Denise GILMAN, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
Civil Action No. 09-0468 (BAH)
United States District Court, District of Columbia.
Signed March 14, 2014
Jeremy S. Simon, U.S. Attorney‘s Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
BERYL A. HOWELL, United States District Judge
The plaintiff, Denise Gilman, brings this case under the Freedom of Information Act ( FOIA ),
I. BACKGROUND
A. The Texas-Mexico Border Fence
In 2006, Congress passed the Secure Fence Act, ordering construction of a fence or wall along specific portions of the U.S.-Mexico border, including areas in Texas. See Complaint ( Compl. ) ¶ 5,
B. FOIA Requests
The plaintiff is a clinical professor at the University of Texas School of Law. Decl. Denise Gilman ( Gilman Decl. ) ¶ 1, ECF No. 35-1. In late 2007, the plaintiff spearheaded a working group that focused on the human rights impact of the border fence by conduct[ing] research and analysis of the legal, historical, property, environmental, indigenous, community, and other impacts of the border wall. Id. ¶¶ 4-5. As part of that effort, the plaintiff submitted several FOIA requests to the CBP, DHS, and the U.S. Army Corps of Engineers ( ACE ). See Def.‘s Mem. Supp. Def. CBP‘s Mot. Summ. J. Email Recs. ( Def.‘s Mem. ) at 3, ECF No. 32. The plaintiff‘s request to CBP asked for: (1) Maps of possible locations for segments of fence or wall along the Texas/Mexico border; (2) files including geographic coordinates ... for surveyed points along potential routes for segments of fence or wall along the Texas/Mexico border; (3) Documents identifying the properties possibly affected by the construction of the border fence or wall along the Texas/Mexico border, including documents that provide information regarding the ownership of the possibly affected properties and any other information about the characteristics of those properties; (4) Documents identifying the properties for which the United States government has sought to obtain access through consent/waiver or through litigation; (5) Documents reflecting appraisals of properties possibly affected by the construction of the border fence or wall along the Texas/Mexico border; (6) Documents reflecting surveys or other analyses of the areas possibly affected by the border fence or wall along the Texas/Mexico border; (7) Documents that describe the considerations or factors taken into account in making decisions regarding potential routes for segments of fence or wall along the Texas/Mexico border; (8) Communications received from, provided to or referenced by the Department of Homeland Security that make recommendations or suggestions regarding the route for segments of fence or wall along the ... Texas/Mexico Border; and (9) Documents relating to potential or actual contracts for the execution of land surveys or construction of segments of fence or wall along the Texas/Mexico border. Gilman Decl. Ex. 2 at 18-19 (Plaintiff‘s FOIA request to CBP dated April 11, 2008). Near-identical requests were also sent to DHS and ACE. See Compl. ¶ 16.
DHS informed the plaintiff by letter that it referred her request to CBP as the component of DHS likely to possess the records requested. See July 23, 2009, Joint Status Report ( 7/23/09 JSR ) at 3, ECF No. 6. Before the plaintiff filed suit, she received from CBP two records, from ACE, 69 pages of records, and from DHS, no records. See Gilman Decl. ¶ 10; Pl.‘s
C. FOIA LITIGATION
The plaintiff filed the instant action to compel the disclosure of responsive records, but subsequently agreed with CBP to bifurcate the email production and non-email production of records. See 7/23/09 JSR at 2-3; see also July 27, 2009 Scheduling Order ( 7/27/09 Sched. Order ) ¶¶ 1-3, ECF No. 7. The parties submitted a joint status report informing the Court that in the interest of expediting the release of e-mails to Plaintiff, CBP could satisfy Plaintiff‘s FOIA request with respect to the processing of e-mails by providing to Plaintiff the e-mails as released in Crew v. DHS pursuant to the search described in the Joint Status Report and Proposed Disclosure Schedule ... in that case. See 7/23/09 JSR at 3 (citing Citizens for Responsibility & Ethics in Wash. v. U.S. Dep‘t of Homeland Sec. ( CREW ), No. 08-1046 (D.D.C. filed June 18, 2008)). The parties further explained that CREW involved a search for emails of the 25 CBP officials most directly involved in the border fence placement division and was scheduled to produce 1,000 pages of e-mails per month until there were no remaining responsive records. Id. at 2-3. This was a broader search for records than that which the plaintiff had requested because the plaintiff in CREW sought records for the entire Southwest border of the United States instead of just the Texas-Mexico border. Def.‘s Mem. at 4-5. CBP was already processing email records in CREW, id. at 4, and the arrangement meant CBP would not have to expend its limited resources to search for, retrieve and process email records in response to Plaintiff‘s FOIA request, id. at 5, and allowed Plaintiff to receive email records more expeditiously than she otherwise would, id. at 4. CBP agreed to release to the plaintiff all e-mails already released in CREW v. DHS and to continue to provide the plaintiff with further emails as they are released on a rolling basis in that case. 7/23/09 JSR at 3. The Court subsequently entered an order stating that CBP will release to Plaintiff all email records already released in [CREW], and, going forward, CBP will release to Plaintiff on a rolling basis all email records released in [CREW], on the same schedule as they are released in that case. 7/27/09 Sched. Order ¶ 2.
