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Poitras v. Department of Homeland Security

United States District Court, District of Columbia

March 29, 2018




         The plaintiff, Laura Poitras, a journalist and documentary filmmaker, Compl. ¶ 2, ECF No. 1, challenges the responses of the Federal Bureau of Investigation (“FBI”), a component of the Department of Justice (“DOJ”), and U.S. Customs and Border Protection (“CBP”), a component of the Department of Homeland Security (“DHS”), to her records requests submitted pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.[1] The requests at issue seek “all agency records concerning, naming, or relating” to the plaintiff and arise from repeated detentions, searches, and questioning of the plaintiff during her international travel over a span of six years. Compl. ¶¶ 15-27. Pending before the Court are the defendants' second motion for summary judgment and the plaintiff's second cross-motion for summary judgment. See generally Defs.' Second Mot. Summ. J. (“Defs.' Mot.”), ECF No. 24; Pl.'s Second Cross-Mot. Summ. J. (“Pl.'s Cross-Mot.”), ECF No. 26. For the reasons set forth below, the defendants' motion is granted and the plaintiff's cross-motion is denied.

         I. BACKGROUND

         Summarized below is the factual background underlying the plaintiff's FOIA requests and a review of the defendants' responses.

         A. Background on the Plaintiff

         The plaintiff is a U.S. citizen and “professional documentary filmmaker, journalist, and artist” based in New York. Pl.'s Cross-Mot, Ex. 3, Pl.'s Second Statement of Material Facts (“Pl.'s SMF”) ¶ 3, ECF No. 26-3.[2] For the past decade, the plaintiff has been documenting “post-9/11 America” and often travels to Europe and the Middle East for her work. Pl.'s First Cross-Mot. Summ. J. (“Pl.'s First Cross-Mot.”), Ex. 2, Declaration of Laura Poitras (“Pl.'s First Decl.”) ¶ 1-2, ECF No. 18-2; Pl.'s SMF ¶¶ 3-4. The plaintiff initiated this action due to her “desire to understand why she was stopped, detained, and questioned at the U.S. border by her own government for every international flight she took entering her own country for six years.” Pl.'s Cross-Mot. at 1 (emphasis in original). The exhibits submitted by the plaintiff appear to provide an explanation: namely, that her presence at, followed by her dissembling about, a fatal ambush of U.S. soldiers in Iraq raised suspicions about her prior knowledge of, and complicity in, the ambush.

         The plaintiff submitted exhibits that describe a harrowing ambush of U.S. Forces, on November 20, 2004, in Adhamiya, Iraq, that resulted in the death of one American soldier and serious injuries to several others. See Pl.'s Reply Supp. Second Cross-Mot Summ. J. (“Pl.'s Reply”), Ex. A, Letter from U.S. Army Criminal Investigation Command (“USACIC”) to FBI (“USACIC Package”) at A-1, ECF No. 35-1. In the midst of this ambush, two soldiers witnessed an “unusual” sight, id. at A-17: “a white female and an Iraqi male on the roof of a building” overlooking the site of the ambush, id. at A-9, with the woman holding, “over her head, ” an “expensive looking” video camera “with a sound boom microphone on top, ” id. at A-17. The soldiers' description of this woman resembled the plaintiff, Laura Poitras. Id.

         Two days after the ambush, a Lieutenant Colonel from the U.S. Army met at the military base in the area with the Chairman and Vice-Chairman of the Adhamiya District Council. Id. at A-11. The plaintiff also attended this meeting and was denied permission to film the meeting. Id. During the ensuing discussion, the Lieutenant Colonel asked the Vice-Chairman whether he had been present during the ambush. Id. at A-13. The Vice-Chairman said he was not, but Army officers “noticed he was looking up and to the left, as if he were creating a memory, or about to not tell the truth.” Id. The plaintiff was then asked directly “if she had ever seen any of these attacks or gotten these attacks on video.” Id. at A-14. The plaintiff, “who had thus far sat through the entire meeting without saying a word, suddenly appeared nervous” and “made a sound that sounded like no, but her lower lip seized up as she spoke and all that came out was a nervous sound.” Id.

