Durrani v. U.S. Department of Justice ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Arif A. Durrani, :
:
Plaintiff, :
v. : Civil Action No. 08-0609 (CKK)
:
U.S. Department of Justice et al., :
:
Defendants. :
MEMORANDUM OPINION
In this action brought pro se under the Freedom of Information (“FOIA”), 5 U.S.C. § 552,
plaintiff challenges the responses of the Departments of Justice, State and Homeland Security to
his FOIA requests. Pending before the Court are plaintiff’s motion for summary judgment [Dkt.
No. 28], the Department of Justice’s (“DOJ”) motion for summary judgment [Dkt. No. 31] and
the Departments of State and Homeland Security’s joint motion for summary judgment [Dkt. No.
33]. Upon consideration of the parties’ submissions and the entire record, the Court will (1) deny
plaintiff’s summary judgment motion because it is not “properly made and supported,” Fed. R.
Civ. P. 56(e)(2),1 (2) grant DOJ’s motion for summary judgment and (3) grant in part and deny in
part the Departments of State and Homeland Security’s joint motion for summary judgment.
I. FACTUAL BACKGROUND
1. Department of Justice
By letter of July 11, 2007, plaintiff requested records from DOJ’s Executive Office for
1
In his Statement of Material Facts Not in Genuine Dispute [Dkt. No. 28, pp. 8-13],
plaintiff mostly recites unsubstantiated facts and conclusions about his criminal case that are not
material to the issues to be decided under the FOIA. Moreover, plaintiff has not cited “to the
parts of the records relied upon to support the statement.” LCvR 7(h).
United States Attorneys (“EOUSA”) pertaining to “the kidnapping, abduction, and arrest of the
undersigned arranged by the U.S. Attorney’s Office in the Southern District of California [and]
any [related] Release[.].” Def.’s Attachment A, Declaration of David Luczynski (“Luczynski
Decl.”) [Dkt. No. 31-2] ¶ 4 & Ex. A. By letter of October 31, 2007, EOUSA released to plaintiff
29 pages of responsive records in their entirety, withheld 23 pages in their entirety and referred
25 pages to Homeland Security and two pages to the United States Marshals Service, a DOJ
component. Id. ¶ 6 & Ex. C. EOUSA withheld information under FOIA exemptions 5, 7(A),
7(C) and 7(D), see 5 U.S.C. § 552(b). Id., Ex. C. By letter of February 26, 2008, DOJ’s Office
of Information and Privacy affirmed EOUSA’s release determination. Id., Ex. F. In addition,
EOUSA withheld in their entirety seven pages that were referred from the State Department
under FOIA exemptions 5 and 7(C). See generally Def.’s Attachment B, Supplemental
Declaration of David Luczynski [Dkt. No. 31-3].
By letter of November 16, 2007, the Marshals Service released the two referred pages but
redacted the names of law enforcement officers under FOIA exemption 7(C). Def.’s Attachment
C, Declaration of William E. Boardley [Dkt. No. 31-4] ¶ 4 & Ex. B.
2. Department of State
By letter of April 5, 2006, addressed to the State Department’s Bureau of Political-
Military Affairs Defense Trade Control, plaintiff requested the following: (a) records pertaining
to communications between the State Department and Assistant United States Attorney William
Crowfoot concerning the export licensing of the Royal Jordanian Embassy for shipments made
on May 16, 1994; (b) “[c]opies of all export licenses applications, endorsements made by U.S.
Customs or any other [U.S.] agency . . . for export licenses that are subject of this case #CR99-
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470-PA;” (c) “reports and correspondence submitted by the Royal Jordanian Embassy and Circle
International Inc. under 22 U.S.C. § 2778 9(i) within [] (15) days of May 16, 1994 shipment[;]”
and (d) communications between the State Department and Crowfoot used “to verify any matter
related to this” FOIA request. Def.’s Mot., Second Declaration of Margaret P. Grafeld (“Grafeld
Decl.”) [Dkt. No. 33-2] ¶ 4 & Ex. 1. Plaintiff’s request was forwarded to the Office of
Information Programs and Services (“IPS”), “which is the office to which FOIA requesters are to
submit their requests[.]” Id. ¶ 5.
By letter of December 20, 2007, IPS released to plaintiff “one document containing
information about the licenses in question” and informed him that any information that “relates
to licenses, manufacturing license agreements, or other records authorizing the commercial
export of defense articles and services” was exempt from disclosure under FOIA exemption 3.
