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Gilman v. United States Dep't of Homeland Security

United States District Court, D. Columbia.

March 14, 2014

DENISE GILMAN, Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For DENISE GILMAN, Plaintiff: Adina Rosenbaum, LEAD ATTORNEY, PUBLIC CITIZEN LITIGATION GROUP, Washington, DC.

For U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION, Defendants: Jeremy S. Simon, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

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MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

The plaintiff, Denise Gilman, brings this case under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, seeking release of certain U.S. Customs and Border Protection (" CBP" ) records concerning the construction of a fence on the Texas-Mexico border. Pending before the Court are the parties' cross-motions for summary judgment regarding CBP's production of email records in response to the plaintiff's FOIA request, which response withheld landowner names and addresses, under FOIA Exemption 6, and information related to CBP's assessments of the need for fencing, under FOIA Exemption 7(E), and excluded email attachments from the records produced to the plaintiff.[1] For the reasons explained below, CBP's motion is granted in part, with respect to portions of records withheld pursuant to FOIA Exemption 7(E) and the exclusion of email attachments from production to the plaintiff, and denied in part, as to its redaction of landowner names and addresses pursuant to FOIA Exemption 6, and the plaintiff's motion is granted in part with respect to the redaction of landowner names and addresses under FOIA Exemption 6 and is otherwise denied.[2]

I. BACKGROUND

A. The Texas-Mexico Border Fence

In 2006, Congress passed the Secure Fence Act, ordering " construction of a fence or wall along specific portions of the U.S.-Mexico border, including areas in Texas." See Complaint (" Compl." ) ¶ 5,

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ECF No. 1 (citing Secure Fence Act, Pub. L. No. 109-367, § 3, 120 Stat. 2638 (2006)). The Act was later amended to mandate " reinforced fencing along not less than 700 miles of the southwest border" and charged the Secretary of Homeland Security with completing 370 miles of the reinforced fencing by the end of 2008. Consolidated Appropriations Act, FY 2008, Pub. L. No. 110-161, § 564, 121 Stat. 1844, 2090-91 (2007). The precise location of the fence, however, was left to the U.S. Department of Homeland Security (" DHS" ) to determine " where fencing would be most practical and effective," provided that DHS consult with, inter alia, " states, local governments, Indian tribes, and property owners . . . to minimize the impact" on those living near the site of the future fence. Id.

B. FOIA Requests

The plaintiff is a clinical professor at the University of Texas School of Law. Decl. Denise Gilman (" Gilman Decl." ) ¶ 1, ECF No. 35-1. In late 2007, the plaintiff spearheaded a working group that focused on the human rights impact of the border fence by " conduct[ing] research and analysis of the legal, historical, property, environmental, indigenous, community, and other impacts of the border wall." Id. ¶ 4-5. As part of that effort, the plaintiff submitted several FOIA requests to the CBP, DHS, and the U.S. Army Corps of Engineers (" ACE" ). See Def.'s Mem. Supp. Def. CBP's Mot. Summ. J. Email Recs. (" Def.'s Mem." ) at 3, ECF No. 32. The plaintiff's request to CBP asked for: (1) " Maps of possible locations for segments of fence or wall along the Texas/Mexico border; " (2) " files including geographic coordinates . . . for surveyed points along potential routes for segments of fence or wall along the Texas/Mexico border; " (3) " Documents identifying the properties possibly affected by the construction of the border fence or wall along the Texas/Mexico border, including documents that provide information regarding the ownership of the possibly affected properties and any other information about the characteristics of those properties; " (4) " Documents identifying the properties for which the United States government has sought to obtain access through consent/waiver or through litigation; " (5) " Documents reflecting appraisals of properties possibly affected by the construction of the border fence or wall along the Texas/Mexico border; " (6) " Documents reflecting surveys or other analyses of the areas possibly affected by the border fence or wall along the Texas/Mexico border; " (7) " Documents that describe the considerations or factors taken into account in making decisions regarding potential routes for segments of fence or wall along the Texas/Mexico border; " (8) " Communications received from, provided to or referenced by the Department of Homeland Security that make recommendations or suggestions regarding the route for segments of fence or wall along the . . . Texas/Mexico Border; " and (9) " Documents relating to potential or actual contracts for the execution of land surveys or construction of segments of fence or wall along the Texas/Mexico border." Gilman Decl. Ex. 2 at 18-19 (Plaintiff's FOIA request to CBP dated April 11, 2008). Near-identical requests were also sent to DHS and ACE. See Compl. ¶ 6.