         A second Army officer who was present also observed that “Ms. Poitras' lower lip began quivering” when these questions were asked and that “her body instantly became tense and she leaned forward and crossed her arms” when the Vice-Chairman was asked about his whereabouts at the time of the ambush. Id. This behavior “was not consistent with her average body language throughout the meeting.” Id. The Lieutenant Colonel explained that he asked the plaintiff and the Vice-Chairman these questions because two soldiers at the ambush had “witnessed a white female and an Iraqi male on the roof of a building overlooking” the ambush site. Id. In fact, after the meeting concluded, the plaintiff “was deliberately walked past these two soldiers who agreed later that Laura POITRAS was in fact the woman they observed on the roof top, ” id. at A-20. This identification of the plaintiff by two eyewitnesses was directly contrary to her mumbled denial about being present at the ambush.

         After returning from Iraq, the Lieutenant Colonel was interviewed about his war experiences by a historian, who later provided a sworn statement to the FBI as well as copies of his communications with the plaintiff. In her communications with the historian, the plaintiff confirmed that she “was in Adhamiya on the 19th . . . and 20th filming” and had been “staying in the house of an Iraqi family.” Id. at A-22. She further confirmed that “yes, indeed, I was the western woman w/camera & unarmed Iraqi civilians on the roof.” Id. at A-24. In addition, she stated that her “footage is really focusing on the family. [T]here are a couple telephoto shots of the street, but nothing I'd consider a document of events.” Id.

         According to the historian's sworn statement, before the ambush, “all the businesses along the streets were closed, ” “metal gates were barring many of the store fronts, ” and “[t]here was no one on the streets, which is unusual for a Saturday morning in downtown Baghdad.” Id. at A-20. In addition, “some of the windows had been taped from the inside to prevent glass from flying into stores and residences should they break, ” indicating to him that “[i]t's obvious that the neighborhood knew about and was prepared for an attack.” Id.[3] Based on his communications with the plaintiff and his own observations, the historian reported in his sworn statement that “I believe Laura POITRAS had prior knowledge and the ability to report the forthcoming attack; however, purposely did not report this so she could obtain footage of the attack for her documentary.” Id.

         On January 31, 2006, the Lieutenant Colonel's final debrief memorandum was sent to USACIC. Id. at A-1. In early 2006, USACIC conducted its own investigation into the plaintiff's involvement in the ambush, ultimately concluding that “credible information does not presently exist to believe Ms. Poitras committed a criminal offense, ” while noting that “this could quickly change if Ms. Poitras were to be interviewed and admitted she had knowledge of the ambush and refused to notify U.S. Forces in order to further her documentary and media interest.” Id. at A-2. USACIC sent this package of documents and reports to the FBI on April 6, 2006, “for any action you deem appropriate.” Id. The FBI opened an investigation into the plaintiff and her possible involvement in the ambush. See Defs.' Reply Supp. Second Mot. Summ. J. (“Defs.' Reply”) at 2, ECF No. 30; Pl.'s Reply at 7-8.

         In July 2006, shortly after the FBI opened its investigation, the plaintiff began being detained and questioned at the U.S. border when she returned to the United States from international travel. Compl. ¶¶ 9-10. The plaintiff claims that from July 2006 through April 2012, she was detained every time she entered the country and occasionally was detained in foreign countries before boarding a return flight to the United States. Id. ¶¶ 10-25; Pl.'s SMF ¶ 7. Each time she returned to the United States, CBP agents met her at the gate when her flight landed, detained and questioned her, and searched her bags before eventually allowing her to reenter the country. Pl.'s SMF ¶¶ 7-8. Agents frequently would make photocopies of the plaintiff's travel documents during these encounters, and on about ten occasions, agents made photocopies of the plaintiff's “reporters' notebooks and/or the contents of her pockets and wallet, including receipts, credit cards, and business cards.” Id. ¶ 9. The plaintiff estimates that during this time, she was “detained, questioned, and searched on almost 40 occasions.” Id. ¶ 8.

         In April 2012, another journalist published an article about the plaintiff's detentions and questioning while traveling, and a group of documentary filmmakers submitted a petition to DHS protesting the plaintiff's routine detentions. Compl. ¶ 10. In June 2012, the plaintiff “was detained, questioned, and searched for the last time and has not been detained at the U.S. border since.” Pl.'s SMF ¶ 8.