Two years after the plaintiff filed suit, CBP completed or was near completion of its production of records in both the CREW litigation and the instant case. Gilman Decl. ¶ 12. CBP was ordered to produce any remaining responsive email records to the plaintiff within a month, see March 28, 2011 Order, ECF No. 27, and the plaintiff was ordered to raise any disputes with the claimed exemptions within 60 days. Id.; see also June 27, 2011 Joint Status Report ( 6/27/2011 JSR ), ECF No. 28. In total, CBP made 15 productions of email records ... representing all emails produced in the CREW v. DHS case. Id. at 2 n.1. The plaintiff identified for CBP the 289 emails with redactions and/or withholdings she is challenging, Pl.‘s Mot. Summ. J. ( Pl.‘s Mem. ) at 5, and CBP agreed to conduct a further review of the challenged records, 6/27/11 JSR at 3. The parties were aware when the 6/27/11 JSR was filed that the plaintiff challenged the fact that attachments were not part of the email production. Id. CBP explained that it would satisfy its obligation to the plaintiff by releasing to her emails which were identical to those released in CREW, and, therefore, to the extent attachments were not included in the email release made in CREW v. DHS, they were not provided to Plaintiff. Id. This was contrary to the
The plaintiff has substantially narrowed her challenges to CBP‘s production of responsive records. See Pl.‘s Reply Def.‘s Opp. Pl.‘s Mot. Summ. J. Re. Email Discl. ( Pl.‘s Reply ) at 1, ECF No. 42. The plaintiff has expressly stated that she no longer challenges (1) CBP‘s redaction of emails under Exemption 5, Pl.‘s Reply at 1; (2) the Exemption 7(E) redactions on Record 24 listed in the Vaughn index, id.; (3) the withholding of the phone numbers or email addresses of landowners or the withholding of names and contact information of CBP employees or of individual employees of contractors, Pl.‘s Mem. at 5; and (4) the withholding of email attachments beyond those attached to the 289 emails at issue in these cross-motions, id. at 25. Due to the plaintiff‘s decision not to challenge these withholdings, summary judgment is granted to CBP as to those issues. The reasons for the plaintiff‘s remaining challenges are discussed below.
II. LEGAL STANDARD
Congress enacted the FOIA to promote transparency across the government. See
To protect legitimate governmental and private interests [that] could be harmed by release of certain types of information, United Techs. Corp. v. U.S. Dep‘t of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (internal quotation marks omitted), Congress included nine exemptions permitting agencies to withhold information from FOIA disclosure. See
It is typically appropriate to resolve FOIA cases on summary judgment. See Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011) ( the vast majority of FOIA cases can be resolved on summary judgment ). When an agency‘s response to a FOIA request is to withhold responsive records, either in whole or in part, the agency bears the burden of proving the applicability of claimed exemptions. Am. Civil Liberties Union v. U.S. Dep‘t of Def. ( ACLU/DOD ), 628 F.3d 612, 619 (D.C. Cir. 2011). The agency may sustain its burden of establishing that requested records were appropriately withheld through the submission of declarations detailing the reason that a FOIA exemption applies, along with an index, as necessary, describing the materials withheld. See, e.g., id. at 619; Students Against Genocide v. U.S. Dep‘t of State, 257 F.3d 828, 840 (D.C. Cir. 2001); Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). If an agency‘s affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency‘s bad faith, then summary judgment is warranted on the basis of the affidavit alone. ACLU/DOD, 628 F.3d at 619. As the D.C. Circuit recently explained, in FOIA cases [s]ummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith. Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed‘n of Am. v. U.S. Dep‘t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006) and Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)). While the burden remains on the moving party to demonstrate that there is an absence of a genuine issue of material fact in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), in FOIA cases, an agency‘s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ ACLU/DOD, 628 F.3d at 619 (quoting Larson v. U.S. Dep‘t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
III. DISCUSSION
The plaintiff contends that CBP: (1) improperly redacted the names and addresses of landowners who would potentially be affected by the border wall, under FOIA Exemption 6; (2) improperly redacted records containing an assessment of the need for fencing in certain areas, under FOIA Exemption 7(E); and (3) improperly withheld email attachments pursuant to no specific FOIA exemption. Pl.‘s Reply at 1. The plaintiff‘s challenges are addressed seriatim below.