Id. ¶ 10 & Ex. 7. By letter of October 9, 2008, IPS informed plaintiff that it had located an
additional 25 responsive records, 13 of which were released with redactions. IPS withheld eight
pages in full and referred four pages to DOJ. Id. ¶ 12 & Ex. 9. It cited exemptions 3 and 5 as the
bases for withholding information. Id., Ex. 9. In addition, the State Department withheld in full
three documents referred from Immigration and Customs Enforcement (“ICE”) under exemption
3. Id. ¶¶ 22-23.
3. Department of Homeland Security
By letter dated September 11, 2006, plaintiff requested from Customs and Border
Protection (“CBP”) material pertaining to communications between CBP “and any other agency,
department or office of the U.S. government . . . [;]” the names “of all individuals, including the
three U.S. Customs Agents [,] who were at LAX Airport . . . on June 15, 2005, when [plaintiff]
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was kidnapped and illegally brought from Mexico City . . . [t]ogether with copies of all
photographs taken by [] Customs Agents . . . from Oxnard/Camarillo. . . .” Def.’s Mot.,
Declaration of Reba A. McGinnis (“McGinnis Decl.”) [Dkt. No. 33-3], Ex. 1. Also by letter
dated September 11, 2006, plaintiff requested from CBP documents “that clearly show that
[seized jet] Engines were imported by S & S Turbine. . . .” Id., Ex. 2. CBP referred plaintiff’s
requests to ICE, which informed plaintiff by letters of September 26, 2007 and September 28,
2007 that responsive records were being withheld in their entirety under FOIA exemption 7(A).
It further informed plaintiff that once that exemption no longer applied, records may still be
withheld under exemptions 2, 7(C), 7(D) and 7(E). Id., Exs. 6, 7. By letter of October 10, 2008,
ICE, in a supplemental response, informed plaintiff that it had located 94 responsive records. It
released seven redacted pages and one unredacted page of information. ICE withheld 86 pages in
their entirety. ICE withheld information under exemptions 2, 6, 7(A), 7(C) and 7(E). Id., Ex. 8.
By letter dated December 28, 2007, plaintiff requested from ICE “all my immigration
records that were obtained by ICE Attache in Mexico City and ICE representative in Tijuana,
Mexico” and related records pertaining to his “immigration status in Mexico” and his extradition
from Mexico to the United States. Id., Ex. 9. By letter of September 5, 2008, ICE released to
plaintiff 43 responsive records in their entirety. Id. ¶ 7. Also by letter dated December 28, 2007,
plaintiff requested from ICE documents titled “‘Hostage Negotiations’ given by Manuel Pires in
July 1987 to U.S. Custom Agent Steven Arruda. . . .” Id., Ex. 14 [Dkt. No. 42-4]. By letters of
February 1, 2008 and March 24, 2008, ICE informed plaintiff that it had located no responsive
records. Id., Exs. 15, 17.
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At some point, CBP “discover[ed] that it should have independently processed Plaintiff’s
FOIA request” and proceeded to do so. Def.’s Mot., Declaration of Mark Hanson (“Hanson
Decl.”) [Dkt. No. 33-4] ¶ 4. By letter of October 9, 2008, CBP informed plaintiff that it had
located 22 responsive pages, 11 of which were being released in full and eight of which were
being released with redactions. It withheld three pages in full. Id. ¶ 11. CBP withheld
information under exemptions 2, 5, 6, 7(A), 7(C) and 7(E). Id., Ex. A.
II. LEGAL STANDARD
Summary judgment is appropriate upon a showing that there is “no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). “[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party” on an element of the claim. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
The FOIA requires a federal agency to release all records responsive to a properly
submitted request except those protected from disclosure by one or more of nine enumerated
exemptions. See 5 U.S.C. § 552(b). The agency’s disclosure obligations are triggered by its
receipt of a request that “reasonably describes [the requested] records” and “is made in
accordance with published rules stating the time, place, fees (if any), and procedures to be
followed.” 5 U.S.C. § 552(a)(3)(A). The FOIA authorizes the court only "to enjoin [a federal]
agency from withholding agency records or to order the production of any agency records
improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). Thus, the elements of a
FOIA claim are (1) improperly (2) withheld (3) agency records. “Judicial authority to devise
remedies and enjoin agencies can only be invoked under the jurisdictional grant conferred by [5
5
U.S.C.] § 552 [(a)(4)(B)], if the agency has contravened all three components of this obligation.”
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980).
In a FOIA case, the Court may award summary judgment to an agency solely on the
information provided in affidavits or declarations when they describe “the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied,
415 U.S. 977 (1974). In opposing a summary judgment motion, plaintiff may not “replace
conclusory allegations of the complaint or answer with conclusory allegations of an affidavit,”
Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990), but rather must “set forth
specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248.
III. DISCUSSION
1. Department of Justice Records
EOUSA Records
EOUSA withheld 23 responsive pages in their entirety under FOIA exemption 5, in
conjunction with exemptions 7(C) and 7(D). Luczynski Decl. ¶¶ 16, 20-22, 26. Exemption 5
protects from disclosure "inter-agency or intra-agency memorandums or letters which would not
be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b)(5). This
provision applies to materials that normally are privileged in the civil discovery context,
including those protected by the attorney work product privilege, the attorney-client privilege,
and the deliberative process privilege. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149
6
(1975); FTC v. Grolier, Inc., 462 U.S. 19, 26 (1983) ("The test under Exemption 5 is whether the
documents would be 'routinely' or 'normally' disclosed upon a showing of relevance."); accord
Martin v. Dep’t. of Justice, 488 F.3d 446, 455 (D.C. Cir. 2007).
