Gelb v. United States Department of Homeland Security et al

Filing 51

OPINION re: 36 MOTION for Summary Judgment filed by United States Department of Homeland Security - Under Secretary for Management, United States Immigration and Customs Enforcement, United States Citizenship and Immigration Services, United States Department of Homeland Security, 34 LETTER MOTION for Extension of Time to File motion for summary judgment addressed to Judge Robert W. Sweet from AUSA Michael J. Byars dated March 30, 2017 filed by United States Department of Homeland Security - Under Secretary for Management, United States Immigration and Customs Enforcement, United States Citizenship and Immigration Services, United States Department of Homeland Security. Based on the facts and conclusions set forth above, the Defendants' motion for summary judgment is granted, and the Plaintiff's cross-motion for summary judgment is denied. (Signed by Judge Robert W. Sweet on 9/15/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------x
BERNARD GELB,
Plaintiff,
15 Civ. 6495

(RWS)

- against OPINION
UNITED STATES DEPARTMENT OF HOMELAND
SECURITY, UNITED STATES DEPARTMENT OF
HOMELAND SECURITY-UNDER SECRETARY FOR
MANAGEMENT, UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES, and UNITED
STATES IMMIGRATION AND CUSTOMS
ENFORCEMENT,

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A P P E A RA N C E S:

Attorney for Plaintiff
PAUL BATISTA, PC
26 Broadway
New York, NY 10004
By:
Paul Amandio Batista

Attorneys for Defendants
JOON H. KIM
U.S. Attorney's Office, SONY
86 Chambers Street, 3rct Floor
New York, NY 10007
By:
Joon H. Kim

1

1

'L-

.,

'

Sweet, D.J.

Defendants United States Department of Homeland
Security ("OH S" ), United States Department of Homeland Security
- Under Secretary for Management ("USM " ) , United States
Citizenship and Immigration Services ("USCIS"), and United
States Immigration and Customs Enforcement ("ICE")
(collectively , the "OHS defendants " or the "Defendants") have
moved pursuant to Fed. R. Civ. P. 56 for summary judgment in
this action brought by plaintiff Bernard Gelb ("Gelb " or the
"Plaintiff") pursuant to the Freedom of Information Act,
U.S.C.

§

552 et seq.

5

(the "FOIA"). The Plaintiff has cross-moved

for summary judgment under the same Rule seeking the documents
he requested under the FOIA. The Defendants' motion is granted
and the Plaintiff's cross -motion is denied.

I.

Prior Proceedings

The complaint in the instant action was filed on
August 18, 2015 . Defendants' motion for summary judgment and
Plaintiff's cross-motion were heard and marked fully submitted
on July 12, 2017 .

2

II.

The Facts

The facts have been set forth in the Declaration of
Plaintiff Bernard Gelb ("Gelb Deel.") dated May 10, 2017,
Defendant's Declarations of Fernando Pineiro ("Pineiro Deel."),
Kevin Tyrrell ("Tyrrell Deel."), Jill Eggleston ("Eggleston
Deel."), and Michael Byars ("Byars Deel."), each of which are
dated March 30, 2017.

Plaintiff specializes in finding persons to whom the
Government owes money and helping these persons obtain the
return of their outstanding funds. Gelb Deel.

~

3. Plaintiff

does this by identifying unclaimed monies in the possession of
the Government, pursuing FOIA requests to compel the production
of records relating to the unclaimed funds,

contacting the

owners of these funds to inform them that they have outstanding
monies, and then acting on behalf of the owners to secure the
return o f these funds.

Id.

By letter dated November 9 , 2009, Plaintiff submitted
a FOIA request to all Defendants seeking: "a complete listing[]
of rightful owners ['] name[s], address[es], amount[s]
outstand ing, or iginal date[s] outstanding and account number[s ],
etc ., of all outstanding funds in the 'un claimed monies account
3

(20X6133) - regarding non-individuals, decease d individuals and
individuals - - concerning U.S. Department of Homeland
Security." Tyrrell Deel. i

4. This request was recei v ed by the
Id. i

OHS Privacy Office ("OHS PRIV").

5.

On November 25, 2009, the OHS PRIV reviewed
Plaintiff's request and determined that if any responsive
documents existed, they would be under the purview of the OHS
Management Office ("OHS/MGMT").

