Jesse SKINNER, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
Civil Action No. 09-0725(PLF).
United States District Court, District of Columbia.
Sept. 28, 2012.
893 F. Supp. 2d 109
PAUL L. FRIEDMAN, District Judge.
Here, the plaintiffs EEO charge contains no allegation of a hostile work environment and cannot be reasonably be read to contain a charge of hostile work environment. Defs. Ex. A-48; PL Ex. 33. Instead, the charge describes two examples of “disparate treatment,” and several examples of “retaliation” for allegedly protected activities. Id. Because plaintiff has not exhausted her administrative remedies for a hostile work environment claim, the District is entitled to summary judgment on this claim.
Conclusion
For the foregoing reasons, defendant‘s motion for summary judgment is GRANTED. A separate Order consistent with this opinion shall issue this date.
Jesse SKINNER, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
Civil Action No. 09-0725(PLF).
United States District Court, District of Columbia.
Sept. 28, 2012.
Leila Jade Levi, U.S. Attorney‘s Office, Robert D. Trunkey, CBO, Washington, DC, for Defendants.
MEMORANDUM OPINION
PAUL L. FRIEDMAN, District Judge.
This matter is before the Court on the Second Renewed Motion for Summary Judgment filed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“BATFE“). Having carefully considered the motion, the opposition and the reply, and for the reasons stated below, the motion will be granted.
I. BACKGROUND
Plaintiff brought this action under the Freedom of Information Act (“FOIA“). See
The screen print in questions [sic] displays information maintained by the government on Jesse Manuel Skinner in the U.S. Department of Homeland Security DHS/CBP-011 TECS database, such as, name, physical identifiers, social
Def. BATFE‘s Mem. in Supp. of its Second Renewed Mot. for Summ. J. [Dkt. # 73] (“BATFE Mem.“), Vaughn Index at 1.
The USCIS initially relied in part on Exemptions 2 and 7(E) to redact from the printout “internal computer codes, an unpublicized investigation technique, and the names and employee identification numbers of federal law enforcement officers involved in the matter.” Def.‘s Renewed Mot., Eggleston Decl. ¶ 7; see id., Ex. D (Vaughn Index) at 2-3.2 In light of the Supreme Court‘s ruling in Milner v. Dep‘t of the Navy, — U.S. —, 131 S.Ct. 1259, 1264-71, 179 L.Ed.2d 268 (2011), the USCIS now has abandoned its reliance on Exemption 2. It “has reviewed the redactions and determined that [Exemption 7(E)] is equally applicable.” BATFE Mem. at 2.
II. DISCUSSION
A. Summary Judgment in a FOIA Case
“FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). The Court grants summary judgment if the movant shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.
Plaintiffs opposition to the BATFE‘s pending motion discusses only his desire to obtain trial exhibits which had been filed in the United States District Court for the Southern District of Mississippi. See generally Pl.‘s Resp. in Opp‘n to Def.‘s Mot. for Summ. J. [Dkt. # 76] (“PL‘s Opp‘n“) ¶¶ 3, 5-7, 12-25. According to plaintiff, defendant is “not being forthcoming with all information relevant to this instant case at bar,” id. ¶ 12, because an employee of
Ordinarily, the Court may treat as conceded any argument raised in a motion which the opposing party fails to address. See, e.g., Augustus v. McHugh, 870 F.Supp.2d 167, 172 (D.D.C. 2012) (where plaintiff‘s “opposition did not challenge the Secretary‘s proffered justifications under FOIA for having redacted [information,]” the arguments were “deemed conceded, and summary judgment [was] entered in favor of the Secretary“); People for the Ethical Treatment of Animals v. Nat‘l Inst. of Health, 853 F.Supp.2d 146, 151 (D.D.C. 2012) (“Plaintiff also did not respond to defendant‘s arguments with respect to Count I or Count III in its opposition to defendant‘s motion for summary judgment,” and, accordingly, “the Court treat[ed] Count I and II as conceded and dismiss[ed] these claims without prejudice“); see also LCvR 7(h). In these circumstances, however, the Court will discuss briefly the applicability of Exemption 7(E) to USCIS‘s redactions from the TECS screen printout at issue.
B. Exemption 7(E)
Exemption 7(E) protects from disclosure law enforcement records “to the extent that the production of such ... information ... 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.”
Courts have held that information pertaining to law enforcement techniques and procedures properly is withheld under Exemption 7(E) where disclosure reasonably could lead to circumvention of laws or regulations. See, e.g., Morley v. Cent. Intelligence Agency, 453 F.Supp.2d 137, 157 (D.D.C. 2006) (approving the withholding of information pertaining to security clearances and background investigations on the ground that “disclosure ... would risk circumvention of those processes in the future“), rev‘d on other grounds, 508 F.3d 1108 (D.C.Cir. 2007).
