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American Immigration Council v. United States Dep't of Homeland Security

United States District Court, D. Columbia.

March 21, 2014

AMERICAN IMMIGRATION COUNCIL, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants

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[Copyrighted Material Omitted]

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For AMERICAN IMMIGRATION COUNCIL, Plaintiff: Beth Jennifer Werlin, PRO HAC VICE, AMERICAN IMMIGRATION COUNCIL'S, Washington, DC; Creighton R. Magid, DORSEY & WHITNEY LLP, Washington, DC; Melissa E. Crow, AMERICAN IMMIGRATION COUNCIL, Washington, DC; Michelle S. Grant, PRO HAC VICE, DORSEY & WHITNEY LLP, Minneapolis, MN.

For UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION, Defendants: Marian L. Borum, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

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MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

This dispute -- like a substantially similar case the Court decided just weeks ago -- began with a Freedom of Information Act request by the American Immigration Council, an immigration law and policy group, seeking information about individuals' access to counsel during their interactions with federal immigration authorities. The prior case, Am. Immigration Council v. U.S. Dep't of Homeland Sec., No. 12-856, 21 F.Supp.3d 60, 2014 WL 842311 (D.D.C. March 5, 2014), addressed a FOIA request AIC filed with Immigration and Customs Enforcement. This one deals with an identical request submitted to Customs and Border Protection, a component agency of the Department of Homeland Security. After the agency invoked the protection of several FOIA exemptions and released moderately redacted versions of a number of documents, AIC challenged those redactions in this Court. Defendants now request summary judgment, while AIC rejoins that the Government has not done enough to justify its withholdings. Although CBP's explanations of the applicability of the claimed exemptions are at times thin, the Court's own in camera review convinces it that Defendants have the better of the argument. It will thus grant them summary judgment in full.

I. Background

In March 2011, AIC submitted the following FOIA request concerning individuals' access to legal counsel during their interactions with U.S. Customs and Border Protection:

[A]ny and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Customs and Border Protection (CBP), whether issued or maintained by CBP Headquarters offices, including any divisions,

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subdivisions or sections therein; CBP offices at ports of entry, including any divisions, subdivisions or sections therein; and/or any other CBP organizational structure; and which relate or refer in any way to any of the following:
o Attorneys' ability to be present during their clients' interactions with CBP;
o What role attorneys may play during their clients' interactions with CBP;
o Attorney conduct during interactions with CBP on behalf of their clients;
o Attorney appearances at CBP offices or other facilities.

Mot., Exh. B (March 14, 2011, Letter from Emily Creighton to FOIA Division, U.S. Customs and Border Protection) at 1 (footnote omitted). The request " include[d], but [was] not limited to" ten specific types of records. Id. at 1-2.

After six months of squabbling over the adequacy of the Government's search and the extent to which certain responsive documents were already publicly available, see Mot., Exh. D (May 12, 2011, Letter from Dorothy Pullo to Emily Creighton) at 1, Defendants produced two pages of responsive records. See Mot., Exh. G (Sept. 29, 2011, Letter from Shari Suzuki to Emily Creighton) at 10. Dissatisfied with the agency's response and the decision on administrative appeal, AIC filed suit in this Court in November 2011. See Opp. at 1. The suit apparently prompted Defendants to conduct a more thorough search, which -- over the course of several months in late 2012 and early 2013 -- revealed more than 300 responsive documents. See id. The Government released some of those documents in full, disclosed some in part, and withheld several altogether based on various FOIA exemptions. See id. at 1-2; ECF Nos. 20-25, 27-29, 31, 38 (status reports updating the Court on progress of production). It has now moved for summary judgment.

The parties have continued to meet to discuss the adequacy of Defendants' searches and the applicability of certain exemptions, as well as the specific redactions the Government made to the documents it produced. This process was fruitful: AIC has dropped its challenge to Defendants' search, and it decided to contest the applicability of the claimed exemptions in only ten records. See Opp. at 2; ECF No. 36. That number then dropped to nine and, eventually, to the seven documents that remain at issue today. See Mot., Exh. H (October 25, 2013, E-mail from Erin Davenport to Marian Borum) at 1. AIC, moreover, has chosen not to contest those redactions that were made pursuant to Exemption 2, 3, 6, or 7(C); it will, instead, focus only on Exemptions 5 and 7(E) and the Government's decision to withhold one document as unresponsive to its FOIA request. See Opp. at 3. AIC also disputes that Defendants have sufficiently segregated disclosable material within the disputed documents.

Three weeks ago, the Court ordered Defendants to produce the remaining seven documents for in camera inspection, see Order of February 25, 2014, which they accomplished ahead of schedule. Having completed its review, the Court now turns to Plaintiff's substantive challenges.

II. Legal Standard

Summary judgment may be granted if " the movant shows 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). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (" Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude

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the entry of summary judgment." ). In the event of conflicting evidence on a material issue, the Court is to construe the evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087, 373 U.S.App.D.C. 308 (D.C. Cir. 2006).

" FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007). In those cases, the agency bears the ultimate burden of proof. See United States DOJ v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989), 109 S.Ct. 2841, 106 L.Ed.2d 112. The Court may grant summary judgment based solely on information provided in an agency's affidavit or declaration when it 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." ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619, 393 U.S.App.D.C. 384 (D.C. Cir. 2011). Such affidavits or declarations are accorded " a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200, 288 U.S.App.D.C. 324 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771, 224 U.S.App.D.C. 1 (D.C. Cir. 1981)).

III. Analysis

Congress enacted FOIA in order " to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation 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." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (citation omitted). The statute provides that " each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(3); Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

" Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious," the Freedom of Information Act " expressly places the burden 'on the agency to sustain its action' and directs the district courts to 'determine the matter de novo.'" Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). " At all times courts must bear in mind that FOIA mandates a 'strong presumption in favor of disclosure'. . . ." Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32, 353 ...


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