Muchnick Appeals Government’s Rejection of George Gibney Immigration Records FOIA

Published May 21st, 2015, Uncategorized

 

Concussion Inc. today filed an appeal of the response of U.S. Citizenship and Immigration Services to our Freedom of Information Act request for the visa and green card files of George Gibney. The text of the administrative appeal letter is below. The texts of the government’s FOIA response letter, plus this appeal, are viewable at http://muchnick.net/foiaexchange.pdf. Below are complete headline links to our Gibney coverage.

 

Introduction

This is a Freedom of Information Act appeal, case number COW2015000101, per your letter of April 27, 2015. The hard-copy version of this letter, to your Lee’s Summit physical address, encloses a reproduction of the CD containing PDF files of your response letter and document production (“Response”).

I am consulting with attorneys for a prospective appeal to federal court. I submit this administrative appeal, based on my reading of evident logistical contradictions in the Response. I beg the indulgence of your office of possible shortcomings in legal rigor or format.

This letter is being copied to:

  • Homeland Security Secretary Jeh Johnson;
  • USCIS Director Leon Rodriguez;
  • Senator Dianne Feinstein and Congresswoman Jackie Speier, both of California, who are monitoring the issue of sexual abuse in amateur sports; and
  • The Honorable Maureen O’Sullivan, a representative of the Oireachtas (Parliament of the Republic of Ireland), who is leading the effort there to revisit the criminal prosecution, and seek the extradition from the United States, of George Gibney, whose visa and green card files are the subject of this FOIA request.

The success of a FOIA request turns not on the motivations behind the request, but rather on whether it legitimately contributes to the citzenry’s better understanding of the processes of their federal government. Having said that, I do hope USCIS considers my appeal with an awareness that many people, both in the United States and abroad, have expressed interest in a just outcome.

 

1. Privacy considerations are not absolute under FOIA law.

In the 2014 case Union Leader Corporation v. U.S. Dep’t of Homeland Security, et al., 749 F.3d 45, the 1st Circuit Court of Appeals held that a FOIA exemption for records or information compiled for law enforcement purposes did not apply to a newspaper’s request. “[T]he government agency bears the burden of proving the applicability of a specific statutory exemption; that burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document.” In determining whether a privacy exemption applies to “records or information compiled for law enforcement purposes, courts must balance the implicated privacy interest against the public interest in releasing the materials.” Here “the public interest in enabling the newspaper to investigate public records pertaining to the aliens’ prior convictions and arrests … outweighed the aliens’ attenuated privacy interests.”

The identical principle applies in my FOIA appeal.

 

2.The Response makes the unsupported assertion that non-exempt information cannot be reasonably segregated.

The Response states that “we have determined that [the 98 withheld pages] contain no reasonably segregable portion(s) of non-exempt information.” However, as I develop below, such an assertion is clearly undermined elsewhere in the Response.

As a result of this doubt, I submit that the assertion of blanket withheld pages (rather than appropriately targeted redactions) is the proper jurisdiction of the federal courts. Accordingly, I contemplate a judicial appeal for inspection of the pages independently and in camera. A judicial appeal is moot if USCIS chooses, as a resolution of this administrative appeal, to reverse the Response’s blanket withholding of pages.

Even before getting to the argument below with respect to the Response’s explanation of the application of Exemption (b)(7)(c), and how that explanation itself contradicts the concept of inability to segregate exempt from non-exempt information, it is simply not intuitive that “no” reasonably segregable portion(s) of non-exempt information exist in any of the 98 (out of a total of 102) withheld pages. For example, the Response, at page 19 of the PDF attachment, includes a fully produced page, which is a generic instruction page. The Response stretches credulity by suggesting that not even one of the 98 withheld pages contains similar government forms and paperwork, which, even in redacted form, would provide useful public insight into how USCIS processed the attendant visa and green card applications.

Further, the Response’s listing of Exemptions (b)(7)(c) and (b)(7)(e), in addition to Exemption (b)(6), already concedes that the files contain law enforcement records. There is keen public interest in knowing that Gibney was approved for a visa and/or a green card in the face of such records. Those records should be produced with responsible redactions, not with blanket withholding of the pages. USCIS is not itself a police agency; the law enforcement records on Gibney that came into the possession of USCIS were assembled in the course of the immigration process – i.e., visa and/or green card applications.

In no obvious way is the Response either judicious or in keeping with the spirit of FOIA with its all-or-nothing approach to redactions. For example, the public has a right to learn whether a resident alien’s original visa was obtained by lottery or by other means. Prima facie, visa renewals and green card applications would include letters endorsing the applicant’s professional or other qualifications as a component of his request to remain in this country. The underlying contents of such sponsorship documents are public records, even if personal identifying information therein is redactable.

Finally, the very existence of pages giving rise to claims of exemptions because they are law enforcement records supports the notion that those pages should have limited access for the public in the context of scrutinizing the work of the immigration and citizenship agency. To make this argument is not to say that the existence of law enforcement record references to a visa or green card applicant automatically disqualifies said applicant. However, this does obliterate the diametrically opposite notion of the Response: that such records can be legally withheld in total, with no discernible effort to segregate and disclose non-exempt information. (This point is only underscored by the three other fully released pages of the Gibney file: pages 71-73, representing the government’s retention of documentation of sexual abuse allegations against Gibney in Ireland, as publicized by the organization One Child International.)