The 23 withheld pages consisted of “a draft of an indictment, an email between attorneys,
a draft of a prosecutorial memorandum, and a single handwritten page, [] all written by attorneys
preparing the case.” Id. ¶ 19. Because EOUSA rightly asserts that the foregoing pages constitute
attorney work product, id. ¶ 16, it properly withheld them in their entirety under exemption 5.
See Judicial Watch, Inc. v. DOJ, 432 F.3d 366, 371 (D.C. Cir. 2005) (“If a document is fully
protected as work product, then segregability is not required.”). The Court therefore need not
address the propriety of EOUSA’s withholding of the same information under exemptions 7(C)
and 7(D).
Similarly, EOUSA withheld as attorney work product and deliberative process material
seven pages of records referred from the State Department because “[e]ach . . . record[] is a letter
between an individual involved in the [criminal] matter and an attorney that was handling the
case.” Supp. Luczinski Decl. ¶ 2; see id. ¶ 6 (describing information as “reflect[ing] such matters
as trial strategy, interpretations, and personal evaluations and opinions pertinent to Plaintiff’s
criminal case”). In addition, “[t]wo pages of records also contain handwritten notations on the
margins performed by the Department of State Personnel.” Id. ¶ 2. The latter constitutes
deliberative process material, from which “purely factual material” should be severed and
released. Wolfe v. Dep’t of Health and Human Services, 839 F.2d 768, 774 (D.C. Cir. 1998)
(internal quotation marks omitted); see accord Loving v. Dep’t of Defense, 550 F.3d 32, 38 (D.C.
Cir. 2008) (“the deliberative process privilege does not protect documents in their entirety; if the
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government can segregate and disclose non-privileged factual information within a document, it
must.”) (citation omitted). EOUSA states, however, that “[t] he attorney work product and
deliberative process are so interwoven as to make it all . . . attorney work product,” id. ¶ 7,
thereby properly justifying its withholding of the seven referred pages in their entirety.
Marshals Service Records
Invoking FOIA exemption 7(C), the Marshals Service redacted the names of law
enforcement officers from the two pages of referred records it released to plaintiff. The “two
reports of investigation . . . originated in the . . . system of records . . . related to the execution of
federal arrest warrants and the investigation of fugitives.” Bordley Decl. ¶ 3. Exemption 7(C)
protects from disclosure records compiled for law enforcement purposes to the extent that their
disclosure “could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). The Marshals Service has satisfied the threshold law
enforcement purpose. Third-party information contained in law enforcement files is
“categorically exempt” from disclosure under exemption 7(C) in the absence of a showing that
an overriding public interest warrants disclosure. Nation Magazine, Washington Bureau v.
United States Customs Service, 71 F.3d 885, 896 (D.C. Cir. 1995); accord Sussman v. U.S.
Marshals Service, 494 F.3d 1106, 1115 (D.C. Cir. 2007) (exemption 7(C) “protects the privacy
interests of all persons mentioned in law enforcement records, whether they be investigators,
suspects, witnesses, or informants”) (citation omitted).
In order to demonstrate an overriding public interest in disclosure, plaintiff must show
that the withheld information is necessary to “shed any light on the [unlawful] conduct of any
Government agency or official.” United States Dep’t of Justice v. Reporters Committee for
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Freedom of the Press, 489 U.S. 749, 772-73 (1989); accord SafeCard Services, Inc., v. SEC, 926
F.2d 1197, 1206 (D.C. Cir. 1991). “Where the privacy concerns addressed by Exemption 7(C)
are present, . . . [the requester] must show that the public interest sought to be advanced is a
significant one, an interest more specific than having the information for its own sake [and that] .
. . the information is likely to advance that interest.” National Archives and Records
Administration v. Favish, 541 U.S. 157, 172 (2004). In making such a showing, plaintiff must
assert “more than a bare suspicion” of official misconduct. Id. at 174. He “must produce
evidence that would warrant a belief by a reasonable person that the alleged Government
impropriety might have occurred.” Id. Otherwise, the balancing requirement does not come into
play. See id. at 175. Plaintiff has not specifically challenged the Marshals Services otherwise
proper redactions made pursuant to exemption 7(C).
Plaintiff has not stated any facts to create a genuine issue with respect to DOJ’s proper
withholding of responsive material. Moreover, DOJ properly withheld certain records in their
entirety under exemption 5.2 The Court therefore finds that DOJ is entitled to judgment as a
matter law.
2. Department of State Records
The State Department withheld information under FOIA exemptions 3 and 5. Exemption
3 protects from disclosure records that are “specifically exempted . . . by statute . . . provided
that such statute either “(A) [requires withholding] in such a manner as to leave no discretion on
2
See Trans-Pacific Policing Agreement v. United States Customs Service, 177 F.3d
1022, 1027-28 (D.C. Cir. 1999) (requiring the court to make a finding as to whether defendant
properly withheld documents in their entirety).
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the issue,” or “(B) establishes particular criteria for withholding or refers to particular types of
matters to be withheld.” 5 U.S.C. § 552 (b)(3); see also Senate of the Commonwealth of Puerto
Rico v. U. S. Dep’t of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987). The State Department
invoked a provision of the Immigration and Nationality Act, 8 U.S.C. § 1202(f), and one of the
Arms Export Control Statute (“AECS”), 22 U.S.C. § 2778(e).
