Court Pleading in Gibney FOIA Appeal

Immediately below is the text of our July 1 federal court filing in the George Gibney immigration records Freedom of Information Act request. Far below are complete links to our Gibney coverage. Senior Judge Charles Breyer of U.S. District Court in San Francisco has scheduled initial case management for October.

A facsimile of the Gibney court complaint can be viewed at http://muchnick.net/gibneyfoiacomplaint.pdf.

Plaintiff Irvin Muchnick alleges as follows:

1. This is an action under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”).

Plaintiff Irvin Muchnick (hereinafter “Muchnick”) seeks injunctive relief to compel the Department of Homeland Security to release all records in the possession of its U.S. Citizenship and Immigration Services agency concerning the visa application, green card files, and ancillary documents in its files of the Irish national George Gibney who reportedly sexually abused numerous young aquatic athletes in Ireland and other countries but who was granted permission to enter and reside in the United States.

JURISDICTION AND VENUE

2. This Court has subject matter jurisdiction over this matter and personaljurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B). This Court also has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331. Venue lies in this District under 5 U.S.C. § 552(a)(4)(B) as Muchnick is and has been domiciled in this District during all relevant times.

PARTIES

4. Muchnick is a resident of Berkeley, California.

5. Muchnick is a widely published free-lance investigative journalist whose work has appeared inThe New York Times Magazine, Sports Illustrated,People, and many other major magazines and newspapers. He has been interviewed on forums as diverse as Fox News’O’Reilly Factorand National Public Radio’sFresh Airwith Terry Gross. He is also an author of three books, most recently Concussion Inc.: The End of Football as We Know It in which he addresses the social, economic and medical problems associated with head injuries and professional football.

6. Muchnick has also actively investigated and written about the many known instances of sexual abuse of young swim athletes by their coaches across the United States, including the various litigations surrounding these scandals, some of which are institutional. These investigations and journalistic pursuits have brought him directly to the subject of his current investigations and this instant FOIA request, as will be described below.

7. Defendant Department of Homeland Security is a Federal agency within the meaning of 5 U.S.C. § 552(f) and 5 U.S.C. § 702. Muchnick is informed and believes, and on this basis alleges, that the National Records Center of the U.S. Citizenship and Immigration Services in Lee’s Summit, Missouri is the specific department within the agency that has custody and control of the records that Muchnick seeks.

FACTUAL ALLEGATIONS

Underlying Factual Background for the FOIA Request

8. Muchnick is investigating and writing about the Irish-born swim coach George Gibney and the American Swimming Coaches Association in an effort 1) to expose Gibney’s past and possibly ongoing evil and criminal activities in the United States, 2) to expose any malfeasance by the American Swimming Coaches Association in abetting Gibney and other swimming coaches to enter and reside in the United States, and 3) to expose any improprieties or negligence on the part of the U.S. Citizenship and Immigration Services, an agency within the Department of Homeland Security, in connection with any decisions to permit Gibney and other swimming coaches to be granted the “legal” right to enter and reside in the United States.

The Arc of Muchnick’s FOIA Request

9. On January 27, 2015, Muchnick submitted a formal FOIA request to the U.S. Citizenship and Immigration Services seeking documents related to the visa application and green card files of George Gibney. Attached with that request was an article written by Muchnick that explained who Gibney is as well as Muchnick’s purpose in seeking these agency records. A true and correct copy of that request with its attached article is submitted as Exhibit 1 to this Complaint and incorporated herein.

10. On April 27, 2015, Jill A. Eggleston, Director of FOIA Operations, U.S. Citizenship and Immigration Services of the Department of Homeland Security, provided a substantive response in the form of a letter. A true and correct copy of that letter is submitted as Exhibit 2 to this Complaint and incorporated herein.

