Case Detail

FOIA Project Annotation: A federal court in California has ruled that the Department of Homeland Security has not yet justified is claims that records concerning its decision to allow George Gibney, an Irish-national swimming coach accused of sexual abuse, to enter and reside in the United States may be withheld under Exemption 6 (invasion of privacy), Exemption 7(C) (invasion of privacy concerning law enforcement records), and Exemption 7(F) (harm to any person). Investigative journalist Irvin Muchnick requested records on Gibney as part of an investigation into sexual abuse in amateur sports. The agency located Gibney's alien file and withheld 98 pages. Noting that "apart from boilerplate recitations of FOIA exemption law, the DHS index almost exclusively repeats a few genera; asserted grounds for withholding documents," the court indicated that "boilerplate explanations for withholdings--like those provided by DHS here--are improper, and efforts must be 'made to tailor the explanation to the specific document withheld.' DHS's declaration supporting the index provides no additional details." The court found the agency's segregability analysis was also inadequate. Sending the case back to the agency for further justification, the court observed that "between DHS's failure to segregate any information and its inadequate Vaughn Index, the Court cannot approve its decision to entirely withhold the 40 documents in dispute here."
Issues: Exemption 7(C) - Invasion of privacy concerning law enforcement records, Exemption 6 - Invasion of privacy, Exemption 7(F) - Harm to safety of any person

FOIA Project Annotation: A federal court in California has agreed with freelance journalist Irvin Muchnick that U.S. Citizenship and Immigration Services is required to disclose most of the information it redacted from the Alien File of George Gibney, a former Irish Olympic swim coach who had been accused of sexually assaulting young swimmers, because it would reveal why the U.S. government allowed Gibney to immigrate to the U.S. in 1994, despite the substantial allegations against him. Muchnick, an investigative journalist, was writing a book on sexual abuse in amateur athletics. Because of a string of well-publicized incidents involving coaches and managers who had been associated with the now defunct Irish Amateur Swimming Association, Muchnick became interested in Gibney's case. A former Irish Olympic swim coach, Gibney was accused of multiple counts of sexual abuse dating back to the 1960s. However, he escaped prosecution when the Irish Supreme Court in 1994 ruled that the statute of limitations had run. Gibney left Ireland and went to Scotland and then on to the United States, where he still lives. To learn the reasons why Gibney was allowed to immigrate to the United States, Muchnick made a request to USCIS for Gibney's visa, green card and other related records. In response to Muchnick's request, the agency located 102 pages in Gibney's Alien File. The agency disclosed four pages and withheld 98 pages, primarily under Exemption 7(C) (invasion of privacy concerning law enforcement records) and Exemption 7(E) (investigative methods and techniques). Judge Charles Breyer had previously found the agency's Vaughn index insufficient. At the time of his decision here, only 20 documents consisting of 43 pages remained in dispute. Addressing the agency's supplemental index, Breyer observed that "its supplemental Vaughn Index, in all candor, fares little better." However, Breyer had reviewed the records in camera and indicated that as a result of that review he was prepared to rule on the agency's exemption claims. Muchnick claimed that the agency had not shown a rational nexus between a legitimate law enforcement purpose and Gibney's Alien File. But Breyer disagreed, noting that "there can be no doubt that DHS compiled George Gibney's A-File for legitimate law enforcement and adjudicative purposes. Exemption 7(C) is in play." Having found that Exemption 7(C) applied, Breyer pointed out that Reporters Committee created a presumption that personal information in law enforcement records was normally protected unless the plaintiff could show that disclosure would shed light on government operations or activities. But he also cited to a recent Ninth Circuit decision, Kowack v. U.S. Forest Service, 766 F.3d 1130 (9th Cir. 2014), noting that "at the same time, privacy interests in information fade when members of the general public, 'already know' about it." He then pointed out that "Gibney finds little shelter under Reporters Committee. At least as to allegations of sexual abuse, his A-File is no 'compilation of otherwise hard-to-obtain information.' Anyone who bothers Googling his name can get their hands on the sordid details of his alleged crimes." Acknowledging the notoriety of the accusations against Gibney, Breyer indicated that "Gibney has 'no privacy interests' in preventing disclosure of the widely known allegations swirling around him. And without a privacy interest, there can be no invasion of personal privacy, let alone an unwarranted one." He explained that "accordingly, DHS may not withhold under Exemption 6 or 7(C) portions of documents merely reciting criminal allegations against Gibney." But he noted that "the public does not have easy access to information about Gibney's past addresses, salary history, and�"most relevant here�"immigration decisions made by DHS. Gibney retains a privacy interest in such information." Breyer next turned to the public interest in disclosure, observing that when alleging government misconduct the plaintiff must provide evidence sufficient to warrant a belief in a reasonable person that the government impropriety may have occurred. He noted that "Muchnick has made that showing. Charges