         B. Plaintiff's FOIA Request and the Agencies' Responses

         On January 24, 2014, the plaintiff sent FOIA requests, pursuant to 5 U.S.C. § 552, to DHS, CBP, U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), and the Transportation Security Administration (“TSA”), seeking “all agency records concerning, naming, or relating to Ms. Poitras.” Compl. ¶ 27; see also Defs.' First Mot. Summ. J. (“Defs.' First Mot.”), Ex. 9, Declaration of Kevin L. Tyrrell (DHS) (“Tyrrell Decl.”) ¶ 7, ECF No. 14-8; Defs.' First Mot., Ex. 4, Declaration of Sabrina Burroughs (CBP) (“Burroughs Decl.”), Attach. A, Letter from David L. Sobel to CBP (“CBP Request”) at 20, ECF No. 14-3; Defs.' First Mot., Ex. 7, Declaration of Jill A. Eggleston (USCIS) (“Eggleston Decl.”), Attach. A, Letter from David L. Sobel to USCIS (“USCIS Request”) at 7, ECF No. 14-6; Defs.' First Mot., Ex. 8, Declaration of Fernando Pineiro (ICE) (“Pineiro Decl.”), Attach. A, Letter from David L. Sobel to ICE (“ICE Request”) at 14, ECF No. 14-7; Defs.' First Mot., Ex. 5, Declaration of Regina Ann McCoy (TSA) (“McCoy Decl.”), Attach. A, Letter from David L. Sobel to TSA (“TSA Request”) at 12, ECF No. 14-4. That request was also sent, on the same day, to the Office of the Director of National Intelligence (“ODNI”) and the FBI, with the identification of specific locations within those agencies to be searched. For example, the request to ODNI sought “records maintained by the National Counterterrorism Center (‘NCTC'), ” Compl. ¶ 29, while the request to the FBI asked that “the FBI perform a complete and thorough search of all filing systems and locations for all records maintained by the Bureau pertaining to Ms. Poitras, ” including “files and documents captioned in (or whose captions include) her name in the title” located on “the Central Records System, Electronic Surveillance Records (ELSUR), and Electronic Case File (ECF), ” id. See also Defs.' First Mot., Ex. 3, Declaration of Jennifer L. Hudson (ODNI) (“Hudson Decl.”), Attach. A, Letter from David L. Sobel to ODNI (“ODNI Request”) at 15, ECF No. 14-2; Defs.' First Mot., Ex. 2, Public Declaration of David M. Hardy (FBI) (“First Hardy Decl.”), Attach. A, Letter from David L. Sobel to FBI (“FBI Request”) at 57-58, ECF No. 14-1. The plaintiff also “[s]pecifically request[ed] that the Bureau conduct a text search of the ECF to identify all potentially responsive main and cross-reference files, ” including both “‘main' files and ‘see references.'” FBI Request at 57. In her pending cross-motion for summary judgment, the plaintiff challenges only the responses of the FBI and the CBP.[4] Accordingly, those agencies' responses are detailed below.

         1. FBI Response

         Upon receiving the plaintiff's FOIA request, the FBI opened Request Number 1250943-000. First Hardy Decl. ¶ 7. Starting on February 2, 2015, the FBI referred sets of pages to other agencies, including USACIC, the U.S. Army, the Executive Office for United States Attorneys (“EOUSA”), the Department of the Air Force, the U.S. Army Intelligence and Security Command (“USAISC”), the Central Intelligence Agency (“CIA”), CBP, the Department of State, the Department of Transportation, and the National Guard Bureau for direct response to the plaintiff or for coordination with the FBI. Id. ¶¶ 96-109. On May 29, 2015, the plaintiff filed an administrative appeal with the FBI's Office of Information Policy (“OIP”). Id. ¶ 8. OIP acknowledged the plaintiff's appeal and assigned it appeal number AP-2015-04130 before advising the plaintiff, on July 13, 2015, that “no adverse determination ha[d] yet been made by the FBI” so “there was no action for OIP to consider on appeal.” Id. ¶¶ 9-10.