11. Director Eggleston in that letter stated the following:

“We have completed the review of all documents and have identified 102 pages that are responsive to your request. Enclosed are four pages released in their entirety. We are withholding 98 pages in full. In our review of these pages, we have determined that they contain no reasonably segregable portion(s) ofnonexempt information. We have reviewed and have determined to release all information except those portions that are exempt pursuant to 5 U.S.C. § 552 (b)(6), (b)(7)(C), and (b)(7)(E) of the FOIA.“

12. The four pages released by the agency that actually contained text consisted of a public alert published by AbuseWatch.net, an international watchdog organization, concerning George Gibney and a blank INS form, and are submitted as Exhibit 3, which is incorporated herein. That public alert describes in detail the reported allegations and earlier journalistic investigations into Gibney’s longstanding pattern of sexually abusing youngsters and why AbuseWatch.net was seeking more information about Gibney and his whereabouts. The significance of Gibney’s case in Ireland, and the controversies surrounding his flight from Ireland, are reported in this same public alert located in the Citizenship and Immigration Services’ own files. The remaining 98 pages were completely blank, except that each of the 98 pages contained a one-line reference citing in a perfunctory manner the specific FOIA exemption under which the agency was withholding the particular document. To demonstrate more clearly, submitted as Exhibit 4, and incorporated herein, is page 80, chosen at random, from the 102 pages – this page is identical to the 97 other pages “withheld in full” by the Defendant except for the stated specific exemption relied upon by the Defendant.

13. On May 21, 2015, Muchnick filed a timely appeal from the agency’s response dated April 27, 2015. A true and correct copy of that appeal is attached as Exhibit 5 and incorporated herein. In that appeal Muchnick mounted several legal arguments, most prominently that it appeared illogical that portions of the documents being withheld pursuant to the cited exemptions were not “reasonably segregable”. Muchnick contended there, and continues to contend, that this basis for withholding is not tenable.

14. In a response dated June 12, 2015, the Department of Homeland Security summarily denied the appeal. A true and correct copy of that response is submitted as Exhibit 6 and incorporated

herein. This present litigation follows.

CAUSE OF ACTION

Violation of the Freedom of Information Act:Wrongful Withholding of Agency Records

15. Muchnick re-alleges and incorporates by reference paragraphs 1-14 above as if fully stated herein.

16. Plaintiff properly requested records within the custody and control of Defendant U.S. Department of Homeland Security.

17. Defendant Department of Homeland Security has failed to release responsive records to Muchnick, in violation of FOIA. 5 U.S.C. § 552(a)(3)(A). Muchnick has exhausted the applicable administrative remedies with respect to his request. 5 U.S.C. § 552(a)(6)(C)(i).

18. Accordingly, Defendant stands in violation of Federal law and Muchnick is entitled to the declaratory and injunctive relief he seeks, as set forth hereafter.

REQUESTED RELIEF

WHEREFORE, Plaintiff Muchnick respectfully requests this Court:

1) order Defendant U.S. Department of Homeland Security and its U.S. Citizenship and Immigration Services to conduct a reasonable search for all records responsive to Plaintiff’s January 27, 2015 FOIA request, and to immediately produce to Plaintiff’s undersigned counsel all records responsive to Plaintiff’s FOIA request in their entirety;

2) declare that Muchnick is a member of the media who is seeking the release of these documents in the public interest, and is therefore entitled to any applicable fee waivers as allowed by law;

3) order Defendant to promptly produce a sufficiently detailed Vaughn Index identifying any document or portion of a document withheld, and stating the statutory exemption claimed;

4) issue a declaration that Muchnick is entitled to disclosure of the requested records;

5) provide for expeditious proceedings in this action;

6) award Muchnick reasonable attorney fees and litigation costs reasonably incurred in this action pursuant to 5 U.S.C. § 552(a)(4)(E); and

7) grant such other relief as the Court may deem just and proper.

Respectfully submitted,

Roy S. Gordet

Attorney for Plaintiff Irvin Muchnick