837 F. Supp. 2d 287
S.D.N.Y.2011Background
- This FOIA action seeks release of CBP records regarding Buffalo Sector bus/train operations and related practices.
- Defendants produced 705 pages with redactions under FOIA Exemptions 5, 6, 7(C), 7(E), and non-responsiveness.
- Plaintiffs challenge redactions on three document sets: Amtrak meeting notes, inter-agency emails/attachments, and a DOJ memo.
- Plaintiffs seek officer identification codes for Buffalo Sector Daily Reports Commentary but do not challenge those redactions.
- Judge conducts de novo review and orders partial disclosure; some redactions must be removed or narrowed.
- Defendants must produce specified documents without certain redactions by a set deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must arrest statistics by year be released? | 2008–2009 data are responsive; 2010 data may be non-responsive. | Only Buffalo data required; other sectors non-responsive; 2010 data redacted. | 2008–2009 arrest statistics must be disclosed; 2010 data may remain redacted. |
| Must Buffalo Sector staffing statistics be disclosed? | Staffing data relevant to public understanding; historical data should be released. | Staffing data reveal techniques; may be withheld under Exemption 7(E). | Buffalo Sector staffing data for 2009 must be released; other years/sectors may remain redacted. |
| Should official transit-node definitions be disclosed? | Definitions aid public understanding of CBP operations. | Definitions contain guidelines/procedures; could risk circumvention. | Definitions of Primary and Secondary transit nodes must be disclosed. |
| Are names/titles in inter-agency emails properly redacted? | Some redactions hinder public understanding; need more disclosure. | Exemption 6/7(C) applies; privacy and law-enforcement interests justify redactions. | Exemption 6 inapplicable to emails; Exemption 7(C) applies; disclose titles and offices, redact email addresses/phone numbers. |
| Is the DOJ memo on Amtrak checks protected? | May be non-deliberative; should be accessible. | Attorney-client/work-product protections apply; protected under Exemption 5. | DOJ memo may remain redacted under Exemption 5. |
| Can Buffalo Sector Daily Reports Commentary be redacted for officer identities while remaining informative? | Coding of officers would aid analysis without circumvention risk. | FOIA does not require creating new data; coding and dates are not guaranteed. | Officer coding denied; may reconsider if specific hinderances are shown; dates should be produced where present. |
Key Cases Cited
- Washington Post Co. v. United States Dep’t of Justice, 456 F.2d 595 (U.S. Supreme Court 1982) (public-interest balancing in FOIA exemptions)
- Wood v. Federal Bureau of Investigation, 432 F.3d 78 (2d Cir. 2005) (exemption analysis for Exemption 6; privacy vs. disclosure)
- Tax Analysts v. Internal Revenue Service, 117 F.3d 607 (D.C.Cir. 1997) (defining 'records or information compiled for law enforcement purposes')
- Pearlman v. United States Dep't of Justice, 312 F.3d 100 (2d Cir. 2002) (privacy factors and Perlman framework for Exemption 7(C))
- Associated Press v. United States Dep’t of Justice, 554 F.3d 274 (2d Cir. 2009) (privacy balancing; Open Government FOIA jurisprudence)
- In re Six Grand Jury Witnesses, 979 F.2d 939 (2d Cir. 1992) (contextual framework for government records privilege)
- Klamath Water Users Protective Ass'n. v. Department of the Interior, 532 U.S. 1 (Supreme Court 2001) (scope of agency records and public access principles)
- Bloomberg L.P. v. Board of Governors of the Fed. Reserve Sys., 601 F.3d 143 (2d Cir. 2010) (narrow interpretation of FOIA exemptions; disclosure preferred)