1. TECS Database
It is helpful first to review defendant‘s description of TECS:
TECS is a comprehensive computerized law enforcement and communications information system ... designed to identify individuals and organizations suspected of involvement in violations of federal law. TECS is principally owned and managed by DHS‘s U.S. Customs and Border Protection (CBP), and is CBP‘s principal law enforcement and anti-terrorism information system. This system
is comprised of several modules designed to collect, maintain, screen, analyze, and share information via secure links to telecommunications devices and computers of law enforcement agencies. For example, TECS provides direct access to other major law enforcement systems of records, including the U.S. Department of Justice‘s National Crime Information Center (NCIC), the National Law Enforcement Telecommunications System (NLETS), and the Canadian Police Information Centre (CPIC). In addition to CBP, TECS has users from other federal agencies, including U.S. Immigration and Customs Enforcement (ICE); the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE); Federal Bureau of Investigation (FBI); the Internal Revenue Service (IRS); and the Drug Enforcement Administration (DEA), to name a few.
BATFE‘s Mem., Vaughn Index at 1 (page numbers designated by the Court). Records maintained in TECS include those “pertaining to known or suspected violators, wanted persons, persons of interest for law enforcement and counterterrorism purposes, reference information, [and] regulatory and compliance data.” Id., Vaughn Index at 1. Access to TECS is strictly limited:
All government law enforcement officers and employees authorized to execute TECS inquiries have had a full field background investigation, database training, and are given access to information on a need-to-know basis only. DHS relies on strict access controls, passwords and background checks for individuals accessing the data, and regular system audits that monitor, track and report on all access to system data to ensure that TECS data is being handled consistent with all applicable federal laws and regulations regarding privacy, data integrity and national security. Id., Vaughn Index at 2.
2. Computer Access Codes Withheld Under Exemption 7(E)
The USCIS invokes Exemption 7(E) “to protect internal computer access codes associated with a hyper-sensitive law enforcement database containing homeland security information, i.e., TECS.” BATFE Mem., Vaughn Index at 3. These codes “not only facilitate access to and navigation through TECS, but are also tied to the means to identify, monitor, track, audit and, when necessary, block, pursue, apprehend and/or prosecute unauthorized users.” Id. Each access code is assigned to an individual user, and for this reason, public disclosure of a user‘s access code would (1) permit unauthorized users to avoid recognition, instant detection and apprehension, (2) give them “near-unfettered access to one of the nation‘s most critical electronic law enforcement infrastructures“, and (3) “arm these intruders with the ability to irreparably corrupt the integrity” of TECS data by altering or manipulating it. Id. Dissemination of user codes also would allow the intruders to evade detection of their criminal activity by “alter[ing] their patterns of conduct, adopt[ing] new methods of operation, relocat[ing],” or “effectuat[ing] other countermeasures,” such that ongoing investigations are affected. Id. Further, the declarant states that unauthorized access to TECS by computer hackers endangers ongoing investigations “by exposing informants, witnesses, and other highly sensitive information,” leading, for example, to witness intimidation and destruction of evidence. Id. Lastly, because the CBP‘s law enforcement databases are connected to databases maintained by other federal agencies, the declarant explains that any
D.C. Circuit precedent “sets a relatively low bar for the agency to justify withholding” information under Exemption 7(E). Blackwell v. Fed. Bureau of Investigation, 646 F.3d 37, 42 (D.C.Cir. 2011). The exemption allows for withholding “not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk.” Mayer Brown LLP v. Internal Revenue Serv., 562 F.3d 1190, 1193 (D.C.Cir. 2009). Here, the declarant not only describes the TECS database in detail, but also explains the link between disclosure of authorized users’ access codes and the many ways individuals could exploit the information to circumvent the law or to corrupt the database itself. Although the computer access codes are not themselves “guidelines for law enforcement investigations or prosecutions” entitled to categorical protection under Exemption 7(E), the declarant adequately demonstrates that release of the codes “would disclose guidelines for law enforcement investigations or prosecutions[, and that] such disclosure could reasonably be expected to risk circumvention of the law.”
The Court concludes that the USCIS‘s decision to redact the TECS access codes is appropriate under Exemption 7(E). See, e.g., Miller v. U.S. Dep‘t of Justice, 872 F.Supp.2d 12, 29 (D.D.C. 2012) (withholding TECS numbers relating to procedures concerning use of law enforcement resources and databases and TECS case program and access codes on the ground that “disclosing [them] would expose a law enforcement technique, promote circumvention of the law by allowing criminals to conceal their activity, or allow fraudulent access to DEA‘s databases.“); McRae v. U.S. Dep‘t of Justice, 869 F.Supp.2d 151, 169 (D.D.C. 2012) (redacting “codes, case numbers, and other computer information pertaining to the TECS, NCIC, and databases maintained by the North Carolina authorities are techniques and procedures for law enforcement investigation“); Bloomer v. U.S. Dep‘t of Homeland Sec., 870 F.Supp.2d 358, 369 (D.Vt. 2012) (redacting “various codes and case numbers,” including the TECS Record ID, because disclosure of “internal instructions, codes, and guidance would reveal both a law enforcement technique and an internal investigative practice,” which, in turn, “could endanger future investigations“).
III. CONCLUSION
The Court concludes that the USCIS properly has withheld information from the one-page TECS screen printout, and its second renewed motion for summary judgment therefore will be granted. Now that the Court has ruled on all motions and no matters are outstanding, and because each agency has demonstrated its compliance with the FOIA and entitlement to judgment as a matter of law, final judgment will be entered in favor of the defendants. An Order consistent with this Memorandum Opinion and with prior opinions and orders of this Court will be issued this same day.
PAUL L. FRIEDMAN
UNITED STATES DISTRICT JUDGE