Opinion
19-CV-2904 (MKB)
2021-07-26
Jizi CUI, Shoumei Kan, and Fengzhe Jin, Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.
Daniel Walter Worontzoff, The Worontzoff Law Office, PLLC, Flushing, NY, for Plaintiffs. Kathleen Anne Mahoney, Melanie Mary Speight, United States Attorney's Office, Brooklyn, NY, for Defendant.
Daniel Walter Worontzoff, The Worontzoff Law Office, PLLC, Flushing, NY, for Plaintiffs.
Kathleen Anne Mahoney, Melanie Mary Speight, United States Attorney's Office, Brooklyn, NY, for Defendant.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge:
Plaintiffs Jizi Cui, Shoumei Kan, and Fengzhe Jin commenced the above-captioned action on May 16, 2019, against Defendant Federal Bureau of Investigation (the "FBI"), alleging that the FBI improperly withheld agency records in violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. (Compl., Docket Entry No. 1.) Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, asserting that the withheld documents are exempt from disclosure, and Plaintiffs oppose the motion.
(Def.’s Mot. for Summ. J. ("Def.’s Mot."), Docket Entry No. 23; Def.’s Mem. in Supp. of Def.’s Mot. ("Def.’s Mem."), Docket Entry No. 25; Def.’s Reply. in Supp. of Def.’s Mot. ("Def.’s Reply"), Docket Entry No. 27; Aff. in Opp'n to Def.’s Mot. ("Pls.’ Opp'n"), Docket Entry No. 28.)
For the reasons discussed below, the Court grants Defendant's motion for summary judgment.
I. Background
a. FOIA requests
Between 2012 and 2016, Plaintiffs submitted separate FOIA requests to the FBI for their individual records, which were all denied. (Def.’s Stmnt. of Material Facts pursuant to Local Rule 56.1 ("Def.’s 56.1") ¶¶ 1–22, Docket Entry No. 24.) Cui and Jin submitted FOIA requests in December of 2012, and Cui, Jin, and Kan submitted FOIA requests in June of 2016. (Def.’s 56.1 ¶¶ 1, 4, 10, 16–18.)
i. Cui's FOIA requests
On December 4, 2012, Cui submitted a FOIA request to the FBI for her records. (Def.’s 56.1 ¶ 1.) By letter dated December 13, 2012, Defendant acknowledged receipt of Cui's FOIA request and informed her "that it assigned her request Request Number 1204619-000[,] that the FBI was searching the indices to its Central Records System (‘CRS’) for information responsive to the request, and that the status of the request could be checked at the website: www.fbi.gov/foia." (Id. ¶ 2.) By letter dated December 19, 2012, Defendant informed Cui "that it was unable to locate main file records responsive to her request after searching the [CRS]," "that the response neither confirmed nor denied the existence of ... Cui's name on any watch lists," and that Cui "could appeal the FBI's determination by filing an administrative appeal with the Department of Justice Office of Information Policy (‘DOJ OIP’) within [sixty] days of the date of the letter." (Id. ¶ 3.)
"By letter dated June 27, 2016, ... Cui submitted a FOIA request to [Defendant] seeking records, specifically, ‘documents and photos from [the] FBI (complete and entire file)’ " ("Cui's 2016 Request"). (Id. ¶ 4.) On July 19, 2016, Defendant "acknowledged receipt of the FOIA request for records pertaining to [Cui]" and "informed [Cui] that it assigned her request Request Number 1354325-000[,] that [Defendant] was searching the indices to its CRS for information responsive to the request[,] and that ... Cui was determined to be a general requester and, as such, was subject to search and duplication fees pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(III)." (Id. ¶ 5.) By letter dated August 5, 2016, Defendant advised Cui "that the material requested was located in an investigative file and exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A) [(‘Exemption 7(A)’)] because there was a pending or prospective law enforcement proceeding relevant to the records and release of the records could reasonably be expected to interfere with the enforcement proceedings." (Id. ¶ 6.) Defendant stated that "it would neither confirm nor deny the existence of [Cui's] name on any watch lists" and that Cui "could appeal the determination by filing an administrative appeal with the" DOJ OIP. (Id. )
"By letter dated October 17, 2016, [Cui] submitted an appeal to DOJ OIP challenging [Defendant's] withholding of information" based on Cui's 2016 Request and "[b]y letter dated October 24, 2016, DOJ OIP acknowledged receipt of [Cui's] appeal ..., and advised that it assigned the appeal number DOJ-AP-2017-000344." (Id. ¶¶ 7–8.) "By letter dated November 22, 2016, DOJ OIP affirmed [Defendant's] action on [Cui's 2016 Request]" and advised Cui that Defendant's "action was correct and that the records responsive to the request are exempt from the access provision of the Privacy Act." (Id. ¶ 9.) "DOJ OIP further advised that [Defendant] properly withheld the information in full because it is protected from disclosure under ... [Exemption 7(A)] and it is reasonably foreseeable that disclosure of the information could interfere with enforcement proceedings," that to the extent that Cui "sought access to records that would either confirm or deny an individual's placement on any government watch list, [Defendant] properly refused to confirm or deny the existence of any such records because their existence is protected from disclosure pursuant to 5 U.S.C. § 552a(j)(2) and 5 U.S.C. § 552(b)(7)(E)," and that that Cui retained the "right to file a lawsuit in the federal district court or to seek mediation services by contacting" Office of Government Information Services ("OGIS"). (Id. )
ii. Jin's FOIA requests
"By letter dated December 4, 2012, [Jin] submitted a FOIA request to the FBI seeking records," and "[b]y letter dated December 13, 2012, [Defendant] acknowledged [Jin's] request[,] advised that the request was assigned Request Number 1204646-000," stated "that it was searching the indices to CRS for responsive information," and provided information for Jin to check the status of the request. (Id. ¶¶ 15–16.) "By letter dated December 19, 2012, [Defendant] advised [Jin] that it was unable to locate main file records responsive to [the] request," "advised that[ ] it would neither confirm nor deny the existence of [Jin's] name on any watch lists," and noted that Jin could timely appeal Defendant's determination with the DOJ OIP." (Id. ¶ 17.)
"By letter dated June 29, 2016, [Jin] submitted a FOIA request seeking ‘documents and photos from [the] FBI (complete and entire file),’ " (id. ¶ 18), and "[b]y letter dated July 20, 2016, [Defendant] advised [Jin] that it was unable to locate main records responsive to his request," that "it would neither confirm nor deny the existence of [Jin's] name on any watch lists," that Jin had the right to a timely appeal, and that he could "contact the FBI's FOIA public liaison, and/or seek dispute resolution services by contacting OGIS," (id. ¶ 19).
"By letter dated October 17, 2016, [Jin] submitted an appeal to DOJ OIP" and "[b]y letter dated October 24, 2016, DOJ OIP acknowledged receipt of [Jin's] appeal on October 19, 2016, and advised that it assigned the appeal number DOJ-AP-2017-000348." (Id. ¶¶ 20–21.) "By letter dated December 12, 2016, DOJ OIP affirmed [Defendant's] action" and "advised that, to the extent [Jin] sought access to records that would either confirm or deny an individual's placement on any government watch list, [Defendant] properly refused to confirm or deny the existence of any such records because their existence is protected from disclosure pursuant to 5 U.S.C. § 552(b)(7)(E)." (Id. ¶ 22.) DOJ OIP noted that Defendant conducted an "adequate, reasonable search for records responsive to [Jin's] request" and that "to the extent [Jin] requested a cross-reference search, that [Jin] would need to provide information sufficient to enable [Defendant] to determine with certainty that any cross-references it locates are identifiable to the subject of the [FOIA] request." (Id. ) DOJ OIP advised Jin "of the right to file a lawsuit in the federal district court or to seek mediation services by contacting OGIS." (Id. )
iii. Kan's FOIA request
"By letter dated June 28, 2016, [Kan] submitted a FOIA request to [Defendant] seeking records, specifically, ‘documents and photos from [the] FBI (complete and entire file).’ " (Id. ¶ 10.) "By letter dated July 20, 2016, [Defendant] responded to [Kan's] request, assigned FOIA Request No. 1354162-000," advised "that it was unable to locate main file records responsive to the request after searching the CRS" and "that the response neither confirmed nor denied the existence of [Kan's] name on any watch lists," and detailed the process of checking the status of the request and contacting Defendant. (Id. ¶ 11.) Defendant advised that Kan could file an appeal to the DOJ OIP within ninety days, contact the FBI's FOIA, "and/or seek dispute resolution services by contacting OGIS." (Id. ) "By letter dated October 17, 2016, [Kan] submitted an appeal to DOJ OIP challenging [Defendant's] withholding of information," (id. ¶ 12), and "[b]y letter dated October 24, 2016, DOJ OIP acknowledged receipt of [Kan's] appeal on October 19, 2016, and advised that it assigned the appeal number DOJ-AP-2017-000346," (id. ¶ 13).
