Judge Breyer Rules For Muchnick in First Round of George Gibney FOIA Case; Orders Government to Improve Explanations of Withheld Documents

Published February 25th, 2016, Uncategorized

Complete headline links to our Gibney coverage are at http://concussioninc.net/?p=10717.

by Irvin Muchnick

U.S. District Court Judge Charles Breyer yesterday handed Concussion Inc. a win in the first round of our Freedom of Information Act lawsuit against the Department of Homeland Security for a better response to our request for access to rapist former Irish Olympic swim coach George Gibney’s 102-page U.S. Citizenship and Immigration Services file.

Judge Breyer denied the government’s motion for summary judgment (dismissal of the action) and gave it 60 days to file a new and improved “Vaughn Index” — the log describing 98 withheld pages and justifying their exemptions under FOIA on privacy grounds.

In the process, the court canceled Friday’s scheduled oral arguments in San Francisco. Excerpts of Breyer’s seven-page opinion are below. A facsimile of the document can be viewed at http://muchnick.net/breyerop022416.pdf.

This ruling is incremental, not an across-the-board victory. However, it was and is our position, as articulated to the court by my attorney Roy Gordet, that while legitimate privacy concerns hover over release of material from Gibney’s immigration records, there is also a clear public interest in at least partial release, and that interest is solidly supported in case law.

Breyer’s opinion agrees with our argument that the government has failed to make its case that there is absolutely no possibility for “segregability” of non-exempt material in any of the 98 pages. The revised Vaughn Index could move the parties and the court closer to acceptance of what we would regard as reasonable redactions, or blacking out of text protected by privacy exemptions.

We are forwarding this article to Senator Dianne Feinstein and Congresswoman Jackie Speier, both California Democrats.

Feinstein’s office at first offered help in our quest for government information on Gibney, then backtracked and gave a misleading statement to inquiring Irish media.

Speier, who inherited the unofficial mantle of youth sports abuse watchdog from now-retired Congressman George Miller, so far has not lifted a finger, either in our FOIA dispute or for the issue generally. Miller himself unconscionably softballed his 2014 call for intensified federal investigations, before moving on to a lobbying job in the education industry.


“Now before the Court is the Department of Homeland Security’s (“DHS’s”) motion for summary judgment on Plaintiff Irvin Muchnick’s Freedom of Information Act (“FOIA”) claim…. The Court finds the motion suitable for resolution without oral argument, see Civil Local Rule 7-1(b), and for the following reasons, concludes that DHS’s Vaughn Index and showing on segregability are insufficient. The Court thus DENIES the motion without prejudice to DHS curing these deficiencies and VACATES the hearing set for Friday, February 26, 2016.

Muchnick is an accomplished freelance journalist who is currently investigating sexual abuse in organized amateur sports. See Muchnick Decl. (dkt. 17-1) at 1. As part of his research, Muchnick is investigating “improprieties or negligence” on the part of DHS, including its United States Citizenship and Immigration Services (“USCIS”) subdivision, in allowing George Gibney—an Irish-national swimming coach accused of sexual abuse—to enter and reside in the Unites States. See Muchnick Decl. at 1–2, Exs. A–C.

In February 2015, Muchnick made a FOIA request for records in the possession of USCIS that included “Visa and green card files on George Gibney, an Irish national living in Altamonte Springs, Florida.” See Eggleston Decl. at 4. DHS conducted a search and identified 102 pages of responsive documents. Id. These documents all appear to be part of Gibney’s Alien File (“A-file”), which contains the official record materials for Gibney that DHS created under the Immigration and Nationality Act. See id.; 76 Fed. Reg. 70739-01, 2011 WL 5519984 (Nov. 15, 2011). According to DHS, “the A-file may contain documents and information that originate from USCIS, including the processing and adjudication of applications and petitions submitted for citizenship, asylum, and other immigration benefits,” and it may also include documents “that originate from U.S. Immigration and Customs Enforcement’s law enforcement activities, and U.S. Customs and Border Protection’s inspection, border protection, and law enforcement processes.” See id.; Motion at 3.

DHS produced four pages of these responsive documents to Muchnick and withheld 98 pages based on a number of FOIA exemptions. See Eggleston Decl. at 4. The parties now agree that this action involves about 40 withheld documents spanning around 80 pages. See generally Vaughn Index (dkt. 16); Opp’n (dkt. 17) at 8. DHS produced a Vaughn Index and a declaration from DHS employee Jill Eggleston to justify withholding these 98 pages of responsive documents, see Vaughn Index and Decl. (dkt. 16), and DHS moves for summary judgment, arguing that several FOIA exemptions cover the disputed documents, see Motion.

[T]he Court concludes that DHS’s Vaughn Index and segregability showing are insufficient and DENIES the motion without prejudice.

The Vaughn Index here largely fails to “describe [each withheld document’s] contents to the extent possible” and also fails to provide a “particularized explanation of why each documents falls within the claimed exemption.” … The Ninth Circuit found insufficient the Vaughn Index the FBI prepared in response to a FOIA request about John Lennon, and explained the level of detail that DHS should have provided in its index:

‘Without violating the privacy interests of the informant or the third party, the FBI could have stated that [a specific government form] recites information provided by a third party to an FBI informant detailing the third party’s knowledge of several activists and protest activities planned at the 1972 Republican National Convention, discussing the possibility that John Lennon would organize a series of concerts to raise money to finance the activity, and describing rivalries and jealousies within activist organizations.’

The Court … concludes that DHS’s Vaughn Index is deficient under Ninth Circuit case law and DENIES the motion for summary judgment at issue here without prejudice to DHS producing and filing an adequately detailed Vaughn Index.”