United States District Court, District of Columbia
G. Sullivan United States District Judge
Center for Biological Diversity (“Center”) brings
this action pursuant to the Freedom of Information Act, 5
U.S.C. § 552 (“FOIA”), seeking, among other
things, disclosure of records withheld by Defendants U.S.
Army Corps of Engineers (“Army Corps”) and U.S.
Customs and Border Protection (“CBP”)
(collectively “Defendants”). The withholdings are
documents that were provided to President-elect Trump’s
Transition Team that concern then-candidate Trump’s
campaign promise to construct a wall along the United
States’ southern border.
for the biological diversity of the U.S.-Mexico Borderlands,
particularly the allegedly imperiled wildlife species that
currently reside there, the Center submitted a FOIA request
to the Army Corps and CBP in an attempt to understand how the
defendants advised the Presidential Transition Team on the
border wall. In response to the FOIA request, defendants
produced over 5, 000 documents with many records redacted or
withheld pursuant to several FOIA exemptions.
Center has challenged defendants’ withholdings pursuant
to the various claimed FOIA exemptions. Pending before the
Court are the parties’ cross-motions for summary
judgment. Upon careful consideration of the parties’
submissions, the applicable law, and the entire record
herein, the Court GRANTS defendants’
motion for summary judgment, and DENIES the
otherwise noted, the following facts are taken from the
Complaint, ECF No. 1, and from the parties’ statements
of undisputed material facts, See Defs.’
Statement of Material Facts (“Defs.’
SOMF”), ECF No. 21-1; Pl.’s Statement of Material
Facts (“Pl.’s SOMF”), ECF No. 22-2.
case involves a FOIA request by the Center to the United
States Army Corps, in which the Center requested the
following documents: “all records . . . that reference
walls, barriers, and/or other physical constructions along
the U.S.Mexico border and/or U.S. Canada border, for purposes
of the Presidential transition process, created for and/or
provided to brief members of the Presidential Transition Team
and/or their representatives.” Defs.’ SOMF, ECF
No. 21-1 at 1 ¶ 1. The Center made the same request of the
U.S. Department of Homeland Security (“DHS”).
Pl.’s SOMF, ECF No. 22-2 ¶ 5.
Army Corps “produced . . . a total of 661 records . . .
in full or in part, ” and “with[eld] 152 pages of
‘attachments’ in their
entirety.” Pl.’s SOMF, ECF No. 22-2
¶¶ 18, 19. The Army Corps withheld the information
pursuant to FOIA Exemptions 5, 6, and 7(E). Id.
¶¶ 21–23. CBP released in whole or in part
“approximately 4, 264 pages of responsive
records.” Howard Decl., ECF No. 21-2 ¶ 25. CBP
withheld information pursuant to FOIA Exemptions 4, 5, 6,
7(C) and 7(E). Id. DHS made a final determination on
the Center’s FOIA request on May 30, 2017. Pl.’s
SOMF, ECF No. 22-2 ¶ 14. The Center appealed the
decision on July 3, 2017, id. ¶ 15, and DHS
made a final determination on the appeal on March 1, 2018,
id. ¶ 16.
31, 2017, the Center filed this action alleging that
defendants violated FOIA, Compl., ECF No. 1 at 9-15
¶¶ 46-90, or alternatively, the Administrative
Procedure Act. Id. at 15-20 ¶¶ 91-116. The
Center “seeks declaratory relief establishing that
defendants are in violation of FOIA, or alternatively
APA”, and “injunctive relief directing defendants
to provide it with responsive records without any further
delay.” Id. ¶ 7.
October 31, 2017, pursuant to a court-ordered schedule, Army
Corps produced 661 pages of partially redacted records,
including emails and attachments. See Declaration of
Damon Roberts (“Roberts Decl.”), ECF No. 21-3
¶ 7. Army Corps redacted employee names and contact
information from 30 records pursuant to Exemption 6, sections
of 27 records in part or records in full pursuant to
Exemption 5, and portions of 6 records containing photos,
maps, and specific locations of fencing and infrastructure
pursuant to Exemption 7(E). See Roberts Decl., ECF
No. 21-3 ¶¶ 8, 10, 13, 15; id. at Ex. D.
released 7 batches of records totaling 4, 494 pages, with
many records redacted or withheld pursuant to Exemptions 4,
5, 6, 7(C), and 7(E). Howard Decl., ECF No. 21-2 ¶ 25;
id. at Ex. D. CBP redacted information from 7
records pursuant to Exemption 4, redacted or withheld 50
records pursuant to Exemption 5, redacted names and contact
information from 68 records pursuant to Exemption 6, and
redacted 92 records pursuant to Exemption 7(E). Howard Decl.,
ECF No. 21-2 ¶¶ 34-35, 42, 46, 52-55; id.
at Ex. A.
filed a motion for summary judgment arguing that they were
entitled to relief because they “performed multiple
searches which were reasonably calculated to locate
responsive records, ” and “produced all
non-exempt responsive records to [the Center] after properly
withholding only such information that is subject to . . .
FOIA Exemptions 4, 5, 6, and 7.” Defs.’ Mot.
