['AMERICAN IMMIGRATION COUNCIL v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY']

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL,

Plaintiff,
v. Civil Action No. 11-1972 (JEB)
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,

Defendants.

MEMORANDUM OPINION

This dispute – like a substantially similar case the Court decided just weeks ago – began

with a Freedom of Information Act request by the American Immigration Council, an

immigration law and policy group, seeking information about individuals’ access to counsel

during their interactions with federal immigration authorities. The prior case, Am. Immigration

Council v. U.S. Dep’t of Homeland Sec., No. 12-856, 2014 WL 842311 (D.D.C. March 5, 2014),

addressed a FOIA request AIC filed with Immigration and Customs Enforcement. This one

deals with an identical request submitted to Customs and Border Protection, a component agency

of the Department of Homeland Security. After the agency invoked the protection of several

FOIA exemptions and released moderately redacted versions of a number of documents, AIC

challenged those redactions in this Court. Defendants now request summary judgment, while

AIC rejoins that the Government has not done enough to justify its withholdings. Although

CBP’s explanations of the applicability of the claimed exemptions are at times thin, the Court’s

own in camera review convinces it that Defendants have the better of the argument. It will thus

grant them summary judgment in full.

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I. Background

In March 2011, AIC submitted the following FOIA request concerning individuals’

access to legal counsel during their interactions with U.S. Customs and Border Protection:

[A]ny and all records which have been prepared, received,
transmitted, collected and/or maintained by the U.S. Department of
Homeland Security and/or U.S. Customs and Border Protection
(CBP), whether issued or maintained by CBP Headquarters offices,
including any divisions, subdivisions or sections therein; CBP
offices at ports of entry, including any divisions, subdivisions or
sections therein; and/or any other CBP organizational structure;
and which relate or refer in any way to any of the following:

• Attorneys’ ability to be present during their clients’ interactions
with CBP;

• What role attorneys may play during their clients’ interactions
with CBP;

• Attorney conduct during interactions with CBP on behalf of their
clients;

• Attorney appearances at CBP offices or other facilities.

Mot., Exh. B (March 14, 2011, Letter from Emily Creighton to FOIA Division, U.S. Customs

and Border Protection) at 1 (footnote omitted). The request “include[d], but [was] not limited

to” ten specific types of records. Id. at 1-2.

After six months of squabbling over the adequacy of the Government’s search and the

extent to which certain responsive documents were already publicly available, see Mot., Exh. D

(May 12, 2011, Letter from Dorothy Pullo to Emily Creighton) at 1, Defendants produced two

pages of responsive records. See Mot., Exh. G (Sept. 29, 2011, Letter from Shari Suzuki to

Emily Creighton) at 10. Dissatisfied with the agency’s response and the decision on

administrative appeal, AIC filed suit in this Court in November 2011. See Opp. at 1. The suit

apparently prompted Defendants to conduct a more thorough search, which – over the course of

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several months in late 2012 and early 2013 – revealed more than 300 responsive documents. See

id. The Government released some of those documents in full, disclosed some in part, and

withheld several altogether based on various FOIA exemptions. See id. at 1-2; ECF Nos. 20-25,

27-29, 31, 38 (status reports updating the Court on progress of production). It has now moved

for summary judgment.

The parties have continued to meet to discuss the adequacy of Defendants’ searches and

the applicability of certain exemptions, as well as the specific redactions the Government made

to the documents it produced. This process was fruitful: AIC has dropped its challenge to

Defendants’ search, and it decided to contest the applicability of the claimed exemptions in only

ten records. See Opp. at 2; ECF No. 36. That number then dropped to nine and, eventually, to

the seven documents that remain at issue today. See Mot., Exh. H (October 25, 2013, E-mail

from Erin Davenport to Marian Borum) at 1. AIC, moreover, has chosen not to contest those

redactions that were made pursuant to Exemption 2, 3, 6, or 7(C); it will, instead, focus only on

Exemptions 5 and 7(E) and the Government’s decision to withhold one document as

unresponsive to its FOIA request. See Opp. at 3. AIC also disputes that Defendants have

sufficiently segregated disclosable material within the disputed documents.

Three weeks ago, the Court ordered Defendants to produce the remaining seven

documents for in camera inspection, see Order of February 25, 2014, which they accomplished

ahead of schedule. Having completed its review, the Court now turns to Plaintiff’s substantive

challenges.

II. Legal Standard

Summary judgment may 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.

