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Defenders of Wildlife v. United States Border Patrol

June 11, 2009


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This Freedom of Information Act case is before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment and on plaintiff's cross-motion for summary judgment.*fn1 After careful consideration of the parties' papers and the attached exhibits and declarations, the Court concludes that the Vaughn Index submitted by the Department of Homeland Security ("DHS") and accompanying declarations are inadequate for the Court to resolve either party's motion on the merits. It therefore will order DHS to supplement the Vaughn Index and declarations as described below.


Plaintiff Defenders of Wildlife is a Washington, D.C. based nonprofit corporation whose mission is to preserve wildlife and emphasize appreciation and protection for all species in their ecological role within the natural environment through education and advocacy. See Compl. ¶ 3. On April 28, 2004, plaintiff sent a FOIA request to the Tucson and Yuma Sectors of the United States Border Patrol ("USBP") and the Citizenship and Immigration Services ("CIS"). See Pl. Mot., Plaintiff's Statement of Material Facts as to Which There is No Genuine Dispute ("Pl. Facts") ¶ 11.*fn2 Plaintiff requested six categories of records concerning the agencies' adherence to environmental laws in relation to the Arizona Border Control Initiative, documents produced pursuant to the Endangered Species Act, and correspondence with other federal agencies and Congressional representatives. See id. On May 4, 2004, the California CIS office advised plaintiff that if any records existed they would be maintained at the Bureau of Customs and Border Protection ("CBP") in Washington, D.C. See id. ¶ 12. On May 12, 2004, plaintiff submitted a separate FOIA request to CBP for the same categories of information as in the original request. See id. ¶ 14. Having received no records in response to these requests, plaintiff filed suit in this Court on January 3, 2005 alleging that USBP and CBP violated the FOIA because they had not responded to plaintiff's request and they had not conducted an adequate search for records. See Compl. ¶¶ 34, 37, 40, 61.

On August 15, 2005, CIS provided some responsive records to plaintiff on behalf of USPB as well as a Vaughn Index identifying records that were withheld. See Pl. Facts ¶ 13. On November 29, 2005, the Department of Homeland Security, of which USBP and CBP are components, filed an amended Vaughn Index in support of a motion to dismiss or, in the alternative, for summary judgment. The sufficiency of that Vaughn Index and the adequacy of the agencies' searches are at issue in the pending motions.*fn3


A. The Freedom of Information Act

The fundamental purpose of the FOIA is to assist citizens in discovering "what their government is up to." Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (emphasis in original). The FOIA strongly favors openness, as Congress recognized in enacting it that an informed citizenry is "vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); see also Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (purpose of the FOIA is "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny"). As such, "disclosure, not secrecy, is the dominant objective of the Act." Dep't of the Air Force v. Rose, 425 U.S. at 361.

B. Summary Judgment

The Court will grant a motion for summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits or declarations 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). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits its own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA cases typically and appropriately are decided on motions for summary judgment. Bigwood v. United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007); Farrugia v. Executive Office for United States Attorneys, Civil Action No. 04-0294, 2006 WL 335771 at *3 (D.D.C. Feb. 14, 2006). In a FOIA case, the Court may award summary judgment solely on the basis of information provided in affidavits or declarations when the affidavits or declarations are "relatively detailed and non-conclusory," SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and describe "the documents and 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 by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974); Hertzberg v. Veneman, 273 F. Supp. 2d 67, 74 (D.D.C. 2003). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978); see also Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Hertzberg v. Veneman, 273 F. Supp. 2d at 74.


DHS has produced 602 pages of records responsive to plaintiff's FOIA request in full, has withheld 853 pages of potentially responsive records in full, has withheld 189 pages of potentially responsive records in part, and has referred 255 pages of potentially responsive records to other agencies. See Vaughn Index, Declaration of Magda S. Ortiz ("Ortiz Decl.") ¶ 6. Plaintiff challenges the adequacy of this production on several grounds, summarizing its complaints as follows:

The Vaughn index is legally insufficient, and the agencies have not carried their burden to justify withholdings under exemption 5's deliberative process privilege and exemption 7(E). The agencies have additionally failed to segregate releasable information. Finally, DHS has not demonstrated that searches have been conducted and records ...

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