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Rosenberg v. United States Department of Immigration & Customs Enforcement

United States District Court, District Circuit

February 3, 2014

LAWRENCE ROSENBERG, Plaintiff,
v.
UNITED STATES DEPARTMENT OF IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

Plaintiff Lawrence Rosenberg submitted Freedom of Information Act requests to various federal agencies seeking, among other things, records related to the raid of Agriprocessors, Inc., meatpacking plant and the subsequent prosecution of Sholom Rubashkin whom Plaintiff represents. Dissatisfied with the agencies’ responses to his request, Plaintiff filed suit against United States Immigration and Customs Enforcement, the United States Marshals Service, the Executive Office for United States Attorneys, and the Federal Bureau of Investigation. On July 22 and 23, 2013, the Court granted the Motions to Dismiss or, in the alternative, for Summary Judgment filed by United States Immigration and Customs Enforcement, the Executive Office for United States Attorneys, and the United States Marshals Service. See Order (July 22, 2013), ECF No. [64]; Order (July 23, 2013), ECF No. [66]. On August 11, 2013, the Court granted in part the FBI’s Motion for Summary Judgment and denied in part the Plaintiff’s Cross-Motion for Summary Judgment, but held in abeyance the parties’ motions as to the adequacy of the agency’s search and the agency’s application of Exemption 7(D), as well as the agency’s application of Exemptions 6, 7(C), and 7(E) on a specific set of pages identified by the Court. See Order (Aug. 11, 2013), ECF. No [69]. The Court requested supplemental briefing on the application of the exemptions held in abeyance. Id.

Presently before the Court is the FBI’s [71] Renewed Motion for Summary Judgment. Upon consideration of the pleadings, [1] the documents submitted to the Court for in camera review, the relevant legal authorities, and the record as a whole, the Court finds the FBI has demonstrated that it conducted an adequate search for potentially responsive documents and has justified its redaction of information pursuant to Exemptions 6 and 7(C) on all but one of the pages identified in the Court’s August 2013 Order. The Court further finds that the FBI has justified its redaction of information on all except fifteen of the pages on which it invoked Exemption 7(D) in addition to Exemptions 6 and 7(C). Finally, the Court finds the FBI has justified its redaction of information that it withheld pursuant to Exemption 7(E). Accordingly, the FBI’s [71] Renewed Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. Furthermore, the FBI’s [47] Motion for Summary Judgment and Plaintiff’s [51] Cross-Motion for Summary Judgment, portions of which were previously held in abeyance, are GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

A. Factual Background

Sholom Rubashkin managed a kosher meatpacking company in Postville, Iowa, named Agriprocessors, Inc., which at one point employed over one thousand individuals. United States v. Rubashkin, 655 F.3d 849, 853 (8th Cir. 2011). In May 2008, Immigration and Customs Enforcement raided the plant, and arrested nearly four hundred employees for immigration violations, bringing criminal charges against most of the arrestees. Id. at 854. “Around that time, ” the United States Attorney’s Office in the Northern District of Iowa informed Mr. Rubashkin that he was the target of a federal investigation for financial and immigration crimes. Id. Mr. Rubashkin was arrested in November 2008 and charged by indictment with 163 counts, including fourteen counts each of bank and wire fraud, and sixty nine counts of harboring undocumented aliens for profit. Mr. Rubashkin was eventually convicted of seventy one counts of bank, mail, and wire fraud, money laundering, and false statements to bank, in addition to fifteen counts of willful violations of orders of the Secretary of Agriculture. Id. Relying on documents obtained through a Freedom of Information Act request submitted prior to his trial, Mr. Rubashkin subsequently moved for a new trial, or for discovery, which the trial court denied. Id. at 856. The Eighth Circuit affirmed the denial of Mr. Rubashkin’s motion for a new trial, as well as his underlying conviction and sentence on September 16, 2011. Id. at 869.