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56(a). A genuine issue of material fact is one that would change the outcome of the litigation.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that

might affect the outcome of the suit under the governing law will properly preclude the entry of

summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to

construe the evidence in the light most favorable to the non-moving party. See Sample v. Bureau

of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. U.S.

Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In those cases, the agency bears

the ultimate burden of proof. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3

(1989). The Court may grant summary judgment based solely on information provided in an

agency’s affidavit or declaration when it describes “the justifications for withholding the

information with specific detail, demonstrates that the information withheld logically falls within

the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence

of the agency’s bad faith.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011).

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.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting

Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. Analysis

Congress enacted FOIA in order “to pierce the veil of administrative secrecy and to open

agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361

(1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to

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the functioning of a democratic society, needed to check against corruption and to hold the

governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,

152 (1989) (citation omitted). The statute provides that “each agency, upon any request for

records which (i) reasonably describes such records and (ii) is made in accordance with

published rules . . . shall make the records promptly available to any person.” 5 U.S.C. §

552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order

the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(3); Dep’t

of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).

“Unlike the review of other agency action that must be upheld if supported by substantial

evidence and not arbitrary or capricious,” the Freedom of Information Act “expressly places the

burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter

de novo.’” Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times

courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure’. . . .”

Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of

State v. Ray, 502 U.S. 164, 173 (1991)).

The parties, to their credit, have done an admirable job of narrowing the issues in this

case. Plaintiff, for example, has chosen not to question the adequacy of the agency’s search or

the applicability of FOIA Exemption 2, 3, 6, or 7(C), and Defendants, for their part, have

released a number of documents in full or with only light redactions. All that remains, then, are

Plaintiff’s challenges to (1) Defendants’ decision to withhold parts of one document as non-

responsive to the FOIA request; (2) Defendants’ decision to invoke the protection of Exemptions

5 and 7(E) with respect to six records released in part; and (3) the segregability of all of those

documents. The Court will address each issue in sequence.

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 A. Non-Responsive Document

Plaintiff’s first challenge concerns the document labeled Record No. 1: pages 7 and 8 of

Chapter 5 of CBP’s Border Patrol Handbook. Although the agency’s Chief FOIA Appeals

Officer, Shari Suzuki, affirmed in her declaration that those pages were non-responsive to

Plaintiff’s FOIA request, see Mot., Att. 1 (Declaration of Shari Suzuki), ¶¶ 4, 21, Plaintiff is

unconvinced. Instead, AIC claims, “[P]age 6 of [the Handbook] indicates that the redacted

portions of pages 7 and 8 are part of a section entitled, ‘Advice of Rights.’” Opp. at 8. As a

result, the organization suggests, those pages “appear to shed light on, amplify, or enlarge” the

released sections of the document and thus should have been disclosed. Id. at 7.

The Court has reviewed the contested pages in camera, and it does not agree. Plaintiff

requested information related to attorneys’ ability to be present during their clients’ interactions

with CBP and other aspects of attorneys’ roles during those interactions. Pages 7 and 8 of the

Handbook, however, only address CBP’s procedure for advising individuals of their rights when

detained. This procedure occurs outside the presence of counsel, and the redacted pages do not

contain any protocols or guidelines for dealing with counsel or requests for counsel. The Court,

therefore, is satisfied that the redacted information is not responsive to AIC’s FOIA request, and

it will grant Defendants summary judgment on Record No. 1.

B. Exemptions

That initial issue out of the way, the Court now turns to the crux of this dispute: the

applicability of Defendants’ claimed FOIA exemptions to six particular documents. The

Government invoked Exemption 7(E) to protect sections of documents 2, 3, 4, 5, and 7. See

Opp. at 4-6; Response to Order of the Court, Exh. A (Vaughn Index) at 1-6. It also argues – and

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Plaintiff continues to contest – that Exemption 5 justifies withholding parts of three of the

records at issue here: Documents 2, 3, and 6. See Opp. at 4-6; Vaughn Index at 1, 2, 4.

As a preliminary matter, Plaintiff has notified the Court that it has come into possession

of a less-redacted version of Document 7, and it challenges only the redaction of information

here that was not protected in that other version. See Opp. at 10 n.8. In other words, Plaintiff

already has obtained the redacted information, and it does not explain why it needs the Court to

order this material released again. As Plaintiff has already received the relief it seeks, the Court

holds this request to be moot, and, consequently, it need consider only the challenges to the

Exemption 7(E) redactions in documents 2, 3, 4, and 5 before moving to Exemption 5.