         The plaintiff initiated this lawsuit on July 13, 2015. On October 14, 2015, the FBI made its first interim release of records to the plaintiff. Id. ¶ 12. After reviewing 145 pages of records, the FBI released 62 pages, in full or in part, and neither confirmed nor denied the existence of information indicating whether the plaintiff was or had been on a federal watch list. Id. This initial release was followed by a second release, on November 10, 2015, of 8 pages, in full or in part; a third release, on December 14, 2015, of 10 pages, in full or in part; a fourth interim release, on February 16, 2016, of 120 pages, in full or in part; and a final release, on March 4, 2016, of 57 pages, in full or in part. Id. ¶¶ 13-16. While briefing the pending motions, the FBI discovered that six pages “related to the closure of the FBI's investigation into Plaintiff's activities in Iraq[ ] had been inadvertently overlooked during the processing phase and were not processed and provided to Plaintiff.” Defs.' Reply, Ex. 1, Fourth Declaration of David M. Hardy (FBI) (“Fourth Hardy Decl.”) ¶ 4, ECF No. 30-1. Those six pages were provided to the plaintiff in a letter dated September 22, 2017, with some information withheld pursuant to Exemptions 5, 6, 7(C), and 7(E). Id. In total, the FBI identified 350 responsive pages, released in full 1 page, released in part 262 pages, and withheld in full 87 pages. First Hardy Decl. ¶ 110; Fourth Hardy Decl. ¶¶ 4, 8 & n.1.

         In conducting its search, the FBI used the terms “Laura Poitras, ” “Laura Susan Poitras, ” “Lara Susan Poitras, ” a three-way phonetic breakdown of “Laura Poitras, ” and an on-the-nose search for “Laura Susan Poitras” and “Lara Susan Poitras.” First Hardy Decl. ¶ 28. To justify its withholdings, the FBI relied on FOIA Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E). Id. ¶¶ 12-15. As relevant to the pending motions, the FBI relied on Exemption 5 to withhold “privileged deliberative materials, ” including an “intra-agency analysis from the New York Field Office” in which analysts are “discussing results of database checks conducted to aid in the investigation at issue and whether a court order or coordination with other agencies needed to be considered.” Id. ¶¶ 60, 62. Invoking Exemption 7(A), the FBI withheld “file numbers of pending FBI investigations.” Id. ¶ 77. The FBI also withheld, pursuant to Exemption 7(D), “the identity as well as the information provided by an intelligence agency of a foreign government with an implicit understanding of confidentiality, ” id. ¶ 81, and “information regarding an individual source who is a source symbol numbered informant under an express grant of confidentiality, ” id. ¶ 85. Finally, the FBI withheld eight types of information under Exemption 7(E), including “sensitive case file numbers”; “internal e-mail addresses, non-public intranet web addresses, and a secure internal e-mail tool”; “information pertaining to the types and dates of investigations referenced in the records at issue”; “methods and techniques involving the location and identity of FBI units and/or joint units that were involved in this investigation”; “methods the FBI uses to collect and analyze the information it obtains for investigative purposes”; “the investigative focus of specific FBI investigations”; “strategies and law enforcement techniques utilized by the United States military and the FBI for countering [techniques, tactics, and/or procedures (“TTPs”)] of a terrorist organization in Iraq” and “TTPs utilized by that terrorist organization”; and “monetary amounts requested by FBI personnel and/or paid by the FBI in order to implement particular investigative techniques.” Id. ¶¶ 87-94. The plaintiff now challenges the withholdings under Exemptions 5 and 7.

         2. CBP Response

         After receiving and reviewing the plaintiff's request, CBP FOIA staff determined that responsive records within CBP's control were likely to be found within two CBP systems- TECS and the Automated Targeting System (“ATS”)-and performed searches on those databases “using Plaintiff's name and date of birth.” Burroughs Decl. ¶ 5.[5] CBP searched TECS and its subsystems for all responsive records through June 16, 2015, and, on November 12, 2015, after the plaintiff initiated this lawsuit, released 492 pages of records from TECS to the plaintiff as part of an initial production. Id. ¶ 18; see also Burroughs Decl., Attach. B, Letter from Christie Sharpe to David Sobel (“CBP Response”) at 23, ECF No. 14-3. As for the ATS records, CBP ran a query “with Plaintiff's name and date of birth” and on November 12, 2015, CBP released 220 pages of partially redacted records to the plaintiff. Burroughs Decl. ¶ 26. The plaintiff does not challenge any of CBP's withholdings. See Pl.'s First Cross-Mot. at 2; Order Denying Mots. Summ. J. Without Prejudice and Requiring Submission of a Vaughn Index (“Summ. J. Order”) at 6, ECF No. 22 (K.B. Jackson, J.).