Id. i

11. The FOIA request was

accordingly transferred to the FOIA Officer for OHS/MGMT, Mark
Dorgan, for review, and an acknowledgement letter was sent to
Plaintiff on November 26, 2009 stating such. Id. i

12 & Ex. B.

By letter dated November 9, 2009, Plaintiff submitted
an identical FOIA request to OHS Under Secretary for Management
("USM").

Id. i

13. On December 9, 2009, the USM sent an

acknowledgement letter to Plaintiff stating: "We conducted a
comprehensive search of files within the Office of the Chief
Financial Officer for records that would be responsive to your
request. Unfortunately, we were unable to locate or identify any
responsive records. At this time, there is no t a centralized
database of the information, from which the requested data could
be extracted. The information resides within the several
individual OHS cash management and accounting offices that are
4

I

responsible for cash collecti ons or undeposited checks. If you
seek to contact each of the individual offices , please contact
each of the OHS components separately." Id.

<JI

15.

On April 26, 2010 , Plaintiff submitted an amended FOIA
request to OHS/MGMT narrowing his initial request to
" outstanding funds, $25,000.00 and greater." Id.

<JI

17. Upon

consulting with I CE , OHS/MGMT determined that ICE 's records of
individual unclaimed amounts cou ld be searched manually to
obtain information about amounts of $25,000 or more.

Id.

<JI

19.

On May 4, 2010 , OHS/MGMT sent Plaintiff a fee estimate for the
manual search, which amounted to $4,264.00 of advance payment.
Id. OHS/MGMT noted that Plaintiff was at libe rty to narrow the

request, but that if Plaintiff did not respond within 30 days,
the amended request would be considered withdrawn.

Id. OHS/MGMT

received no response, and thereafter considered the request
withdrawn.

Id.

<JI

20.

On August 18, 20 15, Plaintiff filed the present
action. Following the commencement of this litigation, the OHS
PRIV contacted OHS/MGMT and the OHS Office of the General
Counsel regarding the unclaimed monies account and the nature of
the funds within the account.

Id.

<JI

23 . OHS PRIV determined that

no OHS headquarters off ice, in cluding OHS/MGMT, collects or
5

receives monies from the public such that no OHS headquarters
off i cer would have funds that would need t o be deposited into
the unclaimed monies account.

Id.

~

23. At this time, OHS PRIV

verified that the relevant unclaimed monies pertained to amounts
initially co ll ected by ICE and USCIS.

Id.

~

24.

Meanwhile, by letter dated November 9 , 2009, Plaintiff
submitted an identical FOIA request to the ICE FOIA Of fice.
Pineiro Deel.

~

5. On November 19, 2009, ICE advised Plaintiff

that the requested inf orma ti on was under the control of the OHS,
and directed Gelb to pursue his request with OHS.

Id.

~

6.

Also, on November 9, 2009 , Plaintiff submitted the
same letter to the

users,

which acknowledged Pl aintiff's

request, and informed Gelb that the inf orma ti on he sought was
related to non-alien file records. Eggleston Deel.

~~

11-1 2 , 15.

Accordingly, USCIS assigned the request to a Significant
Interest Group (SIG) paralegal, who then forwarded the request
to USCIS's Office of the Chief Financial Officer (OCFO) where
staff were requested to conduct a search for any responsive
records.

Id.

~~

15, 17. OCFO then determined that ICE, not

USCIS, maintains all USCIS records regarding trust deposits.

Id.

USCIS informed Plaintiff that the information he requested was
under ICE's purview, and invited Plaintiff to redirect his
6

request according to ICE's FOIA Office address, which
provided. Id.

~

users

18.

Following the corrunencement of this litigation, ICE
"reassessed whether ICE might have responsive records," and
determined that ICE Office of the Chief Financial Officer might
have information relating to the relevant accounts.

Id.

11.

~

ICE Office of the Chief Financial Officer received the forwarded
request and tasked a Supervisory Financial Program Specialist
("SFPS")

in the Revenue Management Branch to conduct a search

for responsive documents.

Id.

~

12. The SFPS utilized the Trust

Recon Database to produce a listing of all OHS transactions with
the Trust Account in the amount of $25,000 or more dating from
FY 2008 to FY 2016. Id.

~

13. At the time, ICE did not maintain

a centralized database from which to extract the complete
listing of information requested.

Id.

~

16. Rather,

ICE recorded

transfers on forms that might contain one or more transfers to
other accounts.