1. Exemption 7(E)

Exemption 7 authorizes the Government to withhold “records or information compiled

for law enforcement purposes, but only to the extent that the production of such law enforcement

records or information” meets one of six requirements. 5 U.S.C. § 552(b)(7); see also Keys v.

DOJ, 830 F.2d 337, 340 (D.C. Cir. 1987) (“[Exemption 7] exempts such documents from

disclosure only to the extent that production of the information might be expected to produce one

of six specified harms.”). The fifth subparagraph – 7(E) – permits withholding if production

“would disclose techniques and procedures for law enforcement investigations or prosecutions,

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). In order to properly invoke Exemption 7(E), then, the agency must satisfy two

requirements: First, the record must be compiled for law-enforcement purposes; and second,

production must disclose either techniques and procedures for law-enforcement investigations or

guidelines for law-enforcement investigations that would risk circumvention of the law.

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 a. Law-Enforcement Purposes

AIC concedes that CBP is a law-enforcement agency, see Opp. at 27-28, but it notes that

agency records do not become law-enforcement records under FOIA “simply by virtue of the

function the agency serves.” Id. at 28 (citing King v. DOJ, 830 F.2d 210, 229 (D.C. Cir. 1987)).

As a result, it is not enough that CBP is “a federal law enforcement agency” tasked with the

“management, control and protection of our nation’s borders,” the enforcement of over 400

federal statutes, and the “responsib[ility] for keeping terrorists and terrorist weapons out of the

country.” Suzuki Decl., ¶ 3. Instead, the agency “must still make a showing of ‘law

enforcement purposes’ by providing a sufficient explanation that ‘establish[es] a rational nexus

between [the withholding] and one of the agency’s law enforcement duties,’ as well as a

‘connection between an individual or incident and a possible security risk or violation of federal

law.’” Am. Immigration Council, 950 F. Supp. 2d at 245 (quoting Campbell v. DOJ, 164 F.3d

20, 32 (D.C. Cir. 1998)).

Although Plaintiff does not challenge Defendants’ compliance with the second part of

this test, it does question whether CBP has proven a “rational nexus” between the redacted

information in Documents 2, 3, and 5 and its law-enforcement duties. (It appears, on the other

hand, that Plaintiff concedes that Document 4 satisfies this threshold requirement. See Opp. at

27-31 (discussing only 2, 3, and 5 in this context)).

Plaintiff contends that Defendants improperly “argue that the[] records were compiled for

law enforcement purposes simply because they describe CBP’s procedures for detaining or

processing individuals.” Opp. at 28. It posits that claims “concern[ing] certain procedures used

when an alien is detained at a border” and subject to questioning are “insufficient to establish

that this information ‘relate[s] to anything that can fairly be characterized as an enforcement

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proceeding’ merely because CBP may, at some future time, place the individuals subject to these

procedures into enforcement proceedings.” Id. at 29 (quoting Jefferson v. U.S. Dep’t of Justice,

Office of Professional Responsibility, 284 F.3d 172, 177 (D.C. Cir. 2002)).

It is true that the Jefferson court required that an agency show that the information

withheld relates to enforcement. Nothing in that case or its progeny, however, requires

disclosure just because the documents relate only to future – indeed, even hypothetical –

proceedings. In fact, Jefferson explicitly allowed that Exemption 7 can protect files created “in

connection with investigations that . . . could result in civil or criminal sanctions,” Jefferson, 284

F.3d at 177 (emphasis added), as long as they relate to investigatory activity that that could result

in the government’s punishing a private individual, rather than merely to “government oversight

of the performance of duties by its employees.” Id. at 179; see also Stern v. F.B.I., 737 F.2d 84,

89 (D.C. Cir.1984) (document may be protected if investigation “focuses directly on specifically

alleged illegal acts . . . which could, if proved, result in civil or criminal sanctions”) (emphasis

added) (internal quotation marks and citation omitted). If a FOIA defendant can show that the

information withheld bears on its law-enforcement activities – even activities that are not

guaranteed to result in enforcement proceedings – it will have satisfied Exemption 7’s threshold

requirement.