against Gibney came to light no later than 1993. In 1994, the Irish Supreme Court put an end to the case�"not for lack of evidence, but because the statute of limitations had run. This was no secret. But it did not stop American authorities from allowing Gibney to enter the United States and remain here ever since. So although the information Muchnick seeks 'is tied solely to one individual,' much of it sheds light on multiple decisions by multiple DHS personnel. It details what they knew about Gibney's past and when they knew it. Those details shed light on DHS's performance of its statutory duties, and most certainly lets citizens know 'what their government is up to.' And given Gibney's past, it is enough to 'warrant a belief by a reasonable person' that�"perhaps�"more should have been done." The agency argued that Hunt v. FBI, 972 F.2d 286 (9th Cir. 1992), in which the Ninth Circuit found that disclosure of sexual misconduct allegations against a single FBI agent would not shed light on the government's operations, applied here as well. Breyer, however, disagreed, pointing out that "this is a different case. For a start, the privacy interests at stake here are lower than in Hunt. The world already knows about the sexual abuse allegations facing Gibney, lewd as they are. And although he has a privacy interest in DHS immigration decisions, the public has a strong interest in understanding how and why their government allowed a man with a far-worse-than-checkered past (and perhaps present) to stay here for more than two decades. In other words, the allegations here are far better substantiated than those in Hunt�"and with them the claims of possible government malfeasance." Breyer rejected much of the agency's Exemption 7(E) claims as well. He pointed out that "DHS has properly redacted documents that reveal the databases USCIS uses, 'coded information,' 'biometric checks,' and other technical information. Those are law enforcement 'techniques' under Exemption 7(E). The real fight here is whether DHS must disclose what those 'techniques' revealed, namely the sexual abuse accusations." DHS argued that disclosure would reveal the kind of information sought by immigration officials when conducting background checks. Breyer, however, indicated that "so long as DHS redacts how it obtained information about Gibney, disclosing what it found out would not disclose a law enforcement technique, procedure or guideline. That is all the more true given that the allegations here are no secret."
Issues: Exemption 7(E) - Investigative methods or techniques, Exemption 7(C) - Invasion of privacy concerning law enforcement records

FOIA Project Annotation: Ruling on the basis of his in camera review after the Department of Homeland Security and journalist Irvin Muchnick were unable to settle their dispute over 20 remaining documents from George Gibney's alien file, a federal court in California has ordered the agency to disclose most of the redacted information concerning allegation of sexual abuse of underage swimmers, which the agency claimed were protected by Exemption 7(C) (invasion of privacy concerning law enforcement records), Exemption 6 (invasion of privacy), and Exemption 7(E) (investigative methods and techniques). Gibney, a former coach of the Irish swim team, had immigrated to the United States in 1994, even though there were substantive allegations of sexual abuse on his part. As part of his research for a book on sexual abuse in amateur athletics, Muchinick requested Gibney's alien file from U.S. Citizenship and Immigration Services. After the agency refused to disclose most of the records, Muchnick filed suit. Judge Charles Breyer ruled previously that because the sexual abuse allegations against Gibney were already public, his privacy interest in such information was non-existent. However, in his most recent decision, Breyer had indicated that the agency's exemption claims were appropriate. After the parties failed to come to an agreement, Breyer resolved the remaining issues based on his in camera review. The agency had relied on Reporters Committee to argue that the information was practically obscure, but Breyer noted that "Gibney finds little shelter under Reporters Committee. At least as to allegations of sexual abuse, his A-File is no 'compilation of otherwise hard-to-obtain information.' Anyone who bothers Googling his name can get their hands on the sordid details of his alleged crimes." As a result, Breyer added, "Gibney has 'no privacy interest' in preventing disclosure of the widely known allegations swirling around him. And without a privacy interest, there can be no invasion of personal privacy, let alone an unwarranted one." As to the public interest in disclosure, Breyer indicated that "much of [the information] sheds light on multiple decisions by multiple DHS personnel. It details what they knew about Gibney's past and when they knew it." Rejecting the agency's claim that disclosure of the information was not in the public interest because in involved a single individual, Breyer pointed out that "although he has a privacy interest in DHS immigration decisions, the public has a strong interest in understanding how and why their government allowed a man with a far-worse-than-checkered past (and perhaps present) to stay here for more than two decades." Breyer agreed with the government that information that could reveal how certain databases were used was protected under Exemption 7(E). Breyer however, found the exemption applied only so far. He explained that "so long as DHS redacts how it obtained information about Gibney, disclosing what it found out would not disclose a law enforcement technique, procedure, or guideline. That is all the more true given that the allegations here are no secret."
