UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALBERTO CONCEPCION, :
:
Plaintiff, : Civil Action No.: 10-0599 (RMU)
:
v. : Re Document No.: 12
:
U.S. CUSTOMS AND BORDER :
PROTECTION, :
:
Defendant. :
MEMORANDUM OPINION
DENYING WITHOUT PREJUDICE THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
The plaintiff brought this action pursuant to the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552, to compel the defendant, the U.S. Customs and Border Protection (“CBP”) to
disclose records pertaining to the “passenger activity” of the plaintiff’s deceased brother from
January 1, 1997 until the present. CBP now moves for summary judgment, contending that it has
conducted an adequate search and has already provided all of the responsive documents to the
plaintiff. Because CBP has failed to demonstrate that it has searched all the databases where one
could reasonably expect to find records responsive to the plaintiff’s FOIA request, the motion is
denied without prejudice.
II. FACTUAL & PROCEDURAL BACKGROUND
Beginning on May 1, 1998, the Federal Bureau of Investigation (“FBI”), along with state
and local law enforcement officials in New Jersey, conducted an investigation targeting the
plaintiff and others involved with the distribution of large quantities of heroin. Compl. ¶¶ 10-13.
The investigation led to the plaintiff’s arrest on December 15, 1999, id. ¶ 12, and subsequent
criminal proceedings in the United States District Court for the District of New Jersey, id. ¶ 13.
Eventually, the plaintiff was convicted and sentenced to 325 months of imprisonment. See
United States v. Concepcion, Civ. No. 99-753 (D.N.J. July 7, 2000) (Judgment), aff’d, 259 F.3d
717 (3d Cir. 2001).
The plaintiff claims that during the period of the criminal investigation that led to his
arrest, he had been using the driver’s license, credit cards and social security number of his
deceased brother, Miguel Concepcion. Compl. ¶¶ 9, 27. Using his deceased brother’s identity,
the plaintiff allegedly bought and used an airplane ticket from New Jersey to North Carolina, and
claims to have been in North Carolina on the dates that he purportedly sold heroin to a
government informant. Id. ¶ 27.
In an attempt to bolster his alibi with evidence, the plaintiff submitted a FOIA request to
CBP in June 2008, id. ¶ 14, seeking the following information:
A COPY OF ANY, [AND] ALL OF THE RECORDS,
DOCUMENTS, FILES, DATA, & ETC., OF THE PRIMARY
QUERY HISTORY OF PASSENGER ACTIVITY, FROM JAN.
1, 1997, UNTIL PRESENT FOR MY DECEASE[D] BROTHER
MIGUEL CONCEPCION, DOB: SEPT. 2, 1961; POB:
NEWARK, NEW JERSEY; SSN: . . . ; [AND] DATE OF DEATH
WAS JULY 25, 1997.
Id., Ex. N-7 (Pl.’s FOIA Request) (emphasis in original).
According to Shari Suzuki, 1 a CBP official, CBP responded to the plaintiff’s request by
conducting a search of one of its databases, the Treasury Enforcement Communications System
(“TECS”), using Miguel Concepcion’s name and date of birth as search terms. Def.’s Mot., Ex.
A (“Suzuki Decl.”) ¶ 19. Suzuki explains that TECS is an “information collection, risk
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Suzuki is the Chief of FOIA appeals in the Policy and Litigation Branch, Regulations and
Rulings, Office of International Trade, U.S. Customs and Border Protection. Def.’s Mot., Ex. A
(“Suzuki Decl.”) ¶ 1.
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assessment, and information sharing environment” that contains “temporary and permanent
enforcement, inspection and intelligence records.” Id. ¶ 25. Among TECS’s records are
international flight records. Id. ¶¶ 26-27. CBP does not keep, however, and therefore TECS
does not contain, records on exclusively domestic travel. Id. ¶¶ 26-27.
A search of CBP records yielded a one-page passenger activity record that was
responsive to the plaintiff’s request. Suzuki Decl. ¶¶ 12, 25; Def.’s Mot., Ex. D. CBP redacted
portions of the document under certain FOIA exemptions that the plaintiff does not challenge,
Pl.’s Opp’n ¶ 8, and released the remainder of the document to the plaintiff, 2 see Compl., Ex. N-
12.
Dissatisfied with the lack of responsive records produced by the CBP, the plaintiff
appealed to CBP’s FOIA Appeals, Policy and Litigation Branch, which denied the appeal. See
id., Ex. N-15; id., Ex. N-19. The plaintiff then commenced this action, demanding the “‘full
disclosure’ of the non-exempt, [and] wrongfully withheld travelers information for [Miguel
Concepcion] . . . with the dates of flights, time of flights, location of flights, price of purchased
flight tickets, [and] locations of purchased airline tickets . . . [and] all other unmentioned records
. . . of [Miguel Concepcion’s] travel information.” Id. ¶ 37. The defendant subsequently filed a
motion for summary judgment. With that motion now ripe for adjudication, the court turns to the
parties’ arguments and the applicable legal standards.