DHS informed the plaintiff by letter that it referred her request to CBP " as the component of DHS likely to possess the records requested." See July 23, 2009, Joint Status Report (" 7/23/09 JSR" ) at 3, ECF No. 6. Before the plaintiff filed suit, she received from CBP two records, from ACE, 69 pages of records, and from DHS, no records. See Gilman Decl. ¶ 10; Pl.'s

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Mot. Summ. J. (" Pl.'s Mem." ) at 4, ECF No. 35.

C. FOIA LITIGATION

The plaintiff filed the instant action to compel the disclosure of responsive records, but subsequently agreed with CBP to bifurcate the email production and non-email production of records. See 7/23/09 JSR at 2-3; see also July 27, 2009 Scheduling Order (" 7/27/09 Sched. Order" ) ¶ ¶ 1-3, ECF No. 7. The parties submitted a joint status report informing the Court that " in the interest of expediting the release of e-mails to Plaintiff," CBP could " satisfy Plaintiff's FOIA request with respect to the processing of e-mails by providing to Plaintiff the e-mails as released in Crew v. DHS pursuant to the search described in the Joint Status Report and Proposed Disclosure Schedule . . . in that case." See 7/23/09 JSR at 3 (citing Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Homeland Sec. (" CREW " ), No. 08-1046 (D.D.C. filed June 18, 2008)). The parties further explained that CREW involved a search for emails " of the 25 CBP officials most directly involved in the border fence placement division" and was scheduled to produce " 1,000 pages of e-mails per month" until there were no remaining responsive records. Id. at 2-3. This was a " broader" search for records than that which the plaintiff had requested because the plaintiff in CREW sought records " for the entire Southwest border of the United States instead of just the Texas-Mexico border." Def.'s Mem. at 4-5. CBP was already processing email records in CREW, id. at 4, and the arrangement meant CBP " would not have to expend its limited resources to search for, retrieve and process email records in response to Plaintiff's FOIA request," id. at 5, and " allowed Plaintiff to receive email records more expeditiously than she otherwise would," i d. at 4. CBP agreed to release to the plaintiff " all e-mails already released in CREW v. DHS " and to continue to provide the plaintiff with " further e-mails as they are released on a rolling basis in that case." 7/23/09 JSR at 3. The Court subsequently entered an order stating that " CBP will release to Plaintiff all email records already released in [ CREW ], and, going forward, CBP will release to Plaintiff on a rolling basis all email records released in [ CREW ], on the same schedule as they are released in that case." 7/27/09 Sched. Order ¶ 2.

Two years after the plaintiff filed suit, CBP " completed or was near completion" of its production of records in both the CREW litigation and the instant case. Gilman Decl. ¶ 12. CBP was ordered to produce any remaining responsive email records to the plaintiff within a month, see March 28, 2011 Order, ECF No. 27, and the plaintiff was ordered to raise any disputes with the claimed exemptions within 60 days. Id.; see also June 27, 2011 Joint Status Report (" 6/27/2011 JSR" ), ECF No. 28. In total, CBP " made 15 productions of email records . . . representing all emails produced in the CREW v. DHS case." Id. at 2 n.1. The plaintiff " identified for CBP the 289 emails with redactions and/or withholdings she is challenging," Pl.'s Mot. Summ. J. (" Pl.'s Mem." ) at 5, and CBP agreed to conduct a further review of the challenged records, 6/27/11 JSR at 3. The parties were aware when the 6/27/11 JSR was filed that the plaintiff challenged " the fact that attachments were not part of the email production." Id. CBP explained that it would satisfy its obligation to the plaintiff by releasing to her emails which were identical to those released in CREW, " and, therefore, to the extent attachments were not included in the email release made in CREW v. DHS, they were not provided to Plaintiff." Id. This was contrary to the

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plaintiff's understanding that, to the extent the CBP withheld portions of emails, the plaintiff would still be able to challenge those redactions. Id. In the plaintiff's view, CBP's non-production of attachments to responsive emails was a withholding without any applicable exemption that must therefore be disclosed. Id.

The plaintiff has substantially narrowed her challenges to CBP's production of responsive records. See Pl.'s Reply Def.'s Opp. Pl.'s Mot. Summ. J. Re. Email Discl. (" Pl.'s Reply" ) at 1, ECF No. 42. The plaintiff has expressly stated that she no longer challenges (1) " CBP's redaction of emails under Exemption 5," Pl.'s Reply at 1; (2) the " Exemption 7(E) redactions on" Record 24 listed in the Vaughn index, id. ; (3) the " withholding of the phone numbers or email addresses of landowners" or the withholding of names and contact information of " CBP employees or of individual employees of contractors," Pl.'s Mem. at 5; and (4) the withholding of email attachments beyond those attached to the " 289 emails at issue in these cross-motions," id. at 25. Due to the plaintiff's decision not to challenge these withholdings, summary judgment is granted to CBP as to those issues. The reasons for the plaintiff's remaining challenges are discussed below.

