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Moayedi v. U.S. Customs and Border Protection

September 11, 2007

SINA MOAYEDI, PLAINTIFF,
v.
U.S. CUSTOMS AND BORDER PROTECTION, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

This case arises from a Freedom of Information Act, 5 U.S.C. § 552 (2000) ("FOIA"), request by the plaintiff, Sina Moayedi, for the production of certain documents pertaining to his detentions and interrogations conducted by the United States Customs and Border Protection Service ("CBP") at various airports throughout the United States and in Nassau, Bahamas when he sought to re-enter the United States. Currently before this Court are the Defendant's Motion for Summary Judgment [D.E. # 6] ("Def.'s Mot.") and the plaintiff's Cross-Motion for Summary Judgment [D.E. # 7]. Based on the arguments and submissions presented by the parties, the defendant's motion will be granted and the plaintiff's motion will be denied.

I. Factual Background

The plaintiff, an Irani-born naturalized United States citizen, is president of Montage Incorporated ("Montage"), a construction company. Complaint ("Compl.") ¶ 7. Since the company's creation in 1986, Montage has been retained by the United States government to perform work on numerous construction projects throughout the United States and overseas, including at, inter alia, naval air stations for the Department of Defense and embassies for the Department of State. Id. ¶ 8; Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment and in Support of His Cross-Motion for Summary Judgment ("Pl.'s Mem."), Exhibit ("Ex.") A (Unsworn Declaration of Sina Moayedi) at 2. Accordingly, the plaintiff has received several high-level security clearances and frequently travels internationally. Pl.'s Mem., Ex. A at 2. On November 9, 2004, the plaintiff was detained, questioned and ultimately released by the CBP at the Miami International Airport upon re-entry into the United States from a business trip to Jamaica where he was visiting a construction project at the United States Embassy in Kingston. Compl. ¶¶ 9-10. Thereafter, the plaintiff has been stopped and interrogated at various airports by the CBP each time he was processed for re-entry into the United States upon returning from foreign countries.*fn1 Id. Seeking an explanation for his detentions and interrogations, the plaintiff, through his counsel, submitted a FOIA request to the CBP office in Washington, D.C. on November 20, 2004. Id. ¶ 13; Memorandum in Support of Defendant's Motion for Summary Judgment ("Def.'s Mem."), Declaration of Dorothy Pullo ("Pullo Decl.") ¶ 7. The plaintiff's FOIA request sought all "reports, findings or conclusions resulting from the . . . search of [the plaintiff] on November 9, 2004" and all "documents and communications" concerning "the reason(s) [the plaintiff] was selected for search" and "whether [the plaintiff] is on any 'watch list'" or otherwise deserves special attention from the CBP. Compl. ¶ 13.

On January 3, 2005, the CBP acknowledged receipt of the plaintiff's initial FOIA request and stated that the CBP was experiencing a backlog of FOIA cases. Def.'s Mem., Pullo Decl. ¶ 8. Additionally, the CBP requested that the plaintiff provide a complete and signed Request for Records authorizing the plaintiff's counsel to receive the requested records. Compl. ¶ 14; Def.'s Mem., Pullo Decl. ¶ 8. On or about January 6, 2005, plaintiff's counsel faxed the CBP the requested release and authorization form. Compl. ¶ 15; Def.'s Mem., Pullo Decl. ¶ 9. Approximately one month later, on February 4, 2005, plaintiff's counsel sent a letter to the FOIA office requesting a status update on the plaintiff's FOIA request. Compl. ¶ 17; Def.'s Mem., Pullo Decl. ¶ 9. Having received no response in over a year, the plaintiff filed his complaint with this Court on June 13, 2006, seeking a judgment declaring that the CBP had violated the FOIA and requesting an order compelling production of the requested documents, along with attorneys' fees and other court related costs. Compl. ¶¶ 18, 26. Finally on August 1, 2006, the FOIA office responded to the plaintiff's request, releasing 24 pages of documents, each with redactions. Def.'s Mem., Pullo Decl. ¶ 11; Def.'s Mot., Ex. A (copies of the released documents). The documents produced were the result of a search of the Treasury Enforcement Communications System ("TECS"). Id. ¶ 13. The TECS is a database that contains records concerning encounters between CBP officers and persons entering the United States. Id. The 24 responsive documents were printouts of the TECS computer screen and each page contained information that was redacted pursuant to 5 U.S.C. § 552(b)(2) ("Exemption 2") and 5 U.S.C. § 552(b)(7)(C) ("Exemption 7") of the FOIA. Id. ¶ 14.*fn2 The CBP filed an answer to the plaintiff's complaint on August 9, 2006, and subsequently filed its Motion for Summary Judgment that is the subject of this Opinion.

In its Motion for Summary Judgment, the CBP contends that the plaintiff's complaint should be dismissed because it has complied with all FOIA requirements and thus is entitled to summary judgment. Def.'s Mot. at 2. In support of its position, the CBP asserts that: (1) its search was adequate to discover all responsive documents; and (2) it properly withheld parts of the responsive documents pursuant to Exemption 2 and Exemption 7 of the FOIA. Def.'s Mem. at 3. The plaintiff opposes the motion and has filed a cross-motion for summary judgment wherein he contends that the defendant's search for responsive documents was inadequate and that the documents that were discovered have been improperly redacted under Exemption 2. Pl.'s Mem. at 8-9. For the reasons that follow, the Court concludes that the defendant's search was adequate and that the documents that were discovered were properly redacted. The Court must therefore grant the defendant's Motion for Summary Judgment and deny the plaintiff's cross-motion for summary judgment.