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CBP is required to demonstrate that it produced all reasonably segregable material found in its
responsive document. See Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260
(D.C. Cir. 1977). Through Suzuki’s declaration, CBP explained the FOIA exemptions applied to
the information it has redacted, Suzuki Decl. ¶¶ 20-25, and asserts that it produced all reasonably
segregable information, id. ¶ 28. In light of the detailed justification correlating its claims of
exemptions to the withheld portions of the document, the court concludes that CBP produced all
reasonably segregable responsive material for this one document. See King v. U. S. Dep’t of
Justice, 830 F.2d 210, 224 (D.C. Cir. 1987).
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III. ANALYSIS
A. Legal Standard for Summary Judgment in FOIA Cases
Summary judgment is appropriate when the pleadings and evidence show “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). In deciding whether there is a
genuine dispute, the court is to view the record in the light most favorable to the party opposing
the motion, giving the non-movant the benefit of all favorable inferences that can reasonably be
drawn from the record and the benefit of any doubt as to the existence of any genuine issue of
material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). To determine which
facts are “material,” a court must look to the substantive law on which each claim rests.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” is one whose
resolution could establish an element of a claim or defense and, therefore, affect the outcome of
the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
FOIA affords the public access to virtually any federal government record that FOIA
itself does not specifically exempt from disclosure. 5 U.S.C. § 552; Vaughn v. Rosen, 484 F.2d
820, 823 (D.C. Cir. 1973). FOIA confers jurisdiction on the federal district courts to order the
release of improperly withheld or redacted information. 5 U.S.C. § 552(a)(4)(B). In a judicial
review of an agency’s response to a FOIA request, the defendant agency has the burden of
justifying nondisclosure, and the court must ascertain whether the agency has sustained its
burden of demonstrating that the documents requested are exempt from disclosure under FOIA
and that the agency has adequately segregated exempt from non-exempt materials. 5 U.S.C. §
552(a)(4)(B); Al-Fayed v. Cent. Intelligence Agency, 254 F.3d 300, 305 (D.C. Cir. 2001);
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Summers v. U.S. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998); Mead Data Cent., Inc.
v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). An agency may meet its burden
by providing the requester with a Vaughn index, adequately describing each withheld document
and explaining the reason for the withholding. Summers, 140 F.3d at 1080; King v. U.S. Dep’t of
Justice, 830 F.2d 210, 224 (D.C. Cir. 1987).
FOIA mandates that “any reasonable segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. §
552(b). By 1977, it had “long been the rule in this Circuit that non-exempt portions of a
document must be disclosed unless they are inextricably intertwined with exempt portions.”
Mead Data Cent., Inc., 566 F.2d at 260. The D.C. Circuit has made clear that “the
‘segregability’ requirement applies to all documents and all exemptions in the FOIA.” Center
for Auto Safety v. Envtl. Prot. Agency, 731 F.2d 16, 21 (D.C. Cir. 1984). In fact, the
segregability requirement is so essential to a FOIA inquiry that “it is error for a district court to
simply approve the withholding of an entire document without entering a finding on
segregability, or the lack thereof.” Schiller, 964 F.2d at 1210 (D.C. Cir. 1992) (quoting Church
of Scientology v. U.S. Dep’t of Army, 611 F.2d 738, 744 (9th Cir. 1979)).
To demonstrate that the withholding agency has disclosed all reasonably segregable
material, “the withholding agency must supply a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant and correlating those claims with
the particular part of a withheld document to which they apply.” King v. Dep’t of Justice, 830
F.2d 210, 224 (D.C. Cir. 1987) (internal quotations omitted). The agency, however, is not
required to provide so much detail that the exempt material effectively would be disclosed.
Mead Data, 566 F.2d at 261. Furthermore, conclusory language in agency declarations that do
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not provide a specific basis for segregability findings by a district court may be found
inadequate. Animal Legal Def. Fund, Inc. v. U.S. Dep’t of Air Force, 44 F. Supp. 2d 295, 301
(D.D.C. 1999). The Circuit, though expressly disclaiming any attempt to provide “an
encompassing definition of ‘conclusory assertions,’” noted that “it is enough that where no
factual support is provided for an essential element of the claimed privilege or shield, the label
‘conclusory’ is surely apt.” Senate of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d 574, 585
(D.C. Cir. 1987).