Section 1202(f) of Title 8 makes confidential “records of the Department of State . . .
pertaining to the issuance or refusal of visas or permits to enter the United States.” 8 U.S.C.
§ 1202(f). Although it permits discretion by the Secretary of State to disclose information under
certain circumstances, see id., the provision “qualifies as a disclosure-prohibiting statute under
both subsection (A) and (B) of Exemption (b)(3) of FOIA.” Perry-Torres v. United States Dep’t
of State, 404 F. Supp.2d 140, 143 (D.D.C. 2005) (citing Medina-Hincapie v. Dep't of State, 700
F.2d 737, 740-43 (D.C. Cir. 1983); Church of Scientology of Cal. v. Dep't of State, 493 F. Supp.
418, 423 (D.D.C. 1980)). Thus, the remaining question is whether the withheld material is the
type to be protected.
Defendant withheld three one-page documents each pertaining “to a specific individual
and [] relevant to the determination to issue or refuse a visa or permit to enter the United States.”
2nd Grafeld Decl. ¶ 40; see also ¶¶ 37-39 (describing documents D1, D1A, D1B). Defendant
properly applied exemption 3 to those documents under the foregoing statute but, as discussed
later, has not justified withholding them in their entirety.
Section 2778(e) of Title 22, by incorporation of the Export Administration Act (“EAA”),
exempts from FOIA disclosure “information obtained for the purpose of consideration of, or
concerning, license applications under [the EAA] . . . unless the release of such information is
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determined by the [Commerce] Secretary to be in the national interest.” 50 U.S.C. app.
§ 2411(c). It excludes from such protection “the names of the countries and the types and
quantities of defense articles for which licenses are issued under this section . . . unless the
President determines that the release of such information would be contrary to the national
interest.” 22 U.S.C. § 2778(e). Section 2411(c) “qualifies as an Exemption 3 statute.”
Wisconsin Project on Nuclear Arms Control v. United States Dep’t of Commerce, 317 F.3d 275,
281 (D.C. Cir. 2003).
The State Department “withheld [information] from twenty documents” under the
foregoing provisions. 2nd Graefeld Decl. ¶ 33. Six documents are license applications or
approved licenses that were released with the exempted information redacted, id. ¶¶ 50-56, and
six are attachments to license applications containing exempted information, id. ¶¶ 57-62.
Defendant released two of the latter category of documents in part, however, because the
information was previously released “or is otherwise in the public domain,” or was the type
excepted under § 2778(e). Id. ¶ 63. In addition, the State Department released parts of four
documents described as e-mail exchanges concerning export licenses and trial preparations. Id.
¶¶ 43-46. It redacted “specific information on licenses issued and interpretations as to what those
licenses covered” under exemption 3. Id. ¶ 47. The State Department released a facsimile cover
sheet accompanying two completed license applications after redacting the identification of a
supplier and that of a freight forwarder under exemption 3 and a handwritten note in the margin
under exemption 5. Id. ¶ 49. Finally, the State Department withheld in full three one-page
documents, two pages of which are “request[s] for amendment of existing licenses submitted on
behalf of the Kingdom of Jordan” and the third page of which is an attachment to one of those
requests. Id. ¶¶ 64-66.
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Under exemption 5, the State Department withheld as deliberative process material an
employee’s three-page “undated draft memorandum . . . relating to potential testimony by a
Department employee in a criminal case involving [plaintiff].” Id. ¶ 41; see also ¶ 42 (describing
document as addressed to a “senior . . . management official,” undated, unsigned and containing
“several strike-outs and emendations”). Because “the entire document is a draft concerning plans
for the trial, which appears never to have taken place, there is no non-exempt factual information
that may be meaningfully segregated and released to the requester.” 2nd Grafeld Decl. ¶ 42.
Defendant properly withheld the document (L4A) in full insofar as exemption 5 is “intended to
protect not simply deliberative material, but also the deliberative process of agencies” prior to
reaching a final decision. Mapother v. Dep’t of Justice, 3 F.3d 1533, 1538 (D.C. Cir. 1993)
(quoting Montrose Chemical Corp. v. Train , 491 F.2d 63 (D.C. Cir. 1974)). Hence, “[w]hen a
summary of factual material on the public record is prepared by the staff of an agency
administrator, for his use in making a complex decision, such a summary is part of the
deliberative process” protected from disclosure by exemption 5. Id.The State Department invoked exemption 5, in conjunction with exemption 3, to
withhold portions of the previously described e-mail exchanges that pertain to trial preparations.
