45 F. Supp. 3d 380
S.D.N.Y.2014Background
- Two New York Times reporters, Bishop and Chivers, were pulled aside and questioned by CBP officers at JFK in May–June 2013; they submitted FOIA/Privacy Act requests to DHS for records relating to those encounters.
- After initial searches reportedly produced no responsive records, plaintiffs pressed DHS through administrative appeals and litigation; DHS later located CBP records from TECS and ATS systems and produced many documents with redactions, withholding two ATS pages entirely.
- Disputed material: short coded entries in TECS "RSLT" fields, ‘‘Reason for Referral’’ and small Inspection Remarks redactions in secondary inspection records, and two complete ATS pages.
- DHS asserted FOIA Exemption 7(E) — protecting law‑enforcement techniques, procedures, or guidelines whose disclosure could risk circumvention of the law — and submitted unredacted materials for in camera review.
- The magistrate judge reviewed the records and DHS declarations (Castelli) and concluded DHS met its burden; DHS’s motion for summary judgment was granted and plaintiffs’ denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether disputed TECS RSLT codes are exempt under FOIA Exemption 7(E) | RSLT’s few letters/numbers do not reveal usable techniques; not harmful | RSLT codes identify queried databases/results and would reveal CBP investigative procedures and enable circumvention | Exemption 7(E) applies; redactions upheld |
| Whether redactions to Secondary Inspection records (Reason for Referral; Inspection Remarks) fall under 7(E) | Short descriptive words are harmless and publicly foreseeable post‑9/11; DHS’s explanations are conclusory | Redactions reveal which database queries and selection criteria trigger secondary inspection and would disclose procedures enabling evasion | Exemption 7(E) applies; redactions upheld |
| Whether two ATS pages may be withheld in full under 7(E) | DHS failed to describe documents or show non‑segregable content; some ATS data is released in other contexts | ATS pages contain plaintiff‑specific assessments and factors used in automated targeting; any disclosure would reveal assessment process and enable circumvention | Exemption 7(E) applies; withholding in full upheld as non‑segregable |
| Whether DHS satisfied segregability obligations under FOIA | Plaintiffs: DHS did not sufficiently show that any factual material cannot be segregated | DHS: disclosure of any factual elements would reveal exempt assessment rules because facts are inextricably intertwined with the targeting process | Court accepts DHS’s segregability justification; no reasonably segregable non‑exempt material |
Key Cases Cited
- NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (establishes FOIA’s purpose of public oversight)
- Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (public’s right to know; context on FOIA aims)
- Reporters Comm. for Freedom of the Press v. U.S. Dep’t of Justice, 489 U.S. 749 (agency bears burden to justify withholdings)
- Lowenstein v. Dep’t of Homeland Sec., 626 F.3d 678 (distinguishes "techniques and procedures" from "guidelines" under Exemption 7(E))
- Wilner v. Nat’l Sec. Agency, 592 F.3d 60 (affidavits may support FOIA summary judgment if reasonably specific)
- Inner City Press v. Bd. of Governors, 463 F.3d 239 (burden on party claiming records are publicly available; discussion of segregability)
- Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143 (FOIA exemptions construed narrowly; de novo review standard)