withheld under FOIA Exemption (b)(7)(E) has either
been lifted or is now being withheld under FOIA Exemption (b)(7)(D). Additionally, information
previously withheld under (b)(6) and (b)(7)(C) is now also being withheld under FOIA Exemption
(b)(7)(D). The ICE FOIA Office provided the updated pages of the July 22, 2019, production with
those redactions lifted or with the redactions labeled as (b)(7)(D). A true and complete copy of
the October 21, 2019, letter is attached hereto as Exhibit 9.
II.

ICE’S STANDARD PROCEDURE FOR INITIATING SEARCHES IN
RESPONSE TO FOIA REQUESTS
15.

When the ICE FOIA Office receives a FOIA request, the intake staff evaluates it to

determine if it is a proper FOIA request per DHS FOIA regulation 6 C.F.R. § 5.3. Generally, a

1

The July 22, 2019, letter also provided that ICE had withheld in full under Exemption (b)(7)(E) one Excel
Spreadsheet. This notification was in error as the search for responsive documents in this case did not located any
Excel Spreadsheets.

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FOIA request is considered proper and in compliance with DHS regulations if it reasonably
describes the records sought and the records are under the purview of ICE.
16.

If a FOIA request does not reasonably describe the records sought, the ICE FOIA

Office will seek clarification from the requester. If the requested information is under the purview
of a DHS component other than ICE, the ICE FOIA Office will refer the request to the appropriate
DHS component for processing and direct response to the requester. If the FOIA request seeks
records under the purview of a government agency other than DHS, ICE FOIA informs the
requester to contact the other government agency directly and ICE FOIA administratively closes
the FOIA request.
17.

Proper FOIA requests are entered into a database known as FOIAXpress and

assigned a case tracking number. Based upon the requester’s description of the records being
sought and ICE FOIA’s knowledge of the various program offices’ missions, the ICE FOIA Office
identifies the program office(s) likely to possess responsive records and tasks the appropriate
program office(s) to conduct the necessary searches.
18.

ICE records are maintained by leadership offices and/or within ICE directorates,

namely, Enforcement and Removal Operations (“ERO”), Homeland Security Investigations
(“HSI"), Office of Public Affairs (“OPA”) and/or Management and Administration (“M&A”).
Program offices within the leadership office and the ICE directorates are staffed with a designated
point of contact (“POC”) who is the primary person responsible for communications between that
program office and the ICE FOIA Office. Each POC is a person with detailed knowledge about
the operations of his/her program office.
19.

Upon receipt of a proper FOIA request, the ICE FOIA Office will identify which

program offices, based on their experience and knowledge of ICE’s program offices, within ICE

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are reasonably likely to possess records responsive to that request, if any, and initiates searches
within those program offices. Once the ICE FOIA Office determines the appropriate program
offices for a given request, it provides the POCs within each of those program offices with a copy
of the FOIA request and instructs them to conduct a search for responsive records. The POCs then
review the FOIA request, along with any case-specific instructions that may have been provided,
and based on their experience and knowledge of their program office practices and activities,
forward the request and instructions to the individual employee(s) or component office(s) within
the program office that they believe are reasonably likely to have responsive records, if any. In
conformity with the ICE FOIA Office’s instructions, the individuals and component offices are
directed to conduct searches of their file systems, including both paper files and electronic files,
which in their judgment, based on their knowledge of the way they routinely keep records, would
most likely be the files to contain responsive documents. Once those searches are completed, the
individuals and component offices provide any potentially responsive records to their program
office’s POC, who in turn, provides the records to the ICE FOIA Office. The ICE FOIA Office
then reviews the collected records for responsiveness and application of appropriate FOIA
Exemptions.
20.

ICE employees maintain records in several ways. ICE program offices use various

systems to maintain records, such as investigative files, records regarding the operation of ICE
programs, and administrative records. ICE employees may store electronic records on their
individual computer hard drives, their program office’s shared drive (if the office uses one), DVDs,
CDs, and/or USB storage devices. The determination of whether or not these electronic locations
must be searched in response to a particular FOIA tasking, as well as how to conduct any necessary
searches, is necessarily based on the manner in which the employee maintains his/her files.

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21.

Additionally, all ICE employees have access to email. ICE uses the Microsoft

Outlook email system. Each ICE employee stores his/her files in the way that works best for that
particular employee. ICE employees use various methods to store their Microsoft Outlook email
files: for example, some archive their files monthly, without separating by subject; others archive
their email by topic or by program; still others may create PST files of their emails and store them
on their hard drive or shared drive.
22.

