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Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of Homeland Security

September 1, 2009

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") brings this action against the United States Department of Homeland Security ("DHS"), and its component, United States Customs and Border Protection ("CBP"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., seeking certain records pertaining to the placement of the U.S.-Mexico border fence. CREW's FOIA request has two parts, the first of which concerns records relating to an allegation that the border fence will bypass property owned by Ray L. Hunt as a result of undue influence. Now before the Court are the parties' cross-motions for partial summary judgment with respect to the first part of CREW's FOIA request.*fn1 At issue are twenty-one documents withheld by the government, in whole or part, pursuant to FOIA Exemption 5.

BACKGROUND

In 2006, Congress passed the Secure Fence Act, Pub. L. No. 109-367, 120 Stat. 2638 (Oct. 26, 2006), authorizing construction of 700 miles of fencing along the U.S.-Mexico border, including portions of the border located in Texas. Compl. ¶ 5. Decisions concerning the proposed location of the border fence in Texas have been controversial and there have been allegations that wealthy and well-connected landowners have influenced the siting process. Pl.'s Statement of Material Facts Not in Dispute ¶ 1. In February 2008, The Texas Observer published an article suggesting that undue influence may have played a role in the decision that border fence construction would bypass land owned by Ray L. Hunt, a "Dallas billionaire" and "close friend of President George W. Bush." Id.; Pl.'s Ex. A (Melissa del Bosque, Holes in the Wall; Homeland Security Won't Say Why the Border Wall Is Bypassing the Wealthy and Politically Connected, The Texas Observer, Feb. 18, 2008).

Soon after this article appeared, CREW sent a letter to CBP's FOIA Director, requesting, pursuant to the FOIA:

[A]ny and all records dating from January 20, 2001 to the present reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc. and the construction of fencing along the border between the U.S. and Mexico.

Hanson Decl. ¶ 4; Answer, Ex. A (CREW's FOIA request to CBP, Mar. 17, 2008). Following the initiation of this action on June 18, 2008, the parties agreed to narrow CREW's original request and also to bifurcate the processing of the request. Hanson Decl. ¶ 4; Answer ¶ 7. With respect to the first part of CREW's request, the new terms agreed to by the parties are as follows:

Any and all records, regardless of format, dating from January 20, 2001 to the present reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc. and the construction of fencing along the border between the U.S. and Mexico, including but not limited to, input sought or received from Mr. Hunt and/or Hunt Consolidated on border fence construction.

Id.

Following a search of its records, CBP released a total of thirty-two responsive documents. The majority of these documents were redacted, in whole or part, pursuant to FOIA Exemptions 5, 6 and 7(E). CBP has moved for summary judgment with respect to these claimed exemptions and in support it has submitted a Vaughn Index, the declaration of Mark Hanson, Director of the FOIA Division at CBP's Office of International Trade, and redacted copies of all responsive documents. For its part, CREW challenges only the redactions made pursuant to Exemption 5, a protection invoked by CBP with respect to twenty-one documents. As to these disputed documents, CREW contends that CBP's submissions are inadequate to satisfy its burden and, accordingly, summary judgment should be granted in CREW's favor. On July 29, 2009, after full briefing on the cross-motions for partial summary judgment, the Court ordered CBP to produce unredacted copies of the disputed documents for in camera inspection. Now that the Court has completed its inspection of those documents, the parties' cross-motions are ripe for resolution.

STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings . . . 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). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party opposing a motion for summary judgment, however, "may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Any factual assertions in the movant's affidavits will be accepted as being true unless the opposing party submits his own affidavits or other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA requires a federal agency to release all records responsive to a proper request except those protected from disclosure by one or more of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). The district court is authorized "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The agency has the burden of proving that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980) (internal citation and quotation omitted); see also Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000) (the government has the burden of proving each claimed FOIA exemption). The district court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information ...


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