"By letter dated November 15, 2016, DOJ OIP affirmed [Defendant's] action on [Kan's] FOIA request" and "advised [that] to the extent [that Kan] sought access to records that would either confirm or deny an individual's placement on any government watch list, [Defendant] properly refused to confirm or deny the existence of any such records because their existence is protected from disclosure pursuant to 5 U.S.C. § 552a(j)(2) and 5 U.S.C. § 552(b)(7)(E)." (Id. ¶ 14.) DOJ OIP further advised that Defendant's "response was correct and that it conducted an[ ] adequate, reasonable search for responsive records" and that Kan had "the right to file a lawsuit in the federal district court or seek mediation services by contacting OGIS." (Id. )
b. Search and disclosure procedure
"In response to each of Plaintiffs’ various FOI requests, [Defendant] conducted its search using its [CRS]." (Id. ¶ 29.) "The CRS spans the entire FBI organization" and consists "of applicant, investigative, intelligence, personnel, administrative, and general files compiled and maintained by the FBI in the course of fulfilling its integrated missions and functions as a law enforcement, counterterrorism, and intelligence agency to include performance of administrative and personnel functions." (Id. ¶ 29.) "The FBI ... relied upon a series of automated case management systems to effectively search CRS records, including Automated Case Support (‘ACS’) and its replacement system, Sentinel," which contain automated indices. (Id. ¶ 31.) "Responsiveness determinations [we]re made once indexed records [we]re gathered, analyzed, and sorted by [FOIA] analysts who then ma[de] informed scoping decisions to determine the total pool of records responsive to an individual[’s] request." (Id. ¶ 32.)
c. Discovery
On May 16, 2019, Plaintiffs filed the Complaint, challenging Defendant's responses to their requests for information. (Compl. ¶¶ 5–10.)
Defendant contends that while the policy at the administrative stage "is to search for and identify only ‘main’ reference files," at the litigation stage, the search expanded to "any ‘reference’ files that are potentially responsive to FOIA requests." (Def.’s 56.1 ¶¶ 33–34.) The expanded search "yielded reference serials [and records] pertaining to all three Plaintiffs," (id. ¶¶ 25, 36), and Defendant found that "[t]he subject of the responsive investigative file involving [Plaintiffs] is an Asian criminal enterprise involved in an international fraudulent document/identity theft and alien smuggling operation," (id. ¶ 37).
Defendant contends that the evidence shows that "[ninety-one] responsive records were compiled in the course of the FBI's investigation of an Asian criminal enterprise involved in an international fraudulent document/identity theft and alien smuggling operation" and the Record Information Dissemination Section "processed these records under the access provisions of the FOIA to achieve maximum disclosure." (Id. ¶¶ 40, 42.) Although Defendant "had not previously released any documents pursuant to Plaintiffs’ FOIA requests," "[b]y letter dated May 29, 2020, [Defendant] informed Plaintiffs that it had reviewed [ninety-one] pages of documents ... and was releasing [two] pages." (Id. ¶ 25.) Defendant explained that "the remaining information was being withheld in its entirety pursuant to FOIA [E]xemptions (b)(1), (b)(3), (b)(6), (b)(7)[(A)], (b)(7)(C), (b)(7)(D) and (b)(7)(E)" and "advised Plaintiffs that documents ... were located which originated with, or contained information concerning, another Government Agency (‘OGA’) and that it would provide an update to Plaintiffs after consulting with the OGA." (Id. ¶ 25.)
Defendant's 56.1 Statement erroneously referenced the murder of a foreign national, (Def.’s 56.1 ¶ 39; Def.’s Reply 7 n.1; Pls.’ Opp'n ¶ 9 n.1), which the parties note "does not form the basis for Defendant's arguments in support of summary judgment," (Def.’s Reply 7 n.1; see Pls.’ Opp'n ¶ 9 n.1 (noting that the murder reference is not "repeat[ed] ... as [is] the identify theft/smuggling ring investigation allegation")).
"On August 27, 2020, the FOIA Office of the Immigrations and Customs Enforcement Agency (‘ICE’), advised [Defendant] that ICE intended to assert FOIA Exemptions 6 and 7(C) on portions of the responsive records, specifically, records from the Office of Congressional Relations." (Id. ¶ 26.) The records at issue included "two response letters addressed to a [m]ember of Congress from the ICE Office of Congressional Records that pertain to immigration-related information about third-party individuals." (Id. ) "The exemptions were applied to names, signatures, and other personally identifiable information of an ICE employee and other third parties who did not provide requisite authorizations for their information to be released." (Id. ) "ICE redacted ... portions of the documents that were exempt from disclosure and authorized the release of the remainder of the documents." (Id. at 27 (citing Decl. of Fernando Pineiro dated Nov. 25, 2020, ("Pineiro Decl.") ¶¶ 4–6, 9, annexed to Decl. of Michael G. Seidel ("Seidel Decl.") as Ex. W, Docket Entry No. 26-1).)
"By letter dated August 31, 2020, [Defendant] informed Plaintiffs that the OGA consultation was returned and reviewed under the FOIA," "advised Plaintiffs that [two] additional pages of records were being released in part, with information withheld pursuant to FOIA Exemptions (b)(6) and (b)(7)(C)," noted that "redactions were made by ICE," and explained that "the documents represented [Defendant's] final release concerning Plaintiffs’ FOIA requests. (Id. ¶¶ 28–29.) Thus, "four pages in total were released to Plaintiffs." (Id. )
As to the remaining pages, Defendant "determined that the potential harm that could result from disclosure of [all] materials includes":
the identification of individuals, sources, and potential witnesses who possess information related to the investigation and possible harm to, or intimidation of such individuals; the use of released information to counteract evidence developed by investigators, to alter or destroy potential evidence, or to create false evidence; the use of information released to uncover the government's prosecution and trial strategy; and the use of released information by any subject of the investigations to assess the likelihood that he or she may be prosecuted and/or convicted in connection with this investigation.
(Id. ¶ 46 (citing Seidel Decl. ¶¶ 55–57, Docket Entry No. 26).) Defendant withheld information that identifies confidential sources, special agents, investigative interests, foreign activities and governments, and intelligences sources and methods pursuant to FOIA Exemptions 1, 3, 6, 7(A), 7(C), 7(D), and 7(E). (Id. ¶¶ 42–65.) Defendant contends in its motion papers that "[f]urther description of the information withheld, beyond what is provided in th[e] declaration, could identify the actual exempt information" and jeopardize "further investigative and prosecutorial efforts." (Id. ¶¶ 41, 45.)