On May 27, 2016, the ICE FOIA Office released to
Plaintiff two pages containing information about Trust Account
transactions involving OHS from FY 2008 through FY 2016 that
were $25,000 or more in response to Plaintiff's request.

Id.

19. Information associated with these transacti o ns indicated
7

~

that all of the amounts were unclaimed immi gration bonds . Id.
The two pages were partially redacted in the columns listing the
obligor ' s last and first names, social security number , alien
last and first names , and alien number . Id.

& Ex. E .

III. Applicable Standard

Summary judgment is appropriate only where "there is no
genuine issue as to any material fact and

the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c) . "[T]he substantive law will identify which facts are
material." Anderson v. Liberty Lobby, Inc.,

477 U. S. 242, 248

( 198 6) .

A dispute is "genuine " if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party ."

Id . The relevant inquiry on application for s ummary judgment is
"whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one - sided that
one party must prevail as a matter of l aw ." Id. at 251 - 52. A
court is not charged with weighing the evidence and determining
its truth, but with determining whether there is a genuine issue
for trial. Westinghouse Elec . Corp . v . N.Y . City Transit Auth. ,
735 F . Supp . 1205 , 1212

(S.D.N.Y . 1990)
8

(quoting Anderson , 477

U. S . at 249) . " [T]he mere existence of some a l leged factual
dispute between the parties wi l l not defeat an otherwise
proper l y supported motion for summary judgment ; the requirement
is tha t there be no genuine issue of material fact ." Anderson ,
477 U. S . at 247 - 48

(emphasis in or i ginal) . Fu rthermore , " [t]he

mere ex i stence of a scintilla of evidence i n support o f the
[no n-movant ' s ] position wil l be insuffic i ent ; there must be
ev i dence on wh ich the j u ry cou l d reasonab l y find for the [non movant ] . " Id . at 252 .

IV .

The Defendants' Motion for Summary Judgment is Granted
and the Plaintiff's Cross-Motion is Denied

To prevail on a mot i on for summary judgment u nder the
FOIA , " the defending agency has the burden of showing that its
search was adequate and t h a t any wi thheld documents fa l l within
an exemption t o t h e FO I A." Carney v . U. S . Dep ' t of Justice , 19
F. 3d 807 , 812 (2d Ci r. 1 994) . Th i s burden i s met where the
agency supplies facts by way o f affidav i ts o r dec l arat i ons
" indicating that the agency has conducted a tho r o u gh search and
giv i ng reasonab l y detailed exp l ana ti o n s why any wit h he l d
documents fal l within an exempt i on. " Id . Further , " [a] f fidavits
submi tted by an agency are ' accorded a p r esump t i on of good
faith .'" Id.

(citing Safecard Servs . Inc . v . SEC , 926 F . 2d 1197 ,
9

1200 (D.C. Cir. 1991)).

A district court may grant summary judgment in favor
of an agency "on the basis of agency affidavits if they contain

reasonable specificity of detail rather than merely conclusory
statements, and if they are not called into question by
contradictory evidence in the record or by evidence of agency
bad faith." Grand Cent. P'ship v. Cuomo,
Cir. 1999)

166 F.3d 473,

478

(2d

(emphasis in original). "[E]xtraordinary measures are

not required, only a search reasonably designed to identify and
locate responsive documents." Garcia v. U.S. Dep't of Justice,

Office of Info.
2002)

& Privacy, 181 F. Supp. 2d 356, 366 (S.D.N.Y.

(internal quotation marks omitted). An agency search is

not deemed inadequate simply because some documents were not
returned until a later, more exhaustive search. Grand Cent.

P'ship, 166 F.3d at 489.

Rather, the question such FOIA litigation raises is
"whether the search was reasonably calculated to discover the
requested documents, not whether it actually uncovered every
document extant." SafeCard Servs.,

926 F.2d at 1201. "Even a

'disjointed' search, made in response to a requester's
'prodd[ing]' during litigation, can suffice." Flores v. United

States Dep't of Justice, No. 15 Civ. 2627
10

(JMA), 2016 WL

'

7856423, at *10 (E.D .N.Y. Oct. 4, 2016)
Recorrunendation)

(Report and

(quoting Aland v . U.S. Dep't of the Interior,

No. 13 C 3547 , 2014 WL 4680747, at *1-*3 (N . D. Ill. Sept. 19,
2014)) .

