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Barnard v. Dep't of Homeland Security

February 9, 2009

NEAL D. BARNARD, M.D., PLAINTIFF,
v.
DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This is a Freedom of Information Act ("FOIA") and Privacy Act 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. This is the second time the Court has been called on to resolve this case. On January 29, 2008, the Court granted summary judgment in favor of Defendant, finding that it had properly withheld seven pages of records identified as responsive to Plaintiff's FOIA/Privacy Act requests. Just five days after issuing that decision the parties notified the Court that Defendant had located additional responsive records. At the request of the parties, the Court entered a stay to allow Defendant to process the additional records and ordered the parties to file a Status Report indicating whether, in light of the Court's Memorandum Opinion, there remained any disputes concerning the additional records. The parties subsequently notified the Court that they were able to narrow but not eliminate their disputes. Accordingly, the Court entered another briefing schedule for dispositive motions, which incorporated at Plaintiff's request a reconsideration motion based on "newly discovered evidence."

After thoroughly considering the parties' submissions, including Defendant's two in camera declarations, and all applicable case law, statutory authority, and the entire record of the case as a whole, the Court shall GRANT Defendant's [39] Motion for Summary Judgment and DENY Plaintiff's [40] consolidated Cross-Motion for Summary Judgment and Motion for Reconsideration, for the reasons that follow.

I. BACKGROUND

As previously described in the Court's first Memorandum Opinion, Plaintiff claims to have been detained, questioned, and/or searched at various airports before or after international trips on approximately 17 occasions between January 2003 and January 2007. See Mem. Op. at 2 (Jan. 29, 2008), Docket No. [27]. Seeking to discover the records underlying his traveling difficulties, Plaintiff began filing FOIA/Privacy Act requests. Id.

Plaintiff initially sent a FOIA/Privacy Act request to United States Customs and Border Protection ("CBP") requesting "all records about me that are in IBIS or any other system used by [CBP] at any and all ports of entry to the United States."*fn1 Def.'s Stmt. ¶ 1. CBP erroneously processed Plaintiff's request as a "traveler redress complaint," and incorrectly advised him to seek the requested records from Immigration and Customs Enforcement ("ICE").*fn2 Id. ¶ 2. For purposes of clarity, the Court shall separately discuss the facts pertaining to ICE and CBP.

A. ICE

Plaintiff submitted a FOIA/Privacy Act request to ICE by letter dated March 21, 2006, requesting "any records created from January 1, 2002[,] to the present that were prepared, received, transmitted, collected and/or maintained by [ICE] relating to [fifteen specifically enumerated areas.]" Def.'s Stmt. ¶ 3. After failing to receive a timely response, Plaintiff filed an administrative appeal on May 16, 2006. Barnard Decl. ¶ 27. On August 5, 2006, ICE advised Plaintiff that it did not locate any responsive records. Def.'s Stmt. ¶ 4.

Plaintiff filed a Complaint in this case on August 7, 2006.*fn3 By letter dated November 16, 2006, ICE informed Plaintiff that it located six pages of records responsive to his request but that they were exempt from disclosure, in their entirety, based on FOIA Exemptions 2, 7(A), 7(C), and 7(E).*fn4 Id. ¶ 6. The parties both moved for summary judgment on the dispositive issue of whether ICE properly withheld the records in their entirety.

Defendant argued that the records were properly withheld, and relied on the declaration of Marshall Fields, Chief of the FOIA/Privacy Act Section, Information Disclosure Unit, at ICE. See Def.'s [14] Mot., Ex. A (hereinafter "Fields Decl."). Mr. Fields explained that Plaintiff "is the subject of an open and pending criminal investigation" and that "[r]elease of any information pertaining to this investigation could reasonably be expected to interfere with this open and pending criminal investigation." Id. ¶ 22.

Plaintiff conceded that Defendant could "properly withhold portions of the records if they pertain to an ongoing investigation." Mem. Op. at 8 (Jan. 29, 2008). Plaintiff nevertheless argued that Defendant failed to meet its burden of showing that there was an ongoing investigation of Plaintiff because Mr. Fields's declaration was not based on his personal knowledge. See Pl.'s [16] Mot. at 8-13. Plaintiff also argued that Defendant had not met its burden of demonstrating that it could not segregate any non-exempt information in the records. Id. at 13-14.

The Court rejected Plaintiff's first argument concerning Mr. Fields's personal knowledge because his statements were made "based upon [his] personal knowledge, review of documents kept in the course of business, and information conveyed to [him] in the course of [his] official duties." Fields Decl. ¶ 4. Because he was "familiar with the processes used to search for the records at issue, and because he [] reviewed the records himself," the Court found that he was "competent to testify as to the information contained in those records." Mem. Op. at 11 (Jan. 29, 2008). With respect to Plaintiff's second argument concerning the segregation of non-exempt information, the Court agreed with Plaintiff that Defendant had provided an inadequate explanation as to why non-exempt information could not be segregated. Because there were a limited number of pages at issue, and because Defendant argued that a more fulsome segregability explanation would divulge information properly withheld based on the exemptions Defendant had invoked, the Court ordered Defendant to produce the records for an in camera review. Id. at 13.

