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Center for Investigative Reporting v. U.S. Customs and Border Protection

United States District Court, District of Columbia

December 31, 2019

CENTER FOR INVESTIGATIVE REPORTING, Plaintiff,
v.
U.S. CUSTOMS AND BORDER PROTECTION and U.S. DEPARTMENT OF HOMELAND SECURITY, Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE

         The plaintiff, Center for Investigative Reporting, a “nonprofit investigative journalism organization, ” Compl. ¶ 2, ECF No. 1, challenges the response of the defendants-the U.S. Department of Homeland Security and its component agency, U.S. Customs and Border Protection (“CBP”)-to a request submitted pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for “[a]ny and all submissions, records, documents, white papers, memoranda and/or alike material related to border fence/border wall contract proposals, ” Compl., Ex. A, Pl.'s FOIA Request (“FOIA Request”), ECF No. 1-1. The parties have now cross-moved for summary judgment. Defs.' Mot. Summ. J., ECF No. 14; Pl.'s Opp'n Defs.' Mot. & Cross-Mot. Summ. J. (“Pl.'s Cross-Mot.”), ECF Nos. 15, 16. For the reasons set forth below, summary judgment is granted to the defendants with respect to the information withheld pursuant to FOIA Exemptions 3, 6, 7(C), and 7(E), which withholdings are no longer challenged by the plaintiff. Both the defendants' motion and the plaintiff's motion, however, are denied, without prejudice, with respect to the withholdings under FOIA Exemptions 4 and 5, which present novel issues about the FOIA Improvement Act of 2016, the Supreme Court's recent decision in Food Marketing Institute v. Argus Leader Media, 139 S.Ct. 2356 (2019), and the interrelation between these two recent developments in the law.

         I. BACKGROUND

         The FOIA request at issue seeks records related to “the first implementation of President Donald Trump's intention to build an updated border wall.” Compl. ¶ 9. Specifically, on March 17, 2017, CBP issued two Requests for Proposals (“RFPs”) “to design and build prototypes for a new border wall on the U.S.-Mexico border near Chula Vista, California.” Compl. ¶ 7; see Decl. of Shari Suzuki, CBP's Chief of the FOIA Appeals, Policy and Litigation Branch (“Suzuki Decl.”) ¶ 7, ECF No. 14-3. In response, potential contractors (“bidders” or “submitters”) submitted to CBP over 150 proposals, see Suzuki Decl. ¶ 14, which “included potential designs and materials to be used in construction, as well as more basic information about which companies were submitting proposals, ” Compl. ¶ 8.

         The following month, on April 24, 2017, the plaintiff filed a FOIA request for “[a]ny and all submissions, records, documents, white papers, memoranda and/or alike material related to border fence/border wall contract proposals.” FOIA Request. After conducting a search, the defendants located 6, 762 pages of responsive records in three CBP components. Suzuki Decl. ¶¶ II, 15. First, CBP's Office of Acquisition (“OA”), which “was responsible for overseeing the requests for proposals that are the subject of [the plaintiff's] request, ” id. ¶ 13, found 990 pages of responsive records, 946 pages of which were released in full and 44 pages in part, id. The OA responsive records “primarily consist of the successful proposals that were selected for contract award.” Id. Next, CBP's Office of Facilities and Asset Management (“OFAM”), which “manages CBP's facilities and tactical infrastructure portfolios including fencing along the Southwest border, ” id. ¶ 12, found 101 pages of responsive records, 1 page of which was released in full, 1 page of which was released in part, and 99 pages of which were withheld in full, id. The OFAM responsive records are predominantly made up of internal documents relating to the border wall. See Id. ¶¶ 12, 28. Lastly, CBP's Office of Information Technology (“OIT”), which, inter alia, managed the email account that “served as the primary point of contact between the public and CBP for matters related to the border wall RFP's that are the subject of [the plaintiff's] request, including the submission of proposals, ” id. ¶ 14, found 5, 671 pages of responsive records, id. Those records largely “consist[] ¶ 152 unsuccessful proposals (i.e., the proposals that were not selected by CBP to be awarded a contract), ” as well as emailed “questions and responses pertaining to the RFP's.” Id. 72 pages of those records were released in full, while 5, 489 pages were withheld in full and 110 pages withheld in part. Id. In sum, of the 6, 762 pages of responsive records located in these three CBP offices, the defendants released 1, 019 pages in full and 155 pages in part, and withheld 5, 588 pages in full. Id. ¶ 15.

