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KACILAUSKAS v. DEPARTMENT OF JUSTICE

May 18, 1983

JUOZAS KACILAUSKAS, PLAINTIFF,
v.
DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Juozas Kacilauskas ("Kacilauskas") sues the Immigration and Naturalization Service of the Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 ("Section 552")*fn1 and the Privacy Act, Section 552a. Kacilauskas seeks compelled production of any INS records concerning him.

Kacilauskas now moves for an order requiring DOJ to prepare what has been known as a Vaughn index*fn2 — a comprehensive itemization of each document (or "manageable" subdivisions thereof), cross-referenced to the government's detailed justification for invoking one (or more) of FOIA's nine exemptions to disclosure. For the reasons stated in this memorandum opinion and order, Kacilauskas' motion is denied.

Background

DOJ's Office of Special Investigations ("OSI") has been investigating whether Kacilauskas, a permanent United States resident, participated in the Nazi persecutions during World War II. If that inquiry substantiates his undisclosed complicity in such Nazi activities, DOJ could take legal action to deport Kacilauskas.

After learning of the pending investigation some time in 1981, Kacilauskas asked DOJ for access to all agency records pertaining to him. On January 10, 1982 DOJ informed him:

    1. All materials sought were compiled in the course
  of the OSI investigation, and their disclosure would
  impede that ongoing investigation as well as any
  future deportation proceedings.
    2. Accordingly the materials were exempted from
  release under Section 552(b)(7)(A) ("Exemption
  7(A)"), which protects "investigatory records
  compiled for law enforcement purposes, but only to
  the extent that the production of such records would
  (A) interfere with enforcement proceedings. . . ."

On May 7 Kacilauskas' counsel wrote formally reiterating the document request. On May 27 DOJ advised the request had been forwarded to its New York office. No other response was given within the time limit presented by Section 552(a)(6)(A)(i). Kacilauskas has therefore exhausted his administrative remedies pursuant to Section 552(a)(6)(C).

Motion for Vaughn Index

To justify nondisclosure of records under Exemption 7(A) the government must show:

    1. Those records were compiled for law enforcement
  purposes.
    2. Their revelation would jeopardize law
  enforcement proceedings.

Kacilauskas concedes satisfaction of the first criterion but vigorously denies disclosure would hamper either the OSI investigation or any resulting deportation proceedings. Instead Kacilauskas urges he would be unduly handicapped in rebutting DOJ's claim of interference without access to a Vaughn index that (1) describes the factual nature of each document and ...


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