A. FOIA Exemption 6
The plaintiff challenges CBP‘s withholding, under Exemption 6, of the names and addresses of private citizen landowners that are referenced in emails to and from CBP employees.3
As a threshold matter, the Court must determine whether the withheld information constitutes similar files to personnel and medical files that are subject to exemption 6.
1. A Substantial Privacy Interest Exists In The Withheld Name And Address Information
In construing Exemption 6, the D.C. Circuit has held that the disclosure of names and addresses is not inherently and always a significant threat to the privacy of those listed; whether it is a significant or a de minimis threat depends upon the characteristic(s) revealed by virtue of being on the particular list, and the consequences likely to ensue. Horner, 879 F.2d at 877; see also U.S. Dep‘t of State v. Ray, 502 U.S. 164, 176 n. 12 (1991) (noting that disclosure of a list of names and other identifying information is not inherently and always a significant threat to the privacy of the individuals on the list. ). In the context of an individual residence, the court has recognized that ‘the privacy interest of an individual in avoiding the unlimited disclosure of his or her name and address is significant.’ Nat‘l Ass‘n of Home Builders v. Norton ( Norton ), 309 F.3d 26, 35 (D.C. Cir. 2002) (quoting Horner, 879 F.2d at 875); see also Skybridge Spectrum Found., 842 F.Supp.2d at 84 (same). CBP supports its position that there are substantial privacy interests in the names and addresses of private citizens referenced in the 289 challenged emails for three reasons.
First, CBP asserts that there is a potential [for] unwanted contact that might ensue from such a disclosure, and this risk creates a heightened privacy interest. Def.‘s Combined Reply Supp. Mot. Summ. J. Re Email Records & Opp‘n Pl.‘s Cross-Mot. Summ. J. ( Def.‘s Reply ) at 3, 7, ECF No. 40. According to the CBP, the unwanted contact to which the landowners could be exposed may come from the media, other members of the public, including other landowners involved in a similar process, and potential harassment. Supplemental Decl. of David E. Wade ( Suppl. Wade Decl. ) ¶ 15; see also Def.‘s Reply at 3 (explaining that disclosure would risk exposing landowners to unwanted media attention because the border fence touched a nerve among many groups. ). CBP is correct that a justified and articulable risk of media harassment implicates a substantial privacy interest. Judicial Watch, Inc. v. U.S. Dep‘t of State, 875 F.Supp.2d 37, 47 (D.D.C. 2012) (citing Elec. Privacy Info. Ctr. v. U.S. Dep‘t of Homeland Sec., 384 F.Supp.2d 100, 118 (D.D.C. 2005) (withholding of employee names upheld where media scrutiny and harassment were likely)). Given that the plaintiff herself admits that the construction of the wall received significant public interest and attention, and extensive coverage ... in the national, international and state and local press, see Gilman Decl. ¶ 6 (citing articles), there is sufficient evidence to support CBP‘s claim that disclosure may expose the landowners to unwanted contact from the media. See Judicial Watch, Inc., 875 F.Supp.2d at 47 (court found government employees had a substantial privacy interest in withholding names from emails discussing a meeting on the Keystone Alaska pipeline because it could lead to possible harassment and undesired contact by media. ).
Second, CBP argues that disclosure implicates a substantial privacy interest because the email threads discussing the
Third, CBP contends that the names implicate a substantial privacy interest because the names are referenced as part of discussions between CBP employees that reveal the landowners’ personal relationships and specific statements that the landowners have made regarding their views about the border fence. See Suppl. Wade Decl. ¶ 15; Def.‘s Mem. at 8; see, e.g., Supplemental Gilman Decl. ( Suppl. Gilman Decl. ) Ex. E at 16 (email dated February 25, 2008, stated that [redacted name] admitted that he could not see the controversy after looking into the maps available on the internet ); Gilman Decl. Ex. 4 at 30 (email dated April 30, 2007, that references area along the proposed fence belong[ing] to one owner [name redacted] who is a friend of the President and a staunch supporter of the Border Patrol ... [but] is adamantly opposed to the fence concept ).