II. Discussion
a. Standard of review
Summary judgment is proper only when "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) ; see also Barnes v. Fedele , 813 F. App'x 696, 699 (2d Cir. 2020) (quoting Vincent v. The Money Store , 736 F.3d 88, 96 (2d Cir. 2013) ); Nguedi v. Fed. Rsrv. Bank of N.Y. , 813 F. App'x 616, 617 (2d Cir. 2020). The court must "constru[e] the evidence in the light most favorable to the non-moving party" and "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Lenzi v. Systemax, Inc. , 944 F.3d 97, 107 (2d Cir. 2019) (first quoting VKK Corp. v. Nat'l Football League , 244 F.3d 114, 118 (2d Cir. 2001) ; and then quoting Johnson v. Goord , 445 F.3d 532, 534 (2d Cir. 2006) ). The role of the court "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Rogoz v. City of Hartford , 796 F.3d 236, 245 (2d Cir. 2015) (first quoting Kaytor v. Elec. Boat Corp. , 609 F.3d 537, 545 (2d Cir. 2010) ; and then citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A genuine issue of fact exists when "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Adamson v. Miller , 808 F. App'x 14, 16 (2d Cir. 2020) (quoting Jeffreys v. City of New York , 426 F.3d 549, 553 (2d Cir. 2005) ). The "mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment. Anderson , 477 U.S. at 252, 106 S.Ct. 2505. The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences in favor of the nonmoving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co. , 221 F.3d 394, 398 (2d Cir. 2000).
b. Rule 56.1 of the Local Rules
Plaintiffs failed to submit a statement in opposition to Defendant's summary judgment motion pursuant to Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("56.1 statement"). Instead, Plaintiffs submitted an "Affirmation in Opposition," which "incorporates" paragraphs one to twenty-five of Defendant's 56.1 Statement and "adopts ... Exhibits ‘A’ through Exhibit ‘W’ " of Defendant's 56.1 Statement as "accurately setting forth the documentary record of the FOIA requests and responses." (Pls.’ Opp'n ¶ 4.) Defendant argues that the Court should grant summary judgment based on Plaintiff's failure to file a 56.1 Statement and that "[a]t a minimum, all of the facts set forth in Defendant's 56.1 Statement should be deemed admitted." (Def.’s Reply 3.)
In moving for summary judgment or answering such a motion pursuant to Rule 56, litigants in this district are required by the Local Rules to provide a statement setting forth purported undisputed facts or, if controverting any fact, responding to each assertion. Local Rule 56.1(a)–(b) ; Genova v. County of Nassau , 851 F. App'x 241, 243 (2d Cir. 2021) (noting the requirements under Local Rule 56.1 ). In both instances, the party must support its position by citing to admissible evidence from the record. Local Rule 56.1(b), (d) ; see also Fed. R. Civ. P. 56(c) (requiring reliance on admissible evidence in the record in supporting or controverting a purported material fact). "[Local] Rule 56.1 is strict: ‘Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party. ’ " Genova , 851 F. App'x at 243 (first quoting Local Rule 56.1(c) ; and then citing T.Y. v. N.Y.C. Dep't of Educ. , 584 F.3d 412, 418 (2d Cir. 2009) ). "The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties." Holtz v. Rockefeller & Co. , 258 F.3d 62, 74 (2d Cir. 2001) (citations omitted). "[A] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules ...." Herlihy v. City of New York , 654 F. App'x 40, 43 (2d Cir. 2016) (alteration omitted) (quoting Holtz , 258 F.3d at 73 ); see also LoSacco v. City of Middletown , 71 F.3d 88, 92 (2d Cir. 1995) (noting that the Second Circuit gives "considerable deference" to a district court's interpretation and application of its own local rule). "Generally, ‘plaintiff[’s] failure to respond or contest the facts set forth by the defendants in their ... 56.1 statement as being undisputed constitutes an admission of those facts, and those facts are accepted as being undisputed.’ " Exeter Holdings, Ltd. v. Haltman , No. 13-CV-5475, 2020 WL 4587533, at *2 n.3 (E.D.N.Y. Apr. 21, 2020) (quoting Angulo v. Nassau County , 89 F. Supp. 3d 541, 546 n.1 (E.D.N.Y. 2015) ), report and recommendation adopted sub nom. Off. Comm. of Unsecured Creditors of Exeter Holding, Ltd. v. Haltman , 2020 WL 2832192 (E.D.N.Y. June 1, 2020). "In the typical case, failure to respond [to a 56.1 statement] results in a grant of summary judgment once the court assures itself that Rule 56 ’s other requirements have been met." Genova , 851 F. App'x at 243 (alteration in original) (quoting T.Y. , 584 F.3d at 418 ).
Because Plaintiffs, who are represented by counsel, submitted an "Affirmation in Opposition," which "incorporates" paragraphs one to twenty-five of Defendant's 56.1 Statement and "adopts ... Exhibits ‘A’ through Exhibit ‘W’ " of Defendant's 56.1 Statement as "accurately setting forth the documentary record of the FOIA requests and responses," (Pls.’ Opp'n ¶ 4), fails to respond to each assertion in Defendant's 56.1 Statement, and otherwise proffers statements without citations to evidence, the Court will deem the facts in Defendant's 56.1 Statement as admitted where supported by the record. See Est. of Keenan v. Hoffman-Rosenfeld , 833 F. App'x 489, 491 (2d Cir. 2020) ("[The] district court did not abuse its discretion in deeming admitted the facts set forth in the [defendants’ 56.1 statements] ... [where the] defendants submitted statements of facts with numbered paragraphs and in response, [the] plaintiffs submitted conclusory statements that did not correspond to [the] defendants’ statements."). However, the Court declines to grant summary judgment based on Plaintiff's failure to file a 56.1 Statement and reviews the merits of the motion. See Herlihy , 654 F. App'x at 43–44 (noting that even if a court declines to overlook a failure to file a 56.1 Statement, "it may not grant summary judgment unless the record ‘show[s] that ... the moving party is entitled to judgment as a matter of law’ " (alterations in original) (quoting Holtz , 258 F.3d at 74 n.1 )); Reyes v. 24 W. Food Corp. , No. 18-CV-10878, 2020 WL 6530885, at *5 (S.D.N.Y. July 2, 2020) (addressing a summary judgment motion on the merits despite the defendants’ failure to submit a compliant 56.1 statement), report and recommendation adopted , 2020 WL 5202094 (S.D.N.Y. Sept. 1, 2020) ; Kephart v. Certain Underwriters at Lloyd's of London , 427 F. Supp. 3d 508, 514 (S.D.N.Y. 2019) ("Although [the defendant's] failure to comply with Local Rule 56.1 has burdened both the [c]ourt and [the plaintiff], the [c]ourt declines to deny its motion for summary judgment on this basis.").
c. Plaintiffs abandoned claims relating to Cui and Jin's 2012 FOIA requests
Defendant argues that "Plaintiffs do not address Defendant's arguments ... that any claims related to [Jin] and [Cui's] 2012 FOIA requests are barred by the relevant statute of limitations and for failure to exhaust ... administrative remedies" and that "the Court should deem these claims abandoned and dismiss them." (Def.’s Reply 5 (citing D'Alessio v. Charter Commc'ns, LLC , No. 18-CV-2738, 2020 WL 5638721, at *1 n.1 (E.D.N.Y. Sept. 21, 2020) ).)
"Where a partial response to a motion [for summary judgment] is made — i.e. , referencing some claims or defenses but not others ... in the case of a counseled party, a court may, when appropriate, infer from a party's partial opposition that relevant claims or defenses that are not defended have been abandoned." Dynamic Concepts, Inc. v. Tri-State Surgical Supply & Equip. Ltd. , 716 F. App'x 5, 14 (2d Cir. 2017) (alteration in original) (quoting Jackson v. Fed. Express , 766 F.3d 189, 197–98 (2d Cir. 2014) ); see also Ziming Shen v. City of New York , 725 F. App'x 7, 17 (2d Cir. 2018) (affirming the district court's finding that the plaintiff abandoned claims that she did not address in her opposition to summary judgment); Curry v. Keefe , No. 18-CV-208, 2021 WL 1087444, at *6 (D. Vt. Mar. 22, 2021) ("Federal courts may deem a claim abandoned when a party moves for summary judgment on one claim and the party opposing summary judgment fails to address the argument in any way." (quoting Taylor v. City of New York , 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003) )). "Even ‘[w]here abandonment by a counseled party is not explicit,’ a court may infer abandonment ‘from the papers and circumstances viewed as a whole.’ " Camarda v. Selover , 673 F. App'x 26, 30 (2d Cir. 2016) (alteration in original) (quoting Jackson , 766 F.3d at 196 ).