Defendant submitted the records to the Court on January 23, 2008, which included seven (not the previously identified six) pages. Defendant also submitted a declaration from Gloria Marshall, the Unit Chief of the Information Disclosure Unit, at ICE. See Def.'s [25] Notice, Ex. 1 (hereinafter "First Marshall Decl."). Ms. Marshall explained that Mr. Fields was no longer employed at ICE, and that she reviewed the relevant files to locate the six pages of records to submit to the Court. Id. ¶ 6. In the course of her review, she discovered a seventh page that was not previously identified in Mr. Fields's declaration. Id. Accordingly, Ms. Marshall undertook an independent review of the seven pages and "determined that all records are exempt from disclosure . . . for the reasons explained in the Fields Declaration. Id. Following the Court's in camera review of the records, the Court agreed with Defendant that there existed no reasonably segregable non-exempt information and, on January 29, 2008, the Court granted Defendant's Motion for Summary Judgment and denied Plaintiff's Cross-Motion for Summary Judgment.

On February 4, 2008, Defendant filed a Notice and Motion to Stay explaining that it had discovered additional records responsive to Plaintiff's FOIA/Privacy Act requests. See Def.'s [29] Mot. for a Stay at 1. Defendant explained that it reviewed its files to submit the ICE records in response to the Court's order for in camera review and "discovered that it might not have properly processed Plaintiff's July 20, 2005 [FOIA] request." Id. at 1. Defendant further explained that CBP had erroneously treated Plaintiff's FOIA/Privacy Act request as a "traveler's complaint," and did not process the request under its FOIA/Privacy Act procedures. Id. at 2. Defendant notified Plaintiff of this development prior to the Court's January 29, 2008 decision, but neither party brought it to the attention of the Court.*fn5

Defendant also submitted a second declaration from Gloria Marshall. Id., Ex. A (hereinafter "Second Marshall Decl."). Ms. Marshall explained that "[P]laintiff is no longer the subject of the open and pending criminal investigation originally cited in the Fields declaration," a fact that she did not learn until February 1, 2008 (after the Court had issued its decision). Id. ¶ 7. Nevertheless, Ms. Marshall asserted that the seven pages of records were still properly withheld by ICE pursuant to FOIA Exemption 7(A) because disclosure of the records would negatively affect other ongoing investigations:

FOIA [Exemption 7(A)] is no longer applicable with respect to the investigation noted in the Fields Declaration [concerning Plaintiff], however, I have been informed that disclosure of information related to [P]laintiff could have a negative impact on other ongoing investigations. Accordingly, FOIA [Exemption 7(A)] is still applicable to the seven pages of ICE records . . . .

Id.

The Court granted a stay on February 6, 2008. See 2/6/08 Min. Order. The Court ordered Defendant to process the additional responsive records and either release them to Plaintiff or prepare a Vaughn Index regarding the same. Id. During the pendency of the stay, ICE obtained twenty-five additional pages of responsive records from the ICE Special Agent in Charge office.

Def.'s Stmt. ¶ 14. Fourteen of the pages belonged to CBP and were forwarded to that component for review.*fn6 Id. ¶ 16. With respect to the other eleven pages, ICE released seven of them to Plaintiff and withheld the remaining four. Id. ICE invoked FOIA Exemptions 2, 7(A), 7(C), and 7(E) to withhold the four pages of records in their entirety.

B. CBP

As discussed above, CBP incorrectly processed Plaintiff's initial July 20, 2005 FOIA/Privacy Act request. Once CBP discovered its mistake, CBP searched the Treasury Enforcement Communications System ("TECS") on January 17, 2008, and discovered 82 pages of responsive records. Id. ¶ 17. CBP used the search terms "Neal," "Barnard," "Bernard," and "07/10/53." Id. CBP processed the records and released 80 of them with redactions on February 5, 2008. Id. ¶ 18. CBP withheld one page in full and released one page in full. Id. CBP then discovered one additional TECS record and released that document to Plaintiff with redactions on April 1, 2008. Id. ¶ 19.

In addition to TECS, CBP searched the Automated Targeting System - Passenger ("ATSP"), as well as records maintained at CBP Headquarters, and the Ports of Entry for Toronto and Washington-Dulles. Id. ¶ 20. The ATS-P system was searched on January 29, 2008, and again on April 8, 2008, "to ensure that the search was comprehensive." Id. ¶ 21. CBP used the search terms "Neal," "Barnard," "Bernard," and "07/10/53." Id. The port of Washington-Dulles records were searched on February 15, 2008, and the port of Toronto records were searched on April 1, 2008. Id. ¶ 22. CBP did not locate any responsive records at Washington-Dulles, and discovered 5 responsive records at the Toronto port of entry. Id. As a result of these searches, CBP located a total of 229 pages of responsive records (not including the previous 82 pages that had been processed on February 5, 2008). Id. ¶ 23.

