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Barnard v. Dep't of Homeland Security

January 29, 2008



This is a Freedom of Information Act ("FOIA") case brought by Neal D. Barnard against the Department of Homeland Security, seeking to obtain records related to him that could explain why he has been detained, questioned, and/or searched in airports during and after his international trips beginning in January 2003. On November 16, 2006, the United States Immigration and Customs Enforcement office, a component of the Department of Homeland Security, informed Plaintiff that it had located six pages of records related to him, but that the records would be withheld in their entirety pursuant to FOIA Exemptions 2 and 7. Currently before the Court are the Parties' Cross-Motions for Summary Judgment on the dispositive question of whether the agency properly withheld the records in their entirety. After a thorough review of the Parties' submissions, including an in camera review of the records at issue, applicable case law and statutory authority, the Court shall grant Defendant's [14] Motion for Summary Judgment and deny Plaintiff's [16] Cross-Motion for Summary Judgment for the reasons that follow.


Between January 2003 and January 2007, Plaintiff was detained, questioned, and/or searched at various airports before or after international trips on approximately 17 occasions. See Pl.'s Mot. for Summ. J. at 2-5. On two occasions, Plaintiff observed the phrase "Terrorist Organization Member - Caution" displayed on the computer screens of United States Customs and Border Protection employees, and during two other incidents was informed that his name was on a "no-fly" list. Id. Seeking to discover the records underlying his travel difficulties, Plaintiff sent a letter to Immigrations and Customs Enforcement ("ICE") on March 21, 2006, asking for records related to any "monitoring, surveillance, observation, questioning, interrogation, and/or investigation of [Plaintiff's] activities."*fn1 See Def.'s Mot. for Summ. J., Ex. 3 (Plaintiff's FOIA Request). On August 7, 2006, after failing to receive a timely response from ICE, Plaintiff filed the instant Complaint for injunctive relief.*fn2 Pl.'s Mot. for Summ. J. at 6. By letter dated November 16, 2006, ICE responded to Plaintiff's request, stating that it had located six pages of responsive records, but that the pages were "exempt from disclosure, in their entirety, pursuant to [FOIA Exemptions 2 and 7]."*fn3 Def.'s Mot. for Summ. J., Ex. 9 (FOIA Response).

Plaintiff's Second Amended Complaint asserts claims for relief based on FOIA, the Privacy Act, and the Administrative Procedure Act, respectively.*fn4 See Second Am. Compl. at 1. On February 20, 2007, Defendant filed a Motion for Summary Judgment arguing that Defendant properly withheld all of the records in their entirety. On March 15, 2007, Plaintiff filed a consolidated Cross-Motion for Summary Judgment and Opposition to Defendant's Motion arguing (1) that Defendant's declaration submitted in support of its Motion was defective because it was not based on the declarant's personal knowledge, and (2) that Defendant failed to sufficiently justify its conclusion that the non-exempt information in the records could not be segregated and disclosed to Plaintiff. On April 6, 2007, Defendant filed a consolidated Opposition to Plaintiff's Cross-Motion and Reply. On April 26, 2007, Plaintiff filed a Reply. Finally, on January 8, 2008, the Court issued an Order requiring Defendant to submit the six pages of records to Chambers for an in camera review to assist with the resolution of the Parties' arguments as to whether the non-exempt information in the records could be segregated and disclosed.


In reviewing a motion for summary judgment under FOIA, the Court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). In the FOIA context, "de novo review requires the Court to 'ascertain whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure under [] FOIA.'" Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)).

Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only when there is sufficient evidence such that a reasonable juror could find for the party opposing the motion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251-52 (1986). Furthermore, entry of summary judgment is mandated against a party if, after adequate time for discovery and upon motion, the party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Under FOIA, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; as such, only after an agency seeking summary judgment proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F. Supp 32, 35 (D.D.C. 1996) (citing Weisberg v. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). In opposing a motion for summary judgment, a party must offer more than conclusory statements. See Broaddrick v. Exec. Office of President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (citing Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987)). Indeed, a plaintiff pursuing an action under FOIA must establish that the agency has improperly claimed an exemption as a matter of law or that the agency has failed to segregate and disclose all non- exempt information in the requested documents. See Perry-Torres v. Dep't of State, 404 F. Supp. 2d 140, 142 (D.D.C. 2005).

Congress enacted FOIA for the purpose of introducing transparency to government activities. See Stern v. Fed. Bureau of Investigation, 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); see also Summers v. Dep't of Justice, 140 F.3d 1077, 1079 (D.C. Cir. 1998). Accordingly, FOIA provides nine exemptions pursuant to which an agency may withhold requested information. See 5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9). The agency must demonstratethe validity of any exemption that it asserts. See id.; Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) ("[c]onsistent with the purpose of the Act, the burden is on the agencyto justify withholding requested documents"). In addition, summary judgment may be granted on the basis of the agency's accompanying affidavits or declarations if they describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991).

An agency also has the burden of detailing what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document. Mead Data Cent. Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any non-exempt information that is reasonably segregable from the requested records must be disclosed. Ogelsby v. U.S. Dep't of Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). In addition, district courts are required to consider segregability issues sua sponte even when the parties have not specifically raised such claims. Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).


Defendant's search for documents produced six pages*fn5 of responsive records located in the Treasury Enforcement Communications System ("TECS").*fn6 See Def.'s Mot. for Summ. J. at 5-6. TECS maintains information associated with individuals who are "convicted or suspected violators of customs, immigration, banking, terrorism, arms and weapons, hazardous material, drug, or related laws." Id. at 5. The system also includes information associated with individuals "who are suspected of, or who have been arrested for, thefts from international commerce; foreign nationals who entered and remain in the U.S. illegally; and fugitives with outstanding federal and state warrants." Id. at 6. The agency withheld the six pages in their entirety, invoking Exemption 2, see 5 U.S.C. § 552(b)(2), and three subsections of Exemption 7, see 5 U.S.C. §§ 552(b)(7)(A), (C), and (E).

Exemption 2 applies to two types of information: (1) internal agency matters so routine or trivial that they could not be "subject to . . . a genuine and significant public interest" and (2) internal agency matters of some public interest "where disclosure may risk circumvention" of statutes or agency regulations. Dep't of Air Force v. Rose, 425 U.S. 352, 369-70 (1976). Defendant invoked this exemption to withhold various administrative and internal agency codes appearing in the records, including codes used to index, retrieve, and distribute information, the disclosure of which could assist third parties in learning about and potentially impeding an ongoing investigation. See Def.'s Mot. for Summ. J. at 7-9.

Exemption 7 protects from disclosure "records or information compiled for law enforcement purposes," but only to the extent that the production of such records would cause an enumerated harm. 5 U.S.C. § 552(b)(7); see Fed. Bureau of Investigation v. Abramson, 456 U.S. 615, 622 (1982). Subsection (A) is properly invoked when an agency demonstrates that disclosure "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A); see Mapother v. Dep't of Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993). Subsection (C) is properly invoked when disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C); see Manchester v. Fed. Bureau of Investigation, No. 96-137, 2005 U.S. Dist. LEXIS 37700 at *16-*17 (D.D.C. Aug. 9, 2005). Subdivision (E) is properly invoked when the disclosure of 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." 5 U.S.C. § 552(b)(7)(E); see Bruentte v. Fed. Bureau of Investigation, 357 F. Supp. 2d 97, 108 (D.D.C. 2004). Relying on the sections of Exemption 7, Defendant withheld ...

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