See 2nd Grafeld Decl. ¶¶ 43-45. It redacted from two documents, L6 and L9, “pre-decisional
views about how to proceed in the context of court proceedings then pending in California,” and
information “undertaken in confidence among [employees of the agency’s Directorate of Defense
Trade Controls] and their attorneys in the Office of the Legal Adviser.” Id. ¶ 47. The remaining
two documents, M2 and M62, contained the “employees’ deliberations about an export license,
the information in it, and how to prepare for a conference call with an assistant United States
attorney” and their “deliberations and questions about how license application procedures work,
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sparked by the dismissal of charges against Mr. Durrani.” Id. The latter exchange in Document
M62 is not pre-decisional because it admittedly occurred after a decision was reached not to
prosecute the plaintiff. The State Department therefore has not properly withheld such
information under exemption 5. See Mapother, 3 F.3d at 1537 (“The deliberative process
privilege protects materials that are both predecisional and deliberative.”) (citations omitted); In
re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (“The deliberative process privilege does not
shield documents that simply state or explain a decision the government has already made[.]”).
The State Department will be directed to release those specific portions of information.
Finally, the State Department properly redacted from the previously described facsimile
cover sheet accompanying two license applications (Document M28A) a handwritten note that
“raise[d] a question as to the interpretation of one of the licenses,” as deliberative process
material. Grafield Decl. ¶ 49.
Record Segregability
As previously noted, the Court must determine on its own whether defendant properly
withheld responsive records in their entirety. See supra note 2. In order to justify such
withholdings, an agency must demonstrate that the “exempt and nonexempt information are
‘inextricably intertwined,’ such that the excision of exempt information would impose significant
costs on the agency and produce an edited document with little informational value." Mays v.
Drug Enforcement Administration, 234 F.3d 1324, 1327 (D.C. Cir. 2000) (quoting Neufeld v.
IRS, 646 F.2d 661, 666 (D.C. Cir. 1981)) (other citation and internal quotation marks omitted).
The State Department properly withheld whole records under exemption 5 as attorney
work product and deliberative process material so intertwined with attorney work product that it
cannot be reasonably segregated to allow for a meaningful release of non-exempt material. As to
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the remaining documents withheld in their entirety under exemption 3 (D1, D1A, D1B, M31D,
M31G, M31H, M31I, M32, M32A, M32B), Grafeld’s justifications, e.g., that because “the
entirety of these documents concerns license applications, there is no information in them that
can be segregated for release,” Grafeld Decl. Id. ¶ 67, improperly focuses on the type of
document rather than on the information contained therein. Grafeld has neither stated outright
nor provided sufficient facts from which it may be reasonably inferred that staff reviewed each
document for the purpose of determining whether it contained segregable, non-exempt
information that could be released. The Court, then, will defer its segregability finding pending
defendant’s supplementation of the record. See Schiller v. N.L.R.B., 964 F.2d 1205, 1211 (D.C.
Cir. 1992) (“The ‘segregability’ requirement applies to all [§ 552] documents and all exemptions
in the FOIA.”) (citation omitted); Marks v. Central Intelligence Agency, 590 F.2d 997, 1000
(D.C. Cir. 1978) (remanding for district court “to determine whether the four documents
involved are entirely exempt under Exemption 3 . . . or whether there are fairly segregable
portions”).
3. Department of Homeland Security Records
ICE Records
ICE redacted information from seven released pages under FOIA exemptions 2, 6, and
7(C) and withheld 86 pages in their entirety under exemptions 2, 6, 7(A), 7(C) and 7(E).
McGinnis Decl. ¶ 15 & Vaughn index.
A. Exemption 2
Exemption 2 protects from disclosure information that is "related solely to the internal
personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). “If the threshold test of
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predominant internality is met,” courts typically limit exemption 2 protection to "trivial
administrative matters of no genuine public interest" ("low 2" exempt information), and to
information that, if disclosed, "may risk circumvention of agency regulation" ("high 2" exempt
information). Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992) (quoting Schwaner v.
Dep't of the Air Force, 898 F.2d 793, 794 (D.C. Cir. 1990)).
ICE properly invoked exemption 2 to justify redacting as “low 2" material the direct
telephone numbers of Special Agents from reports of investigation, as well as various internal
codes from reports of investigation, an incident report, “a Record of Deportable/Inadmissible
Alien,” and a custody receipt for seized property and evidence. McGinnis Decl. ¶ 19. In
addition, ICE properly justified redacting as “high 2" material some of the same codes that “serve
a dual purpose,”3 and information “relating to the coordination of investigative efforts with other
law enforcement agencies, investigative procedures and coordination amongst agency field
offices regarding the conducting of investigative activities.” Id. ¶ 20. It reasonably asserts,
among other harms, that disclosure of such information “would reveal investigative procedures
[and] the scope of investigations,” which, in turn, could “impede the [agency’s investigative]
effectiveness . . . by allowing individuals intent on violating the law the ability to alter their
behavior for purposes of circumventing the law.” Id. ¶ 20. Cf. Crooker v. Bureau of Alcohol,
Tobacco & Firearms, 670 F.2d 1051, 1073 (D.C. Cir. 1981) (approving the redaction of portions
of BATF manual pertaining to law enforcement investigative techniques).
3
In addition to the routine uses of such codes for indexing, storing, locating, retrieving
and distributing information, case program codes, distribution codes and status codes “indicate
various aspects of the enforcement case,” which if deciphered could reveal “the scope and
relative size of the investigation in terms of agency resources, types of activity being
investigated, and location of investigative efforts.” McGinnis Decl. ¶ 20.
