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In 't Veld v. Dep't of Homeland Security

December 15, 2008

SOPHIA HELENA IN 'T VELD, PLAINTIFF,
v.
DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Sophia In't Veld sought personal passenger data records from the Department of Homeland Security ("DHS") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. DHS released 28 pages of records to her, but she contests the adequacy of the search in reliance on an affidavit of a travel expert. Because the expert's affidavit is based on the erroneous assumption that DHS's data systems are the same as the airlines' data systems and because DHS submitted detailed affidavits describing an adequate search, summary judgment will be granted in favor of DHS.

I. FACTS

Ms. In't Veld is a citizen of the Netherlands and a member of the European Parliament where she serves on the Committee on Civil Liberties, Justice, and Home Affairs. Compl. ¶ 3. As part of her work on this Committee, she participates in the development of policy regarding the exchange of Passenger Name Record data between the European Union and the United States. Id.

In November 2006, DHS and its component Customs and Border Protection published a notice stating that it maintains a system of records called the Automated Targeting System. Id. ¶ 6. This is a data-mining system used to determine the "risk assessment" for travelers crossing U.S. borders. The data-mining system uses information in the Passenger Name Records and personal data in other information systems, including the Non Immigrant Information System, the Suspect and Violator Indices, the Treasury Enforcement Communications System, the Advanced Passenger Information System, Department of State databases, and the consolidated and integrated terrorist watch list maintained by the Terrorist Screening Center. Id. Ms. In t' Veld contends that the treatment of Passenger Name Record data by the U.S. government is inadequate to protect the fundamental rights of E.U. citizens. Id. ¶ 8.

Ms. In't Veld submitted a FOIA request to DHS on October 17, 2007, requesting agency records as follows:

We are seeking all records concerning Sophie In't Veld (including but not limited to electronic records) maintained in the Non Immigrant Information System (NIIS), Suspect and Violator Indices (SAVI), and Treasury Enforcement Communications System (TECS).

Def.'s Mot. for Summ. J., Ex. 1 ("Lockett Decl."), Ex. A. The following day, Ms. In't Veld submitted a FOIA request to Customs and Border Protection requesting the following records: all records concerning Ms. In't Veld (including but not limited to electronic records) maintained in the Passenger module of the Automated Targeting System (ATS-P) and Advanced Passenger Information System (APIS).

Id., Ex. B.

DHS and its components conducted the requested search for documents and turned over 28 pages of records from Customs and Border Protection.*fn1 Id., Ex. D. Believing that additional documents should have been released, Ms. In't Veld exhausted her administrative appeals and then filed this suit. DHS filed a motion for summary judgment on the ground that it conducted an adequate search and released all non-exempt information. Ms. In't Veld opposes.

II. STANDARD OF REVIEW

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion... 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). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252.

FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980).In a FOIA case, a court may award summary judgment solely on the basis of information provided by the agency in declarations when the declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstratethat the information withheld logically falls within the claimed exemption, and are not controverted by ...


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