Issues: Exemption 7(C) - Invasion of privacy concerning law enforcement records, Exemption 6 - Invasion of privacy, Exemption 7(E) - Investigative methods or techniques

Date Filed	Doc #	Docket Text
2015-07-01	1	COMPLAINT against Department of Homeland Security ( Filing fee $ 400, receipt number 0971-9647712.). Filed byIrvin Muchnick. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Civil Cover Sheet Completed Civil Cover Sheet)(Gordet, Roy) (Filed on 7/1/2015) (Entered: 07/01/2015)
2015-07-01	2	Statement Certification of No Other Interested Parties, Local 3-15 by Irvin Muchnick. (Gordet, Roy) (Filed on 7/1/2015) (Entered: 07/01/2015)
2015-07-02	3	Case assigned to Magistrate Judge Elizabeth D. Laporte. Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening. Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (sv, COURT STAFF) (Filed on 7/2/2015) (Entered: 07/02/2015)
2015-07-02	4	Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 9/22/2015. Case Management Conference set for 9/29/2015 10:00 AM. (mclS, COURT STAFF) (Filed on 7/2/2015) (Entered: 07/02/2015)
2015-07-02	5	Proposed Summons. (Gordet, Roy) (Filed on 7/2/2015) (Entered: 07/02/2015)
2015-07-07	6	Summons Issued as to Department of Homeland Security.(mclS, COURT STAFF) (Entered: 07/07/2015)
2015-07-07	7	CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Irvin Muchnick.. (Gordet, Roy) (Filed on 7/7/2015) (Entered: 07/07/2015)
2015-07-08	8	CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because a party has not consented to the jurisdiction of a Magistrate Judge. You will be informed by separate notice of the district judge to whom this case is reassigned. ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED. This is a text only docket entry; there is no document associated with this notice. (shyS, COURT STAFF) (Filed on 7/8/2015) (Entered: 07/08/2015)
2015-07-09	9	ORDER, Case ressigned to Hon. Charles R. Breyer. Magistrate Judge Elizabeth D. Laporte no longer assigned to the case.. Signed by Executive Committee on 7/9/15. (ha, COURT STAFF) (Filed on 7/9/2015) (Entered: 07/09/2015)
2015-07-15	10	CASE MANAGEMENT SCHEDULING ORDER: Case Management Statement due by 10/2/2015. Case Management Conference set for 10/9/2015 08:30 AM in Courtroom 6, 17th Floor, San Francisco. (beS, COURT STAFF) (Filed on 7/15/2015) (Entered: 07/15/2015)
2015-07-24	11	SUMMONS RETURNED EXECUTED by Irvin Muchnick. U.S. Attorney served on 7/24/15. (Attachments: # 1 Declaration re Proof of Service)(Gordet, Roy) (Filed on 7/24/2015) Modified on 7/27/2015 (mclS, COURT STAFF). (Entered: 07/24/2015)
2015-08-05	12	ANSWER to Complaint byDepartment of Homeland Security. (Scharf, James) (Filed on 8/5/2015) (Entered: 08/05/2015)
2015-09-17	13	CASE MANAGEMENT STATEMENT JOINT CASE MANAGEMENT STATEMENT filed by Department of Homeland Security. (Scharf, James) (Filed on 9/17/2015) (Entered: 09/17/2015)
2015-10-09	14	Minute Entry for proceedings held before Hon. Charles R. Breyer: Initial Case Management Conference held on 10/9/2015. Responses due by 11/24/2015. Replies due by 12/1/2015. Motion Hearing set for 1/15/2016 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer (agreed on schedule). Court Reporter: not reported. Plaintiff Attorney: Roy Gordet. Defendant Attorney: James Scharf. This is a text only Minute Entry (beS, COURT STAFF) (Date Filed: 10/9/2015) (Entered: 10/12/2015)
2015-10-27	15	MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT filed by Department of Homeland Security. Motion Hearing set for 1/15/2016 10:00 AM before Hon. Charles R. Breyer. Responses due by 11/10/2015. Replies due by 11/17/2015. (Scharf, James) (Filed on 10/27/2015) (Entered: 10/27/2015)
2015-10-27	16	Declaration of JILL A. EGGLESTON in Support of 15 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT filed byDepartment of Homeland Security. (Related document(s) 15 ) (Scharf, James) (Filed on 10/27/2015) (Entered: 10/27/2015)
