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Peter S. Herrick's Customs and International Trade Newsletter v. U.S. Customs and Border Protection

June 30, 2006


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Peter S. Herrick's Customs & International Trade Newsletter ("Herrick's") submitted a Freedom of Information Act ("FOIA") request to defendant U.S. Customs & Border Protection Bureau ("Customs") in late February 2003, requesting a copy of Customs' "Fines, Penalties & Forfeitures Handbook," or equivalent material. Customs initially withheld all 351 pages of the pertinent publication, entitled Seized Asset Management Enforcement Procedures Handbook ("SAMEPH"), claiming exemption from disclosure under 5 U.S.C. § 552(b)(2). In response to Herrick's written appeal, Customs acknowledged that portions of the SAMEPH could be released. The ultimate result was that: (1) seventy-eight pages were fully withheld; (2) 180 pages were released with partial redactions; and (3) ninety-three pages were released in their entirety.*fn1

Customs describes SAMEPH as an internal publication that "consolidates all of the standards and procedures in regard to initiating seizure, penalty, or liquidated damages actions; processing and managing such cases; and handling seized property." See Declaration of Joanne Roman Stump & Vaughn Index at 5 ("Stump Decl."). Herrick's seeks to enjoin Customs from withholding the undisclosed material; Customs claims that the material is exempt under 5 U.S.C. §§ 552(b)(2), (b)(7)(E), and (b)(7)(F) ("Exemption 2," "Exemption 7(E)," and "Exemption 7(F)"). Customs initially submitted a Vaughn index and the declaration of Ms. Joanne Roman Stump, the FOIA Appeals Officer and Chief of the Disclosure Law Branch at Customs. This Court determined, however, that more specificity was needed, and ordered Customs to submit a more detailed and comprehensive Vaughn index. See Herrick's, 2005 WL 3274073, at *4. The Court was particularly concerned about Customs' failure to differentiate "high 2" information from "low 2" information under Exemption 2, the Vaughn index's inclusion of exemptions upon which Customs no longer relied, and the failure to satisfy the Court that a proper segregability analysis had been undertaken. Id. at **2-4.

Thereafter, Customs submitted a new Vaughn index, a copy of the redacted version of the SAMEPH received by plaintiff (containing handwritten notations in the margins that identified which exemption was claimed for each piece of information), and a new declaration from Ms. Stump's successor, Mr. Laurence Castelli. Customs also filed a renewed motion for summary judgment, following which plaintiff renewed its cross-motion for summary judgment. The redacted copy of the SAMEPH does not always differentiate the information withheld under Exemption 2 as "high 2" or "low 2," although the new Vaughn index includes explanations for both "high 2" and "low 2" withholdings. Moreover, the new Vaughn index does not fully explain how the disclosure of information designated as "high 2" or withheld under the second clause of Exemption 7(E) would risk circumvention of legal objectives or agency regulation. Although the Castelli Declaration links such harms to the broad classes of information withheld pursuant to each claimed exemption, the submissions alone do not enable the Court to determine whether each piece of information withheld satisfies the requirements of the FOIA exemption claimed. Nor can the Court determine which of several harms identified in the Castelli Declaration are linked to each individual piece of information identified as exempt on the Vaughn index.

Although there was no genuine dispute of material fact, the submissions of Customs and the memoranda of the parties were thus insufficient to enable the Court to resolve all exemption claims and the parties' motions. Accordingly, the Court ordered defendant to submit for in camera review an unredacted version of the SAMEPH in its entirety. See Peter S. Herrick's Customs & Int'l Trade Newsletter v. U.S. Customs & Border Protection, Civil Action No. 04-0377 (D.D.C. Apr. 27, 2006) (Order). After having reviewed the SAMEPH in light of the FOIA exemptions claimed by Customs, and having considered the arguments advanced by both parties throughout the course of this litigation, the Court will grant Customs' motion in part and deny it in part, and will grant plaintiff's motion in part and deny it in part.


1. Summary Judgment Pursuant to Fed. R. Civ. P. 56(c)

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating that no genuine dispute of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed. R. Civ. P. 56(c)).

To determine whether there is a genuine issue of material fact sufficient to preclude summary judgment, a court must regard the non-moving party's statements as true, and accept all evidence and make all inferences in the non-moving party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nevertheless, a non-moving party must establish more than the "mere existence of a scintilla of evidence" in support of its position, id. at 252, although the moving party need only point to the absence of evidence proffered by the non-moving party, Celotex, 477 U.S. at 322. Summary judgment is appropriate if the non-moving party fails to offer "evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252; see also Holbrook v. Reno, 196 F.3d 255, 259-60 (D.C. Cir. 1999).

2. Legal Framework Under FOIA

Congress enacted FOIA for the purpose of introducing transparency to government activities. See Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive, however, to the need to achieve balance between this objective and the vulnerability of "legitimate governmental and private interests [that] could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992). Accordingly, FOIA provides for nine exemptions pursuant to which an agency may withhold requested information. See 5 U.S.C. §§ 552 (b)(1)-(9).

When an agency asserts a FOIA exemption as the basis for withholding requested information, this Circuit will ordinarily require an agency to produce a Vaughn index, which describes the records, or portions thereof, that the agency has withheld. See Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973); Edmonds Inst. v. United States Dep't of the Interior, 382 F. Supp. 2d 105, 107 (D.D.C. 2005). The Vaughn index must include "a description of each document withheld, and an explanation of the reason for the agency's nondisclosure." Oglesby v. United States Dep't of Army, 79 F.3d 1172, 1176-77 (D.C. Cir. 1996). On a motion for summary judgment, the Vaughn index becomes central not just to the court's determination of whether or not the agency has produced all reasonably segregable portions of the responsive material, but also to the court's determination of whether or not the claimed exemptions are sustained.

The purpose of the Vaughn index is to provide fertile ground upon which to germinate the seeds of adversarial challenge by providing an adequate synopsis of the withheld information and the reasons for the exemption claim, see Nat'l Treasury Employees Union v. United States Customs Serv., 802 F.2d 525, 527 (D.C. Cir. 1986), so as to eliminate the need for automatic submission of the documents themselves. In camera reviews are not only burdensome for the court, but may also be misinterpreted as reflecting judicial distrust of agency determinations, thereby facilitating tension between the branches. See Cox v. United States Dep't of Justice, 576 F.2d 1302, 1312 (8th Cir. 1978). If a court determines that a Vaughn index is insufficient, however, an in camera review is appropriate. The focus then shifts from the Vaughn index to the actual relationship between the claimed exemptions and the redacted material -- the agency's ability to survive or obtain summary judgment is directly linked to whether the information withheld is properly contemplated by the designated exemption, as described in the statute and elucidated by the case law. The posture of a district court in the FOIA context differs from the ordinary situation in which the court is called upon to review agency action, then, because the agency is not entitled to deference. ...

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