Records received by the ICE FOIA Office from the program office POCs are

assigned to a FOIA processor who makes a determination whether the records are responsive to
the FOIA request, or not. If the records are responsive, the FOIA processor will redact information
pursuant to the FOIA or the Privacy Act, as appropriate, while simultaneously ensuring that all
reasonably segregated non-exempt information is released.
23.

Frequently, the ICE FOIA Office must coordinate between multiple program

offices to ensure the program office records are properly redacted and information is correctly
segregated. Once the ICE FOIA Office completes its coordination efforts and all responsive
records have been processed, the ICE FOIA Office releases the responsive records to the requester.

III.

DESCRIPTION OF PROGRAM OFFICES TASKED WITH SEARCHING FOR
RECORDS IN RESPONSE TO PLAINTIFFS’ FOIA REQUEST
24.

ICE is the principal investigative arm of DHS and the second largest investigative

agency in the federal government. Created in 2003 through a merger of the investigative and
interior enforcement elements of the U.S. Customs Service and the Immigration and Naturalization
Service, ICE now employs more than 20,000 people in offices in every state and in 48 foreign
countries.

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25.

The ICE FOIA Office determined that because of the subject matter of Plaintiffs’

FOIA Request, HSI and OPA were the offices likely to have responsive records. The ICE FOIA
Office instructed HSI and OPA to conduct a comprehensive search for records and to provide all
records located during that search to the ICE FOIA Office for review and processing.
OPA’s Response to Plaintiffs’ FOIA Request
26.

OPA supports the agency mission by engaging with the news media, federal, state

and local agencies and non-governmental organizations. Within OPA there is media relations,
strategic communications, and the mission support branch. The Media Relations Branch includes
30 public affairs officers located in Washington, D.C. and around the country who are responsible
for responding to local, national and international media inquiries, planning press events, crafting
agency messaging and developing media campaigns. The Strategic Communications Branch of
public affairs oversees the development and production of a wide variety of online, print and multimedia products, as well as writing executive level speeches, internal communication, managing
ICE’s online presence and developing national marketing plans for ICE and its programs. The
mission support branch handles the day to day running of OPA’s financial and administrative work
and ensures that the other two branches are fully supported. When OPA receives a FOIA request,
the OPA FOIA POC will review the request and task to the branch or branches within OPA that
are likely to have responsive records.
27.

On December 17, 2018, the ICE FOIA Office tasked OPA in responding to

Plaintiffs’ request. Based upon the nature of the request for “domain names that were seized, any
related court filings regarding the domain seizures and any email communications with the “highprofile industry representatives and anti-counterfeiting associations”” and the subject matter
expertise of the OPA FOIA POC, OPA notified the ICE FOIA Office that OPA would not

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reasonably be likely to have responsive records or would not reasonably be expected to have
responsive records to this request. OPA then deferred to HSI in responding to the FOIA reqeust.
HSI’s Searches and Response to Plaintiffs’ FOIA Requests
28.

HSI is a critical investigative arm of the DHS and is a vital U.S. asset in combating

criminal organizations illegally exploiting America’s travel, trade, financial and immigration
systems. HSI’s workforce includes special agents, analysts, auditors and support staff. HSI has
broad legal authority to enforce a diverse array of federal statutes. It uses this authority to
investigate all types of cross-border criminal activity including: financial crimes, money
laundering and bulk cash smuggling; commercial fraud and intellectual property theft;
cybercrimes; human rights violations; human smuggling and trafficking; immigration, document
and benefit fraud; narcotics and weapons smuggling/trafficking; transnational gang activity; export
enforcement; and international art and antiquity theft. HSI has 30 Special Agent in Charge
(“SAC”) principal field offices throughout the United States. The SAC offices are responsible for
the administration and management of all investigative and enforcement activities within the
geographic boundaries of the office.
29.

When HSI receives a FOIA tasking from the ICE FOIA Office, the request is

submitted to HSI Records and Disclosure Unit (“RDU”), where the FOIA Section Chief reviews
the substance of the FOIA request. Based on subject matter expertise and knowledge of the
internal practices of offices within HSI, RDU tasks a geographic SAC office, program office
and/or specific individual(s) to conduct searches of their file systems, including both paper files
and electronic files, based on their knowledge of routine file maintenance where responsive
records would most likely be located. If the FOIA request pertains to a specific operation, the
program office responsible for that operation will be tasked. Employees tasked with conducting

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searches, rely upon the language of the request, guidance from the FOIA Section Chief as well as
their operational knowledge and subject matter expertise, to identify the specific search term(s) or
combinations thereof, most likely to produce responsive records. Once searches are completed,
the individuals and program offices provide any potentially responsive records to RDU to analyze
for HSI law enforcement equities and recommend disclosures to the ICE FOIA Office. The ICE
FOIA Office then reviews the collected records and disclosure recommendations and applies
redactions to withhold statutorily exempt information before making a disclosure to the requester.
30.

