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Alberto Concepcion v. U.S. Customs and Border Protection

March 3, 2011

ALBERTO CONCEPCION, PLAINTIFF,
v.
U.S. CUSTOMS AND BORDER PROTECTION, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No.: 12

MEMORANDUM OPINION DENYING WITHOUT PREJUDICE THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The plaintiff brought this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel the defendant, the U.S. Customs and Border Protection ("CBP") to disclose records pertaining to the "passenger activity" of the plaintiff's deceased brother from January 1, 1997 until the present. CBP now moves for summary judgment, contending that it has conducted an adequate search and has already provided all of the responsive documents to the plaintiff. Because CBP has failed to demonstrate that it has searched all the databases where one could reasonably expect to find records responsive to the plaintiff's FOIA request, the motion is denied without prejudice.

II. FACTUAL & PROCEDURAL BACKGROUND

Beginning on May 1, 1998, the Federal Bureau of Investigation ("FBI"), along with state and local law enforcement officials in New Jersey, conducted an investigation targeting the plaintiff and others involved with the distribution of large quantities of heroin. Compl. ¶¶ 10-13.

The investigation led to the plaintiff's arrest on December 15, 1999, id. ¶ 12, and subsequent criminal proceedings in the United States District Court for the District of New Jersey, id. ¶ 13. Eventually, the plaintiff was convicted and sentenced to 325 months of imprisonment. See United States v. Concepcion, Civ. No. 99-753 (D.N.J. July 7, 2000) (Judgment), aff'd, 259 F.3d 717 (3d Cir. 2001).

The plaintiff claims that during the period of the criminal investigation that led to his arrest, he had been using the driver's license, credit cards and social security number of his deceased brother, Miguel Concepcion. Compl. ¶¶ 9, 27. Using his deceased brother's identity, the plaintiff allegedly bought and used an airplane ticket from New Jersey to North Carolina, and claims to have been in North Carolina on the dates that he purportedly sold heroin to a government informant. Id. ¶ 27.

In an attempt to bolster his alibi with evidence, the plaintiff submitted a FOIA request to CBP in June 2008, id. ¶ 14, seeking the following information:

A COPY OF ANY, [AND] ALL OF THE RECORDS, DOCUMENTS, FILES, DATA, & ETC., OF THE PRIMARY QUERY HISTORY OF PASSENGER ACTIVITY, FROM JAN. 1, 1997, UNTIL PRESENT FOR MY DECEASE[D] BROTHER MIGUEL CONCEPCION, DOB: SEPT. 2, 1961; POB: NEWARK, NEW JERSEY; SSN: . . . ; [AND] DATE OF DEATH WAS JULY 25, 1997. Id., Ex. N-7 (Pl.'s FOIA Request) (emphasis in original).

According to Shari Suzuki,*fn1 a CBP official, CBP responded to the plaintiff's request by conducting a search of one of its databases, the Treasury Enforcement Communications System ("TECS"), using Miguel Concepcion's name and date of birth as search terms. Def.'s Mot., Ex. A ("Suzuki Decl.") ¶ 19. Suzuki explains that TECS is an "information collection, risk assessment, and information sharing environment" that contains "temporary and permanent enforcement, inspection and intelligence records." Id. ¶ 25. Among TECS's records are international flight records. Id. ¶¶ 26-27. CBP does not keep, however, and therefore TECS does not contain, records on exclusively domestic travel. Id. ¶¶ 26-27.

A search of CBP records yielded a one-page passenger activity record that was responsive to the plaintiff's request. Suzuki Decl. ¶¶ 12, 25; Def.'s Mot., Ex. D. CBP redacted portions of the document under certain FOIA exemptions that the plaintiff does not challenge, Pl.'s Opp'n ¶ 8, and released the remainder of the document to the plaintiff,*fn2 see Compl., Ex. N-12.

Dissatisfied with the lack of responsive records produced by the CBP, the plaintiff appealed to CBP's FOIA Appeals, Policy and Litigation Branch, which denied the appeal. See id., Ex. N-15; id., Ex. N-19. The plaintiff then commenced this action, demanding the "'full disclosure' of the non-exempt, [and] wrongfully withheld travelers information for [Miguel Concepcion] . . . with the dates of flights, time of flights, location of flights, price of purchased flight tickets, [and] locations of purchased airline tickets . . . [and] all other unmentioned records . . . of [Miguel Concepcion's] travel information." Id. ΒΆ 37. The defendant ...


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