II. LEGAL STANDARD

Congress enacted the FOIA to promote transparency across the government. See 5 U.S.C. § 552; Stern v. FBI, 737 F.2d 84, 88, 237 U.S.App.D.C. 302 (D.C. Cir. 1984). The Supreme Court has explained that the FOIA is " a means for citizens to know 'what their Government is up to.' This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (citation and internal quotation marks omitted). " The basic purpose of FOIA is to ensure an informed citizenry, 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, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); see also SEC v. Am. Int'l Grp., 712 F.3d 1, 3, 404 U.S.App.D.C. 286 (D.C. Cir. 2013) (" The public has a fundamental interest in 'keeping a watchful eye on the workings of public agencies.'" (quoting Wash. Legal Found. v. U.S. Sentencing Comm'n, 89 F.3d 897, 905, 319 U.S.App.D.C. 256 (D.C. Cir.1996))). As a result, the FOIA requires federal agencies to release all nonexempt records responsive to a request. See 5 U.S.C. § 552(a)(3)(A).

To protect " legitimate governmental and private interests [that] could be harmed by release of certain types of information," United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559, 390 U.S.App.D.C. 136 (D.C. Cir. 2010) (internal quotation marks omitted), Congress included nine exemptions permitting agencies to withhold information from FOIA disclosure. See 5 U.S.C. § 552(b). " These exemptions are explicitly made exclusive, and must be narrowly construed." Milner v. U.S. Dep't of the Navy, 562 U.S. 562, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011) (citations and internal quotation marks omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869, 389 U.S.App.D.C. 356 (D.C. Cir. 2010) (" FOIA allows agencies to withhold only those documents that fall under one of nine specific exemptions, which are construed narrowly in keeping with FOIA's presumption in favor of disclosure." ) (citations omitted). Upon exhaustion of administrative remedies, a FOIA requester may file a civil action challenging an agency's response to its request. See 5 U.S.C. § 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677, 359 U.S.App.D.C. 380 (D.C. Cir. 2004). Once such an action is filed, the agency generally has the burden of demonstrating

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that its response to the plaintiff's FOIA request was appropriate. See id. at 678. Federal courts are authorized under the FOIA " to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Id. § 552(a)(4)(B).

It is typically appropriate to resolve FOIA cases on summary judgment. See Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527, 395 U.S.App.D.C. 155 (D.C. Cir. 2011) (" the vast majority of FOIA cases can be resolved on summary judgment" ). When an agency's response to a FOIA request is to withhold responsive records, either in whole or in part, the agency " bears the burden of proving the applicability of claimed exemptions." Am. Civil Liberties Union v. U.S. Dep't of Def. (" ACLU/DOD " ), 628 F.3d 612, 619, 393 U.S.App.D.C. 384 (D.C. Cir. 2011) . The agency may sustain its burden of establishing that requested records were appropriately withheld through the submission of declarations detailing the reason that a FOIA exemption applies, along with an index, as necessary, describing the materials withheld. See, e.g., id. at 619; Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 840, 347 U.S.App.D.C. 235 (D.C. Cir. 2001); Vaughn v. Rosen, 484 F.2d 820, 827-28, 157 U.S.App.D.C. 340 (D.C. Cir. 1973). " 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." ACLU/DOD, 628 F.3d at 619. As the D.C. Circuit recently explained, in FOIA cases " '[s]ummary judgment may be granted on the basis of agency affidavits 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.'" Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215, 406 U.S.App.D.C. 440 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287, 372 U.S.App.D.C. 198 (D.C. Cir. 2006) and Gallant v. NLRB, 26 F.3d 168, 171, 307 U.S.App.D.C. 27 (D.C. Cir. 1994)). While the burden remains on the moving party to demonstrate that there is an " absence of a genuine issue of material fact" in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), in FOIA cases, " an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.'" ACLU/DOD, 628 F.3d at 619 (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 862, 385 U.S.App.D.C. 394 (D.C. Cir. 2009)).

III. DISCUSSION

The plaintiff contends that CBP: (1) improperly redacted " the names and addresses of landowners who would potentially be affected by the border wall," under FOIA Exemption 6; (2) improperly redacted " records containing an assessment of the need for fencing in certain areas," under FOIA Exemption 7(E); and (3) improperly withheld email attachments pursuant to no specific FOIA ...


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