II. Standard of Review

The court may grant summary judgment when there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In resolving a motion for summary judgment, all reasonable inferences that may be gleaned from the facts before the court must be construed in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To satisfy this standard in a FOIA case, an agency must show, viewing the facts in the light most favorable to the requester, that there is no genuine issue of material fact with regard to the agency's compliance with the FOIA. Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (citation omitted). In order to satisfy this standard, "the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the (FOIA's) inspection requirements." Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (citation omitted). When reviewing an agency's response to a plaintiff's FOIA request, "the court . . . may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth [under the FOIA], and the burden is on the agency to sustain its action." 5 U.S.C. 552(a)(4)(B); see also Founding Church of Scientology of Washington, D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 830 (D.C. Cir. 1979).

Therefore, in deciding whether summary judgment is proper, the Court must first answer whether the agency "made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998) (citing Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Second, the Court must determine whether any responsive information that the agency has withheld falls within one of the FOIA's exemptions. Wilson v. Drug Enforcement Admin., 414 F. Supp. 2d 5, 9 (D.D.C. 2006) (citing Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). To demonstrate both the adequacy of the search and the application of any exemptions, the agency may submit non-conclusory affidavits or declarations that explain, in reasonable detail, the scope and method of the agency's search as well as any justifications for non-disclosure. Steinberg, 23 F.3d at 551. Such agency affidavits or declarations "are accorded a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citing Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). Therefore, if the agency's search was adequate, and the asserted FOIA exemptions are justified, the Court may grant summary judgment in favor of the defending agency.

III. Analysis

A. Adequacy of the Search

The CBP contends that its search for responsive documents was adequate, thus satisfying the requirements of the FOIA, because it engaged in a "good faith effort to conduct a search for the requested records, using methods which [were] reasonably expected to produce the information requested." Def.'s Mem. at 5 (citing Oglesby, 920 F.2d at 68). On the other hand, the plaintiff contends that the CBP's search was inadequate because it "does not include records and files, other than those in TECS, held at the regional or district offices, where one would logically expect to find hard copies and related files responsive to the search terms." Pl.'s Mem. at 8. Additionally, the plaintiff contends that the CBP's search was inadequate because its search failed to locate or disclose a single responsive document concerning why the plaintiff had been interrogated over 20 times during the re-entry process into the United States over the course of 19 months. Id. The CBP, however, responds that it was under no obligation to search the field offices since the plaintiff only directed its FOIA request to the CBP headquarters, Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment ("Def.'s Reply") at 1-2, and that a search of the TECS database alone would be reasonably calculated to produce the requested documents since the TECS was the "sole interface to [the] CBP records concerning the interactions of [the] CBP Officers with persons entering the United States," Def.'s Mem., Pullo Decl. ¶ 13 (emphasis added).

As noted above, an agency fulfills its obligations under the FOIA if it can "demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.'" Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). As the District of Columbia Circuit has made clear, "[t]he issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Weisberg v. U.S. Dep't of Justice (Weisberg I) 705 F.2d 1344, 1351 (D.C. Cir. 1983) (quoting Perry, 684 F.2d at 128); see also Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) (finding that "a search need not be perfect, only adequate"). The adequacy of an agency's search under the FOIA is determined by a "standard of reasonableness," which is "dependant upon the circumstances of the case[.]" Weisberg I, 705 F.2d at 1351 (citations omitted). The agency bears the burden of showing that its search was adequate, which it may satisfy by submitting affidavits or declarations that explain in reasonable detail the scope and method of the search. Steinberg, 23 F.3d at 551. To challenge the adequacy of an agency's search, a plaintiff must present evidence rebutting the agency's initial showing of a good faith search. SafeCard Services, 926 F.2d at 1201. Mere speculation as to the existence of records not located in the search does not undermine the adequacy of a search. Id.

Although an agency "cannot limit its search to only one record system if there are others that are likely to turn up the information requested[,]" there is also "no requirement that an agency search every record system." Oglesby, 920 F.2d at 68 (holding that the agency was required to explain in its affidavit that no other record system was likely to produce responsive documents in order to prove the reasonableness of its search) (emphasis added). Therefore, if searching only one database would be "reasonably calculated to uncover all relevant documents," then such search may be deemed adequate. Weisberg v. U.S. Dep't of Justice (Weisberg II), 745 F.2d 1476, 1485 (D.C. Cir. 1984); see also Ray v. F.B.I., 441 F. Supp. 2d 27, 32 (D.D.C. 2006) (holding that "the fact that the [agency's] search did not meet plaintiff's expectations does not lead inevitably to the conclusion that its search was inadequate"); NYC Apparel FZE v. U.S. Customs & Border Protection, 484 F. Supp. 2d 77, 88 (D.D.C. 2007) (RBW) (finding that the CBP was not required to search additional databases after it had searched the TECS and the plaintiff's individual case files because "the fact that there may possibly be additional documents . . . is not relevant to the question of whether [the] defendant conducted an adequate search for the documents") (citing Hornbostel v. U.S. Dep't of Interior, 305 F. Supp. 2d 21, 27 (D.D.C. 2003); but see James v. U.S. ...


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