The Government argues, and the Court agrees, that each of the withheld records has a

rational nexus to the agency’s law-enforcement duties, including the prevention of terrorism and

unlawful immigration. As Defendants put it in their Vaughn Index, Document 2, for example,

describes the “procedures concerning assessments and actions” agency personnel should

consider “when responding to telephonic requests from citizens and attorneys to obtain

information about or contact detainees in CBP custody.” Vaughn Index at 1. The nexus is plain:

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the techniques described in Document 2 help CBP manage the interrogation and detention of

people held at the border. See Suzuki Decl., ¶ 47. Release of information about those

techniques could “facilitate circumvention” of law-enforcement procedures and make it harder

for CBP to control the interrogation process. Whatever the policy merits of the agency’s

approach, Congress has determined that CBP should be tasked with preventing unlawful entry

and handling the concomitant security risks. Document 2 bears directly on that mission.

Document 3 is of similar import. Defendants assert that the language redacted in that

record describes “procedures concerning assessments” and actions CBP personnel should

consider “when responding to requests from attorneys to be present during deferred inspections

in Miami.” Vaughn Index at 2. Deferred inspections, which CBP uses when it cannot make an

immediate determination concerning the immigration status of an arriving traveler, are part of the

agency’s enforcement process, see Suzuki Decl., ¶ 3, and Document 3 relates to procedures used

during such inspections. There is thus a rational nexus here, too.

Finally, although the description of Document 5 in Defendants’ Vaughn Index is

certainly abbreviated, the supplemental information in the agency’s briefs and the Court’s

independent in camera review make it evident that the single, three-line redaction at issue

crosses the Exemption 7 threshold, as the information withheld similarly relates to procedures for

handling detainees and their lawyers. The Court therefore finds that Documents 2, 3, 4, and 5

were created for law-enforcement purposes.

b. Guidelines, Techniques, and Procedures

Defendants, of course, still bear the burden of demonstrating that the contested

documents meet the other requirements of Exemption 7(E) – namely, that disclosure would

reveal law-enforcement guidelines, techniques, or procedures “generally unknown to the public,”

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Albuquerque Pub. Co. v. U.S. Dep’t of Justice, 726 F. Supp. 851, 857 (D.D.C. 1989), and that

disclosure could “reasonably be expected to risk circumvention of the law.” 5 U.S.C. §

552(b)(7)(E).

Courts typically have found that the Government carries its evidentiary burden on this

point when it provides:

(1) a description of the technique or procedure at issue in each
document, (2) a reasonably detailed explanation of the context in
which the technique is used, (3) an exploration of why the
technique or procedure is not generally known to the public, and
(4) an assessment of the way(s) in which individuals could
possibly circumvent the law if the information were disclosed.

Am. Immigration Council, 950 F. Supp. 2d at 247. While the government faces a “low bar” to

show that it has properly withheld documents containing law-enforcement techniques and

procedures, Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011), it must nevertheless provide a

“relatively detailed justification” for each record that permits the reviewing court to make a

meaningful assessment of the redactions. Strunk v. U.S. Dep’t of State, 845 F. Supp. 2d 38, 47

(D.D.C. 2012) (citing Blackwell, 646 F.3d at 42)). Generic portrayals of categories of documents

and vaguely formulated descriptions will not suffice. See Am. Immigration Council, 950 F.

Supp. 2d at 246-47. In sum, the Government must provide sufficient facts and context to allow

the reviewing court to “deduce something of the nature of the techniques in question.” Clemente

v. FBI, 741 F. Supp. 2d 64, 88 (D.D.C. 2010).

AIC argues that Defendants have not carried that burden on several fronts. First, it

contends that the agency has “offered only conclusory allegations and insufficient descriptions

and explanations of the redacted materials.” Opp. at 32. But Plaintiff’s leading example of that

deficiency falls flat on even the most cursory inspection. Claiming that the description of

Document 3 in Defendants’ Vaughn Index is “vague,” the organization points out that the

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Government describes the redacted information as providing “‘procedures to be used when an

individual is detained during a deferred inspection,’ including ‘guidelines for the actions CBP

personnel should take when responding to requests from attorneys to be present during deferred

inspections in Miami.’” Opp. at 32-33 (quoting Mot. at 38). Even if Plaintiff were correct that

this description is somewhat vague, the very next sentence in the Vaughn Index offers plenty of

detail. Indeed, Defendants go on to describe the information withheld as “deliberations and

analysis used in deciding how to respond to different types of inquiries. The information presents

situational responses in an ‘if a occurs then the b response is required because of x, y, z

considerations.’” See Vaughn Index at 2. To describe these techniques in greater detail here

would risk disclosing them – “the very harm Exemption 7(E) seeks to prevent.” Nat’l

Whistleblower Ctr. v. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13, 36 (D.D.C. 2012).