Plaintiffs do not respond to Defendant's arguments that summary judgment is warranted on "any claims based [o]n the 2012 FOIA requests made by ... Cui and Jin because they failed to exhaust administrative remedies and, in any event, the claims are untimely." (Def.’s Mem. 23; see generally Pls.’ Opp'n.) The Court therefore finds that Plaintiff has abandoned these claims. See Banyan v. Sikorski , No. 17-CV-4942, 2021 WL 2156226, at *2 (S.D.N.Y. May 27, 2021) (concluding that the plaintiff abandoned claims where the defendants "set forth ... arguments in support of [certain claims]" and the plaintiff "provided no argumentation in his brief in opposition explaining why the claims ... should not be dismissed" (first citing Gun Hill Road Serv. Station, Inc. v. ExxonMobil Oil Corp. , 2013 WL 1804493, at *11 n.5 (S.D.N.Y. Apr. 18, 2013) ; and then citing Taylor v. Rodriguez , 238 F.3d 188, 196–97 (2d Cir. 2001) )); Curry , 2021 WL 1087444, at *6 (concluding that the plaintiff abandoned his claims where the defendant "explicitly moved for summary judgment on each of these claims, and [the plaintiff] did not address any of the claims in his briefing" (footnote omitted) (citing Kovaco v. Rockbestos-Surprenant Cable Corp. , 834 F.3d 128, 144 (2d Cir. 2016) )).
Accordingly, the Court grants Defendant's motion for summary judgment as to any claim based on Cui and Jin's 2012 FOIA requests. d. Defendant properly responded to Plaintiffs’ FOIA requests
Plaintiffs’ claims related to Cui and Jin's 2012 FOIA requests are nevertheless barred for failure to exhaust administrative remedies and time-barred. A "complainant must file an administrative appeal" if his FOIA request is denied "before bringing an action in district court," and Plaintiffs have not alleged any facts suggesting that Cui or Jin complied with the filing requirements. (See Pls.’ Opp'n; Def.’s 56.1 ¶¶ 3–17); United States v. Osinowo , 100 F.3d 942 (2d Cir. 1996) (first citing 5 U.S.C. § 552(a)(6)(A) ; and then citing 5 U.S.C. § 552(a)(6)(C) ); see also Robert v. Dep't of Just. , 193 F. App'x 8, 9 (2d Cir. 2006) ("Because [the plaintiff] did not take the administrative appeal from [the agency's] timely denial [of his FOIA request] before filing suit, we agree with the district court that he failed to exhaust administrative remedies."); Caraveo v. U.S. E.E.O.C. , 96 F. App'x 738, 741 (2d Cir. 2004) ("Because [the plaintiff] failed to allege that he ... exhausted administrative remedies, a prerequisite to maintaining a FOIA action in the courts, the district court properly dismissed this claim as against all defendants." (citing see 5 U.S.C. § 552(a)(6)(C) )). Plaintiffs’ claims based on Cui and Jin's 2012 FOIA requests are also time-barred because Plaintiffs commenced this action on May 16, 2019, (Compl.), and thus failed to file claims within "six years after the right of action first accrue[d]," 28 U.S.C. § 2401(a) ; see also Rowe v. FBI Headquarters , No. 18-CV-183, 2019 WL 11626176, at *2 (D. Vt. Feb. 15, 2019) ("The statute of limitations for a FOIA suit is six years." (citing 28 U.S.C. § 2401(a) )); Manfredonia v. S.E.C. of U.S. , No. 08-CV-1678, 2008 WL 2917079, at *2 (E.D.N.Y. July 24, 2008) (noting that "a FOIA claim must be commenced within six years after the claim accrues" (citing Peck v. C.I.A. , 787 F. Supp. 63, 64 (S.D.N.Y. 1992) )).
Defendant argues that summary judgment is warranted because the agency properly responded to Plaintiffs’ FOIA requests and withheld information from disclosure pursuant to Exemption 7(A). (Def.’s Mem. 4; Def.’s Reply 6.)
Plaintiffs request that the Court deny Defendant's motion for summary judgment "or, in the alternative, [hold the motion] in abeyance pending an ‘in camera’ review of the relevant records." (Pls.’ Opp'n ¶ 13.)
Pursuant to FOIA, federal district courts have jurisdiction to prevent an "agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Kissinger v. Reporters Comm. for Freedom of the Press , 445 U.S. 136, 139, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) (citing 5 U.S.C. § 552(a)(4)(B) ). For a federal court to have jurisdiction it must be shown that an agency has "(1) improperly (2) withheld (3) agency records." Grand Cent. P'ship, Inc. v. Cuomo , 166 F.3d 473, 478 (2d Cir. 1999) (internal quotation marks omitted) (quoting U.S. Dep't of Just. v. Tax Analysts , 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) ); Roman v. C.I.A. , No. 11-CV-5944, 2013 WL 210224, at *3 (E.D.N.Y. Jan. 18, 2013) ; The Shinnecock Indian Nation v. Kempthorne , 652 F. Supp. 2d 345, 355 (E.D.N.Y. 2009). A district court may force disclosure only when all three elements are met. Grand Cent. P'ship , 166 F.3d at 478 (citing Tax Analysts , 492 U.S. at 142, 109 S.Ct. 2841 ). "When an agency has demonstrated that it has not ‘withheld’ requested records in violation of the standards established by Congress, the federal courts have no authority to order the production of such records under the FOIA." Kissinger , 445 U.S. at 139, 100 S.Ct. 960.
The defending agency has the burden of showing that its "search was ... adequate," McDonald v. Barr , 791 F. App'x 277, 278 (2d Cir. 2020) (quoting Carney v. U.S. Dep't of Just. , 19 F.3d 807, 812 (2d Cir. 1994) ), and that a responsive document was properly withheld from disclosure, Spadaro v. U.S. Customs & Border Prot. , 978 F.3d 34, 42 (2d Cir. 2020) (quoting Wilner v. Nat'l Sec. Agency , 592 F.3d 60, 73 (2d Cir. 2009) ); see also Smith v. U.S. Marshals Serv. , No. 19-CV-3572, 2021 WL 1177692, at *5 (S.D.N.Y. Mar. 29, 2021) (concluding that the agency "met its burden of showing that it conducted an adequate search for records responsive to [the plaintiff's] requests"); Platsky v. Fed. Bureau of Investigation , 20-CV-573, 2021 WL 2784530, at *4 (S.D.N.Y. July 2, 2021) ("An agency ‘resisting disclosure’ of the requested records ‘has the burden of proving the applicability of an exemption.’ " (quoting Wilner , 592 F.3d at 68 )); Am. Soc'y for Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv. , No. 19-CV-3112, 2021 WL 1163627, at *3 (S.D.N.Y. Mar. 25, 2021) ("[T]he FOIA places the burden on the defending agency to justify its decision to withhold information under a FOIA exemption." (citing 5 U.S.C. § 552(a)(4)(B) )).
The Court finds that (1) Plaintiffs abandoned any challenge to the adequacy of Defendant's search for records and (2) Defendant properly withheld information pursuant to Exemption 7(A).
i. Plaintiffs have abandoned any challenge to the adequacy of the search for relevant records
Defendant argues that Plaintiffs’ opposition papers "do not challenge or even mention the adequacy of Defendant's search for records in response to Plaintiffs’ FOIA requests" and as such, "Plaintiffs have waived any objection to the adequacy of Defendant's search." (Def.’s Reply 5.)