By letter dated September 28, 2011, Plaintiff, an attorney who represents Mr. Rubashkin and his wife and their children, submitted a Freedom of Information Act (“FOIA”) request to the FBI seeking, among other things: (1) “any and all information relating to the raid of Agriprocessors, Inc., a meatpacking plant in Postville, Iowa, on May 12, 2008 (“the raid”) and the subsequent prosecution of Sholom Rubashkin”; (2) “any and all information relating to actions proposed to take place in year 2000 against Agriprocessors, Inc., as documented in the Des Moines Register’s August 6, 2011 article, ‘Immigrant Raid Halted in 2000 on Election Fear, Ex-Agent Says’”; (3) “any and all information relating to any actions considered to take place against Iowa Turkey Products, Inc. of Postville, IA”; (4) “any and all information relating to the class action case Salazar v. Agriprocessors, 527 F.Supp.2d 873 (N. D. Iowa 2007)”; and (5) any and all documents reflecting communications between “any government agency or official” and over 101 individuals regarding Mr. Rubashkin or Agriprocessors. Hardy Decl., Ex. A (Pl.’s FOIA Request), ECF No. [46-1], at 2-8. The Plaintiff’s request included 39 numbered paragraphs outlining his specific requests. See id.

The FBI acknowledged the Plaintiff’s request by letter dated October 5, 2011, assigning the request number 1174698. Def.’s Stmt. ¶ 3.[2] The FBI advised the Plaintiff that it would search the “indices to [the FBI’s] Central Records System for the information responsive to this request.” Id.; Hardy Decl., Ex. B (10/5/11 Acknowledgment Ltr.). Two weeks later, the FBI notified the Plaintiff that it located 1, 223 potentially responsive pages. Hardy Decl., Ex. C (10/19/11 Ltr. FBI to Pl.). The letter advised the Plaintiff that if all of the potentially responsive pages were to be released, the Plaintiff would owe the FBI $112.30 in duplication fees to receive a paper copy or $20.00 to receive the release on a CD. Id. The FBI did not receive a response to its October 19, 2011, letter from the Plaintiff, and did not produce any documents in response to the request.

The Plaintiff filed suit on March 23, 2012. On September 7, 2012, the FBI processed the pages identified as potentially responsive to the Plaintiff’s request. Hardy Decl. ¶ 11. Of the 1, 233 pages initially identified, 257 were found to be duplicates. Second Hardy Decl., ECF No. [55-1], ¶ 8; Hardy Decl. ¶ 4. The FBI released 39 pages in full and 322 pages in part. Hardy Decl. ¶ 4. One hundred and fifty five pages were withheld in their entirety pursuant to various FOIA exemptions. Id. The remaining 450 pages were withheld because they are court materials sealed by the United States District Court for the Northern District of Iowa. Id.

B. Procedural Background

The parties filed cross-motions for summary judgment in the first part of 2013. The FBI argued that it had conducted an adequate search for documents potentially responsive to the Plaintiff’s FOIA request and that it properly withheld certain information from Plaintiff pursuant to FOIA exemptions 3, 6, 7(C), 7(D), and 7(E). Although the Court granted summary judgment on several of the FBI’s arguments, the Court found that the FBI had failed to demonstrate that it conducted an adequate search for potentially responsive documents, and also failed to justify why certain information was redacted pursuant to FOIA exemptions 6, 7(C), and 7(E). See Mem. Op. (Aug. 11, 2013), ECF No. [70], at 9-12, 15-21, 23-26. Consequently, the Court ordered the FBI to supplement its motion for summary judgment regarding the adequacy of its search and its application of FOIA exemptions 6, 7(C), and 7(E) to justify specific redactions in certain responsive documents. See Order (Aug. 11, 2013), at 2. In addition, because the Court found the Plaintiff did not fully articulate his challenge to the FBI’s invocation of Exemption 7(D) until his reply brief, the Court provided the FBI an opportunity to supplement its showing as to the use of Exemption 7(D). See Mem. Op. (Aug. 11, 2013), at 22-23; Order (Aug. 11, 2013), at 2. The FBI filed its present Renewed Motion for Summary Judgment in response to the Court’s August 11, 2013, Order requesting supplemental briefing.

II. LEGAL STANDARD

Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Congress remained sensitive to the need to achieve balance between these objectives and the potential that “legitimate governmental and private interests 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) (en banc) (citation omitted), cert. denied, 507 U.S. 984 (1993). To that end, FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material.” Milner v. Dep’t of Navy, 131 S.Ct. 1259, 1261–62 (2011). Ultimately, “disclosure, not secrecy, is the dominant objective of the Act.” Rose, 425 U.S. at 361. For this reason, the “exemptions are explicitly made exclusive, and must be narrowly construed.” Milner, 131 S.Ct. at 1262 (citations omitted). When presented with a motion for summary judgment in this context, the district court must conduct a “de novo” review of the record, which requires the court to “ascertain whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep’t of Agriculture, 515 F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its response to the plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden by means of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (citation omitted). “If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v. U.S. Dept of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). “Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). With these principles in mind, the Court turns to the merits of the FBI’s renewed motion for summary judgment.