The plaintiff responds that there is no substantial privacy interest because the main information that would be revealed would be that the named people owned land that was potentially going to be affected by the building of the border wall. Pl.‘s Mem. at 8; see, e.g., Suppl. Wade Decl. Ex. 1 at 17 (email dated November 26, 2007, in which CBP employee asks, [w]ill [name redacted] sell the property needed for the fence alignment as well as the ROE for survey? ). She contends that other emails with redactions only refer-ence
The Court agrees with the CBP. Contrary to the plaintiff‘s claims, the information at issue here comprises more than just publicly available names and addresses. Notably, even if these names and addresses were publicly available, a finding of a substantial privacy interest would not be precluded. See Am. Civil Liberties Union v. U.S. Dep‘t of Justice ( ACLU ), 655 F.3d 1, 12 (D.C. Cir. 2011) (finding a minimal but more than a de minimis privacy interest in docket numbers and names of defendants when information was already publicly available and readily accessible and disclosure would simply provide one more place in which a computerized search will find the same person‘s name and conviction ). In any event, the context in which these names appear in the CBP emails is not publicly accessible information, which creates a heightened privacy interest. Indeed, some of the names and addresses are part of discussions revealing, at least to a limited extent, the property owner‘s financial information, opinions, or the substance of their conversations with the CBP. See Suppl. Wade Decl. Ex. 1; see also Def.‘s Mem. at 4, 8. Cf. Columbia Riverkeeper v. Fed. Energy Regulatory Comm‘n, 650 F.Supp.2d 1121, 1129 (D. Or. 2009) (finding that agency failed to establish sufficient privacy interest in mailing list of landowners on the path of proposed pipeline in part because the names and addresses themselves [did not] reveal private decisions of those individuals and agency had released names on similar lists in the past). In this case, because CBP has demonstrated that disclosure would create a justified and articulable risk of media harassment for all the landowners, Judicial Watch, Inc., 875 F.Supp.2d at 47, and that disclosure would reveal financial information, or opinions and views of some landowners, there is a more than de minimis privacy interest. As noted, the standard for demonstrating a substantial privacy interest is not a high one, see Horner, 879 F.2d at 874 (substantial privacy interest is anything greater than de minimis ), and CBP has demonstrated that the privacy interest is more than de minimis.
2. The Public Interest Outweighs The Private Interest
The public interest to be weighed against the privacy interest in this balancing test is ‘the extent to which disclosure would serve the ‘core purposes of the FOIA’ ’ by ’ ‘contribut[ing] significantly to public understanding of the operations or activities of the government.’ ’ Norton, 309 F.3d at 33-34 (quoting U.S. Dep‘t of Def. v. Fed. Labor Relations Auth. ( Dep‘t of Def. ), 510 U.S. 487, 495 (1994)). In making the requisite balancing analysis here, the Court finds that CBP has failed to demonstrate that the public interest outweighs the landowners’ privacy interest.
CBP fails adequately to consider the extent to which the release of the landowners’ names in the aggregate will further public understanding. It cites several cases for support, all of which are inapposite. CBP relies on U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 775 (1989), to support its contention that [i]nformation that does not directly reveal the operation or activities of the federal government ‘falls outside the ambit of the public interest that the FOIA was enacted to serve.’ Def.‘s Mem. at 15-16. More precisely, the Supreme Court held that where the request sought only private information and would reveal no official information about a government agency, the invasion of privacy is unwarranted. Id. at 780. Reporters Comm. Freedom of the Press, 489 U.S. at 780. Based upon this holding, CBP makes the unremarkable observation that even a modest privacy interest outweighs nothing every time. Def.‘s Mem. at 16 (citing Horner, 879 F.2d at 874–75). This holding does not, as CBP asserts, foreclose a request that indirectly reveals information about the operations of a government agency through the disclosure of private information. Contrary to CBP‘s argument, the public interest in this case is significant and does not amount to nothing. Id.
The D.C. Circuit‘s decision in ACLU, 655 F.3d at 1, is particularly instructive. There, the Circuit considered the balancing of privacy and public interests under Exemption 7(C), but the ambit of Exemption 7(C) is relevant to this discussion. Exemption 7(C) is somewhat broader than Exemption 6, Roth v. U.S. Dep‘t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011) (quoting Reporters Comm. Freedom of the Press, 489 U.S. at 756), because, although the cognizable harm under both exemptions is an unwarranted invasion of personal privacy, this harm must be clear[ ] under Exemption 6, yet it need only be reasonably [] expected under Exemption 7(C). See
Similarly here, although the names and addresses of the land owners implicates a stronger privacy interest than in ACLU because the information reveals more than just publicly available information, see Part III.A.1., supra, there is great public benefit to learning the social impact of CBP‘s construction of the wall. Revealing the identities of landowners in the wall‘s planned construction site may shed light on, inter alia, the impact on indigenous communities, the disparate impact on lower-income minority communities, and the practices of private contractors. See Gilman Decl. ¶ 7. The information, after appropriate analysis, could reveal CBP‘s decisionmaking and conduct as it relates to the Texas-Mexico border wall planning and construction, thus it helps the public learn something directly about the workings of the Government. Horner, 879 F.2d at 879 (emphasis in original). Although the privacy interest in the requested information is not insubstantial, it does not outweigh the strong public interest in releasing the names and addresses.
