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

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY,

Plaintiff,

v. Civ. No. 17-1037 (EGS)

U.S. ARMY CORPS OF ENGINEERS, and
U.S. CUSTOMS AND BORDER PROTECTION,

Defendants.

MEMORANDUM OPINION

Plaintiff Center for Biological Diversity (“Center”) brings

this action pursuant to the Freedom of Information Act, 5 U.S.C.

§ 552 (“FOIA”), seeking, among other things, disclosure of

records withheld by Defendants U.S. Army Corps of Engineers

(“Army Corps”) and U.S. Customs and Border Protection (“CBP”)

(collectively “Defendants”). The withholdings are documents that

were provided to President-elect Trump’s Transition Team that

concern then-candidate Trump’s campaign promise to construct a

wall along the United States’ southern border.

Concerned for the biological diversity of the U.S.-Mexico

Borderlands, particularly the allegedly imperiled wildlife

species that currently reside there, the Center submitted a FOIA

request to the Army Corps and CBP in an attempt to understand

how the defendants advised the Presidential Transition Team on

the border wall. In response to the FOIA request, defendants
produced over 5,000 documents with many records redacted or

withheld pursuant to several FOIA exemptions.

The Center has challenged defendants’ withholdings pursuant

to the various claimed FOIA exemptions. Pending before the Court

are the parties’ cross-motions for summary judgment. Upon

careful consideration of the parties’ submissions, the

applicable law, and the entire record herein, the Court GRANTS

defendants’ motion for summary judgment, and DENIES the

plaintiff’s cross-motion.

I. Background

Unless otherwise noted, the following facts are taken from

the Complaint, ECF No. 1, and from the parties’ statements of

undisputed material facts, See Defs.’ Statement of Material

Facts (“Defs.’ SOMF”), ECF No. 21-1; Pl.’s Statement of Material

Facts (“Pl.’s SOMF”), ECF No. 22-2.

This case involves a FOIA request by the Center to the

United States Army Corps, in which the Center requested the

following documents: “all records . . . that reference walls,

barriers, and/or other physical constructions along the U.S.-

Mexico border and/or U.S. Canada border, for purposes of the

Presidential transition process, created for and/or provided to

brief members of the Presidential Transition Team and/or their

2
representatives.” Defs.’ SOMF, ECF No. 21-1 at 1 ¶ 1. 1 The

Center made the same request of the U.S. Department of Homeland

Security (“DHS”). Pl.’s SOMF, ECF No. 22-2 ¶ 5.

The Army Corps “produced . . . a total of 661 records . . .

in full or in part,” and “with[eld] 152 pages of ‘attachments’

in their entirety.” 2 Pl.’s SOMF, ECF No. 22-2 ¶¶ 18, 19. The

Army Corps withheld the information pursuant to FOIA Exemptions

5, 6, and 7(E). Id. ¶¶ 21–23. CBP released in whole or in part

“approximately 4,264 pages of responsive records.” Howard Decl.,

ECF No. 21-2 ¶ 25. CBP withheld information pursuant to FOIA

Exemptions 4, 5, 6, 7(C) and 7(E). Id. DHS made a final

determination on the Center’s FOIA request on May 30, 2017.

Pl.’s SOMF, ECF No. 22-2 ¶ 14. The Center appealed the decision

on July 3, 2017,id. ¶ 15, and DHS made a final determination on

the appeal on March 1, 2018, id. ¶ 16.

On May 31, 2017, the Center filed this action alleging that

defendants violated FOIA, Compl., ECF No. 1 at 9-15 ¶¶ 46-90, or

alternatively, the Administrative Procedure Act. Id. at 15-20 ¶¶

1 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
2 Roberts determined that he “miscalculated the number of pages

of documents withheld in their entirety in the November 1, 2017
production” when he prepared the declaration. Defs.’ Counter-
Statement of Disputed Facts, ECF No. 28-2 ¶ 8. He previously
reported that the Army Corps entirely withheld 695 pages of
attachments, partially released 88 pages of emails, and
partially released 573 pages of attachments. Id. at ¶ 7.

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91-116. The Center “seeks declaratory relief establishing that

defendants are in violation of FOIA, or alternatively APA”, and

“injunctive relief directing defendants to provide it with

responsive records without any further delay.” Id. ¶ 7.

