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Center for Biological Diversity v. U.S. Army Corps of Engineers

United States District Court, District of Columbia

September 27, 2019

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,
v.
U.S. ARMY CORPS OF ENGINEERS, and U.S. CUSTOMS AND B PROTECTION, Defendants.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge

         Plaintiff 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.

         Concerned 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.

         The 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 plaintiff’s cross-motion.

         I. Background

         Unless 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.

         This 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.[1] The Center made the same request of the U.S. Department of Homeland Security (“DHS”). Pl.’s SOMF, ECF No. 22-2 ¶ 5.

         The Army Corps “produced . . . a total of 661 records . . . in full or in part, ” and “with[eld] 152 pages of ‘attachments’ in their entirety.”[2] 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.

         On May 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.

         On 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.

         CBP 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.

         Defendants 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).

         The 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.

         II. Standard of Review

         A. Summary Judgment

         Pursuant 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).

         B. FOIA Exemptions

         FOIA 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).

         The 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 disputed information.”).

         Agency 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)).

         III. Analysis

         Defendants 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.”[3] 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).”[4] 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.[5] 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 Exemption 6.

         Accordingly, 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.

         A. Adequacy of the Search for Records

         Under 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. 1990)(citations omitted).

         A court 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 ...


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