[W]ith regard to the applicability of Exemption 6 to names and home addresses, federal courts have differed in their conclusions when employing the private interest/public interest balancing test. People for the Am. Way Found. v. Nat‘l Park Serv., 503 F.Supp.2d 284, 304-05 (D.D.C. 2007). A survey of these cases shows that, on balance, when the disclosed information would she[d] light on an agency‘s performance of its statutory duties’ or otherwise let citizens know ‘what their government is up to,’ Dep‘t of Def., 510 U.S. at 497 (citations omitted), disclosure is appropriate, even if the Court has recognized a significant privacy interest. In other words, even when a significant privacy interest is at stake, Exemption 6 require[s] a balance tilted emphatically in favor of disclosure. Stern, 737 F.2d at 91; see also News-Press v. U.S. Dep‘t of Homeland Sec., 489 F.3d 1173, 1198 (11th Cir. 2007) ( The federal courts, including this one, have therefore generally concluded that an agency‘s burden under Exemption 6 of showing that disclosure ‘would constitute a clearly unwarranted invasion of personal privacy’ is an onerous one. ).
In considering disclosure of names and addresses of private citizens when such information is associated with citizens’ financial information, such as receipt of government benefits, or the value of property and acreage, courts have scrutinized the precise public interest in the information. Upon articulation by a requester of
Some of the challenged emails here also reveal the views of private citizens. In analogous circumstances, courts have required the disclosure of names and addresses in connection with a private citizen‘s statements or views when the private citizen voluntarily relayed this information to the government and the requester identified a public interest. See Elec. Frontier Found. v. Office of the Dir. of Nat‘l Intelligence, 639 F.3d 876, 887 (9th Cir. 2010) (holding that Exemption 6 did not cover names of corporate lobbyists petitioning the government on behalf of corporate clients because there is a clear public interest in the public knowledge of the methods through which well-connected corporate lobbyists wield their influence ); People for the Am. Way Found., 503 F.Supp.2d at 305-06 (finding that agency improperly withheld under Exemption 6 names and addresses, phone numbers, and email addresses of citizens who submitted unsolicited email comments concerning the proposed change of the video display at the Lincoln Memorial because there is little privacy interest in contact information when someone petitions the government and the public interest in knowing who convinced the agency to change the video outweighs any privacy interest in one‘s name ); Alliance for Wild Rockies v. U.S. Dep‘t of Interior, 53 F.Supp.2d 32, 37 (D.D.C. 1999) (holding that Exemption 6 did not cover withholding of names and addresses of rulemaking commenters because there was little privacy interest since information was voluntarily submitted and the public has much to learn about defendants’ rulemaking process including
The outcome of the D.C. Circuit cases the parties rely on only provides further support that disclosure here is appropriate. Both parties extensively discuss Norton and Horner, which reach opposite conclusions in their consideration of the balancing of the privacy and public interests at stake with the disclosure of names and addresses. See Def.‘s Reply at 5-7, Pl.‘s Reply at 2-3; see also Horner, 879 F.2d at 874-77; Norton, 309 F.3d at 30. In Norton, the U.S. Fish and Wildlife Service withheld the addresses of private landowners who had voluntarily reported pygmy owl sightings due to a fear that lawless birdwatchers would trespass on the landowners’ properties. Norton, 309 F.3d at 30-34. Although the requester only sought the addresses of the landowners, id. at 30, the D.C. Circuit still found a substantial privacy interest in the information because knowledge of an individual address was only a step from being able to identify from state records the name of the individual property owner, id. at 35. Nevertheless, the Court held that this privacy interest was insufficient to overcome the significant public interest in reviewing the agency‘s use of the information to designate areas as a critical habitat under the Endangered Species Act. Id. at 36.
CBP responds by arguing that the facts at issue are closer to Horner, where the D.C. Circuit found that the Office of Personnel Management properly withheld a list of names and addresses of retired or disabled federal employees. Horner, 879 F.2d at 879-80. The Circuit recognized that there was a modest personal privacy interest that weighed against revealing the names only because there was no public interest in disclosure where the only stated public benefit was inform[ing] the public ... where its money is going. Id. at 879 (emphasis added). The Circuit found that this public interest is insufficient because it say[s] nothing of significance about the inner workings of the government. Id.
