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Electronic Privacy Information Center v. Customs and B Protection

United States District Court, District of Columbia

March 24, 2017

LECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
CUSTOMS AND B PROTECTION, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON United States District Judge

         The plaintiff, Electronic Privacy Information Center, submitted a request to the defendant, Customs and Border Protection, a component of the Department of Homeland Security (“DHS”), under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), seeking documents relating to the defendant's Analytical Framework for Intelligence (“AFI”) system. Complaint (“Compl.”) ¶ 2. The defendant has produced, in whole or in part, some documents in response to the FOIA request, and withheld certain other records pursuant to Exemption 7(E) of the FOIA, 5 U.S.C. § 552(b)(7)(E). See Joint Status Report at 2, ECF No. 13 (Feb. 27, 2015). The Court previously denied the defendant's initial motion for summary judgment, but granted in part and denied in part the plaintiff's motion, and in so doing, ordered the government to provide a more detailed Vaughn index supporting its reliance on Exemption 7(E). See Elec. Privacy Info. Ctr. v. Customs & Border Prot., 160 F.Supp.3d 354, 360-61 (D.D.C. 2016) (Walton, J). The parties' renewed cross-motions for summary judgment are currently pending before the Court. See Defendant's Consolidated Reply and Opposition to Plaintiff's Cross-Motion for Summary Judgment (“Def.'s Mot.”)[1]; Plaintiff's Combined Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment (“Pl.'s Mot.”). Upon careful consideration of the parties' submissions, [2] the Court concludes that it must deny the plaintiff's motion and grant the defendant's motion.

         I. BACKGROUND

         The Court previously set forth the relevant background of this case, see 160 F.Supp.3d at 356-57, which is unnecessary to revisit for the purpose of resolving the motions now pending resolution. Following the Court's resolution of the parties' first round of summary judgment motions, the defendant submitted a revised declaration and Vaughn index, see Supp. Burroughs Decl. ¶ 4 (“The purpose of this declaration and the attached Vaughn [i]ndex is to provide additional information as to why certain information was withheld from public disclosure pursuant to [Exemption 7(E)] in response to this Court's order from February 17, 2016 . . . .”), pursuant to which the defendant continues to withhold 269 pages of documents in whole or in part. Pl.'s Mem. at 13. The parties' renewed cross-motions concern four categories of information related to the AFI system that have been withheld by the defendant pursuant to Exemption 7(E): (1) screen shots of the system, Pl.'s Supp. Facts ¶ 1; (2) training materials for the system, id. ¶ 3; (3) “statements of work and purchase orders related to” the system, id. ¶ 5; and (4) sources of data for the AFI system, id. ¶ 7.

         II. STANDARD OF REVIEW

         The Court must grant a motion for summary judgment “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). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on “mere allegations or denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, “[c]onclusory allegations unsupported by factual data will not create a triable issue of fact.” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 908 (D.C. Cir. 1999) (alteration in original) (quoting Exxon Corp. v Fed. Trade Comm'n, 663 F.2d 120, 126-27 (D.C. Cir. 1980)). If the Court concludes that “the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof, ” then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Moreover, “in ruling on cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.” Shays v. Fed. Election Comm'n, 424 F.Supp.2d 100, 109 (D.D.C. 2006) (citation omitted).

         “FOIA cases are typically resolved on . . . motion[s] for summary judgment.” Ortiz v. U.S. Dep't of Justice, 67 F.Supp.3d 109, 116 (D.D.C. 2014); see also Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). “[The] FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions.” Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (citation omitted). In a FOIA action, the defendant agency has “[the] burden of demonstrating that the withheld documents [requested by the FOIA requester] are exempt from disclosure.” Boyd v. U.S. Dep't of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007) (citation omitted). The Court will grant summary judgment to the government in a FOIA case only if the agency can prove “that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Friends of Blackwater v. U.S. Dep't of Interior, 391 F.Supp.2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep't of Treasury, 10 F.Supp.2d 3, 11 (D.D.C. 1998)). To satisfy its burden and prove that it has fully discharged its FOIA obligations, a defendant agency typically submits a Vaughn index, which provides “a relatively detailed justification” for each withheld document, “specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of [the] withheld document to which they apply.” King v. Dep't of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987) (quoting Mead Data Cent. v. U.S. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)); see also Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973) (setting forth requirements for the agency's description of documents withheld to allow a court to assess the agency's claims). Thus, in a lawsuit brought to compel the production of documents under the FOIA, “an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly[, or partially, ] exempt [from disclosure].'” Students Against Genocide, 257 F.3d at 833 (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).

         III. ANALYSIS

         A. The Applicability of Exemption 7(E)

         Pursuant to Exemption 7(E), an agency may withhold:

[R]ecords or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law . . . .

5 U.S.C. § 552(b)(7)(E) (emphasis added). The plaintiff does not challenge whether the records withheld by the defendant were “compiled for law enforcement purposes, ” a threshold requirement for the applicability of Exemption 7(E), see Pl.'s Mem. at 5 (arguing only that the defendant's motion should be denied for reasons pertaining to the specific language of subparagraph (E) of Exemption 7), and the Court will thus turn to the question of whether the records would disclose techniques, procedures, or guidelines for law enforcement investigations or prosecutions.[3]

         Explaining the reasons for its reliance on Exemption 7(E), the defendant states that the AFI system's “capabilities and tools provide . . . the ability to detect trends, patterns, and emerging threats, ” which “are critical tools used by [Customs and Border Protection] officers to efficiently and effectively carry out [the defendant's] mission to prevent terrorists, their weapons, and other dangerous items from entering the United States.” Supp. Borroughs Decl. ¶ 9. In its opposition, the plaintiff contends that the defendant has failed to show that the AFI-related records at issue in this case are utilized for investigations or prosecutions, Pl.'s Mem. at 6-8, asserting that “[i]nvestigations or prosecutions under 7(E) include only ‘acts by law enforcement [occurring] after or during the commission of a crime, not crime-prevention techniques, '” id. at 6 (quoting Elec. Privacy Info. Ctr. v. DHS, 999 F.Supp.2d 24, 31 (D.D.C. 2013), rev'd on other grounds, 777 F.3d 518 (D.C. Cir. 2015)). But as this Court has observed in another case, nothing in the FOIA's language suggests that Exemption 7(E)'s scope is limited to records compiled in connection with criminal investigations. See Henderson v. Office of the Dir. of Nat'l Intelligence, 151 F.Supp.3d 170, 176 (D.D.C. 2016) (Walton, J.) (“If congress intended to limit Exemption 7(E)'s application to records compiled for criminal purposes only, it certainly knew how to do so.” (citing, as an example, 5 U.S.C. § 552(b)(7)(D), which refers to records “compiled by a criminal law enforcement authority in the course of a criminal investigation”)). The Court therefore rejects this argument by the plaintiff as unsupported by the statutory text of the FOIA.

         The plaintiff next argues that the defendant has failed to show how disclosure of the withheld documents “could reasonably be expected to risk circumvention of the law.” ...


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