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B. Exemption 7(A)
ICE withheld information under FOIA exemption 7(A), which protects from disclosure
“records or information compiled for law enforcement purposes, but only to the extent that the
production . . . could reasonably be expected to interfere with enforcement proceedings.”
5 U.S.C. § 552(b)(7)(A). The agency must demonstrate that “disclosure (1) could reasonably be
expected to interfere with (2) enforcement proceedings that are (3) pending or reasonably
anticipated.” Mapother, 3 F.3d at 1540. The withheld material must relate to a “concrete
prospective law enforcement proceeding.” Bevis v. Department of State, 801 F.2d 1386, 1389
(D.C. Cir. 1986) (quoting Carson v. United States Dep’t of Justice, 631 F.2d 1008, 1018 (D.C.
Cir. 1980)); see Sussman, 494 F.3d at 1115 (“relevant proceedings must be pending or
reasonably anticipated at the time of the district court’s eventual decision”).
ICE refers to “an ongoing criminal law enforcement investigation” and claims that
“disclosure of certain [unidentified] information relating to current actions being taken with
respect to the investigation, past actions taken, or potential future investigative activities could
allow the subject(s), or potential subject(s), of the investigation to change their behavior,
intimidate witnesses, and/or destroy evidence.” McGinnis Decl. ¶ 22. ICE’s claim of an ongoing
investigation, without any evidence of a pending or potential “enforcement proceeding,” fails to
provide a sufficient basis for withholding records under exemption 7(A)--particularly since at
least some charges against plaintiff were dismissed, supra at 12, and plaintiff’s criminal
proceedings were likely concluded by the affirmance of his convictions on direct appeal. See
U.S. v. Durrani, 835 F.2d 410, 413 (2nd Cir. 1987) (affirming convictions of attempting to export
and exporting arms without a license and failing to register with the State Department’s Office of
Munitions Control). Defendant has not sustained its burden with regard to exemption 7(A) by
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identifying a pending or potential law enforcement proceeding or providing sufficient facts from
which the likelihood of such a proceeding may be reasonably inferred. See, e.g., Boyd v.
Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 386 (D.C. Cir. 2007) (“sufficient specificity
regarding the government's investigation is provided by its identification of the targets of the
investigation: individuals . . . to some degree, related [to], controlled [by], or influenced by
Boyd [and] affidavit stat[ing] that . . . the withheld records relate to potential criminal
proceedings against individuals”) (citation and internal quotation marks omitted).
Moreover, while defendant has described the documents containing the alleged 7(A)
material--namely, 81 pages of reports of investigation (Vaughn index at 1-3) and five pages of
handwritten notes (Vaughn index at 5)--it has not correlated this exemption with the applicable
withheld portions. See King v. U.S. Dep’t of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987) (agency
must “specifically identify[] the reasons why a particular exemption is relevant and correlat[e]
those claims with the particular part of a withheld document to which they apply.”).
Because the Court is without sufficient evidence to find that ICE properly withheld
“certain information” under exemption 7(A), McGinnis Decl. ¶ 22, it denies summary judgment
to Homeland Security on its invocation of exemption 7(A).
C. Exemption 7(C)
Invoking the privacy provisions of the FOIA, ICE applied exemptions 6 and 7(C) to
justify redacting the identifying information of law enforcement and other government personnel,
as well as that of other third-party individuals. Id. ¶¶ 21, 23. Exemption 6 protects information
about individuals in “personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). All
information that “applies to a particular individual” qualifies for consideration under this
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exemption. U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982); see also New
York Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (en banc); Chang v. Dep’t of
Navy, 314 F. Supp.2d 35, 42-43 (D.D.C. 2004). Because the “[i]nformation sought by plaintiff
relates to an ongoing criminal law enforcement investigation,” McGinnis Decl. ¶ 22, the Court
will address the propriety of withholding such information under the “somewhat broader”
protection of exemption 7(C) discussed supra at 8-9. Beck v. Dep’t of Justice, 997 F.2d 1489,
1491 (D.C. Cir. 1993) (citation omitted).4
For the reasons advanced in the McGinnis declaration, see id. ¶ 23, the Court finds that
ICE properly redacted the aforementioned third-party information. That said, plaintiff asserts
that the FOIA exemptions are inapplicable because of government misconduct and bad faith
stemming from his “arrest and extradition for an offense that was never committed. . . .”
Declaration of Arif A. Durrani [Dkt. No. 28] ¶ 8; see also generally Pl.’s Supplement to Oppose
Summary Judgment (“Pl.’s Supp. Opp’n”) [Dkt. No. 38]. Plaintiff’s unsubstantiated and
conclusory assertions do not present any probative evidence of “Government impropriety” to
trigger the balancing requirement. See Favish, 541 U.S. at 174. Homeland Security therefore is
entitled to judgment on its exemption 7(C) claim.