Summ. J., ECF No. 21 at 3-4. In support of their motion, the
Army Corps submitted the declaration of Damon Roberts,
counsel responsible for processing FIOA requests at Army
Corps at the time. Roberts Decl., ECF No. 21-3 ¶ 2. CBP
submitted the declaration of Patrick Howard, Branch Chief
within the FOIA Division at CBP. Howard Decl., ECF No. 21-2
¶ 1. The Army Corps and CBP also submitted their
respective Vaughn indices. Ex. D, ECF No. 21-3 at
20; Ex. A, ECF No. 21-2 at 18. See Vaughn v. Rosen,
484 F.2d 820 (D.C. Cir. 1973).
Center opposed defendants’ motion and filed a
cross-motion for summary judgment challenging the
withholdings to certain pages of produced documents on the
basis of Exemptions 4, 5, 6, and 7. Pl.’s Cross-Mot.,
ECF No. 22 at 11. The parties have filed replies and the
parties’ motions are now ripe for disposition.
Standard of Review
to Federal Rule of Civil Procedure 56, summary judgment
should be granted if the moving party has shown that there
are no genuine issues of material fact and it is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp v. Catrett, 477 U.S. 317, 325 (1986). In
determining whether a genuine issue of material fact exists,
the court must view all facts in the light most favorable to
the non-moving party. See Mastushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). FOIA cases
are typically and appropriately decided on motions for
summary judgment. Gold Anti-Trust Action Comm. Inc. v.
Bd. Of Governors of Fed. Reserve Sys., 762 F.Supp.2d
123, 130 (D.D.C. 2011)(citations omitted). In ruling on
cross-motions for summary judgment, the court 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. FEC, 424
F.Supp.2d 100, 109 (D.D.C. 2006).
requires agencies to disclose all requested agency records,
unless one of nine statutory exemptions applies. 5 U.S.C.
§ 552 (a), (b). Congress enacted FOIA to “pierce
the veil of administrative secrecy and to open agency action
to the light of public scrutiny.” Morley v.
C.I.A., 508 F.3d 1108, 1114 (D.C. Cir. 2007)(quoting
Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976)). Because disclosure rather than secrecy is the
“dominant objective of the Act, ” the statutory
exemptions are “narrowly construed.” See
McKneely v. United States Dept. of Justice, 2015 WL
5675515 at *2 (D.D.C. 2015) (internal citations omitted).
government bears the burden of justifying nondisclosure,
either through declarations or an index of information
withheld. See e.g., Consumers’ Checkbook, 554
F.3d 1046 at 1057 (D.C. Cir. 2009) and Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973) (holding that an
indexing system was necessary in FOIA cases to “(1)
assure that a party’s right to information is not
submerged beneath governmental obfuscation and
mischaracterization, and (2) permit the Court system
effectively and efficiently to evaluate the factual nature of
affidavits and declarations must be “relatively
detailed and non-conclusory.” SafeCard Services v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)(internal
quotation marks and citation omitted). 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.”
Id. Courts must conduct a de novo review of
the record and may grant summary judgment solely on the basis
of information provided by the department or agency in
affidavits or declarations that describe the documents and
justifications for nondisclosure with “reasonably
specific detail.” Cause of Action v. Federal Trade
Com’n, 961 F.Supp.2d 142, 153
(D.D.C.2013)(quoting Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)).
initially withheld information pursuant to FOIA Exemptions 4,
5, 6, 7(C), and 7(E). The Center, however, has clarified that
it “does not challenge the Army Corps’ redactions
of ‘names and contact information of active duty and
civilian [Department of Defense “(DoD)”]
personnel, ’ or ‘personal phone numbers and
personal email addresses of DoD employees’ pursuant to
Exemption 6.” Pl.’s Cross-Mot., ECF No. 22 at 14
n.1 (quoting Roberts Decl., ECF No. 21-3 ¶¶
12–13). Nor does the Center challenge
“CBP’s redactions of law enforcement
officers’ and contractors’ names or contact
information pursuant to Exemption 6 and Exemption
7(C).” Id. (citing Howard Decl., ECF No.
21-2 ¶¶ 46, 49). The Center contested the
withholding of certain information pursuant to Exemption 4,
but in defendants’ reply brief, CBP stated that it was
releasing the contested information. Defs.’ Reply, ECF No.
27 at 2. Therefore, no disputes remain concerning CBP’s
Exemption 4 withholdings, or withholdings pursuant to
Exemption 7(C) and Army Corps withholdings pursuant to
the only disputed issues are both defendants’
withholdings pursuant to Exemptions 5 and 7(E), and
CBP’s withholdings pursuant to Exemption 6, as to
non-law enforcement and agency employees only. The Court
first discusses the adequacy of defendants’ search for
records; and then discusses each claimed Exemption.
Adequacy of the Search for Records
FOIA, an agency must conduct a search that is
“reasonably calculated to uncover all relevant
documents.” Weisberg v. U.S. Dep’t of
Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). The
adequacy of an agency’s search is measured by a
standard of reasonableness “ and is dependent upon the
circumstances of the case.” Braun v. U.S. Postal
Service, 317 F.Supp.3d 540, 547 (D.D.C. 2018). An agency
has the burden to “show that it made a good faith
effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the
information requested . . . .” Oglesby v.
U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir.
generally determines the adequacy of a search “not by
the fruits of the search, but by the appropriateness of the
methods used to carry out the search.” Media
Research Ctr. v. U.S. Dep’t of Justice, 818
F.Supp.2d 131, 137 (D.D.C. 2001) (quoting Iturralde v.
Comptroller of the Currency, 315 F.3d 311, 315 (D.C.
Cir. 2003)(internal quotations omitted)). “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