AIC then suggests – again only in relation to Document 3 – that the agency’s descriptions

are at times “contradictory.” Opp. at 32. As evidence, Plaintiff points out that Defendants’

Motion describes the record as guidelines or procedures to be used in deferred inspections,

whereas elsewhere they characterize the redacted information as “deliberations,”

“recommendations,” and “responses to hypothetical/potential situations.” See Opp. at 33 (citing

Suzuki Decl., ¶ 53). That argument fails for two reasons. First, the Court is at a loss as to why

Plaintiff believes “guidelines or procedures” cannot include possible “responses to

hypothetical/potential situations.” Second, if Plaintiff means to suggest that by calling the record

a “deliberation” Defendants forfeit the Exemption 7(E) argument, such a position is easily

debunked: In its declaration and its Vaughn Index, the agency explained that it withheld

Document 3 pursuant to both Exemption 7(E) and Exemption 5. Exemption 5 protects

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deliberative documents, among others, so Defendants’ decision to invoke the word

“deliberations” in its description of the redactions is anything but “contradictory.”

c. Investigations or Prosecutions

Plaintiff next turns to the argument that many of CBP’s redactions do not protect law-

enforcement “investigations” or “prosecutions.” See Opp. at 34-35 (citing Cowsen-El v. DOJ,

826 F. Supp. 532, 534 (D.D.C. 1992)). AIC claims that “much of the material withheld by

Defendants . . . appears to relate to the administrative processing of individuals in the agency’s

custody – not investigations or prosecutions.” Id. at 35 (citing Mot. at 37). Even if these records

were compiled for a law-enforcement function and include agency procedures, techniques, or

guidelines, Plaintiff argues, they may not be withheld unless Defendants also show that the

procedures relate to investigations or prosecutions. Id. at 36. Once again, however, the

organization’s argument fails on the substance. As explained in Defendants’ Vaughn Index and

pleadings – and confirmed by the Court’s in camera review – each of the documents describes

guidelines or procedures CBP uses to deal with people suspected of violating immigration laws,

their lawyers, and their families. See Vaughn Index at 1-6. AIC offers no argument for why the

control of persons detained in federal custody as the result of law-enforcement operations should

not be considered related to an investigation or, ultimately, a prosecution, and the Court sees

none either. Cf. AIC, No. 12-856, 2014 WL 842311, (considering similar arguments in the

context of the “law-enforcement-purposes” inquiry). In fact, the treatment of suspects – what

rights they are afforded, how they are interrogated, how long and in what conditions they are

detained – would appear to go to the heart of law-enforcement “investigations” and

“prosecutions.” This attack on Defendants’ withholding of Documents 2 through 5 is therefore

unavailing.

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 d. Circumvention of Law

Nor is the organization’s next argument much help. AIC contends that the Government

has not proven that disclosure of the documents at issue would risk circumvention of the law.

The Court, however, has enough information in the Vaughn Index and the unredacted documents

reviewed in camera to conclude that those documents would give individuals undisclosed

information about CBP’s procedures, techniques, and guidelines that could allow them to

circumvent screening protocols or interfere with or thwart the agency’s enforcement efforts.

Document 5, for example, addresses procedures for detaining individuals in short-term hold

rooms, for handling high-risk detainees, and for restraining violent detainees, and special

practices for deciding when to isolate individuals from their families. See Suzuki Decl., ¶ 49.

Release of that information could risk circumvention of detention practices and threaten officer

safety by allowing suspects to skirt those safety procedures, “circumvent CBP attempts to

separate human smugglers from their victims,” and evade “actions related to the protection of

minors.” Id. Having reviewed the other withheld documents in camera, the Court believes there

are similar reasons for denying disclosure of each of those records.

e. Generally Unknown to Public

Finally, AIC questions whether Defendants have shown that the redacted materials are

not generally known to the public. Although Defendants do not specifically address the issue in

their Vaughn Index or pleadings – beyond conclusory allegations to that effect – their

descriptions of the documents in question, along with the Court’s in camera review, convinces

the Court that these records do contain information of which the public is not generally aware.

