Vazquez v. U.S. Department of Justice
887 F. Supp. 2d 114
D.D.C.2012Background
- This FOIA action seeks records about Vazquez maintained in the FBI’s NCIC; remanded to reconsider exemption 2 in light of Milner v. Navy.
- DOJ denied access to NCIC records; the records are claimed to be responsive but exempt.
- Defendants moved for dismissal or summary judgment; Vazquez cross-moved for summary judgment.
- Court grants summary judgment for defendants, denies cross-motion, and enters judgment; Glomar response under Exemption 7(E) upheld.
- Court references Vazquez v. DOJ and Forsham v. Harris in evaluating duties and rebuttal standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Glomar response under Exemption 7(E) proper? | Vazquez contends the Glomar response is unwarranted. | DOJ asserts Exemption 7(E) justifies revealing no record and protecting methods. | Yes; Glomar justified under Exemption 7(E). |
| Do NCIC records qualify as law-enforcement records under Exemption 7(E)? | Records pertain to the subject’s background; disclosure could aid wrongdoing. | NCIC is a law-enforcement database; transactions are for investigations. | Yes; NCIC transactions are law-enforcement records covered by Exemption 7(E). |
| Does public interest override exemptions here? | Public interest favors disclosure of potentially public records. | Public interest does not overcome Exemption 7(E) in this context. | No; public interest does not overcome the exemption. |
| Is there a duty to create records to fulfill FOIA request? | Requests creation of a log if not existing. | Agency not required to create records; must provide access to existing ones. | No; FOIA does not obligate creation of new records. |
Key Cases Cited
- Vazquez v. U.S. Dep’t of Justice, 764 F. Supp. 2d 117 (D.D.C. 2011) (FOIA exemption 2 and Glomar-related analysis; log-like records in NCIC)
- Milner v. Dep’t of the Navy, 131 S. Ct. 1259 (2011) (Revises understanding of FOIA exemption 2 in Glomar context)
- Electronic Privacy Info. Ctr. v. Nat’l Sec. Agency, 678 F.3d 926 (D.C. Cir. 2012) (Glomar/FOIA exemptions interplay)
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (Glomar doctrine foundations; harm-based refusals)
- Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Justice, 870 F. Supp. 2d 70 (D.D.C. 2012) (harm to investigation; disclosure consequences)
- Loving v. Dep’t of Defense, 550 F.3d 32 (D.C. Cir. 2008) (privacy/public interest considerations; IO impact on FOIA duties)
- Forsham v. Harris, 445 U.S. 169 (1980) (FOIA record creation vs. retention duties)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (FOIA disclosure duties)