"When a plaintiff questions the adequacy of the search an agency made in order to satisfy its FOIA request," Grand Cent. P'ship , 166 F.3d at 489 (alteration omitted) (quoting SafeCard Servs., Inc. v. S.E.C. , 926 F.2d 1197, 1201 (D.C. Cir. 1991) ), the key question is whether the search "was reasonably calculated to discover the requested documents," and not whether every document in existence was found by the search, Whitaker v. Dep't of Com. , 970 F.3d 200, 207 n.26 (2d Cir. 2020) (quoting Grand Cent. P'ship , 166 F.3d at 489 ). See Smith , 2021 WL 1177692, at *4 ("In measuring adequacy, courts ask ‘whether the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant.’ " (quoting Grand Cent. P'ship , 166 F.3d at 489) ); see also Adamowicz v. I.R.S. , 402 F. App'x 648, 651 (2d Cir. 2010) ("[A]n agency need not show that its search uncovered every ... responsive document [in existence], but only that it ‘was reasonably calculated to discover the requested documents.’ " (quoting Grand Cent. P'ship , 166 F.3d at 489 )).
Plaintiffs do not respond to Defendant's arguments that "Plaintiffs do not appear to challenge the adequacy of Defendant's search." (Def.’s Mem. 4; see generally Pls.’ Opp'n.) Therefore, Plaintiff has abandoned these claims. See LaFever v. Clarke , No. 17-CV-1206, 525 F.Supp.3d 305, 329 (N.D.N.Y. Mar. 11, 2021) (concluding that the plaintiff abandoned certain claims on summary judgment "because she ha[d] not mounted a defense against the facially valid arguments for dismissal that were advanced by those defendants in their opening brief" (citing Kovaco , 834 F.3d at 143 )); Chiofalo v. Forster & Garbus, LLP , No. 19-CV-487, 2021 WL 242222, at *2 (E.D.N.Y. Jan. 25, 2021) ("[S]ince plaintiff does not specifically oppose, or otherwise address, so much of defendants’ motion as seeks summary judgment dismissing plaintiff's claims seeking to impose personal liability ..., they seemingly abandoned those claims." (first citing Jackson , 766 F.3d at 198 ; and then citing Kovaco , 834 F.3d at 143 )); D'Alessio , 2020 WL 5638721, at *1 n.1 ("Although the [a]mended [c]omplaint makes some reference to a disability discrimination claim not based on a failure to accommodate, [the] plaintiff did not oppose defendant's summary judgment motion with respect to this claim. Accordingly, [the] plaintiff has abandoned any disability discrimination claim not grounded in a failure to accommodate." (citing Petrisch v. HSBC Bank USA, Inc. , 2013 WL 1316712, at *17 (E.D.N.Y. Mar. 28, 2013) )).
Thus, the Court finds that Plaintiffs have abandoned any claims related to the adequacy of Defendant's search for responsive records.
ii. Defendant appropriately withheld the documents pursuant to Exemption 7(A)
Defendant asserts that Exemption 7(A) applies to the withheld documents because "the requested records have been compiled for law enforcement purposes" and "their disclosure would reasonably be expected to cause harm to the FBI's ongoing criminal investigation into a criminal enterprise." (Def.’s Mem. 5.)
Plaintiffs contend that by withholding records, Defendants "vitate[ ] the intent of the FOIA statutes" and "misuse[ ] the exemptions." (Pls.’ Opp'n ¶ 12.)
The FOIA "requires a federal agency to disclose records unless those records fall within an exemption." Everytown for Gun Safety Support Fund v. Bureau of Alcohol, Tobacco, Firearms & Explosives , 984 F.3d 30, 38 (2d Cir. 2020) (quoting 5 U.S.C. § 552(a)(3) ). Exemption 7(A) applies to "records or information compiled for law enforcement purposes" that "could reasonably be expected to interfere with enforcement proceedings." Kuzma v. U.S. Dep't of Just. , 692 F. App'x 30, 35 (2d Cir. 2017) (quoting 5 U.S.C. § 552(b)(7)(A) ); see also Clevenger v. U.S. Dep't of Just. , No. 18-CV-1568, 2020 WL 1846565, at *13 (E.D.N.Y. Apr. 3, 2020) (quoting 5 U.S.C. § 552(b)(7)(A) ). "The purpose of this exemption is to ‘prevent harm to the government's case in court by not allowing litigants earlier or greater access to agency investigatory files than they would otherwise have.’ " N.Y. Times Co. v. U.S. Dep't of Just. , 390 F. Supp. 3d 499, 512–13 (S.D.N.Y. 2019) (quoting N.Y. Times Co. v. U.S. Dep't of Just. , No. 14-CV-3776, 2016 WL 5946711, at *7 (S.D.N.Y. Aug. 18, 2016) ).
District courts in the Second Circuit generally apply a two-prong test when the validity of an Exemption 7(A) withholding is challenged. See N.Y. Times Co. , 2016 WL 5946711, at *13 (describing the test). The agency must show "(1) a law enforcement proceeding is pending or prospective and (2) release of the information could reasonably be expected to cause some articulable harm." Robbins Geller Rudman & Dowd LLP v. U.S. Sec. & Exch. Comm'n , 419 F. Supp. 3d 523, 530–31 (E.D.N.Y. 2019) (quoting N.Y. Times Co. , 390 F. Supp. 3d at 512–13 ); see also Azmy v. U.S. Dep't of Def. , 562 F. Supp. 2d 590, 605 (S.D.N.Y. 2008) (applying same requirements to determine whether information was properly withheld). "The agency need not justify the withholding of each document with specific facts, but rather allow the court to be able to ‘trace a rational link between the nature of the document and the alleged likely interference.’ " Robbins Geller Rudman & Dowd LLP , 419 F. Supp. 3d at 530–31 (quoting N.Y. Times Co. , 2016 WL 5946711, at *7 ).
Defendant has established (1) that a law enforcement proceeding is pending and (2) that the release of the information could reasonably be expected to cause some articulable harm.
1. Defendant has shown a pending law enforcement proceeding
Defendant asserts that Exemption 7(A) applies to the withheld documents because the FBI compiled the records "in furtherance of the FBI's investigation of an Asian criminal enterprise involved in an international fraudulent document/identity theft and alien smuggling operation," (Def.’s Mem. 5), and contends that Plaintiffs "seem to acknowledge that [Plaintiffs] aided or attempted to aid an investigation into expansive criminal activity," (Def.’s Reply 7). Plaintiffs argue that Defendant's assertion that the record involves an "Asian criminal enterprise involved in an international fraudulent document/identity theft and alien smuggling operation" lacks sufficient specificity as "[t]here is no description, office involvement, or any other identifying information by [which] Plaintiffs, or this Court, could even begin to determine if any material has been properly withheld or if a partial redaction would suffice." (Pls.’ Opp'n ¶ 9.)
Under Exemption 7(A), "it is sufficient that the government's ongoing ... investigation is likely to lead to such proceedings." Azmy , 562 F. Supp. 2d at 605 (quoting Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Just. , 331 F.3d 918, 926 (D.C. Cir. 2003) ). The agency may provide affidavits that "contain reasonable specificity " of an ongoing investigation. LatinoJustice PRLDEF v. U.S. Dep't of Homeland Sec. , No. 19-CV-3438, 2021 WL 1721801, at *3 (S.D.N.Y. Apr. 29, 2021) (quoting Grand Cent. P'ship , 166 F.3d at 489 ); see also Lewis v. U.S. Dep't of the Treasury , No. 17-CV-943, 2020 WL 1667656, at *4–5 (D.D.C. Apr. 3, 2020) (noting that the agency "need only provide ‘reasonably specific detail’ in its affidavits to prove that investigations or proceedings are ongoing" and concluding that the agency's "assertion that the foreign investigations relate to ‘the facts underlying the [s]ection 311 rulemaking, and persons related to [a bank]’ provides enough specificity for [Exemption] 7(A)" (first quoting Larson v. Dep't of State , 565 F.3d 857, 862 (D.C. Cir. 2009) ; and then citing Dillon v. DOJ , 102 F. Supp. 3d 272, 290 (D.D.C. 2015) )), aff'd , 851 F. App'x 214 (D.C. Cir. 2021).