a. The Defendants' Search for Plaintiff's Responsive
Documents was Adequate

Under the above standard, Defendants' searches were
adequate and consistent with their FOIA obligations. To start,
only ICE, and not OHS, USM, or

users,

maintained records o f the

deposited monies that Gelb requested. Accordingly, OHS, USM and
USCIS's FOIA obligations rest on whether the agencies'

searches

were "reas onably calculated to discover the requested
documents," not on whether the requested informati on was
returned. See SafeCard Servs.,

926 F. 2d at 1201.

Upon receipt and re v iew of Plaintiff's initial FOIA
request, OHS determined that the agency did not have access t o
the requested documents, and rela yed this inf ormation to the
Plaintiff. OHS recorrunended that Plaintiff speak with the FOIA
Off i cer for MGMT as he might be better positioned to provide
assistance with this search because the requested documents were
"under [his] purview." See Tyrrell Deel. i
11

12. OHS/MGMT then

'
consulted with ICE and determined that ICE's records of
unclaimed amounts cou ld be searched manually for information
regarding amounts of $25,000 or more.

Id.

~

1 9 . DHS/MGMT's

letter to Plaintiff provided that such a manual search required
an advance fee payment of $4,264.00, pursuant to 5 U.S.C.
552(a) (4) (A) (ii) (I) - (I II )

(2000) and 6 C.F.R.

§

§

5.ll(i). As

Plaintiff did not provide this payment, his request was deemed
withdrawn, and DHS's search obligations under FOIA were
therefore complete.

Likewise, upon receiving Plaintiff's letter, USM
conducted a thorough search of its files, and was unable to
identify any responsive documents. Tyrrell Deel.

~

15. USM

redirected Plaintiff to ot her agencies that might have control
over the requested informati on . Id . In doing so, USM satisfied
its ob ligati ons to conduct a search "reasonabl y ca l culated to
discover the requested documents under FOIA."

Similar l y ,

users

assigned Plaintiff's request to a SIG

paralegal who then reviewed the request, determined OCFO was the
appropriate

users

party to handle the request, and then

forwarded the request accordingly. Eggleston Deel.

~~

15-17.

OCFO then redirected the request to ICE, the agency responsible
for maintaining all USCIS trust deposits.
12

Id. Rather than

'

,

demonstrate USCIS ' ambivalence to Plaintiff's FOIA request, this
string of forwarded requests commun i cates the a gency's
commitment in attempting to locate Plaintiff's requested
documents.

Finally, ICE conducted a comprehensive search and
returned two pages of informati on relevant to Plaintiff's
request. It does not matter that ICE fulfilled this request
after the beginning of this litigation, or even that ICE may or
may not have returned every relevant or applicable document in
existence. See Flores, No. 15 Civ . 2627
at *10

(JMA) , 2016 WL 7856423,

(E.D.N.Y. Oct . 4, 20 1 6) ; see also SafeCard Servs.,

926

F.2d at 1201.

Gelb claims that Defendants evidence bad faith during
his purported telephone conversation with USM emp l oyee Mark
Dorgan on or about January 6 , 2010 , when Dorgan allegedly told
him that Defendants would comply with their FOIA obligations
on l y if Gelb sued them. However, the record reflects that Gelb
and Dorgan had at least three communications following the
January 6, 2010 phone call, and that Dorgan took additional
steps to try to provide Gelb with the records he sought.
Specifically , in response to Gelb's amended FOIA request , Dorgan
sent Gelb two letters that, together , reflected that the
13

,

appropriate OHS component had been queried and would be tasked
with searching and processing records of deposits to the
unclaimed moneys account for individual amounts of $25,000 or
more, provided that Gelb pay an estimated fee o f $4,254. See
Tyrrell Deel.

~~

17-19, Exs. H & I.

Accordingly, OHS, USM, USCIS, and ICE conducted
searches "reas onably designed to identify and locate responsive
documents," as required by the FOIA. See Garcia, 181 F. Supp. 2d
at 366 . Absent a showing of bad faith on the part of the
agencies, of which there is none here, the agencies engaged in
adequate searches in response to Gelb's FOIA requests.

b. ICE's Assertion of Exempti ons 6 and 7(C) Was Proper

ICE withheld from its 2016 release to Gelb certain
information that would identify the individuals who posted the
unclaimed bonds transferred to the Trust Account. See Pineiro
Deel. Ex. E. Specifically , the first and last names, social
security number or tax identification numbers, and alien numbers
of the fund owners from the 2016 records provided to the
Plaintiff. See id.