Documents 2, 3, 4, and 5 are internal memoranda from CBP supervisors – lawyers and section

chiefs, among others – to the agency’s prosecutors describing the methods they may use in

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interrogating detainees. There is no reason to believe that those opinions have been disseminated

beyond CBP’s offices. Defendants state, moreover, that the techniques described are

“specifically used in the context of detaining aliens who have attempted to cross the border. As

the general public is not involved in processing aliens entering the country, there would be no

reason for the general public to know of these techniques.” Reply at 20-21. The Court agrees.

In sum, then, the Court concludes that Defendants properly redacted Documents 2, 3, 4,

and 5 under FOIA Exemption 7(E). It will therefore grant their Motion with regard to those five.

2. Exemption 5

As a result, all that remains with respect to the substantive exemptions is AIC’s challenge

to CBP’s decision to withhold Document 6 under Exemption 5. That exemption protects “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), and thus incorporates three traditional

civil-discovery privileges: (1) the deliberative-process privilege; (2) the attorney-client privilege;

and (3) the attorney work-product privilege. See Cuban v. SEC, 744 F. Supp. 2d 60, 75 (D.D.C.

2010). Defendants invoke all three, but because the Court concludes that the deliberative-

process privilege justifies withholding Document 6, it need not entertain arguments regarding the

others.

The deliberative-process privilege exempts from disclosure “documents reflecting

advisory opinions, recommendations, and deliberations comprising part of a process by which

governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S.

132, 150 (1975). It is intended “to enhance the quality of agency decisions by protecting open

and frank discussion among those who make them within the Government.” Dep’t of Interior v.

Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (2001) (internal quotation marks omitted).

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The privilege “rests on the obvious realization that officials will not communicate candidly

among themselves if each remark is a potential item of discovery and front page news.” Id.; see

also Dow Jones & Co. v. DOJ, 917 F.2d 571, 573-74 (D.C. Cir. 1990). To fall under the

protection of the deliberative-process privilege, withheld material must be both “predecisional”

and “deliberative.” Mapother v. DOJ, 3 F.3d 1533, 1537 (D.C. Cir. 1993). Material is

“predecisional” if it was “generated before the adoption of an agency policy.” Coastal States

Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). It is “deliberative” if it

“reflects the give-and-take of the consultative process.” Id.

Document 6 is a chain of e-mails between various CBP employees stationed at the

Baltimore Port and the Acting Baltimore Area Port Director considering how the field office

would respond to an inquiry from CBP Headquarters. Plaintiff challenges only two redactions

from the final substantive e-mail in the chain. It argues first that the redacted information is not

“predecisional” because it “describe[s] existing policies and practices, not decision-making on

new practices.” Opp. at 24 (citing Public Citizen, Inc., 598 F.3d at 876). As evidence for this

contention, AIC points out that one person who participated in the e-mail chain described the e-

mail containing the redacted information as “the final draft of [CBP’s] response” to

Headquarters. Plaintiff thus posits that the document may embody the ultimate response

produced, observing that “nothing in the document forecloses [that] possibility.” Opp. at 26.

The error in this logic is no fault of Plaintiff’s, as only a later e-mail in the chain –

redacted in the document produced to Plaintiff but available to the Court for in camera review –

makes it clear that a final response to Headquarters, distinct from the response outlined in the

challenged e-mail, was ultimately created. See Unredacted Version of Mot., Exh. I (Redacted

Versions of Documents Produced) at ECF p. 33. Because Document 6 is a draft opinion, even if

16
that draft may have been adopted in part – or in full – the Court can conclude that it is

“predecisional” with respect to the agency’s decision on a final response. As the Supreme Court

has explained, the deliberative-process privilege “calls for disclosure of all opinions and

interpretations which embody the agency’s effective law and policy, and the withholding of all

papers which reflect the agency’s group thinking in the process of working out its policy and

determining what its law shall be.” Sears, 421 U.S. at 153. A draft response such as Document

6 falls into the latter camp.

Next, AIC challenges the “deliberative” nature of the redacted information in Document

6 on two grounds. First, it notes once again that “[d]ocuments that explain existing policies are

not considered deliberative.” Opp. at 25. As the Court just concluded, however, the redacted

information in Document 6 does no such thing; instead, it is part of a draft response to an inquiry

about existing policies, and, as such, it illustrates the “give-and-take of the consultative process”

that courts have sought to protect. Coastal States Gas Corp., 617 F.2d at 866.