D. Exemption 7(E)
Exemption 7(E) protects law enforcement records to the extent that their production
“would disclose techniques and procedures for law enforcement investigations or prosecutions,
4
Both exemptions 6 and 7(C) require the balancing of the strong privacy interests in the
nondisclosure of third-party records against any asserted public interests in their disclosure. The
analysis is the same under both exemptions. Cf. Chang v. Dep’t of Navy, 314 F. Supp.2d at 43(exemption 6) with Blanton v. U.S. Dep’t of Justice, 63 F. Supp.2d 35, 45 (D.D.C. 1999)
(exemption 7(C)); see also Beck, 997 F.2d at 1491 (although the “protection available under
these exemptions is not the same, . . . [t]he same [balancing] standard” applies).
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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). ICE properly applied this exemption to “surveillance” techniques “not known to
the subject or potential subject(s) of the ongoing investigation.” McGinnis Decl. ¶ 24. McGinnis
provides a reasonable explanation for why disclosure of such information could impede current
and future investigations. Id. “[L]ongstanding precedent” supports this withholding. Sussman,
494 F.3d at 1112 (citing Blanton v. Dep’t of Justice, 64 Fed.Appx. 787, 788-89 (D.C. Cir. 2003);
see Judicial Watch v. U.S. Dep’t of Commerce, 337 F. Supp.2d 146, 181 (D.D.C. 2004)
(“Exemption 7(E) affords categorical protection for techniques and procedures used in law
enforcement investigations and prosecutions”) (citations and internal quotation marks omitted).
For the foregoing reasons, the Court finds that ICE properly withheld information under
exemptions 2, 7(C) and 7(E), but failed to satisfy its burden for withholding information under
exemption 7(A).
CBP Records
CBP redacted information from eight released pages and withheld three pages in full
under FOIA exemptions 2, 5, 6, 7(A), 7(C) and 7(E). Hanson Decl. ¶ 12 & Ex. B. (Vaughn
index ).
A. Exemption 2
CBP properly withheld internal “administrative markings such as codes” under
exemption 2 as “low 2" material. Hanson Decl. ¶¶ 14-15. Moreover, CBP properly justified
withholding as “high 2" material information concerning Customs’ “examination and inspection
procedures, internal reporting requirements, record numbers and instructions on how to process
international travelers,” which if disclosed could “permit potential violators . . . to develop
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countermeasures to evade detection, inspection and targeting methods.” Id. ¶ 16. See supra at
14-15.
B. Exemption 5
CBP applied exemption 5 to a handwritten note of an officer of the Fines, Penalties and
Forfeiture (“FPF”) Office “regarding [a] telephone conversation between the officer and an ICE
Special Agent about the “handling of seized jet engines” and to e-mails presumably between
those same two individuals regarding the same. Vaughn Index (Documents 20, 21-22). Relying
on the deliberative process privilege and the attorney-client privilege, CBP “withheld [the
documents] in full” because they contain “the agencies’ internal deliberative thought process and
theory of the case concerning details of the investigation and processing and notice of the
underlying seizure,” id. ¶ 21, and “discuss the legal advice sought from or provided to them by
the AUSA concerning the handling of the seizure and related investigation,” id. ¶ 22. CBP
properly justified withholding such information under exemption 5 on the bases of both
privileges. See supra at 6-7.
C. Exemption 7
CBP’s invocation of exemption 7(A) is based on ICE’s claim that “the matters which are
the subject of Plaintiff’s request are the subject of an ongoing criminal law enforcement
investigation. . . .” Hanson Decl. ¶ 28. For the reasons stated as to ICE, supra at 16-17, the Court
denies CBP’s exemption 7(A) claim.
Also for the reasons stated as to ICE, the Court finds that CBP properly applied
exemption 7(C) to the identifying information of federal employees, Hanson Decl. ¶ 30, and
exemption 7(E) to law enforcement techniques, the disclosure of which could assist potential
violators in evading detection by revealing “CBP examination and inspection procedures,
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internal reporting requirements and instructions on how to process international travelers.” Id. ¶
31.
Record Segregability
With regard to CBP records, Hanson states that “all information [contained in the
partially released records] not exempted from disclosure . . . was correctly segregated and non-
exempt portions were released” and that the withheld information “was individually determined
to be exempt from release.” Hanson Decl. ¶ 33. As for the three documents withheld in their
entirety (20, 21, 22), Hanson states that he “determined that no portions of those records [could]
be reasonably segregated and disclosed, as the exempt information is so inextricably intertwined
with the non-exempt information” as to render any releaseable information “meaningless.” Id.
The Vaughn index shows that portions of the documents were withheld under exemption 7(A),
which the Court has determined was improperly invoked. The Court therefore will defer its
finding on the segregability of Homeland Security records pending the agency’s reexamination of
the ICE and CBP documents in light of the Court’s ruling.