Horner and Norton are consistent with the cases discussed above. While there was no public benefit found in Horner, the Norton court identified a strong public interest, which warranted the intrusion into the privacy interest identified and compelled the Circuit to order disclosure. The sum of these cases establish that
Similarly here, as noted, the public interest in learning how CBP negotiated with private citizens regarding the planning and construction of the border wall is significant. This public interest outweighs the privacy interest in landowners’ names and addresses in CBP emails. Accordingly, for the reasons set forth above, the Court holds that the public interest in disclosing the names and addresses of landowners outweighs the implicated privacy interest and CBP‘s withholding of the information under Exemption 6 is improper.
B. FOIA Exemption 7(E)
CBP has withheld under exemption 7(E) information relating to its assessment of the need for fencing. Exemption 7(E) covers records or information compiled for law enforcement purposes that would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
The plaintiff challenges the CBP‘s withholdings under exemption 7(E) on three grounds. First, the plaintiff argues that the records are not compiled for law enforcement purposes,
Here, CBP is indisputably a law enforcement agency and is entitled to deference in its determination that the records were compiled for a law enforcement purpose. CBP contends that the challenged redactions relate to its risk and vulnerabilities assessment of illicit cross-border activity in order to assess fencing needs, which includes information such as terrain, floodplain, waterways ... migration patterns, as well as areas that are difficult for Border Patrol to access and areas patrolled by fewer agents, and urban areas where illegal traffic has a great-er chance of blending in quickly without being apprehended. Wade Decl. ¶ 15. This information inform[s CBP‘s] decisions relating to fence placement. Suppl. Wade Decl. ¶ 18. Furthermore, some emails contain references to specific Border Patrol Station ‘border zones,’ which are designations used internally for assignment coverage, and knowledge of these border zones could be used to parse law enforcement radio discussions referencing them. Wade Decl. ¶ 15. CBP contends that release of this information would essentially provide a ‘roadmap’ to those attempting to cross the border. Wade Decl. ¶ 15.
CBP‘s declarations sufficiently demonstrate that the redacted information is related to the enforcement of federal laws, as the assessment of border vulnerabilities is directly related to the potential violation of federal immigration laws and the CBP‘s duty to deter illegal immigration and to apprehend illegal immigrants. See Tax Analysts, 294 F.3d at 78. Thus, the CBP has demonstrated that the records were created for a law enforcement purpose.
Second, the plaintiff asserts that Exemption 7(E) does not apply because the CBP has not shown that the challenged emails qualify as techniques, procedures, or guidelines. Pl.‘s Mem. at 19 (citing Wade Decl. ¶ 15). According to the plaintiff, the challenged emails contain ‘assessments of the operational need for fencing,’ not information relating to investigations or prosecutions. Id. The plaintiff‘s interpretation of the statutory language is overly restrictive. The D.C. Circuit has held that an agency may seek to block the disclosure of internal agency materials relating to guidelines, techniques, sources, and procedures for law enforcement investigations and prosecutions, even when the materials have not been compiled in the course of a specific investigation. Tax Analysts, 294 F.3d at 79. Even if withheld documents are not ‘how-to’ manuals for law-breakers, the exemption is broader than that. See Mayer Brown, 562 F.3d at 1192-93. Information that relates to law enforcement techniques, policies, and procedures is properly withheld under this exemption. Showing Animals Respect & Kindness v. U.S. Dep‘t of Interior, 730 F.Supp.2d 180, 199 (D.D.C. 2010) (citing Boyd v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 570 F.Supp.2d 156, 158 (D.D.C. 2008)).
In Mayer Brown, the D.C. Circuit held that records relating to settlement strategies and objectives, assessments of litigating hazards, [and] acceptable ranges of percentages for settlement were exempt under 7(E) because, although not a blueprint for tax shelter schemes, it could encourage decisions to violate the law or evade punishment. Mayer Brown, 562 F.3d at 1192-93 (citing Mayer Brown LLP v. IRS, No. 04-2187, slip op. at 3 (D.D.C. Nov. 28, 2006)). Here, although the information in the challenged records are not styled as formal guidelines or procedures for CBP officials, the records refer to in-formation,
Finally, the plaintiff claims that CBP has not logically shown that release of the records could be reasonably expected to risk circumvention of the law. Pl.‘s Mem. at 19.5 In the plaintiff‘s view, details such as terrain and geographic location are identifiable by sight, and therefore the challenged records will not add to criminals’ knowledge of the conditions along the border wall. Id. at 19-20. The plaintiff argues further that since Border Patrol operations may have changed since the emails were drafted, Pl.‘s Mem. at 20, the information no longer provide[s] a roadmap of where it would currently be best to cross the border, and, thus, does not risk circumvention of the law. Pl.‘s Reply at 11. The Court disagrees.