         While processing the plaintiff's request, “CBP FOIA became aware that additional responsive records” were likely to be found in CBP's New York field office. Burroughs Decl. ¶ 30; see also id. ¶ 5 (“CBP personnel further determined that responsive records, both paper and electronic, were likely to be found within CBP's New York field office.”). These records specifically related to “an encounter between Plaintiff and CBP on August 1, 2010, at JFK International Airport.” Id. ¶ 30. Following up on this lead, CBP conducted a supplemental search by enlisting personnel from the New York field office to search “paper files known or reasonably believed to include records relating to Plaintiff or the August 1, 2010 encounter.” Id. ¶ 31. In addition to the manual search of paper records in the New York field office, an additional “electronic search” was performed “using search criteria reasonably tailored to identify all records that may be responsive to the Request.” Id. CBP also searched the records of “several custodians deemed reasonably likely to have information related to Plaintiff or the August 1, 2010 encounter, us[ing] the timeframe of August 1, 2010 through October 31, 2010 so as to capture all known or reasonably likely to exist records concerning Plaintiff or the August 1, 2010 encounter.” Id. The New York field office's search “utilized search terms that included ‘Poitras, ' ‘Laura Poitras, ' and the name and email address of Plaintiff's legal counsel related to the August 1, 2010 encounter, ‘David B. Smallman' and ‘'” Id. On February 27, 2016, CBP released 223 pages of partially redacted documents from the New York field office. Id. In addition, CBP withheld in full 26 documents, totaling 3, 182 pages, from the New York field office pursuant to Exemptions 5, 6, 7(C), and 7(E). Id. ¶ 38.

         The plaintiff does not challenge CBP's withholdings in the pending motion but rather challenges the adequacy of CBP's search. See Summ. J. Order at 3 n.2, 6.

         C. The FOIA Lawsuit

         The plaintiff initiated this lawsuit on July 13, 2015, challenging the agencies' responses to her request. The parties' first motions for summary judgment were granted in part and denied in part on March 31, 2017. See supra, n.4; Summ. J. Order at 6. Specifically, the defendants' motion was granted, as conceded, with respect to “(1) the withholdings of CBP, TSA, and ODNI, (2) the FBI's withholdings under FOIA Exemptions 1, 3, 6, and 7(C), and (3) the adequacy of the searches for documents by the FBI, the ODNI, DHS, CIS, ICE, and TSA.” Summ. J. Order at 6. The Court noted that neither of the FBI's two declarations from the FBI's lead FOIA officer “contain[ed] a full Vaughn Index or any other detailed listing of the documents and information that the agency is withholding, or the particularized justifications for each withholding.” Id. at 3. Thus, the pending motions were granted in part and denied in part to “provide the agency with an opportunity to refile the motion with the requisite supporting documents.” Id. at 6. Although the plaintiff's first cross-motion challenged the adequacy of CBP's search on the same grounds given in the pending motion, see Pl.'s First Cross-Mot. at 20-23, the first Summary Judgment Order focused only on the FBI's withholdings and did not address or resolve any issues regarding CBP, see Summ. J. Order at 3-6. The parties' second motions for summary judgment are now pending before this Court.[6]


         Federal Rule of Civil Procedure 56 provides that summary judgment shall 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). “In FOIA cases, ‘summary 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 (D.C. Cir. 2013) (internal quotation marks and alteration omitted) (quoting Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). Indeed, the D.C. Circuit has observed that “the vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

         The FOIA was enacted “to promote the ‘broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request.” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public's interest in governmental transparency and “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 (D.C. Cir. 2010) (alteration adopted) (quoting Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc)), the FOIA contains nine exemptions, set forth in 5 U.S.C. § 552(b), which “are explicitly made exclusive and must be narrowly construed, ” Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citation omitted); see also Murphy v. Exec. Office for U.S. Attorneys, 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (“CREW”), 746 ...

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