~

29 & Ex. F. ICE has asserted Exemptions 6

and 7(C) to justify these redactions. While the statutory
contours of these two exemptions differ somewhat, the balancing
14

analysis required under each is essentially the same for the
facts presented.

Specifically, Exemption 6 protects against d is c losure
of "(6) personnel and medical files

[that] would

const itut e a clear l y unwarranted invasion of personal privacy."
5 U.S.C. § 552(b) (6). Exemption 7(C) exempts records o r
information comp iled for law enforcement purposes that " could
reasonably be expected to constit ute an unwarranted inva sion of
personal privacy." 5 U.S.C. § 552(7) (C). Thus, although
Exemptions 6 and 7(C) over lap, Exempti on 7(C) is broader and
requires a l esse r showing o f the likelihood of intrusion int o
personal privacy. See, e.g., Nat'l Archives & Records Admin. v .
Favish,

541 U.S. 157, 165-66 (2004).

Moreover, Exemption 7(C) contains an additional
threshold requirement that does not apply to Exemption 6 ,
namely, that the Government "has the burden of proving the
existence of a compilation of information for the purposes of
law enforcement ." Ferguson v . FBI,

957 F.2d 1059, 1070 (2d Cir.

1992). "[O]nce the government has demonstrated that the records
were compiled in the course of an investigation conducted by a
law enforcement agency, the purpose or legitimacy of such
executive action are not proper subjects for judicial review."
15

Halpern v. FBI , 181 F . 3d 279 , 296 (2d Cir . 1999) . The

information redacted by ICE was col l ected in the course of
enforcing federal immigration law involv i ng the apprehension and
detention of aliens as well as their release on bond while
immigration enforcement proceedings were pending. See Pineiro
Deel.

~~

24 - 26 . So , the law enforcement thresh o l d for ICE ' s

assertion of Exemption 7(C) is satisfied.

Nevertheless , a balancing of the pub l ic versus private
interests in disclosure , as mandated by Congress under the FOIA ,
establishes that ICE ' s redactions were proper . The Court must
"'balance the public interest in disclosure aga i nst the
[privacy] interest Congress intended the Exemp t ion to protect. '"
Associated Press , 554 F . 3d at 284

(discussing Exemption 7(C) and

quoting Reporters Comm ., 489 U.S . at 776) ; see also id . at 291
(discussing Exemption 6 , and citing Dep ' t of Air Force v . Rose,
425U . S. 35 2 , 372 (1976)) .

As for the first step of the balancing inquiry , the
privacy interest must be identified . See id . at 284 . The
defendants have met their burden under either Exemption 6 or
7(C), as each of the third parties whose information was
withhe l d maintains a strong privacy interest in the protection
of their personally identifying information. "The privacy side
16

of the balancing test is broad and encompasses all interests
involving the individual's control of inf ormat i on concerning his
or her person." Wood v . FBI,

432 F. 3d 78, 88

(2d Cir. 2005)

(quotation marks omitted) ; see also Associated Press,
at 65 . For instance, "indi v iduals .

. have privacy interests

in the dissemination of their names," Massey v. FBI,
624

549 F.3d

3 F.3d 620 ,

(2d Cir. 1993), as well as their addresses, social security

numbers, and other personally identifying information ,

see,

e .g., Fed. Labor Relations Auth. v. U.S. Dep't of Veterans
Affairs, 958 F.2d 503, 5 10-11 (2d Cir. 1 992) ; Adamowicz v . IRS,
672 F. Supp. 2d 454,
648

473 -7 4 (S.D .N. Y. 2009) , aff'd,

402 F. App'x

(2d Cir . 2010) .

Release of the withheld information would expose the
indi viduals who did not consent to the release of their personal
information, to potential identify theft and unwanted contact .

See Pineiro Deel.

~

30 & Ex. F. These individuals also have a

privacy interest in avoiding the potential stigma of being
identified in connection with law enforcement records as either
detainees who violated the immigration laws or persons who
posted bonds on behalf of such detainees.

Id.

~~

19, 31; see

Reporters Comm ., 489 U.S. at 763-66 (noting that individuals
have a substantial privacy int erest in avo iding disclosure of
complied criminal history information); see also Lesar v . U.S.
17

Dep't of Justice , 636 F.2d 472, 487-88

(D.C. Cir . 19 80) .