Within HSI is the Operation Technology and Cyber Division (“OTCD”). The

OTCD supports ICE and HSI by improving methods for managing different types of information
and operational technology, and directing how these tools are shared with other agencies and
organizations. Programs and projects under the OTCD focus on merging methods and technology
that result in better law enforcement operations. One element within OTCD is the Cyber Crimes
Center (“C3”). C3 role is to conduct trans-border criminal investigations of internet-related crimes
and is responsible for identifying and targeting any cyber crime activity in which HSI has
jurisdiction.
31.

The Global Trade Investigations Division (“GTI”) is a program office that provides

oversight and support for investigations of the U.S. import and export laws to ensure national
security, protect the public’s health and safety, stop predatory and unfair trade practices and to
prevent terrorists, foreign entities and criminal organizations from illegally trafficking Weapons
of Mass Destruction and transferring critical technology and arms to restricted or prohibited
persons, groups or nations. Within GTI, there is the National Intellectual Property Rights
Coordination Center (“IPR Center”). The IPR Center responsible for coordinating a unified U.S.
government response to the growing threat of counterfeiting and has significantly expanded the

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original multi-agency law enforcement and regulatory endeavor created to target IP crimes. The
IPR Center comprises the Intellectual Property Unit and Commercial Fraud Unit that is also
responsible for IPR Center’s outreach and training. In addition, the IPR Center brings together 23
key federal and international agencies in a task force setting using a three-pronged approach to
combat Intellectual Property (IP) and trade crime: interdiction, investigation, and outreach to the
public and law enforcement.
32.

On December 17, 2018, the ICE FOIA Office tasked HSI with responding to

Plaintiffs’ FOIA request. RDU reviewed the request and, because the request referred to seizures
and the internet, tasked OTCD C3 to conduct a search. Within C3, one Special Agent conducted
a search of his computer and Outlook using the term “IPR” and “ICE IPR Center” based upon the
press release provided by the Plaintiffs and his subject matter expertise. No records responsive to
the request were located. One Special Agent conducted a search of his computer and Outlook
using the terms “seized” and “website” based upon the press release provided by the Plaintiffs and
his subject matter expertise. No records responsive to the request were located. One Special Agent
conducted a search of Outlook using “Operation In Our Sites” based upon the press release
provided by the Plaintiffs and his subject matter expertise. No records responsive to the request
were located. However, this Special Agent did note on the returned search form that he believed
the IPR Center may have responsive records. However, the IPR Center was not tasked to conduct
a search at this administrative level and on February 19, 2019, the ICE FOIA Office notified the
Plaintiffs that no responsive records were located.
33.

Upon appeal review, the Office of the Principal Legal Advisor (OPLA) contacted

RDU on March 20, 2019 and requested that RDU review the previous “no records” response in
regard to Plaintiffs’ FOIA request. RDU reviewed the FOIA request and previous search and

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determined that the wrong office within HSI was tasked to conduct the search. RDU then
determined that the correct office that should be tasked was the IPR Center. On April 9, 2019,
RDU forwarded Plaintiffs’ FOIA request to GTI so that the IPR Center could conduct a search for
responsive records.
34.

Upon receipt of the FOIA request from RDU, the IPR Center FOIA POC reviewed

the substance of the request and, based upon experience and knowledge of their office’s practices
and activities, determined that the Program Manager for “Operation in Our Sites” should be tasked
with conducting the search. The Program Manger conducted a search of his computer and Outlook
files using the name of the Operation as his search terms and produced 75 pages of responsive
documents that were forwarded to HSI RDU for review. HSI RDU provided these 75 pages to the
ICE FOIA Office for processing.
35.

On September 13, 2019, ICE, through counsel, responded to follow-up questions

from Plaintiffs regarding the responsive documents that were produced.

Specifically, ICE

provided that in regard to the domain seizures, ICE provided all records in its possession relating
to the domain seizures. ICE further provided that of the websites that were criminally seized, the
majority of them were seized by Europol, Interpol and police agencies from 26 different countries
and that these partners did not share the domain names of those websites with ICE. Further, in
regard to the remaining domain names, other industry partners were involved in the seizure of
those websites and did not provide the domain names of those websites to the IPR Center. Lastly,
ICE was not involved with and does not have any records relating to, any court filings relating to
the seizure, civilly or criminally, of domain names.
IV.