Defendant asserts that "the responsive records were compiled in the course of the FBI's investigation of an Asian criminal enterprise involved in an international fraudulent document/identity theft and alien smuggling operation," (Def.’s 56.1 ¶ 40), and Plaintiffs assert that they seek material obtained "during Plaintiffs’ efforts to give evidence against their human traffickers who brought them into the United States from the Republic of China under conditions of slavery and torture," (Pls.’ Opp'n ¶ 2). Thus, the record establishes that a law enforcement proceeding is pending. See N.Y. Times Co. , 390 F. Supp. 3d at 514–15 (concluding that the agency established that records — which were created to ensure compliance — were compiled for law enforcement purposes where the plaintiffs admitted that they sought records related to the law enforcement at issue). Further specificity or description of "office involvements or identifying information," (Pls.’ Opp'n ¶ 9), is unwarranted, see N.Y. Times Co. v. Fed. Bureau of Investigation , 297 F. Supp. 3d 435, 446 (S.D.N.Y. 2017) (concluding that the FBI demonstrated the existence of a pending investigation where it "cited its ongoing investigations of Al-Qaeda in the Arabian Peninsula as one investigation with which the production of the requested records would interfere"); N.Y. Times Co. , 2016 WL 5946711, at *7 (explaining that Exemption 7(A) applied where the agency claimed that the "withheld information contains details of an ongoing counter-terrorism investigation that has not been [publicly] disclosed and that is being conducted with the cooperation of a foreign government").
Accordingly, the Court finds that Defendant has shown that there is a pending law enforcement proceeding to support the withholding of documents under Exemption 7(A).
2. Defendant has shown that the release of the information could reasonably be expected to cause some articulable harm
Defendant asserts that the disclosure of the withheld documents "would reveal the scope of pending FBI investigative efforts and would give targeted individuals, or any third parties, not only keen awareness of potential witnesses and other evidence concerning potential criminal activities but also the opportunity to seek to destroy evidence, intimidate potential witnesses, and evade continued investigation." (Def.’s Mem. 6.) In support, Defendant asserts that (1) it "provided a detailed log listing each exemption claimed on a page by page basis for the universe of documents withheld from Plaintiffs" and "a chart with a breakdown of the specific types of information withheld under each claimed exemption," (Def.’s Reply 7), (2) "Plaintiffs appear to concede that the categories of information covered by the[ ] [asserted] exemptions are properly withheld from disclosure," (id. at 6 (citing Pls.’ Opp'n ¶ 14)), and only argue that "Defendant's affidavits in support of its assertion of these exemptions lack sufficient specificity," (id. (citing Pls.’ Opp'n ¶¶ 8–12)), and (3) "Plaintiffs have failed to overcome the presumption of good faith afforded to Defendant's supporting affidavits and ha[ve] failed to show that Defendant's affidavits lack reasonable specificity" as "Plaintiffs expressly ‘adopt[ ]’ the Declarations of Michael Seidel and Fernando Pineiro," (id. at 7 (citing Pls.’ Opp'n ¶ 4)).
Plaintiffs contend that requested documents were improperly withheld. (Pls.’ Opp'n ¶ 8.) In support, Plaintiffs argue that (1) Defendant's Bates "stamped privilege log ... does not delineate which [B]ate[s] stamped section pertains to any specific documentary classification or type," and (2) "there is nothing other than generic allegations of a particular investigation and generic allegations of the potential harms that could flow from the release of the records." (Id. ¶¶ 8–9, 11.) Plaintiffs assert that they "do not object to the redaction of names (other than Plaintiffs), dates, government offices, law enforcement techniques, personally identifying information, and/or [Defendant's] acronyms and/or data algorithm and the name of foreign governments and/or their agents and their locations from the records and any other information or material that is truly germane to law enforcement investigations." (Id. ¶ 14.)
To establish that Exemption 7(A) applies to withhold documents, an agency "must demonstrate that ... release of the material would result in ... [an enumerated] harm[ ]." Ortiz v. U.S. Dep't of Health & Hum. Servs. , 70 F.3d 729, 732 (2d Cir. 1995) (quoting Ferguson v. Fed. Bureau of Investigation , 957 F.2d 1059, 1065 (2d Cir. 1992) ); see also Robbins Geller Rudman & Dowd LLP , 419 F. Supp. 3d at 530–31 (noting that the agency must show that the "release of the information could reasonably be expected to cause some articulable harm" (quoting N.Y. Times Co. , 390 F. Supp. 3d at 512–13 ). Summary judgment is proper "where affidavits give ‘reasonably detailed explanations why any withheld documents fall within [the] exemption,’ and show that the withheld information ‘logically falls within the claimed exemption.’ " Freedom of Press Found. v. Dep't of Just. , 493 F. Supp. 3d 251, 260 (S.D.N.Y. 2020) (alteration omitted) (quoting Conti v. Dep't of Homeland Sec. , No. 12-CV-5827, 2014 WL 1274517, *13 (S.D.N.Y. Mar. 24, 2014) )). The main sources of proof in a FOIA summary judgment motion are affidavits or declarations. See Florez v. Cent. Intelligence Agency , 829 F.3d 178, 182 (2d Cir. 2016) ("An agency may carry its burden by submitting declarations giving reasonably detailed explanations why any withheld documents fall within an exemption, and such declarations are accorded a presumption of good faith." (quoting Ctr. for Const. Rights v. CIA , 765 F.3d 161, 166 (2d Cir. 2014) )); Long v. Off. of Pers. Mgmt. , 692 F.3d 185, 190 (2d Cir. 2012) ("In resolving summary judgment motions in a FOIA case, a district court proceeds primarily by affidavits in lieu of other documentary or testimonial evidence ...."). Factual discovery "relating to an agency's search and the exemptions it claims for withholding records generally is unnecessary if the agency's submissions are adequate on their face." Grand Cent. P'ship , 166 F.3d at 488 (alteration omitted) (citing Carney , 19 F.3d at 812 ). "Affidavits submitted by the government ‘are accorded a presumption of good faith.’ " Spadaro , 978 F.3d at 42 (quoting Carney , 19 F.3d at 812 ). After the agency has shown a good faith adequate search, the plaintiff must show that the agency acted in bad faith or show that any exemptions claimed by the agency are not appropriate in the case. Anderson v. U.S. Dep't of Just. , 326 F. App'x 591, 592–93 (2d Cir. 2009) (citing Carney , 19 F.3d at 812 ).
"An affidavit from an agency employee responsible for supervising a FOIA search is all that is needed to satisfy Rule 56(e) ; there is no need for the agency to supply affidavits from each individual who participated in the actual search." Carney v. U.S. Dep't of Just. , 19 F.3d 807, 814 (2d Cir. 1994).