On October 31, 2017, pursuant to a court-ordered schedule,

Army Corps produced 661 pages of partially redacted records,

including emails and attachments. See Declaration of Damon

Roberts (“Roberts Decl.”), ECF No. 21-3 ¶ 7. Army Corps redacted

employee names and contact information from 30 records pursuant

to Exemption 6, sections of 27 records in part or records in

full pursuant to Exemption 5, and portions of 6 records

containing photos, maps, and specific locations of fencing and

infrastructure pursuant to Exemption 7(E). See Roberts Decl.,

ECF No. 21-3 ¶¶ 8, 10, 13, 15; id. at Ex. D.

CBP released 7 batches of records totaling 4,494 pages,

with many records redacted or withheld pursuant to Exemptions 4,

5, 6, 7(C), and 7(E). Howard Decl., ECF No. 21-2 ¶ 25; id. at

Ex. D. CBP redacted information from 7 records pursuant to

Exemption 4, redacted or withheld 50 records pursuant to

Exemption 5, redacted names and contact information from 68

records pursuant to Exemption 6, and redacted 92 records

pursuant to Exemption 7(E). Howard Decl., ECF No. 21-2 ¶¶ 34-35,

42, 46, 52-55; id. at Ex. A.

Defendants filed a motion for summary judgment arguing that

4
they were entitled to relief because they “performed multiple

searches which were reasonably calculated to locate responsive

records,” and “produced all non-exempt responsive records to

[the Center] after properly withholding only such information

that is subject to . . . FOIA Exemptions 4, 5, 6, and 7.” Defs.’

Mot. Summ. J., ECF No. 21 at 3-4. In support of their motion,

the Army Corps submitted the declaration of Damon Roberts,

counsel responsible for processing FIOA requests at Army Corps

at the time. Roberts Decl., ECF No. 21-3 ¶ 2. CBP submitted the

declaration of Patrick Howard, Branch Chief within the FOIA

Division at CBP. Howard Decl., ECF No. 21-2 ¶ 1. The Army Corps

and CBP also submitted their respective Vaughn indices. Ex. D,

ECF No. 21-3 at 20; Ex. A, ECF No. 21-2 at 18. See Vaughn v.

Rosen, 484 F.2d 820 (D.C. Cir. 1973).

The Center opposed defendants’ motion and filed a cross-

motion for summary judgment challenging the withholdings to

certain pages of produced documents on the basis of Exemptions

4, 5, 6, and 7. Pl.’s Cross-Mot., ECF No. 22 at 11. The parties

have filed replies and the parties’ motions are now ripe for

disposition.

II. Standard of Review

A. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted if the moving party has shown that

5
there are no genuine issues of material fact and it is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex

Corp v. Catrett, 477 U.S. 317, 325 (1986). In determining

whether a genuine issue of material fact exists, the court must

view all facts in the light most favorable to the non-moving

party. See Mastushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). FOIA cases are typically and

appropriately decided on motions for summary judgment. Gold

Anti-Trust Action Comm. Inc. v. Bd. Of Governors of Fed. Reserve

Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011)(citations omitted).

In ruling on cross-motions for summary judgment, the court shall

grant summary judgment only if one of the moving parties is

entitled to judgment as a matter of law upon material facts that

are not genuinely disputed. Shays v. FEC, 424 F. Supp. 2d 100,

109 (D.D.C. 2006).

B. FOIA Exemptions

FOIA requires agencies to disclose all requested agency

records, unless one of nine statutory exemptions applies. 5

U.S.C. § 552 (a),(b). Congress enacted FOIA to “pierce the veil

of administrative secrecy and to open agency action to the light

of public scrutiny.” Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C.

Cir. 2007)(quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361

(1976)). Because disclosure rather than secrecy is the “dominant

objective of the Act,” the statutory exemptions are “narrowly

6
construed.” See McKneely v. United States Dept. of Justice, 2015

WL 5675515 at *2 (D.D.C. 2015) (internal citations omitted).

The government bears the burden of justifying

nondisclosure, either through declarations or an index of

information withheld. See e.g., Consumers’ Checkbook, 554 F.3d

1046 at 1057 (D.C. Cir. 2009) and Vaughn v. Rosen, 484 F.2d 820

(D.C. Cir. 1973) (holding that an indexing system was necessary

in FOIA cases to “(1) assure that a party’s right to information

is not submerged beneath governmental obfuscation and

mischaracterization, and (2) permit the Court system effectively

and efficiently to evaluate the factual nature of disputed

information.”).