B. Legal Standard for FOIA Adequacy of Agency Search
“A requester dissatisfied with the agency’s response that no records have been found may
challenge the adequacy of the agency’s search by filing a lawsuit in the district court after
exhausting any administrative remedies.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999). To prevail on summary judgment, “the agency must demonstrate beyond
material doubt that its search was reasonably calculated to uncover all relevant documents.”
Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)
(internal quotations and citations omitted). An agency must search for documents in good faith,
using methods that are reasonably expected to produce the requested information. Valencia-
Lucena, 180 F.3d at 326 (citing Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990)). The principal issue is not whether the agency’s search uncovered responsive documents,
but whether the search was reasonable. Oglesby, 920 F.2d at 67 n.13 (citing Meeropol v. Meese,
790 F.2d 942, 952-53 (D.C. Cir. 1986)); Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996).
The agency need not search every record in the system or conduct a perfect search. SafeCard
Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1201 (D.C. Cir. 1991); Meeropol, 790 F.2d
at 952, 956. Nor need the agency produce a document if “the agency is no longer in possession
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of the document[] for a reason that is not itself suspect.” SafeCard Servs., 926 F.2d at 1201.
Instead, to demonstrate reasonableness, the agency must set forth sufficient information
in affidavits for the court to determine, based on the facts of the case, that the search was
reasonable. Nation Magazine, 71 F.3d at 890 (citing Oglesby, 920 F.2d at 68). While an
agency’s affidavits are presumed to be in good faith, a plaintiff can rebut this presumption with
evidence of bad faith. SafeCard Servs., 926 F.2d at 1200. But such evidence cannot be
comprised of “purely speculative claims about the existence and discoverability of other
documents.” Id. If the record raises substantial doubts regarding the agency’s efforts,
“particularly in view of well defined requests and positive indications of overlooked materials,”
summary judgment is not appropriate. Valencia-Lucena, 180 F.3d at 326 (internal quotations
and citations omitted).
C. The Court Denies Without Prejudice the Defendant’s Motion for Summary Judgment
CBP asserts that it conducted a reasonable search for documents responsive to the
plaintiff’s request and produced the only responsive record. Def.’s Mot. at 5-6. The plaintiff
suggests that CBP either possesses additional responsive records or that “somebody ‘knowingly,
[and] illegally’ erased information from the TECS database.” Pl.’s Opp’n ¶ 7.
To demonstrate the adequacy of its search, CBP must show that it searched all files likely
to contain records responsive to the plaintiff’s request for “any, [and] all of the records . . . of the
primary query history of passenger activity” between January 1, 1997 to the present. Compl.,
Ex. N-7; Nation Magazine, 71 F.3d at 890. CBP explained that it searched the TECS system for
any responsive documents, see Suzuki Decl. ¶¶ 12, 19, 25, 28, and that it does not maintain
records on domestic travel, see id. ¶¶ 26-27. The plaintiff’s FOIA request, however, is not
limited to domestic flight records. See Pl.’s FOIA Request. Suzuki’s affidavit, the only
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evidence offered by CBP, does not demonstrate that CBP searched all of the record systems that
were likely to contain materials responsive to the plaintiff’s FOIA request, Oglesby, 920 F.2d at
137 (observing that “a reasonably detailed affidavit . . . averring that all files likely to contain
responsive materials . . . were searched, is necessary . . . to allow the district court to determine if
the search was adequate in order to grant summary judgment”).
Because CBP may not “limit its search to only one record system if there are others that
are likely to turn up the information requested,” James v. U.S. Customs & Border Protection,
474 F. Supp. 2d 154, 159 (D.D.C. 2007), and because CBP has not demonstrate that responsive
documents would not reasonably be found in other record systems or that it searched any other
potential sources but found no responsive records, the court determines that CBP has not
demonstrated that its search was adequate. Accordingly, the court denies the defendant’s motion
for summary judgment without prejudice. Id. (denying summary judgment without prejudice
because CBP “[made] no further attempt at all to explain why TECS is the exclusive source of
potentially responsive material”); cf. Moayedi v. U.S. Customs & Border Protection, 510 F.
Supp. 2d 73, 80 (D.D.C. 2007) (granting summary judgment where CBP’s supporting affidavit
expressly stated that “TECS is the only CBP database that would reasonably contain the
information requested in this FOIA request”).
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IV. CONCLUSION
For the foregoing reasons, the court denies without prejudice the defendants’ motion to
dismiss. An Order consistent with this Memorandum Opinion is separately and
contemporaneously issued this 3rd day of March, 2011.
RICARDO M. URBINA
United States District Judge
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