The Court then weighs this privacy interest against
the sole relevant public interest in disclosure, which is " ' to
open agency action to the l ight of public scrutiny .' " Associated
Press , 554 F . 3d at 28 5 (quoting Reporters Comm ., 489 U.S . at

772). The inquiring citizen "must show that th e public interest
sought to be advanced is a significant one , an interest more
specific than having the information for its own sake . " Id. at
288 .

According to Gelb , the redacted information should be
made public so as to promote the public good because
" [i]nformation regarding $275 mi l lion in unclaimed money is
decidedly significant enough to merit disc l osure under the
FOIA. " However, Plaintiff has not come forward with evidence
reasonably supporting a belief that government wrongdoing has
occurred that would warrant release of the withheld information .

To the extent that a requestor asserts that the public
interest will be served by disclosure because the records expose
government misconduct , the courts evaluate such claims under a
reasonable person standard :
[W]here there is a privacy interest protected by
18

'

Exemption 7(C) and the public interest being asserted
is to show that responsib l e officials acted
negligently or otherwise improperly in the performance
of their duties , the requester must estab l ish more
than a bare suspicion in order to obtain disclosure .
Rather , the requestor must produce evidence that wou l d
warrant a belief by a reasonable person that the
alleged Government impropriety might have occurred .
Favish , 541 U. S. at 174 ; see also Wood , 432 F .3d at 89

(explaining that "a presumption of l egitimacy attends
government actions that may not be overcome on the basis of
unsupported allegations " and noting that the names of
individual government agents would not further the
purported public interest in assess i ng their actions) . This
is because "allegations of misconduct are easy to allege
and hard to disprove ." Id . at 1 75 . An agency may therefore
"withho l d ' the names and addresses of private i ndividuals
appearing in files within the ambit of Exemption 7(C)
[unless disclosure] is necessary in order to c d nfirm or
refute compelling evidence that the agency is engaged in
i l lega l activity .'" Nation Magazine , Washington Bureau v .
U. S . Customs Serv ., 71 F.3d 885 , 896 (D.C . Ci r . 1995)

(a l teration in or i ginal)

(quot i ng Safecard Servs . , Inc . v.

SEC , 926 F.2d 1197 , 1206 (D . C. Cir . 1 991)) .

Gelb ma i nta i ns that the 20 1 6 record search was not
"reasonable[] " because IC E purportedly did not "set forth the

19

search terms and the type of search performed, and aver[] that

all files likely to contain responsive materials were searched."
However, this is not a case involving a search of electronic
records through use of particular search terms. Rather,

ICE

electronically queried the database containing information about
transfers of amounts that were initially collected by USCIS or
ICE into account 20X6133 to obtain information about transfers
that involved individual amounts of $25,000 or more. See Pineiro
Deel.

~

13. ICE has affirmed that such a query is reasonably

calculated to locate responsive records for transfers of amounts
originally collected by ICE and

users,

and that, other than a

manual search of PDF records of individual transfers, there is
no other location where responsive records are likely to be
located. See id.

~~

11-18.

The Court also rejects Gelb's challenge to the
assertion of FOIA's privacy-related exemptions with respect to
certain personally identifying information contained in the 2016
response. To the extent that Gelb suggests that the law
enforcement threshold for an exemption under 552 U.S.C.
552(b) (7)

is not met, he is incorrect. An agency asserting one

of the section (b) ( 7) exemptions has the threshold "burden of
proving the existence of a compilation of information for the
purpose of law enforcement." Ferguson v. FBI,
20

957 F.2d 1059,

1070 (2d Cir . 1992). The information redacted from the 2016
release was collected in the course of enforcing federal
immigration law involving the apprehension and detention of
aliens as well as their release on bond while immigration
enforcement proceedings were pending . This information thus
plainly qualifies for an assertion of an exemption under section
552(b)(7) .

Moreover, Exemptions 6 and 7(C) cover precisely the
type of personally identifying information that is at issue
here. The standards for evaluating a "public interest " that were
applied in two of the cases cited by the Plaintiff (namely,

Aronson v . U.S . Department of Housing and Urban Development , 822
F . 2d 182 , 184

(1st Cir . 1987), and Farnum v. U.S. Department of

Housing and Urban Development , 710 F . Supp. 1129 , 1136 (E.D.
Mich . 1988)), were superseded by the Supreme Court ' s decision in

U. S . Department of Justice v. Reporters Committee for Freedom of
the Press , which held that disclosure of information about an
individual does not serve the public interest merely because it
is interesting or socially benef i cial in some broad sense.