ORGANIZATION OF THE VAUGHN INDEX

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36.

Pursuant to the requirements set forth in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.

1973), a Vaughn Index accompanies this declaration; the Vaughn Index provides a description of
each redaction and the corresponding FOIA exemption being applied.
37.

The Vaughn index is in a table format. The first column contains the bates number

prefix for the records produced. The second column contains the bates stamp suffix (page
numbers) of the responsive records. The third column describes the category of withholdings
taken on the documents (full or partial). The fourth column describes the redaction codes, which
are citations to the sections of the FOIA Exemptions. The fifth column describes the underlying
records and provides justifications for the asserted exemptions. The Vaughn index encompasses
the responsive records produced by the program office. ICE produced one production in response
to Plaintiffs’ FOIA request containing 75 pages subject to withholdings pursuant to FOIA
Exemptions (b)(6), (b)(7)(C), and (b)(7)(D).
V.

DESCRIPTION OF FOIA WITHHOLDINGS APPLIED TO RECORDS
PROVIDED TO PLAINTIFFS
38.

As outlined in the Vaughn Index, the ICE FOIA Office processed and produced the

75 pages to the Plaintiffs with portions redacted under Exemptions (b)(6), (b)(7)(C), and (b)(7)(D).
A.

FOIA Exemption (6)

39.

FOIA Exemption 6 allows the withholding of information found in “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). Records that apply to or describe a particular
individual, including investigative records, qualify as “personnel,” “medical” or “similar files”
under Exemption 6. When applying this exemption to responsive documentation, the agency must
balance the individual’s personal privacy interest against the public need for the information.
B.

FOIA Exemption 7 Threshold

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40.

Exemption 7 establishes a threshold requirement that, in order to withhold

information on the basis of any of its subparts, the records or information must be compiled for
law enforcement purposes.
41.

The information for which FOIA Exemption 7 has been asserted in the instant

matter satisfies this threshold requirement. Pursuant to the Immigration and Nationality Act
codified under Title 8 of the U.S. Code, the Secretary of Homeland Security is charged with the
administration and enforcement of laws relating to the immigration and naturalization of aliens,
subject to certain exceptions. See 8 U.S.C. § 1103. ICE is the largest investigative arm of the
DHS and the second largest investigative agency in the federal government. Created in 2003
through a merger of the investigative and interior enforcement elements of the U.S. Customs
Service and the Immigration and Naturalization Service, ICE now has more than 20,000 employees
and offices in all 50 states and 48 foreign countries, and is responsible for enforcing the nation’s
immigration laws, and identifying and eliminating vulnerabilities within the nation’s borders.
42.

There are three directorates within ICE, including, as relevant here, HSI. HSI

investigates domestic and international activities that arise from the illegal movement of people
and goods into, within, and out of the United States. These include, for example, immigration
fraud, human rights violations, financial crimes, cybercrime, export enforcement issues, and
human, narcotics, and weapons smuggling. In addition to criminal investigations, HSI oversees
ICE international affairs questions and intelligence functions. As a threshold matter, the records
and information located in response to Plaintiffs’ FOIA request were collected and compiled by
ICE law enforcement officers during the investigation of suspected violations of criminal laws.
Therefore, the records and information located in response to the FOIA request were compiled for
law enforcement purposes and meet the threshold requirement of FOIA Exemption 7.

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C.

FOIA Exemption 5 U.S.C. § 552(b)(7)(C)

43.

FOIA Exemption 7(C) protects from disclosure records or information “compiled

for law enforcement purposes” if a release of the records or information “could reasonably be
expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552 (b)(7)(C).
D.

FOIA Exemption 5 U.S.C. § 552(b)(6) and (b)(7)(C)

44.

When asserting Exemptions 6 and 7(C), ICE balances an individual’s personal

privacy interest against the public’s interest in obtaining information that sheds light on ICE’s
performance of its statutory duties.
45.

Here, ICE applied Exemption 6 in conjunction with Exemption 7(C) to protect from

disclosure the names, email addresses, and phone numbers of federal law enforcement officers,
and the names, email addresses, and phone numbers of third parties.
46.

In regard to the information about federal law enforcement employees, by virtue of

the positions held referenced in the responsive records, they are permitted access to official law
enforcement investigation information. ICE gave consideration to the privacy interests of these
federal law enforcement employees in not becoming targets of harassment - be it in the form of
requests for authorized access to law enforcement information or requests for information about
ongoing or closed investigations - and their interest in remaining free of interference in the
performance of their duties by persons who are currently of interest to law enforcement or oppose
the ICE mission. In addition, there are privacy considerations at issue in the interest of each of
these individuals in remaining free from harassment and annoyance in conducting their official
duties in the future, their interest in remaining free from harassment and annoyance in their private
lives, and their interest in not being targeted by individuals in the future who may begrudge them.