         The defendants rely on FOIA Exemptions 3, 4, 5, 6, 7(C), and 7(E) as the basis for the redactions and withholdings, as set out in the defendants' Vaughn Index, see Suzuki Decl., Ex. A, Vaughn Index, ECF No. 14-3, [1] and further explained in two declarations from Sharon Suzuki, the Chief of CBP's FOIA Appeals, Policy and Litigation Branch, see Suzuki Decl.; Suppl. Decl. of Shari Suzuki, CBP's Chief of the FOIA Appeals, Policy and Litigation Branch (“Suppl. Suzuki Decl.”), ECF No. 17-1. The plaintiff does not contest the withholdings under Exemptions 3, 6, 7(C), and 7(E), see Pl.'s Cross-Mot. at 1; Pl.'s Reply Supp. Pl.'s Cross-Mot. (“Pl.'s Reply”) at 2 n.2, ECF No. 20, which exemptions account for all of the OA withheld records and the bulk of the OIT withheld pages.[2] The plaintiff, however, challenges the defendants' decision to redact, pursuant to Exemptions 4 and 5, 110 pages of emails to CBP, found by OIT, asking questions and expressing concerns about the RFPs, see Vaughn Index # 25, and to withhold, pursuant to Exemption 5, 106 pages of internal OFAM and OIT documents relating to the border wall, see Id. ## 3, 6-18, 20-21, 23-24, for a total of 216 challenged pages.[3]

         II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 56, 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.” Aguiar v. DEA, 865 F.3d 730, 734- 35 (D.C. Cir. 2017) (internal quotation marks omitted) (quoting Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)); see also Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (“[A]n 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 exempt from the Act's inspection requirements.'” (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978))). Most FOIA cases will be resolved on summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

         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)). To balance the public's interest in governmental transparency and “legitimate governmental and private interests [that] could be harmed by release of certain types of information, ” Judicial Watch, Inc. v. U.S. Dep't of Defense, 913 F.3d 1106, 1108 (D.C. Cir. 2019) (internal quotation mark omitted) (quoting FBI v. Abramson, 456 U.S. 615, 621 (1982)), FOIA has 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 the Navy, 562 U.S. 562, 565 (2011) (citations omitted) (first quoting EPA v. Mink, 410 U.S. 73, 79 (1979); and then quoting Abramson, 456 U.S. at 630). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976).

         FOIA authorizes federal courts to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). District courts must “determine de novo whether non-disclosure was permissible.” Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015). “FOIA places the burden ‘on the agency to sustain its action,' and the agency therefore bears the burden of proving that it has not ‘improperly' withheld the requested records.” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 922 F.3d 480, 487 (D.C. Cir. 2019) (citations omitted) (first quoting 5 U.S.C. § 552(a)(4)(B); and then quoting U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)); see also U.S. Dep't of Justice v. Landano, 508 U.S. 165, 171 (1993) (noting that “[t]he Government bears the burden of establishing that the exemption applies”). This burden does not shift even when the requester files a cross-motion for summary judgment because “the Government ‘ultimately [has] the onus of proving that the [documents] are exempt from disclosure, '” while the “burden upon the requester is merely ‘to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.'” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999) (alterations in original) (quoting Nat'l Ass'n of Gov't Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).[4]

         III. DISCUSSION

         The defendants' withholdings under both Exemption 4 and Exemption 5 implicate FOIA's relatively new statutory “foreseeable harm” requirement. The parties' briefing primarily addressed that requirement in discussion of Exemption 5, and thus that exemption is considered first.

         A. Exemption 5

         FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). This exemption “incorporates the privileges that the Government may claim when litigating against a private party, including the governmental attorney-client and attorney work product privileges, the presidential communications privilege, the state secrets privilege, and the deliberative process privilege.” Abtew v. U.S. Dep't of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015). Here, the defendants invoke the deliberative process privilege, which permits an agency to withhold “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated, ” Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) (internal quotation marks omitted) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)), in order that agencies may “craft better rules when their employees can spell out in writing the pitfalls as well as strengths of policy options, coupled with the understanding that employees would be chilled from such rigorous deliberation if they feared it might become public, ” Judicial Watch, Inc. v. U.S. Dep't of Defense, 847 F.3d 735, 739 (D.C. Cir. 2017).

         Pursuant to Exemption 5, the defendants have withheld in full 18 documents totaling 106 pages. See Vaughn Index ## 3, 6-18, 20-21, 23-24. These documents include, according to the defendants, “the interagency acquisitions supplement, best procurement approach for assisted acquisitions document, terms and conditions for assisted acquisitions document, border wall funding spreadsheets, interagency agreements, proposed responses to Congressional questions with edits, draft border wall communication and outreach strategy plan and outline, internal white paper documents pertaining to acquiring prototype wall designs, schedules pertaining to border wall matters, an internal risk register, [and] U.S. Border Patrol facilities and tactical infrastructure and Air and Marine PMO wall project requirement document.” Suzuki Decl. ¶ 28. Additionally, the defendants have withheld, via redaction, portions of 110 pages of emails to CBP asking questions and expressing concerns about the RFPs. See Vaughn Index # 25.