Although some geological factors may be readily identifiable by sight or through publicly available information, CBP has also attested that the emails reveal areas that are difficult for Border Patrol to access and areas patrolled by fewer agents. Wade Decl. ¶ 15. Such information discloses the CBP‘s operations and vulnerabilities, which are not readily-accessible public information, the disclosure of which could risk appropriation to circumvent the law. See Showing Animals Respect & Kindness, 730 F.Supp.2d at 200 (finding that documents detailing surveillance techniques logically risked circumvention of the law because, although trespassers and poachers ... likely know that they are subject to surveillance, the details of the surveillance techniques are unknown to them ); Blanton v. U.S. Dep‘t of Justice, 63 F.Supp.2d 35, 49-50 (D.D.C. 1999) (holding that Exemption 7(E) applies
The plaintiff has failed to present sufficient evidence contradicting the CBP‘s contention that the redacted information falls under Exemption 7(E) as techniques or procedures that are reasonably shown to risk circumvention of the law. Accordingly, the Court finds that CBP has shown that the challenged withholdings detailing the operational need to determine fencing are appropriately withheld under FOIA exemption 7(E).
C. Email Attachments
The plaintiff and CBP dispute whether CBP is improperly withholding the attachments to responsive emails pursuant to the parties’ agreement to limit the scope of CBP‘s production of emails. The crux of the parties’ dispute is the interpretation of the language of their joint status report, which embodies the parties’ agreement on the scope of the agency‘s obligations in fulfilling the plaintiff‘s FOIA request. See generally 7/23/09 JSR. As described below, the plain meaning of the parties’ joint status report and the language of this Court‘s order ratifying the parties’ agreement make it apparent that CBP was only obliged to produce to the plaintiff the same records that CBP produced in the CREW litigation.
The parties fundamentally disagree over the terms of the agreement governing the CBP‘s production of records to the plaintiff. The parties submitted a joint status report to the Court advising that:
[I]n the interest of expediting the release of emails to Plaintiff, CBP may satisfy Plaintiff‘s FOIA request with respect to the processing of emails by providing to Plaintiff the emails as released in CREW v. DHS pursuant to the search described in the Joint Status Report and Proposed Disclosure Schedule ... in that case as follows: (1) by providing Plaintiff, within 30 days of the entry of the accompanying order, all emails already released in CREW v. DHS and (2) going forward, by providing Plaintiff further emails as they are released on a rolling basis in that case.
Both parties construe the phrase as released in the joint status report to impose different requirements on CBP with respect to the production of records. CBP contends that this wording limits the scope of the plaintiff‘s FOIA request and reflects the parties’ agreement that CBP would only produce to the plaintiff the documents that were actually released in CREW and nothing else and that any email related records not released in CREW because the parties in CREW did not consider them to be responsive were ... not responsive to Plaintiff‘s FOIA request. See Def.‘s Reply at 23. Thus, CBP contends that it satisfied its FOIA obligation to the plaintiff by undertak[ing] the administrative act of forwarding emails released in CREW to Plaintiff. Def.‘s Reply at 21.
The plaintiff responds that CBP‘s agreement to produce documents as released in CREW refers merely to the timing of the release of the records. Pl.‘s Mem. at 22. The plaintiff asserts that under the agreement, CBP agreed to release the documents to the plaintiff according to the scheduled release of documents in CREW. Id. The plaintiff further explains that the language of the joint status report stating that CBP would release records pursuant to the search described in CREW, indicates that the parties agreed to limit the scope of the search for records only, and not the scope of the documents that CBP was obliged to produce. Id. at 21 (emphasis added). The plaintiff reasons that the agreement relieved CBP of retrieving and processing additional records, but did not permit CBP to withhold portions of records that were deemed responsive, even if these portions of records were not released to the plaintiff in CREW. Pl.‘s Reply at 12 (emphasis in original). Consequently, the plaintiff claims that CBP is improperly withholding the attachments to the responsive emails because the attachments are a portion of the records. Pl.‘s Mem. at 21.
The plain meaning of the joint status report makes clear that the plaintiff narrowed her FOIA request to require CBP to produce only emails that the CBP actually produced to the CREW plaintiff on a rolling basis in that case. 7/23/09 JSR at 3. The phrase as released plainly refers to the records actually released to the plaintiff in CREW, rather than the timing of the releases, as the plaintiff contends. Thus, CBP is correct that it may satisfy Plaintiff‘s FOIA request by providing the plaintiff the same emails that the CBP produced in CREW. The attachments, therefore, are not being withheld, but, as memorialized by the parties’ joint status report, are not responsive to the plaintiff‘s amended FOIA request.