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47.

Further, federal law enforcement employees who take part in highly-publicized or

sensitive investigations or operations have an interest in keeping their involvement in such
activities private in order to avoid an onslaught of media attention or stigma and undue public
attention. These federal law enforcement employees face an increased risk of harassment or attack,
and, therefore, have an increased privacy interest due to the nature of their work.
48.

Regarding that information contained in the responsive records specific to other

third parties, if released, this information would permit the identity of an individual to be directly
or indirectly inferred. Third party individuals have a recognized privacy interest in not being
publicly associated with law enforcement investigations through the release of records compiled
for law enforcement purposes. The identities of persons named in law enforcement files (whether
or not the named individual is the target of investigations or law enforcement actions) are properly
withheld under Exemptions 6 and 7(C) in recognition of the stigmatizing connotation carried by
the mere mention of individuals in law enforcement files.
49.

In addition, ICE considered the privacy interests of the third parties in remaining

free from embarrassment, humiliation, annoyance, harassment, intimidation, unofficial
questioning, retaliation or physical harm for having been identified in these law enforcement
records.
50.

Furthermore, such information, if disclosed to the public or to a third-party

requester without the permission of the individual, could expose the individuals to identity theft
and may reasonably lead to unwanted contact from persons that might seek to harm them.
51.

ICE determined that the disclosure of the information described in Paragraph 44

above would constitute a clearly unwarranted invasion of personal privacy and thus applied
Exemption 6.

In addition, ICE determined that disclosure of the information described in

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Paragraph 44 above was compiled for law enforcement purposes and, if released, would cause
foreseeable harm to the federal law enforcement officers and the third-parties named in the records,
could reasonably be expected to constitute an unwarranted invasion of personal privacy, and thus
applied Exemption 7(C).
52.

Having determined that the individuals identified in the responsive records have a

cognizable privacy interest in not having their information released, ICE FOIA then balanced the
interest in safeguarding the individuals’ privacy from unnecessary public scrutiny against the
public’s interest in obtaining information that would shed light on the operations and activities of
ICE in the performance of its statutory duties. Plaintiffs has failed to articulate any public interest
that could be advanced by releasing this information and in each instance where Exemptions 6 and
7(C) were applied, the redaction was limited to the name of the individual or other personally
identifiable information, which if released, would not shed any further light as to the operations or
activities of ICE. All of the information surrounding the redactions was released and the limited
extent of the redaction is readily apparent from the context of the records.
53.

Based upon the traditional recognition of strong privacy interests in law

enforcement records, the categorical withholding of third party information identified in law
enforcement records is appropriate. Moreover, the third parties identified in these records have not
provided consent to the release of their personally identifying information as required by 6 C.F.R.
§§ 5.3(a)(4) & 5.21(d).
E.

FOIA Exemption 5 U.S.C. § 552(b)(7)(D)

54.

FOIA Exemption 7(D) protects from disclosure information “compiled for law

enforcement purposes [which] could reasonably be expected to disclosure the identity of a
confidential source, including a state, local, or foreign agency or authority or any private institution

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which furnished information on a confidential bases, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a criminal investigation or by
an agency conducting a lawful national security intelligence investigation, information furnished
by a confidential source.” 5 U.S.C. § 552 (b)(7)(D)
55.

When asserting Exemption 7(D), ICE determined whether the source provided

information under an expressed promise of confidentiality, or under circumstances where such
confidentiality could be reasonable inferred.
56.

Here, ICE applied Exemption 7(D) to the names, physical addresses, and email

domain names of private companies that participated in the underlying Operation that was the
substance of the Plaintiff’s FOIA request. Each of the companies whose name and/or address has
been withheld under Exemption 7(D) provided information to ICE to assist in a federal criminal
law enforcement investigation under an expressed promise that ICE would not reveal to the public
that they participated in this Operation. If released, foreseeable harm would result to both the
companies that provided the information under the promise of confidentiality and to ICE, who
relies upon the information these companies provide during the course of their law enforcement
operations.
VI.

SEGREGABILITY
57.

5 U.S.C. § 552(b) requires that “[a]ny reasonably segregable portion of a record

shall be provided to any person requesting such record after deletion of the portions which are
exempt.”
58.

A line-by-line review was conducted to identify information exempt from

disclosure or for which a discretionary waiver of exemption could be applied.

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