         While not expressly conceding that this withheld information is covered by the deliberative process privilege, the plaintiff makes little effort to dispute that claim. See Pl.'s Cross-Mot. at 6-9; Pl.'s Reply at 4-5. Instead, the plaintiff focuses its Exemption 5 arguments on the “foreseeable harm” requirement added to FOIA by the FOIA Improvement Act of 2016. See, e.g., Pl.'s Cross-Mot. at 6. This choice is not surprising. As discussed infra in Part III.A.2.a., the foreseeable-harm requirement is a “heightened standard, ” Judicial Watch, Inc. v. U.S. Dep't of Commerce (Judicial Watch I), 375 F.Supp.3d 93, 100 (D.D.C. 2019), and thus a FOIA requester may perceive a foreseeable-harm argument to be easier to advance than an argument about whether a FOIA exemption applies at the outset. Focusing exclusively on foreseeable harm, however, risks conflating an agency's failure to establish the basis for an exemption with failure to demonstrate foreseeable harm. In any event, the grant of summary judgment is inappropriate to any party unless the court is assured the record justifies this result, see Figueroa, 923 F.3d at 1095, and thus whether the withheld documents fall within Exemption 5's scope is considered first, before turning to foreseeable harm.

         1. The Defendants Have Failed to Establish that Exemption 5 Applies

         “To qualify for the deliberative process privilege, an intra-agency memorandum must be both pre-decisional and deliberative.” Abtew, 808 F.3d at 898 (citing Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). “A document is ‘predecisional' if it precedes, in temporal sequence, the ‘decision' to which it relates, ” id. (internal quotation marks omitted) (quoting Senate of P.R. v. U.S. Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987)), or was “‘prepared in order to assist an agency decisionmaker in arriving at his decision,' rather than to support a decision already made, ” Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168, 184 (1975)). Deliberative, in this context, means the record is “a part of the agency give-and-take-of the deliberative process-by which the decision itself is made.” Abtew, 808 F.3d at 899 (internal quotation marks omitted) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)).

         To gauge whether the deliberative-process privilege has been asserted appropriately, the government must explain, for each withheld record, at least, “(1) ‘what deliberative process is involved,' (2) ‘the role played by the documents in issue in the course of that process,' and (3) ‘the nature of the decisionmaking authority vested in the office or person issuing the disputed document[s], and the positions in the chain of command of the parties to the documents.'” Ctr. for Biological Diversity v. EPA, 279 F.Supp.3d 121, 147 (D.D.C. 2017) (citations omitted) (first quoting Senate of P.R., 823 F.2d at 585-86; then quoting id.; and then quoting Elec. Frontier Found. v. U.S. Dep't of Justice, 826 F.Supp.2d 157, 168 (D.D.C. 2011)). The government, not the requester, must identify the deliberative process to which any record relates. 100Reporters LLC v. U.S. Dep't of Justice, 248 F.Supp.3d 115, 152 (D.D.C. 2017) (citing Coastal States, 617 F.2d at 868).

         Here, the defendants' Exemption 5 withholdings are insufficiently explained in three critical respects: the deliberative process to which the withheld records relate, the decisionmaking authority, and the chronology.

         a. The Defendants' Descriptions of the Deliberative Process

         “[T]o approve exemption of a document as predecisional, a court must be able ‘to pinpoint an agency decision or policy to which the document contributed.'” Senate of P.R., 823 F.2d at 585 (quoting Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983)); see also Hunton & Williams LLP v. EPA, 248 F.Supp.3d 220, 241 (D.D.C. 2017) (“To justify its application of the deliberative process privilege, an agency must address . . . the nature of the specific deliberative process involved . . . . ” (internal quotation marks omitted) (quoting Nat'l Sec. Counselors v. CIA, 960 F.Supp.2d 101, 189 (D.D.C. 2013))); Trea Senior Citizens League v. U.S. Dep't of State, 923 F.Supp.2d 55, 68 (D.D.C. 2013) (“[A] broad and opaque description of the deliberative process involved does not provide the Court with enough detail about whether these documents are deliberative and predecisional.”); Elec. Frontier Found., 826 F.Supp.2d at 168 (“The Court finds this description inadequate because it fails to identify a specific deliberative process to which the withheld email messages contributed.”). Indeed, the D.C. Circuit has said that “[t]he failure to specify the relevant final decision constitutes a sufficient ground for remanding [Exemption 5 deliberative process claims] to the district court.” Senate of P.R., 823 F.2d at 585. “Without a sufficiently specific affidavit or Vaughn Index, a court cannot decide, one way or the other, a deliberative process privilege claim.” Elec. Frontier Found., 826 F.Supp.2d at 168 (internal quotation marks omitted) (quoting Judicial Watch v. USPS, 297 F.Supp.2d 252, 260 (D.D.C. 2004)).