Agency affidavits and declarations must be “relatively

detailed and non-conclusory.” SafeCard Services v. SEC, 926 F.2d

1197, 1200 (D.C. Cir. 1991)(internal quotation marks and

citation omitted). Such affidavits or declarations are accorded

“a presumption of good faith, which cannot be rebutted by purely

speculative claims about the existence and discoverability of

other documents.” Id. Courts must conduct a de novo review of

the record and may grant summary judgment solely on the basis of

information provided by the department or agency in affidavits

or declarations that describe the documents and justifications

for nondisclosure with “reasonably specific detail.” Cause of

Action v. Federal Trade Com’n, 961 F. Supp. 2d 142, 153 (D.D.C.

7
2013)(quoting Military Audit Project v. Casey, 656 F. 2d 724,

738 (D.C. Cir. 1981)).

III. Analysis

Defendants initially withheld information pursuant to FOIA

Exemptions 4, 5, 6, 7(C), and 7(E). The Center, however, has

clarified that it “does not challenge the Army Corps’ redactions

of ‘names and contact information of active duty and civilian

[Department of Defense “(DoD)”] personnel,’ or ‘personal phone

numbers and personal email addresses of DoD employees’ pursuant

to Exemption 6.” 3 Pl.’s Cross-Mot., ECF No. 22 at 14 n.1 (quoting

Roberts Decl., ECF No. 21-3 ¶¶ 12–13). Nor does the Center

challenge “CBP’s redactions of law enforcement officers’ and

contractors’ names or contact information pursuant to Exemption

6 and Exemption 7(C).” 4 Id. (citing Howard Decl., ECF No. 21-2 ¶¶

46, 49). The Center contested the withholding of certain

information pursuant to Exemption 4, but in defendants’ reply

brief, CBP stated that it was releasing the contested

3 FOIA Exemption 6 exempts from disclosure “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).
4 FOIA Exemption 7(C) exempts from disclosure “records or

information compiled for law enforcement purposes, but only to
the extent that the production of such law enforcement records
or information . . . could reasonably be expected to constitute
an unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(7)(C).

8
information. 5 Defs.’ Reply, ECF No. 27 at 2. Therefore, no

disputes remain concerning CBP’s Exemption 4 withholdings, or

withholdings pursuant to Exemption 7(C) and Army Corps

withholdings pursuant to Exemption 6.

Accordingly, the only disputed issues are both defendants’

withholdings pursuant to Exemptions 5 and 7(E), and CBP’s

withholdings pursuant to Exemption 6, as to non-law enforcement

and agency employees only. The Court first discusses the

adequacy of defendants’ search for records; and then discusses

each claimed Exemption.

A. Adequacy of the Search for Records

Under FOIA, an agency must conduct a search that is

“reasonably calculated to uncover all relevant documents.”

Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.

Cir. 1983). The adequacy of an agency’s search is measured by a

standard of reasonableness “ and is dependent upon the

circumstances of the case.” Braun v. U.S. Postal Service, 317 F.

Supp. 3d 540, 547 (D.D.C. 2018). An agency has the burden to

“show that it made a good faith effort to conduct a search for

the requested records, using methods which can be reasonably

expected to produce the information requested . . . .” Oglesby

5 FOIA Exemption (b)4 exempts “trade secrets and commercial or
financial information obtained from a person and privileged or
confidential.” 5 U.S.C. § 552(b)(7)(C).

9
v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir.

1990)(citations omitted).

A court generally determines the adequacy of a search “not

by the fruits of the search, but by the appropriateness of the

methods used to carry out the search.” Media Research Ctr. v.

U.S. Dep’t of Justice, 818 F. Supp. 2d 131, 137 (D.D.C. 2001)

(quoting Iturralde v. Comptroller of the Currency, 315 F.3d 311,

315 (D.C. Cir. 2003)(internal quotations omitted)). “A

reasonably detailed affidavit, setting forth the search terms

and the type of search performed, and averring that all files

likely to contain responsive materials (if such records exist)

were searched, is necessary . . . to allow the district court to

determine if the search was adequate in order to grant summary

judgment.” Oglesby, 920 F.2d at 68.

