Government Declines Judge Breyer’s Suggestion to Release George Gibney Immigration Documents; Requests ‘Final Order’ From Court

Government’s Response to Court’s Order on George Gibney FOIA Documents Is Due Monday
December 2, 2016
December 6, 2016

Complete chronological links to Concussion Inc.’s series on rapist former Irish Olympic swimming coach George Gibney are at



by Irvin Muchnick

The federal government has told U.S. District Court Judge Charles Breyer that it decided not to take up his recommendation, in a November 2 “tentative order,” to release particular portions of the 43 pages of George Gibney’s immigration records that remain in dispute in Concussion Inc.’s Freedom of Information Act lawsuit against the Department of Homeland Security.

In a joint response filed today by the U.S. attorney’s office and my attorney Roy Gordet, the judge was asked for the final and binding order that he had said he was prepared to issue if the tentative order did not succeed in resolving the case. The government said it “will decide how to proceed after reviewing the final order.”

The full text of the joint response is at the bottom of this article, in bold type. A facsimile of the document can be viewed at

The court’s November 2 opinion accompanying the tentative order is viewable in facsimile form at and in full text at

If Judge Breyer proceeds as expected with the final ruling, which the opinion accompanying the tentative order had said would be “(largely) in Muchnick’s favor,” then there are two possible outcomes. One possibility is that U.S. Citizenship and Immigration Services, the agency under Homeland Security, will release the records as advised by the court. The other possibility is that the government will decide to appeal the ruling against it to the Ninth Circuit Court of Appeals.


For the obligatory “Joint Response” within thirty days as decreed in the Court’s Tentative Order dated November 2, 2016, the parties submit this document with separate statements as follows:


Defendant’s Statement:

The parties have conferred about the Court’s Tentative Order. The parties have not been able to reach a settlement. For purposes of the record, Defendant objects to the Tentative Order for the reasons stated in Defendant’s motion for summary judgment papers. Plaintiff requests that the Court issue a final order and judgment based on the Tentative Order at this time.  Defendant will decide how to proceed after reviewing the final order. The parties thank the Court for reviewing the documents in camera, affording the parties the opportunity to argue their respective cases at the recent motion for summary judgment hearing, and for providing the parties with guidance through its Tentative Order.


Plaintiff’s Statement:

Since the Court issued its Tentative Order on November 2, 2016, counsel discussed on the phone on two or three occasions some of the relevant issues and the possibility that Defendant may be willing to make some disclosures beyond its disclosures to date, but Defendant was continuing to consider its options. There was also some discussion of whether Plaintiff was willing to accept the Court’s Tentative Ruling before being permitted to review the Court’s additional highlighted disclosures in the documents. However, during those conversations, there was never an offer to provide Plaintiff with a single additional word in the files beyond what Defendant has previously provided to Plaintiff. At the very end of the 30-day period, Defendant informed Plaintiff of its definitive decision not to release now any of the highlighted material in the documents that the Court’s Tentative Order asserted should be produced to Plaintiff. Plaintiff therefore is left with no choice but to request that the Court issue a Final Order. Plaintiff earnestly thanks the Court for the time devoted to this lawsuit.


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Concussion Inc. - Author Irvin Muchnick