 

3. Exemption (b)(7)(c) and the explanation of “third-party references” combine to establish the viability of segregating elements of the withheld pages.

The argument against the fully withheld pages becomes sharper still with the explanation in the Response of the statutory exemptions that were applied.

The Response’s explanation of the second of the three bulleted exemptions states:

“Exemption (b)(7)(C) provides protection for personal information in law enforcement records, which could reasonably be expected to constitute an unwarranted invasion of personal privacy. We have withheld information relating to third-party individuals. The types of documents and/or information we have withheld could consist of names, addresses, identification numbers, telephone numbers, fax numbers, or various other documents that are considered personal.” (italics added)

From the wording of the Response, it appears that pages withheld under (b)(7)(c) contain both personal identifying information of third-party individuals and separately – by definition – personal identifying information of George Gibney himself. (The Gibney information is withheld under a different asserted exemption, (b)(6).)

In my breakdown of the withheld pages, based on my review of the Response’s PDF attachment, twenty-seven of the pages are withheld on claims of (b)(7)(c) exemptions. (Fourteen of the pages claim Exemptions (b)(7)(c) and (b)(6); thirteen others claim all three listed exemptions: (b)(7)(e) as well as (b)(7)(c) and (b)(6).)


Conclusion

For the foregoing reasons, FOIA request COW2015000101 should be modified on appeal so that USCIS performs a new review of the following numbered pages with a view toward removing some or all of the redactions therein:

1, 2, 33, 40, 46, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61 75, 76, 77, 78, 79, 80, 81, 82, 83


Respectfully submitted,

Irvin Muchnick

 

THE GIBNEY SERIES:

 

Why Is George Gibney — No. 1 At-Large Pedophile in Global Sports — Living in Florida? And Who Sponsored His Green Card?

Published January 27th, 2015

U.S. Citizenship and Immigration Services Offers Confused Initial Response to FOIA Request For Rapist Irish Coach George Gibney’s Visa and Green Card Files

Published February 18th, 2015

Senator Feinstein Leads Congressional Group Assisting Concussion Inc. in FOIA Request For Former Irish Coach George Gibney’s U.S. Immigration Records

Published February 19th, 2015

How Former USA Swimming President Dale Neuburger Responded To an American Court To Questions About Rapist Irish Coach George Gibney – Now Living in Florida With a Green Card

Published February 22nd, 2015

Rapist Irish National Coach George Gibney in Colorado in 2000 – Coached For USA Swimming Club, Claimed To Be on Board of At-Risk Youth Center, Traveled to Peru With a Priest

Published February 23rd, 2015

Colorado Police Confirm Basics of Concussion Inc.’s George Gibney Reporting; Questions Persist on USA Swimming’s Cover-Up Role

Published February 24th, 2015

Archdiocese of Denver ‘No Comments’ Irish Coach George Gibney – Plus Other New Notes on USA Swimming’s Cover-Up

Published February 24th, 2015

George Gibney’s USA Swimming Club in Denver Claims ‘No First-Hand Knowledge’ of His Dismissal and Notice to Others in 2000

Published February 25th, 2015

More Info on George Gibney at the USA Swimming Club in Denver, As Public Records Requests Escalate

Published February 25th, 2015

What’s Ahead in the George Gibney / USA Swimming Investigation

Published February 26th, 2015

BREAKING: Arvada (Colorado) Police Say George Gibney Left North Jeffco Swim Team As Early As 1995, Following Sexual Harassment Incident And Exposure of His Irish Past

Published February 27th, 2015

“Alleged abuser Gibney’s green card queried” — Sunday Times of London, Irish Edition

Published March 1st, 2015

George Gibney Swimming Abuse Cover-Up Featured Tonight on Irish TV

Published March 2nd, 2015

Here’s the 2000 Wheat Ridge (Colorado) Police Report on Rapist Irish National Team and USA Swimming Coach George Gibney

Published March 3rd, 2015

Member of Irish Parliament Calls on Government to Seek George Gibney’s Extradition From the U.S.

Published March 3rd, 2015

Tuesday Night Notes on the Exploding George Gibney / USA Swimming Story on Two Continents

Published March 3rd, 2015

See It Now – Irish Legislator O’Sullivan, Journalist McCarthy, Whistleblower Parent Discuss the Quest For George Gibney Justice on TV3’s ‘Tonight With Vincent Browne’

Published March 4th, 2015

Wheat Ridge (Colorado) Police: We Destroyed 1998 Report on George Gibney

Published March 4th, 2015

Status of Our Freedom of Information Act Request For George Gibney’s Immigration Files — Now Being Closely Watched in Both Ireland and U.S.

Published March 4th, 2015

Link to Irish Times Story on Irish Parliament’s Maureen O’Sullivan’s Appeal For Extradition of George Gibney

Published March 4th, 2015

What Complicates American Prosecution of Irish National Team and USA Swimming Coach George Gibney For His 1991 Rape on American Soil

Published March 5th, 2015

Irish Times: Minister of Justice to Discuss Legislator’s Appeal For Extradition of George Gibney

Published March 5th, 2015

Reprint of Sunday Times Article on Muchnick’s Freedom of Information Request For Rapist Irish and USA Swimming Coach George Gibney’s American Immigration Records

Published March 6th, 2015

Roundup of New Media Coverage of Irish National Team and USA Swimming Rapist Coach George Gibney

Published March 6th, 2015