4. Adequacy of the Searches
Plaintiff alleges that defendants “concealed” records in a “T” file maintained by EOUSA
and Homeland Security. Pl.’s Supp. Opp’n at 10 & attached declaration. The agency is required
“to make a good faith effort to conduct a search for the requested records, using methods which
can reasonably be expected to produce the information requested.” Int’l Trade Overseas, Inc.,
688 F. Supp. 33, 36 (D.D.C. 1998) (quoting Marrera v. Dep't of Justice, 622 F. Supp. 51, 54
(D.D.C. 1985)) (citation omitted). When an agency's search for records is challenged, “the
agency must show beyond material doubt [] that it has conducted a search reasonably calculated
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to uncover all relevant documents.” Weisberg v. U.S. Dep’t. of Justice, 705 F.2d 1344, 1351
(D.C. Cir. 1983). For purposes of this showing, the agency "may rely upon affidavits . . . , as
long as they are relatively detailed and nonconclusory and . . . submitted in good faith." Id.(citations and quotation marks omitted). The required level of detail "set[s] forth the search
terms and the type of search performed, and aver[s] that all files likely to contain responsive
materials (if such records exist) were searched. . . ." Oglesby v. United States Dep’t of the Army,
920 F.2d 57, 68 (D.C. Cir. 1990); accord Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999). "Once the agency has shown that its search was reasonable, the burden
shifts to [plaintiff] to rebut [defendant's] evidence by a showing that the search was not
conducted in good faith." Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citing Miller v.
U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985)). Summary judgment is inappropriate
“if a review of the record raises substantial doubt” about the adequacy of the search.
Valencia-Lucena, 180 F.3d at 326 (citing Founding Church of Scientology v. Nat’l Sec’y
Agency, 610 F.2d 824, 837 (D.C. Cir. 1979)).
“In determining the adequacy of a FOIA search, the court is guided by principles of
reasonableness, see Campbell v. United States Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998),
mindful that an agency is required to produce only those records in its custody and control at the
time of the FOIA request. McGehee v. Central Intelligence Agency, 697 F.2d 1095, 1110 (D.C.
Cir. 1983). When a request does not specify the locations in which an agency should search, the
agency has discretion to confine its inquiry to a central filing system if additional searches are
unlikely to produce any marginal return; in other words, the agency generally need not search
every record system.” Campbell, 164 F.3d at 28. Moreover, “the fact that a particular document
was not found does not demonstrate the inadequacy of a search.” Boyd, 475 F.3d at 391. This is
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because “the adequacy of a FOIA search is generally determined not by the fruits of the search,
but by the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller
of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Plaintiff did not specifically request that
EOUSA or Homeland Security search a “T” file. The issue therefore is whether the searches that
were performed were reasonably calculated to locate all relevant records.
In response to plaintiff’s request to EOUSA for records in the United States Attorneys
Office for the Southern District of California, staff at that office searched by plaintiff’s name its
“computerized docketing/case management system known as LIONS,” as well as “the Federal
District Court’s Public Access to Computerized Records (PACER) in the party/case index[.]”
Luczynski Decl., Ex. I (Declaration of Crystaline Smith ¶¶ 4-5). In addition, the Assistant United
States Attorney to whom plaintiff’s case was assigned searched his criminal case file and his
“Outlook e-mail account for any potentially responsive records[.]” Id., Ex. J (Declaration of
William P. Cole ¶ 4). The foregoing searches located responsive records. Luczynski states that
the responsive records “are maintained in [EOUSA’s] Criminal Case File System” and that
“[t]here are no other records systems or locations within the Southern District of California in
which other files pertaining to Plaintiff’s criminal case [] were maintained.” Luczynski Decl. ¶¶
12-13. The Court is persuaded that EOUSA conducted an adequate search for the requested
records.
In response to plaintiff’s requests to Homeland Security, ICE searched and retrieved
records from four separate records systems, each of which it has described in great detail.
McGinnis Decl. ¶¶ 9-13. McGinnis has adequately shown why “[n]o other ICE records systems
were determined to likely contain [responsive records].” Id. ¶ 9. Given the comprehensive
search methods employed to locate documents responsive to plaintiff’s three separate FOIA
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requests, see id. ¶¶ 14-17, and ICE’s follow through on plaintiff’s specific request to search its
New Haven, Connecticut, office for the “Hostage Negotiations” document, id. ¶ 17, the Court is
persuaded that ICE conducted an adequate search for the requested records. In addition, CBP
staff adequately searched its record systems in its Port of San Diego field offices, including the
agency’s “overarching” electronic database known as TECS (Treasury Enforcement
Communications System), Hanson Decl. ¶ 7; see also McGinnis Decl. ¶ 10., and located
responsive records. In the absence of any evidence from plaintiff calling into question the
adequacy of the challenged searches, the Court will grant summary judgment to the defendants
on the search issue.
IV. CONCLUSION
For the foregoing reasons, the Court grants DOJ’s motion for summary judgment, grants
the State Department’s motion for summary judgment except as to its application of exemption 5
to Document M62, and grants Homeland Security’s motion for summary judgment except as to
its application of exemption 7(A) to the withheld material. In addition, the Court defers its
finding on the segregability of State Department and Homeland Security records, and denies
plaintiff’s motion for summary judgment. A separate Order accompanies this Memorandum
Opinion.
__________s/s__________________
COLLEEN KOLLAR-KOTELLY
DATE: March 24, 2009 United States District Judge
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