See

489 U. S. at 772 - 72 & n . 20 .

Finally, the Court rejects Gelb's assertion that
privacy rights do not apply here because certain individuals
21

,•

should be presumed dead due to the age of the records and
because some amounts might belong to businesses . The 2016
release concerns transfers from 2008 through the first quarter
of 2016. See Pineiro Deel.

~~

13 , 17 . The presumption of death

should not apply here , since an individual may be presumed to
have died only if the record shows he would be at least one
hundred years old , see Schrecker v . U.S. Dep't of Justice , 349
F . 3d 657 , 660

(D.C. Cir . 2003) , and there is no basis to presume

that the records for the period in question involved detainees
who were at l east ninety-one years old in 2008. Moreover , as
ICE ' s Vaughn index makes clear , Exemptions 6 and 7(C) were
applied to redact certain information about " individua l (s) ,"
i.e. , and not businesses. Pineiro Deel . Ex . F .

Accordingly , Plaintiff has not articulated a
sufficient basis for release of the redacted information , and
ICE ' s reliance on Exemptions 6 and 7(C) was proper .

c . Plaintiff ' s Constitutiona l Right to Due Process Was
Not Vio l ated

To the extent Plaintiff asserts a due process
violation premised on the Defendants ' mishandling of his FOIA
request , no plausible constitutiona l violat i on has been pled .
22

"When protected interests are implicated , the right to some kind
of prior hearing is paramount." Morrissey v . Brewer,

408 U. S .

471 , 481 (1982). However , Plaintiff has not demonstrated that he
has been deprived of a constitutional l y protected property
interest . To have a protected property interest , one "clearly
must have more than an abstract need or desire for it . " Board of
Regents v. Roth , 408 U. S . 564, 577

(1972) . Here , Gelb asserts a

property interest in potential , future business relationships
with the owners of unclaimed money accounts , yet these
relationships are in no way assumed or guaranteed . Moreover ,
"because of the comprehens i ve scheme which FOIA establishes ,
inc l uding the availability of appropr i ate injunctive relief ,
federal courts have held that due process deprivations cannot be
premised on an al l eged FOI A violation . " N'Jai v . U. S . E.P . A . ,
Civ . No . 13 - 1212 , 2014 WL 2508289 , at *19 (W.D. Pa . June 4 ,
2014) .

In addition , Plaintiff may not asser t third-party
standing to bring procedura l due process c l aims on behalf of the
owners of the unclaimed monies because these are not his rights
to assert . A party seeking third-party standing " must
demonstrate a close relationship with the pers o n who possesses
the right and that the possessor would face a hindrance to
protecting his own interest . " W. R . Huff Asset Mgmt. Co., LLC v .
23

~

.

.
Deloitte & Touche, LLP, 549 F.3d 100, 109 (2d Cir . 2008)
(internal quotation marks omitted). As Plaintiff has
demonstrated neither a close relationship with the owners of the
unclaimed moneys , nor shown that these persons could not bring
such a claim on their own behalf, Plaintiff lacks third-party
standing .

d. This Action Relates Only to Unclaime d Moneys Account
20X6133 and Not to an Unclaimed Uncashed Checks
Account

Finally, the Court resists Gelb ' s efforts to expand
the scope of this action to cover records about a different
account not previously raised in this matter . Up until now , Gelb
has sought only a listing of specified information relating to
"all outstanding funds[]
(20X6133)

in the unclaimed monies account

" Gelb claims that he has been denied records

regarding some $275 mil l ion in unclaimed funds , although he
attributes only some $175 million of that tota l to account
20X6133. The additional $100 mi l lion represents the al l eged
balance from a purported unclaimed uncashed checks account . As
this unclaimed uncashed checks account was not part of Gelb ' s
FOIA request, the Court d i sregards a l l references to that
account , including that defendants did no t produce records about
24

that account or discuss that account in their declarations.

V.

Conclusion

Based on the facts and conclusions set forth above,
the Defendants' motion for summary judgment is granted, and the
Plaintiff's cross-motion for summary judgment is denied.
It is so ordered.

New York, NV
September
201 7

/0 ,

U.S.D.J.

25