         The defendants maintain that the documents withheld pursuant to Exemption 5 contributed to “administering the evolving and ongoing border wall contracting, procurement, and construction process.” Suzuki Decl. ¶ 30; see also, e.g., Vaughn Index # 3 (stating that documents were “part of administering the border wall contracting, procurement, and construction process”). An agency, the defendants argue, often “generate[s] memoranda containing recommendations which do not ripen into agency decisions, ” and thus the deliberative process privilege protects documents that “compris[e] part of a process by which governmental decisions and policies are formulated.” Suzuki Decl. § 29 (internal quotation marks omitted) (quoting Sears, 421 U.S. at 150, 151 n.18). Such application of the deliberative process privilege is called for here, the defendants further contend, because the withheld documents “contain information under consideration by CBP as the agency moved towards a decision on how to administer the evolving process.” Id. ¶ 30.

         The defendants have failed to identify the final decisions to which the withheld documents pertain. While the defendants are correct that the deliberative process privilege applies to documents that have not yet resulted in an agency decision, the withheld records here “may in fact pertain to a litany of subsidiary decisions that defendants fail to acknowledge.” Judge Rotenberg Educ. Ctr., Inc. v. FDA, 376 F.Supp.3d 47, 67 (D.D.C. 2019); see also 100Reporters LLC¸ 248 F.Supp.3d at 153 (rejecting agency argument that “would create a four-year umbrella effectively shielding all agency action from review without accounting for any subsidiary agency decisions”). The defendants' own declaration refers to the “ongoing process” to which the documents relate as a three-fold “contracting, procurement, and construction process.” Suzuki Decl. ¶ 30 (emphasis added). Moreover, some of the document descriptions in the defendants' Vaughn Index create the impression that the documents at issue might themselves be final subsidiary agency decisions. See, e.g., Vaughn Index # 8 (“The unsigned documents set forth terms and conditions governing assisted acquisitions.”). In short, the defendants have not identified the “subsidiary decisions that fall underneath the nebulous umbrella process [they] ha[ve] purported to identify, ” 100Reporters LLC, 248 F.Supp.3d at 153, and thus they have not carried their burden.

         b. The Defendants' Descriptions of Decisionmaking Authority

         Explaining decisionmaking authority is an essential ingredient to justifying withholdings under the deliberative process exemption. The D.C. Circuit has been clear that “[a] key feature under both the ‘predecisional' and ‘deliberative' criteria is the relation between the author and recipients of the document. A document from a junior to a senior is likely to reflect his or her own subjective opinions and will clearly have no binding effect on the recipient. By contrast, one moving from senior to junior is far more likely to manifest decisionmaking authority and to be the denouement of the decisionmaking rather than part of its give-and-take.” Access Reports v. Dep't of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991); see also Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982) (“To establish that documents do not constitute the ‘working law' of the agency, the agency must present to the court . . . ‘the nature of the decisionmaking authority vested in the office or person issuing the disputed document(s),' . . . and the positions in the chain of command of the parties to the documents.” (quoting Taxation With Representation Fund v. IRS, 646 F.2d 666, 679 (D.C. Cir. 1981))); Assassination Archives & Research Ctr. v. CIA, 781 Fed.Appx. 11, 13 (D.C. Cir. 2019) (per curiam) (“[W]e have described a ‘recommendation to a supervisor on a matter pending before the supervisor' as ‘a classic example of a deliberative document.'” (quoting Abtew, 808 F.3d at 899)).

         The defendants have made essentially no effort to satisfy the “key feature” by identifying “the relation between the author and recipients of the document.” Access Reports, 926 F.2d at 1195. Indeed, in almost every instance the defendants have “wholly omitted information about the positions and responsibilities of the authors and recipients . . . of the records.” Judge Rotenberg Educ. Ctr., 376 F.Supp.3d at 68 (internal quotation marks omitted). True, the defendants note that some of the documents at issue are unsigned, see Vaughn Index ## 3, 6-9, 13, but the defendants do not make this claim for every document withheld or redacted pursuant to Exemption 5, see Vaughn Index ## 10-12, 14-18, 20-21, 23-25. For the latter records, the defendants still do not identify the author to assess the deliberative nature of the contents. Nor have the defendants explained (1) whether they have other ways to identify the authors of the unsigned documents and (2) why the ...


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