"In addition to affidavits or declarations, agencies typically rely upon a Vaughn index to establish that documents were properly withheld pursuant to an enumerated FOIA exemption." Welby v. U.S. Dep't of Health , No. 15-CV-195, 2016 WL 1718263, at *3 (S.D.N.Y. Apr. 27, 2016) ; see also Vaughn v. Rosen , 484 F.2d 820, 826–28 (D.C. Cir. 1973). "A Vaughn index is a ‘list of withheld documents and claimed exemptions,’ " which "giv[es] the court and the challenging party a measure of access without exposing the withheld information." LatinoJustice PRLDEF , 2021 WL 1721801, at *4 (first quoting Adelante Alabama Worker Ctr. v. U.S. Dep't of Homeland Sec. , 376 F. Supp. 3d 345, 355 (S.D.N.Y. 2019) ; and then quoting N.Y. Times Co. v. U.S. Dep't of Just. , 758 F.3d 436, 439 (2d Cir. 2014), supplemented , 762 F.3d 233 (2d Cir. 2014) ). "Although the Second Circuit has ‘eschewed rigid adherence to any particular indexing format under the Vaughn standard,’ the government may wish to identify the Bates numbers of the responsive documents, the applicable document category from [the plaintiffs’] FOIA request, as well as a specific explanation for why the document or documents at issue (including the requested statistical data) ‘logically falls within the claimed exemption.’ " Am. C.L. Union v. Off. of the Dir. of Nat. Intel. , No. 10-CV-4419, 2011 WL 5563520, at *13 (S.D.N.Y. Nov. 15, 2011) (first quoting Halpern v. Fed. Bureau of Investigation , 181 F.3d 279, 292 (2d Cir. 1999) ; and then quoting Wilner , 592 F.3d at 73 ); see also N.Y. Times Co. v. U.S. Food & Drug Admin. , 529 F. Supp. 3d 260, 280 (S.D.N.Y. Mar. 29, 2021) ("A Vaughn affidavit should include "information that is not only specific enough to obviate the need for an in camera review, but that also enables the court to review the agency's claimed redactions without having to pull the contextual information out of the redacted documents for itself." (quoting Halpern , 181 F.3d at 294 )). The level of specificity required in a Vaughn affidavit varies depending on the exemption being invoked. See Halpern , 181 F.3d at 297 (finding level of specificity insufficient to invoke Exemption 1, but sufficient to invoke Exemption 7(C)); Seife v. U.S. Dep't of State , 298 F. Supp. 3d 592, 607 (S.D.N.Y. 2018) (" ‘[W]hat constitutes a "reasonable" level of specificity [in a Vaughn affidavit] varies depending on the particular context,’ and specifically, which exemption is being invoked." (alterations in original) (quoting Halpern , 181 F.3d at 297 )); see also Ctr. for Investigative Reporting v. Fed. Bureau of Investigation , No. 19-CV-4541, 2021 WL 633867, at *3 (N.D. Cal. Feb. 18, 2021) ("Unlike other FOIA exemptions, a Vaughn index generally is not necessary in Exemption 7(A) cases." (citing Lewis v. IRS , 823 F.2d 375, 380 (9th Cir. 1987) )).
"In Vaughn v. Rosen , the District of Columbia Circuit ... conceived of the document now known as the Vaughn affidavit as a means of overcoming the institutional difficulties inherent in FOIA litigation." Halpern v. F.B.I. , 181 F.3d 279, 290 (2d Cir. 1999) (citing Vaughn v. Rosen , 484 F.2d 820, 824 (D.C. Cir. 1973) ). The Second Circuit has adopted a "functional approach" to the Vaughn affidavit/index. Id. at 291 ; see also N.Y. Times Co. v. Dep't of Just. , 758 F.3d 436, 438–39 (2d Cir. 2014) ("Once a FOIA request has been made for documents, the preparation of a Vaughn index is now an accepted method for the [g]overnment to identify responsive documents and discharge its obligation to assert any claimed FOIA exemptions to the various documents withheld." (footnote omitted) (citing cases)), supplemented , 762 F.3d 233 (2d Cir. 2014).
"[T]he government is not required to make a specific factual showing with respect to each withheld document that disclosure would actually interfere with a particular enforcement proceeding." N.Y. Times Co. , 390 F. Supp. 3d at 513 (quoting Agrama v. Internal Revenue Serv. , 272 F. Supp. 3d 42, 48 (D.D.C. 2017) ). "[F]ederal courts may make generic determinations that, ‘with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally interfere with enforcement proceedings.’ " Id. (quoting Agrama , 272 F. Supp. 3d at 48 ).
Defendant provided Plaintiffs with a log, which lists each page number withheld and the exemptions that apply to them. (FBI Deleted Page Information Sheet (the "FBI Log"), annexed to Pls.’ Opp'n as Ex. 1, Docket Entry No. 28-1.) While the FBI Log does not identify the page-by-page content of the withheld material, the Seidel Declaration identifies that "[t]he subject of the responsive investigate file is an Asian criminal enterprise[,] which is involved in a fraudulent document/identity theft and alien smuggling operation," (Seidel Decl. ¶ 58), and any further specificity may curtail the very purpose of Exemption 7(A). See Nat'l Pub. Radio, Inc. v. Fed. Bureau of Investigation , 539 F. Supp. 3d 1, 15–16 (D.D.C. Apr. 28, 2021) ("[T]he FBI's reason for withholding one video is the same as for all the others, and — to the extent that [the plaintiff] argues that the FBI should distinguish each responsive video — differentiating among the videos ... may effectively disclose some of the exempt material." (citing Elec. Priv. Info. Ctr. v. U.S. Dep't of Homeland Sec. , 760 F. Supp. 2d 4, 14 (D.D.C. 2011) )); Lewis v. I.R.S. , 823 F.2d 375, 380 (9th Cir. 1987) (noting that "a Vaughn index of the documents ... would defeat the purpose of Exemption 7(A)" where "[i]t would aid [the plaintiff] in discovering the exact nature of the documents supporting the government's case against him earlier than he otherwise would or should").
To establish that the withheld documents were subject to an exemption, Defendant "conducted a document-by-document review ... to determine the applicability of Exemption 7(A) and all underlying exemptions, and grouped the documents into ... functional categories." (Def.’s 56.1 ¶ 44); see Lewis , 2020 WL 1667656, at *4–5 (concluding that Exemption 7(A) applied where an agency "conducted a document-by-document review" and "provided sufficient detail about its functional categories to address how the disclosure of documents in each category would frustrate enforcement proceedings"). Defendant then found that the "release of [certain] records would allow targeted individuals" (1) "to critically analyze documents concerning these investigations," (2) provide them with the "unique advantage of knowing the details surrounding the potential criminal activities, the identities of potential witnesses, and the direct and circumstantial evidence of the potential criminal activities," and (3) enable them to "use the released information to their advantage to destroy evidence, intimidate potential witnesses, and/or evade the FBI's investigative efforts." (Def.’s 56.1 ¶ 46 (citing Seidel Decl. ¶¶ 55–57).) Thus, the record establishes that the release of the requested information could reasonably be expected to cause articulable harm. See Kuzma , 692 F. App'x at 35 (concluding that Exemption 7(A) applied where the FBI withheld information because it involved "a pending investigation of an individual other than the subject of [the plaintiff's] FOIA request" and revealing "details of the investigation, would interfere with that investigation — including by tipping off the subject of the investigation"); Clevenger , 2020 WL 1846565, at *13 (concluding that information was properly withheld under Exemption 7(A) where the FBI declared "that release of the requested information could potentially allow investigated individuals to evade law enforcement and would allow criminals to assess the FBI's strengths and weaknesses as well as their resources"); Azmy , 562 F. Supp. 2d at 605 (granting motion for summary judgment and concluding that the government properly withheld information under Exemption 7(A) where "the withheld information — the names of individuals and organizations of ongoing law enforcement interest — was gathered ... for law enforcement purposes, and its disclosure could reasonably be expected to interfere with ... ongoing terrorism and war crimes investigations in that the subjects of the [g]overnment's interest would likely attempt to conceal their activities from U.S. investigators"); Robbins Geller Rudman & Dowd LLP , 419 F. Supp. 3d at 533–34 (concluding that Exemption 7(A) applied where the agency stated "that the[ ] documents would reveal the identities of potential witnesses and defendants in the ongoing investigation, disclose what evidence the [agency] does or does not have of potential wrongdoing, specifically the topics, time periods, places, and persons in which the [agency] is interested in investigating," which "could result in potential witnesses or defendants thwarting ongoing investigations through shaping their own testimony or testimony of others, concealing facts, tampering with evidence based on what the records show, or decid[ing] not to cooperate in the investigation" (first citing Bagwell v. U.S. Dep't of Just. , 311 F. Supp. 3d 223 (D.D.C. 2018) ; and then quoting North v. Walsh , 881 F.2d 1088, 1097 (D.C. Cir. 1989) )); N.Y. Times Co. , 390 F. Supp. 3d at 514–15 (concluding that Exemption 7(A) applied where the agency "assert[ed] that revealing even basic information about the type of records or source of the ... records could reasonably be expected to harm enforcement proceedings by tending to reveal the nature, scope, or direction of those proceedings" and disclosure of the withheld documents could "cause witnesses, subjects or targets to flee, destroy evidence and/or attempt to coordinate their actions or testimony," show that the agency "sought specific pieces of information from specific sources," and "shed light on [the agency's] investigative or prosecutorial strategy"); N.Y. Times Co. , 2016 WL 5946711, at *13 (concluding that Exemption 7(A) applied where the agency asserted that "disclosure of the nature of the investigation would ‘alert subjects and their associates of the investigation,’ ‘cause them to take measures to evade FBI scrutiny and destroy evidence,’ and ‘chill the FBI's relationship with [the] foreign law enforcement entity’ cooperating in the investigation" (alteration in original)).
