797 F. Supp. 2d 375
S.D.N.Y.2011Background
- Plaintiffs seek FOIA records about CBP Buffalo Sector operations, particularly inter-city bus/train enforcement, and related ICE/DHS records.
- Plaintiffs contend Border Patrol questioned travelers to enforce immigration laws in the interior, not at the border, seeking transparency for public and deportation proceedings.
- February 26, 2009 and April 2, 2010 FOIA requests sought extensive data including I-213s, arrest statistics, codes, quotas, training, and agreements with transit operators.
- Defendants withheld documents under Exemptions 2, 5, 6, and 7 (including 7(E)) and later produced some documents with redactions; Milner v. Navy later affected Exemption 2 interpretation.
- Court granted in part and denied in part, ordering disclosure of certain data from Buffalo Sector Daily Reports and I-213 charge codes, and restoration of authorship information for two documents.
- The decision required re-evaluation of 7(E) over comments pages and disclosure of authors/recipients names to the extent not implicating privacy concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 7(E) allows withholding Buffalo Sector Daily Reports | Milner undermines High 2; data on totals may be non-exempt. | Redactions protect techniques, procedures, and guidelines to prevent circumvention. | Partial disclosure required; totals must be released; most non-exempt material to be segregated. |
| Whether Buffalo Sector Daily Reports comments pages can be redacted or must be produced in part | Commentary may reveal performance expectations and targets; should be disclosed if not exempt. | Comments contain sensitive law enforcement methods to be withheld. | Re-evaluate and disclose non-exempt portions; redact only genuinely sensitive content. |
| Whether the charge codes in sample Form I-213s can be disclosed | Charge codes illuminate legal bases and aid public understanding. | Codes could enable circumvention and are internal; exempt. | Charge codes must be reproduced without redaction. |
| Whether training memoranda are protected by Exemption 5 (attorney-client/work product) | Public interest in confirming policy and racial profiling stance favors disclosure. | Documents contain legal advice; protected by attorney-client and work product. | Documents are protected under Exemption 5; but author/recipient names may be disclosed under public interest. |
| Whether authors/recipients of two ICE documents are exempt under Exemption 7(C) or 6 | Names illustrate agency-wide policy and public interest. | ||
| Names constitute privacy interests; potentially exempt. | Names must be disclosed; public interest outweighs privacy. |
Key Cases Cited
- Milner v. Department of the Navy, 131 S. Ct. 1259 (2011) (overruled Crooker, defines Exemption 2 scope as personnel rules and practices)
- Washington Post Co. v. Department of Defense, 456 U.S. 595 (1982) (balancing public/private interests under FOIA; not all identities per se exempt)
- Crooker v. Bureau of Alcohol, Tobacco, and Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (high/low 2 framework for Exemption 2 later overruled by Milner)
- Judicial Watch, Inc. v. Food and Drug Administration, 449 F.3d 141 (D.C. Cir. 2006) (privacy/public interest framework under Exemption 7(C))
- United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) (standard for balancing privacy vs. public interest under FOIA)