CBP processed the 229 pages of records on April 17, 2008. Id. ¶ 24. 82 pages were released with redactions, 11 pages were released in full, and 136 pages were withheld in full. Id. On April 23, 2008, CBP provided Plaintiff with two Vaughn indices identifying FOIA exemptions 6, 7(A), 7(C), and 7(E), as the basis for withholding information. Id. ¶ 25. CBP later dropped its assertion of FOIA Exemption 7(A), but no additional documents were released because they were all subject to other exemptions. Id. ¶ 26. CBP thereafter provided Plaintiff with two revised indices reflecting this change. Id.

As explained above, ICE referred an additional 14 pages of records to CBP for review on June 6, 2008. Id. ¶ 27. On June 16, 2008, CBP released 13 pages of records to Plaintiff with redactions, and found the remaining page to be unresponsive to Plaintiff's FOIA/Privacy Act requests. Id. On June 20, 2008, CBP provided Plaintiff with two final Vaughn indices accounting for all documents processed by CBP. Id. ¶ 28; Pl.'s Resp. Stmt. ¶ 28 (clarifying that the Vaughn indices did not include a description of the four pages of withheld ICE records).

On April 29, 2008, the parties conferred and "explored ways to resolve this case informally without further litigation." [34] Status Report at 2 (May 1, 2008). Although the parties were able to narrow their disputes, they were unable to eliminate them. Id. Accordingly, the parties reported that their remaining disputes concerned the following exemptions invoked by Defendant to withhold the following information:

! Exemption 6: Names and positions of federal employees within Plaintiff's presence, and names of third parties within Plaintiff's presence

! Exemption 7(A): Law enforcement techniques and procedures to the extent that the exemption is invoked in connection with a criminal investigation into Plaintiff's activities

! Exemption 7(C): Names of federal employees within Plaintiff's presence

! Exemption 7(E): Inspection procedures witnessed by Plaintiff Id.

The parties then proceeded to brief a second round of dispositive motions. The parties filed Cross-Motions for Summary Judgment, Oppositions, and Replies. The parties' briefing incorporated a Motion for Reconsideration brought by Plaintiff in response to the revelation that he was not the subject of an investigation at the time of the Court's initial decision on January 29, 2008.

Defendant also filed, in the context of these motions, two separate Motions for Leave to file in camera declarations in support of its Motion for Summary Judgment. Plaintiff filed a consolidated Opposition to these motions, and Defendant filed a consolidated Reply. The Court granted Defendant's Motions for Leave on January 22, 2009, and Defendant timely delivered the declarations to Chambers on January 23, 2009. Accordingly, the parties' Cross-Motions for Summary Judgment are fully briefed and ripe for decision.

II. LEGAL STANDARD

A. FOIA

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 [if any] 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).

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).

B. Privacy Act

The Privacy Act of 1974 regulates the collection, maintenance, use, and dissemination of an individual's personal information by agencies within the federal government. See 5 U.S.C. § 552a(e). The Act provides that any agency that retains a system of records "shall maintain . . . only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or executive order of the President." 5 U.S.C. § 552a(e)(1). To provide for openness and accountability, the Act ensures that "upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system," the agency shall provide the individual with access to review such records. 5 U.S.C. § 552a(d)(1). Finally, subject to certain exceptions, the Privacy Act states that disclosure of records shall be limited. 5 U.S.C. § 552a(b) ("[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains"). One of these exceptions, however, is that an agency shall disclose such records that would be required to be disclosed pursuant to FOIA. 5 U.S.C. § 552a(b)(2). In actions seeking documents under both FOIA and the Privacy Act, a defendant agency must show that the information is properly subject to both FOIA and Privacy Act exemptions. See Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987).

III. DISCUSSION

In considering the parties' Cross-Motions for Summary Judgment, the Court shall address the adequacy of Defendant's search for records, the exemptions invoked by Defendant that remain in dispute, and Defendant's segregability analysis. The Court shall then address Plaintiff's Motion for Reconsideration based on newly discovered evidence. Ultimately, the Court concludes that Defendant has met its burden of showing that it properly complied with its obligations under FOIA and the Privacy Act, and that Plaintiff has not met its burden of showing how newly discovered evidence warrants reconsideration of the Court's January 29, 2008 decision.

A. Defendant Has Demonstrated That It Conducted An Adequate Search for Records

In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Ogelsby v. Army, 920 F.2d 57, 68 (D.C. Cir. 1990). To obtain summary judgment on the issue of the adequacy of the records search, an agency must show "viewing the facts in the light most favorable to the requester, that . . . [it] has conducted a 'search reasonably calculated to uncover relevant documents.'" Steinberg, 23 F.3d at 551 (quoting Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To meet its burden, the agency may submit affidavits or declarations that explain both in reasonable detail and in a non-conclusory fashion the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. An agency must show that it 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." Ogelsby, 920 F.2d at 68; see also ...


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