Even if the joint status report were ambiguous on this point, the Court‘s subsequent Scheduling Order based on the parties’ proposed order supports CBP‘s interpretation of the joint status report. See Act Now to Stop War & End Racism Coal. v. D.C., 286 F.R.D. 117, 129 (D.D.C. 2012) (explaining that scheduling orders should be read as being specific and comprehensive and that [w]hen an Order details the scope of permissible discovery,
The plaintiff argues that the Order ratifies her interpretation of the language of the joint status report because it omits the phrase as released from the Order. Pl.‘s Mem. at 22; see 7/27/09 Sched. Order ¶ 2 (requiring that going forward, CBP will release to Plaintiff on a rolling basis all email records released in CREW v. DHS ). The omission of this phrase in the Order does not support the plaintiff‘s interpretation. Indeed, the language of the Order lends stronger support to CBP‘s claim because the Order states, in two separate clauses, that (1) CBP must release to Plaintiff all email records already released in [CREW] and that they must continue to release to the plaintiff on a rolling basis all email records released in CREW, and (2) this production must occur on the same schedule as they are released in that case. 7/27/09 Sched. Order ¶ 2. See also Def.‘s Reply at 21 n.6. The schedule on which CBP was required to release records to the plaintiff is set out in the second clause and was thus a separate requirement from the scope of the responsive records set out in the first clause. The plaintiff‘s interpretation conflates both clauses to refer to the timing of the releases, but this is inconsistent with the canon of statutory interpretation against surplusage. Courts have used canons of statutory interpretation to clarify court orders. See Act Now to Stop War & End Racism Coal., 286 F.R.D. at 129 (interpreting court‘s standing order); see also Bhd. of Locomotive Eng‘rs & Trainmen v. Burlington N. Santa Fe Ry. Co., 925 F.Supp.2d 1252, 1256 (D.Wyo. 2013), aff‘d
Although CBP‘s interpretation of the parties’ agreement is correct, this is a classic Pyrrhic victory. The plaintiff may simply file a new FOIA request seeking these same email attachments. See Spannaus v. U.S. Dep‘t of Justice, 824 F.2d 52, 61 (D.C. Cir. 1987) (discussing a plaintiff‘s ability to resurrect a FOIA claim for statute of limitations purposes because a requester could simply refile his FOIA request tomorrow and restart the process because nothing prevents him from requesting the same withheld documents decade after decade ) (cited in Aftergood v. CIA, 225 F.Supp.2d 27, 30-31 (D.D.C. 2002)). Nevertheless, for the purposes of the plaintiff‘s present FOIA request, as narrowed pursuant to the parties’ joint status report and this Court‘s Order, this Court holds that CBP is not required to produce the email attachments of responsive records to the plaintiff.
D. Segregability
The FOIA requires that [a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.
To this end, the Circuit has said that [i]n addition to a statement of
In the instant case, CBP has provided the plaintiff with a Vaughn index of the 289 challenged records listing the justification for withholding information. See Wade Decl. at 15. CBP has also submitted two declarations by David E. Wade, the Operations Officer with the Office of Border Patrol within the Department of Homeland Security, which attest that CBP has processed and released all reasonably segregable information within the disputed email documents after carefully evaluating each email document. Wade Decl. ¶ 16. Moreover, CBP reviewed the challenged records for segregability throughout the course of the litigation, releasing to the plaintiff new copies of challenged records with fewer redactions when the CBP filed its summary judgment motion, Gilman Decl. ¶ 12, and after the plaintiff filed her cross-motion for summary judgment. Suppl. Wade Decl. ¶¶ 12-13. In sum, there is ample evidence that CBP fulfilled its segregability obligation, which the plaintiff does not challenge in her briefs. Accordingly, the Court finds that CBP has satisfied its burden of demonstrating that the challenged records were examined and portions of the records were withheld only after considering whether CBP could disclose any reasonably segregable portion[s] of the records pursuant to its obligation under
IV. CONCLUSION
For the foregoing reasons, CBP‘s Motion for Summary Judgment, ECF No. 32, is GRANTED in part and DENIED in part and the plaintiff‘s Motion for Summary Judgment, ECF No. 35, is GRANTED in part and DENIED in part. CBP‘s motion for summary judgment is granted, as conceded, with respect to the redaction of emails under Exemption 5, the redaction of Record 24 in the Vaughn index under Exemption 7(E), the redaction of phone numbers or email addresses of landowners, the redaction of names and contact information of CBP employees or of individual employees of contractors, and
Whitney HANCOCK, et al., Plaintiffs, v. URBAN OUTFITTERS, INC., et al., Defendants.
Civil Action No. 13-939 (BAH)
United States District Court, District of Columbia.
Signed March 14, 2014