III. DISCUSSION

The FBI seeks summary judgment on the grounds that it conducted an adequate search for responsive documents and properly withheld information pursuant to FOIA Exemption 7(D) and Exemptions 6, 7(C), and 7(E) on the pages identified by the Court in its August 2013 Order.[3]The Court begins it analysis with a discussion of the adequacy of the FBI’s search for documents before turning to the specific exemptions invoked by the FBI.

A. Adequacy of the FBI’s Search

“An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 390 (D.C. Cir. 1999) (citation omitted). “At summary judgment, a court may rely on [a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Ancient Coin Collectors Guild, 641 F.3d at 514 (citation and internal quotation marks omitted). “The agency cannot limit its search to only one or more places if there are additional sources that are likely to turn up the information requested.” Valencia-Lucena, 180 F.3d at 391 (citation and internal quotation marks omitted). Ultimately, the adequacy of a search is “determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citation omitted).

In its August 2013 Memorandum Opinion, the Court found the two declarations prepared by David Hardy averring to the adequacy of the FBI’s search lacking in several respects. First, neither Hardy declaration demonstrated that the FBI’s search was “tailored to the nature” of the Plaintiff’s request. Mem. Op. (Aug. 11, 2013), at 11. Specifically, the Court noted that while declarations stated that the FBI searched its Central Records System (“CRS”) for responsive documents, it did not aver that the CRS is the only collection of files likely to contain responsive documents. Id. Moreover, even when Plaintiff challenged the adequacy of the FBI’s search for emails, the FBI did not assert in the Second Hardy declaration that the FBI searched all systems of records “likely to possess the requested information.” Id. In addition, the Court found that neither Hardy declaration “even attempts to establish that the requested communications between the FBI and various third parties prior to or after the raid are likely to be found in the [CRS].” Id. at 12.

With its Renewed Motion for Summary Judgment, the FBI now submits a third Hardy Declaration that offers a more complete justification of the adequacy of the FBI’s search. Accordingly, the Court finds that the FBI has now provided sufficient evidence that its search was adequate. As explained in the FBI’s first two sworn declarations, the FBI conducted a search of the CRS utilizing the “phonetic sounds of the last, middle, and first names relating to Sholom Mordechai Rubashkin, Agriprocessors Inc., and Iowa Turkey Products Inc. Hardy Decl. ¶ 12, 18; Second Hardy Decl. ¶ 5. “The FBI also used the plaintiff's date of birth to facilitate the identification of responsive records.” Hardy Decl. ¶ 18. The CRS “enables the FBI to maintain all information which it has acquired in the course of fulfilling its mandated law enforcement responsibilities” and includes “administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes.” Id. ¶ 12. The files are indexed according to “main” entries, that is, “the name corresponding with a subject of a file, ” and “reference” entries, which reflect “a mere mention or reference to an individual, organization, or other subject matter, contained in a document located in another ‘main’ file on a different subject matter.” Id. ¶ 13. After Plaintiff filed suit, the FBI conducted a search for any cross-references to Agriprocessors Inc. or Sholom Mordechai Rubashkin, in addition to the ‘main’ files search it had already completed. Id. ¶ 19.

Importantly, in the Third Hardy Declaration, the FBI explains that “[b]ased on the nature of the records sought by plaintiff, the CRS is the only FBI system of records where responsive records would reasonably reside absent additional information pointing to records that may reside outside the CRS.” Third Hardy Decl. ¶ 6. The FBI explains that the records Plaintiff sought to access pertain to “a specific law enforcement raid and subsequent prosecution, ” which the FBI characterizes as “criminal investigative records.” Id. Such records “would be indexed in, and retrieved by, a search of the CRS.” Id. Most importantly, the FBI explains, “there was no factual basis for the FBI to conclude that responsive records would reside in any databases or systems other than the CRS” and, furthermore, “the records located by the FBI through its automated search of the CRS also provided no indication that other potentially responsive records would exist in any other database or system, including the Electronic Surveillance (“ELSUR”) indices.” As a result, the FBI concludes, by searching the CRS in this case, it “performed a search for responsive records in the only system where such records would reasonably reside.” Id. Finally, ...


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