2015-11-10	17	RESPONSE (re 15 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT ) Memorandum of Points & Authorities filed byIrvin Muchnick. (Attachments: # 1 Declaration of Irvin Muchnick, # 2 Exhibit Exhibit A to Muchnick Declaration, # 3 Exhibit Exhibit B to Muchnick Declaration, # 4 Exhibit Exhibit C to Muchnick Declaration, # 5 Exhibit Exhibit D to Muchnick Declaration, # 6 Exhibit Exhibit E to Muchnick Declaration, # 7 Declaration Declaration of Roy S. Gordet in Opposition to Motion for Summ Judgment)(Gordet, Roy) (Filed on 11/10/2015) (Entered: 11/10/2015)
2015-11-18	18	REPLY (re 15 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT ) DEFENDANTS REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT filed byDepartment of Homeland Security. (Scharf, James) (Filed on 11/18/2015) (Entered: 11/18/2015)
2016-01-04	19	CLERK'S NOTICE: Resetting Hearing as to 15 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT . Motion for Summary Judgment Hearing reset for 2/12/2016 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 1/4/2016) (This is a text-only entry generated by the court. There is no document associated with this entry.)</ (Entered: 01/04/2016)
2016-02-08	20	CLERK'S NOTICE Continuing Motion Hearing and Resetting Hearing as to 15 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT . Motion Hearing reset for 2/26/2016 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer.. (This is a text-only entry generated by the court. There is no document associated with this entry.) ,(beS, COURT STAFF) (Filed on 2/8/2016) (Entered: 02/08/2016)
2016-02-24	21	ORDER DENYING SUMMARY JUDGMENT AND REQUIRING A SUPPLEMENTED VAUGHN INDEX by Judge Charles R. Breyer. (crblc2, COURT STAFF) (Filed on 2/24/2016) (Entered: 02/24/2016)
2016-04-12	22	EXHIBITS re 21 Order on Motion for Summary Judgment DEFENDANTS SUPPLEMENTAL VAUGHN INDEX AND REDACTED DOCUMENTS filed byDepartment of Homeland Security. (Related document(s) 21 ) (Scharf, James) (Filed on 4/12/2016) (Entered: 04/12/2016)
2016-04-20	23	MOTION for Administrative Relief - Request for Further Case Management Conference filed by Irvin Muchnick. Responses due by 4/25/2016. (Attachments: # 1 Declaration of Roy S. Gordet in Support, # 2 Proposed Order)(Gordet, Roy) (Filed on 4/20/2016) Modified on 4/21/2016 (mclS, COURT STAFF). (Entered: 04/20/2016)
2016-04-28	24	ORDER granting 23 ADMINISTRATIVE MOTION Further Case Management Conference filed by Irvin Muchnick. Case Management Statement due by 5/13/2016. Further Case Management Conference set for 5/20/2016 10:00 AM in Courtroom 6, 17th Floor, San Francisco. Signed by Judge Charles R. Breyer on 4/28/2016. (beS, COURT STAFF) (Filed on 4/28/2016) (Entered: 04/28/2016)
2016-05-10	25	CASE MANAGEMENT STATEMENT FURTHER JOINT CASE MANAGEMENT STATEMENT filed by Department of Homeland Security. (Scharf, James) (Filed on 5/10/2016) (Entered: 05/10/2016)
2016-05-13	26	CLERK'S NOTICE Resetting the TIME ONLY for FCMC. Further Case Management Conference reset for 02:00 PM on 5/20/2016 in Courtroom 6, 17th Floor, San Francisco. (beS, COURT STAFF) (Filed on 5/13/2016) (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 05/13/2016)
2016-05-20	27	Minute Entry for proceedings held before Hon. Charles R. Breyer: Further Case Management Conference held on 5/20/2016. Defendant submits documents in camera for the Courts review and advises the Court of 1 more page to be submitted.Total Time in Court 12 minutes. Court Reporter Name Not reported. Plaintiff Attorney: Roy Gordet. Defendant Attorney: James Scharf. This is a text only Minute Entry (beS, COURT STAFF) (Date Filed: 5/20/2016) (Entered: 05/23/2016)
2016-05-31	28	Letter from James A. Scharf . (Scharf, James) (Filed on 5/31/2016) (Entered: 05/31/2016)