Moving on, AIC argues that “messages sent from superiors to subordinates that contain

‘no hint that the [superior] is still weighing her options or wants feedback from the employees’ . .

. are more likely to be non-deliberative.” Opp. at 26 (quoting AIC, 905 F. Supp. 2d at 220).

Specifically, Plaintiff complains that “the challenged portion of Record No. 6 does not appear to

be seeking comments,” and “nothing in the document forecloses the possibility that this was the

agency’s final version.” Opp. at 26. Although the Court does not “endors[e] the legal binary

that AIC has drawn on this issue,” see AIC, No. 12-856, 2014 WL 842311, at *8, Defendants’

Vaughn Index and the Court’s own in camera review of Document 6’s redactions make clear

that AIC’s concern is unfounded. The Vaughn Index, on its own, provides much of the detail

that AIC claims is missing, noting that Document 6 contains emails from a “lower level

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employee” to her superior “regarding how to respond to an inquiry from . . . CBP

[Headquarters].” Vaughn Index at 5. The emails, therefore, involve CBP employees of various

subordinate levels and specifically discuss a request for clarification from Headquarters. The

“final draft” does not even come from a supervisor – an ultimate decisionmaker regarding how to

respond to the inquiry – and, as the Court has observed, in camera review has convinced it that

the challenged redactions are not part of the agency’s “final version.”

In sum, the Court finds that Defendants properly redacted Document 6 under the

deliberative-process privilege, and it will thus grant them summary judgment on that point.

C. Segregability

The last issue that the Court must address is segregability. FOIA requires that “[a]ny

reasonably segregable portion of a record . . . be provided to any person requesting such record

after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Accordingly, “non-exempt

portions of a document must be disclosed unless they are inextricably intertwined with exempt

portions.” Mead Data Central, Inc., v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir.

1977). Still, an agency is not obligated to segregate non-exempt material if “the excision of

exempt information would impose significant costs on the agency and produce an edited

document with little informational value.” Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981),

overruled on other grounds by Church of Scientology of California v. IRS, 792 F.2d 153 (D.C.

Cir. 1986).

While the Government is “entitled to a presumption that [it] complied with the obligation

to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013),

this presumption of compliance does not obviate its obligation to carry its evidentiary burden and

fully explain its decisions on segregability. See Mead Data, 566 F.2d at 261. The agency must

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provide “a detailed justification and not just conclusory statements to demonstrate that all

reasonably segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110,

120 (D.D.C. 2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the

President, 97 F.3d 575, 578 (D.C. Cir. 1996) (determining Government affidavits explained

nonsegregability of documents with “reasonable specificity”). “In making a determination as to

segregability . . . a district court judge ‘may examine the contents of . . . agency records in

camera’ . . . . This Circuit has interpreted this language to give district court judges broad

discretion in determining whether in camera review is appropriate.” Id. at 577-78 (citations

omitted).

Plaintiff queries whether Defendants’ declaration on segregability is sufficient to carry its

burden. Although the Court is inclined to side with the Government on that question, it need not

delve too deeply, as its own in camera review of the materials suffices to persuade it that there

are no segregability problems in this case. All seven contested documents feature targeted

redactions, with individual words and sentences (as well as a few paragraphs) clipped to remove

exempt information. Defendants, moreover, “reconsidered, at AIC’s request, the redactions

made in the . . . documents at issue and reduced the number of redactions whenever possible.”

Suzuki Decl., ¶ 50. This shows that Defendants made the required effort to segregate and

disclose those portions that could be released. The non-exempt portions of these documents that

have been redacted are thus “inextricably intertwined with exempt portions” and need not be

further segregated. Mead Data, 566 F.2d at 260.

In a last-ditch effort to call Defendants’ segregability analysis into question, AIC points

out that CBP “withh[eld] . . . information that [the agency] itself released either in this litigation

or under other circumstances.” Opp. at 38. That some of the redactions cover information that

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CBP has released elsewhere does not, on its own, call the Government’s redactions into question.

To the extent that Plaintiff’s contention is a targeted attack on the segregability of certain

redacted information in Document 7, moreover, that argument is moot for the reasons described

in Section III.A, supra.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendants’ Motion for Summary

Judgment with respect to Documents 1, 2, 3, 4, 5, and 6, and it will dismiss as moot Plaintiff’s

claim regarding Document 7. A separate Order consistent with this Opinion will be issued this

day.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge

Date: March 21, 2014

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