The FBI Log and declarations provide ample evidence that Defendant properly withheld the documents because the release of additional information could reasonably be expected to cause articulable harm to the investigation of an "Asian criminal enterprise involved in an international fraudulent document/identity theft and alien smuggling operation." (Id. ¶ 36); see Prop. of the People, Inc. v. Dep't of Just. , No. 17-CV-1193, 539 F.Supp.3d 16, 23 (D.D.C. Apr. 29, 2021) (noting that reasonable specificity can be established by a Vaughn index and an agency's affidavit).
Accordingly, the Court finds that Defendant properly withheld documents pursuant to Exemption 7(A).
The FBI also asserts that the withheld documents are exempt from disclosure pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E). (Def.’s Mem. 7.) Because the Court finds that Exemption 7(A) applies to the withheld documents, the Court declines to address the alternate arguments. See Amnesty Int'l USA v. C.I.A. , No. 07-CV-5435, 2010 WL 5421928, at *3 (S.D.N.Y. Dec. 21, 2010) (declining to address alternative justifications for exemption where the court found that exemption 5 provided sufficient ground for withholding).
e. In camera review
Plaintiffs request that before ruling on the pending motion for summary judgment, the Court conduct an in camera review of the record to "determine the nature of any material that could be released to Plaintiffs." (Pls.’ Opp'n ¶ 13.)
Under the FOIA, a district court "may examine the contents of ... agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions." 5 U.S.C. § 552(a)(4)(B). The Second Circuit has " ‘adopted a restrained approach’ to permitting in camera review, only allowing it where ‘the record showed the reasons for withholding were vague,’ where ‘the claims to withhold were too sweeping or suggestive of bad faith,’ where ‘it might be possible that the agency had exempted whole documents simply because there was some exempt material in them,’ or where ‘information contained in agency [declarations] is contradicted by other evidence in the record.’ " LatinoJustice PRLDEF , 2021 WL 1721801, at *4–5 (quoting Halpern , 181 F.3d at 291 ); see also Cox v. Dep't of Just. , 504 F. Supp. 3d 119, 152 (E.D.N.Y. 2020) ("[W]here the affidavit is sufficiently detailed to place the documents within the claimed exemptions, and where the government's assertions are not challenged by contrary evidence or a showing of agency bad faith, we have held that the district court should restrain its discretion to order in camera review." (quoting Halpern , 181 F.3d at 292 )).
"When the agency meets its burden by means of affidavits, in camera review is neither necessary nor appropriate." Rutigliano v. U.S. Dep't of Just. , 847 F. App'x 86, 87 (2d Cir. 2021) (quoting Larson v. Dep't of State , 565 F.3d 857, 870 (D.C. Cir. 2009) ). "[In] camera review is treated as ‘the exception, not the rule’ in adjudicating FOIA actions." N.Y. Times Co. , 529 F. Supp. 3d at 270 (quoting Int'l Bhd. of Elec. Workers v. NLRB , 845 F.2d 1177, 1180 (2d Cir. 1988) ); see also N.Y. Times Co. v. U.S. Dep't of Just. , No. 19-CV-1424, 2021 WL 371784, at *7 (S.D.N.Y. Feb. 3, 2021) (same); ACLU v. Dep't of Def. , 435 F. Supp. 3d 539, 560 (S.D.N.Y. 2020) (same). Such a review should be conducted only if "questions remain after the relevant issues have been identified by the agency's public affidavits and have been tested by plaintiffs." Ctr. for Const. Rights v. C.I.A. , 765 F.3d 161, 165 n.9 (2d Cir. 2014) (quoting Wilner , 592 F.3d at 75–76 ); see also Assoc. Press v. U.S. Dep't of Just. , 549 F.3d 62, 67 (2d Cir. 2008) ("Only if the government's affidavits make it effectively impossible for the court to conduct de novo review of the applicability of FOIA exemptions is in camera review necessary."). Thus, "[t]he district court should first offer the agency the opportunity to demonstrate, through detailed affidavits and oral testimony, that the withheld information is clearly exempt and contains no segregable, nonexempt portions." N.Y. Times Co. , 529 F. Supp. 3d at 270 (quoting Seife , 298 F. Supp. 3d at 630 ).
The Court declines to conduct an in camera review because Defendant's declarations and 56.1 Statement are reasonably specific and demonstrate that Exemption 7(A) applies. See Assoc. Press , 549 F.3d at 67 (ruling that the district court did not abuse its discretion in declining in camera review "[i]n light of the relatively detailed nature of the declarations"); Rutigliano v. U.S. Dep't of Just. , No. 17-CV-6360, 2020 WL 1933638, at *4 (E.D.N.Y. Apr. 20, 2020) (affirming that in camera review prior to ruling on a summary judgment motion was unnecessary where the court relied on a declaration to rule that an exemption applied), aff'd sub nom. Rutigliano , 847 F. App'x at 87.
Moreover, Plaintiffs have not provided any evidence that Defendant's declarations were submitted in bad faith. Indeed, Plaintiffs adopted "all exhibits" — including the declarations — filed by Defendant in its motion for summary judgment as "accurately setting forth the documentary record." (Pls.’ Opp'n ¶ 4); see also Am. Oversight v. U.S. Dep't of Just. , No. 19-CV-8215, 2021 WL 964220, at *4 (S.D.N.Y. Mar. 15, 2021) (denying application for in camera review where the plaintiff did "not allege, much less produce evidence, that [the defendants’] declarations were written or submitted in bad faith or are otherwise unreliable"); Cox , 504 F. Supp. 3d at 159 (denying in camera review where the plaintiff did not make a showing of contrary evidence or bad faith); Kuzma v. U.S. Dep't of Just. , No. 13-CV-675S, 2016 WL 9446868, at *10 (W.D.N.Y. Apr. 18, 2016) (denying in camera review where "other than his personal doubt and speculation, [the plaintiff] offers nothing to suggest that the FBI's invocation of Exemption 7(A) based on an ongoing enforcement proceeding is improper"), aff'd sub nom. Kuzma , 692 F. App'x at 30.
Accordingly, the Court declines in camera review and grants Defendant's motion for summary judgment. See McErlean v. U.S. Dep't of Just. , No. 97-CV-7831, 1999 WL 791680, at *8 (S.D.N.Y. Sept. 30, 1999) ("Because the plaintiff has offered no evidence of bad faith on defendant's part, nor presented any other evidence as to why Exemption 7(A) should not apply, the [c]ourt holds that defendant properly invoked Exemption 7(A) in withholding these documents.").
III. Conclusion
For the foregoing reasons, the Court grants Defendant's motion for summary judgment.
SO ORDERED.