2016-07-15	29	ORDER TO SHOW CAUSE by Judge Charles R. Breyer on 7/14/16 (crblc2, COURT STAFF) (Filed on 7/15/2016). (Entered: 07/15/2016)
2016-09-01	30	MOTION for Summary Judgment DEFENDANTS SECOND MOTION FOR SUMMARY JUDGMENT filed by Department of Homeland Security. Motion Hearing set for 10/21/2016 10:00 AM before Hon. Charles R. Breyer. Responses due by 9/15/2016. Replies due by 9/22/2016. (Scharf, James) (Filed on 9/1/2016) (Entered: 09/01/2016)
2016-09-01	31	Declaration of JILL A. EGGLESTON in Support of 30 MOTION for Summary Judgment DEFENDANTS SECOND MOTION FOR SUMMARY JUDGMENT SUPPLEMENTAL DECLARATION OF JILL A. EGGLESTON filed byDepartment of Homeland Security. (Related document(s) 30 ) (Scharf, James) (Filed on 9/1/2016) (Entered: 09/01/2016)
2016-09-15	32	RESPONSE (re 30 MOTION for Summary Judgment DEFENDANTS SECOND MOTION FOR SUMMARY JUDGMENT ) filed byIrvin Muchnick. (Attachments: # 1 Proposed Order)(Gordet, Roy) (Filed on 9/15/2016) (Entered: 09/15/2016)
2016-09-22	33	REPLY (re 30 MOTION for Summary Judgment DEFENDANTS SECOND MOTION FOR SUMMARY JUDGMENT ) DEFENDANTS REPLY IN SUPPORT OF SECOND MOTION FOR SUMMARY JUDGMENT filed byDepartment of Homeland Security. (Scharf, James) (Filed on 9/22/2016) (Entered: 09/22/2016)
2016-09-28	34	CLERK'S NOTICE Continuing Motion Hearing: Reset Hearing as to 30 MOTION for Summary Judgment DEFENDANTS SECOND MOTION FOR SUMMARY JUDGMENT . Motion Hearing set for 10/28/2016 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 9/28/2016). (This is a text-only entry generated by the court. There is no document associated with this entry.) , (Entered: 09/28/2016)
2016-10-28	35	Minute Entry for proceedings held before Hon. Charles R. Breyer: Motion Hearing held on 10/28/2016 re 30 MOTION for Summary Judgment DEFENDANTS SECOND MOTION FOR SUMMARY JUDGMENT filed by Department of Homeland Security: The Court WILL ISSUE a tentative ruling without prejudice at which point: 1) the in camera documents will be forwarded back to the defendant by the Court with explanation; 2) if defendant agrees with the Court, plaintiff will get agreed upon documents; 3) if PARTIES CONTINUE TO disagree, a formal Order will be issue. Total Time in Court 49. Court Reporter: Kelly Shainline. Plaintiff Attorney: Roy Gordet. Defendant Attorney: Jim Scharf. This is a text only Minute Entry. There is no pdf image associated with this entry. (afmS, COURT STAFF) (Date Filed: 10/28/2016) (Entered: 10/28/2016)
2016-11-02	36	TENTATIVE ORDER (crblc2, COURT STAFF) (Filed on 11/2/2016) (Entered: 11/02/2016)
2016-11-04	37	STIPULATION WITH PROPOSED ORDER Re Tentative Order on Motion for Summary Judgment filed by Department of Homeland Security. (Scharf, James) (Filed on 11/4/2016) (Entered: 11/04/2016)
2016-11-04	38	Order by Hon. Charles R. Breyer granting 37 Stipulation Re Tentative Order on Motion for Summary Judgment. Parties shall file a joint response to the Tentative Order within thirty (30) days of the issuance of this Order.(afmS, COURT STAFF) (Filed on 11/4/2016) (Entered: 11/04/2016)
2016-12-05	39	Response re 36 Order, 38 Order on Stipulation, (Joint Response) byDepartment of Homeland Security. (Scharf, James) (Filed on 12/5/2016) (Entered: 12/05/2016)
2016-12-06	40	ORDER by Judge Charles R. Breyer granting in part and denying in part 30 Motion for Summary Judgment. (crblc2, COURT STAFF) (Filed on 12/6/2016) (Entered: 12/06/2016)
2016-12-06	41	JUDGMENT. Signed by Judge Charles R. Breyer on 12/06/2016. (crblc2, COURT STAFF) (Filed on 12/6/2016) (Entered: 12/06/2016)
2016-12-13	42	Consent MOTION for Extension of Time to File by Stipulation with Proposed Order filed by Irvin Muchnick. (Gordet, Roy) (Filed on 12/13/2016) (Entered: 12/13/2016)
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