The Center does not challenge the adequacy of the

defendants’ search. However the Court has an independent duty to

determine whether the government has met its FOIA obligations.

See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C.

Cir. 2007); see also 5 U.S.C. § 552(a)(3)(C)(stating agency

“shall make reasonable efforts to search for the records”).

After reviewing the declarations provided, the Court finds that

the defendants have met the statutory requirement to perform a

reasonable search. Army Corps explained that the following

methods were used to carry out the search:

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 [Mr. Steven Roberts], the Project Manager
in USACE Headquarters responsible for
working with Customs and Border Patrol .
. .would have a copy of all responsive
documents . . . . Mr. Roberts stored all
of his documents related to the
construction of a physical barrier in an
electronic folder on his network drive.
He stored all of his electronic
correspondence related to the
construction of a physical barrier in a
specific Outlook folder. Mr. Roberts
searched [both folders and his physical
papers] for all documents responsive to
the FOIA request. Mr. Roberts also
searched his physical paper files or
responsive documents. On April 18, 2017,
Mr. Roberts provided me all records within
his possession related [to] the
construction of a physical barrier along
the U.S.-Mexico border.

Roberts Decl., ECF No. 21-3 ¶4. Additionally, the declaration

avers that the Army Corps’ IT personnel “electronically

search[ed] the email account of [Army Corp’s] Commanding General

. . . for any emails that included the terms ‘border wall’ or

‘border fence.’ The IT search was undertaken to ensure all

responsive emails to or from Army Corps leadership had been

located and produced.” Id. ¶ 6. The Army Corps’ declaration

sufficiently explains the type of searches conducted, the search

terms used, and explains that all files likely to contain

responsive materials were located and searched. See Walston v.

U.S. Dep’t of Defense, 238 F. Supp. 3d 57, 64 (D.D.C.

2017)(noting that “[i]t is ‘necessary’ that the declaration that

[the agency] relies upon aver that ‘all files likely to contain

11
responsive materials . . . were searched.’” (quoting Oglesby,

920 F.2d at 68)(emphasis in original)). Consequently, Army

Corps’ search was sufficient.

Regarding the methods used to carry out CBP’s search, CBP

determined that “the da[y] after the Presidential election until

one month following the swearing in of President Trump,” was the

most likely “time [period] that any communications or drafts

would have been prepared for the Presidential Transition Team.

As such, this time period is reasonably calculated to locate the

records requested by Plaintiff.” Howard Decl., ECF No. 21-2 ¶

21. CBP determined that “the offices most likely to have

information responsive to the Request were the Office of

Facilities and Asset Management (“OFAM”), U.S. Border Patrol

(“USBP”), and the Policy Directorate [“OPD”]. . . .” Howard

Decl., ECF No. 21-2 ¶ 16. The declaration provided the search

terms that were used by each office to locate documents in

electronic files. Id. at 6 ¶¶ 22-24. Therefore, CBP’s

declaration sufficiently explains the type of search and the

search terms, and the files likely to contain responsive

materials were searched. Consequently, CBP’s search was

sufficient. Accordingly, the Court GRANTS defendants’ motion for

summary judgment as to the adequacy of the searches.

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 B. FOIA Exemption 5

FOIA’s Exemption 5 exempts from disclosure “inter-agency or

intra-agency memorandums or letters that would not be available

by law to a party other than an agency in litigation with the

agency.” 5 U.S.C. § 552(b)(5); see also Tax Analysts v. IRS, 117

F.3d 607, 616 (D.C. Cir. 1997). To qualify as exempt pursuant to

Exemption 5, “a document must meet two conditions: its source

must be a Government agency, and it must fall within the ambit

of a privilege against discovery under judicial standards that

would govern litigation against the agency that holds it.”

Stolt–Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728,

733 (D.C. Cir. 2008)(internal quotation marks omitted and

citation omitted). “[C]ourts have construed this exemption to

encompass the protections traditionally afforded certain

documents pursuant to evidentiary privileges in the civil

discovery context, including materials which would be protected

under the attorney-client privilege, the attorney work-product

privilege, or the executive deliberative process privilege.” Dow

Jones & Co., Inc. v. Dep’t of Justice, 917 F.2d 571, 573 (D.C.

Cir. 1990)(quoting Formaldehyde Institute v. Department of

Health and Human Serv., 889 F.2d 1118, 1121 (D.C. Cir. 1989)

(internal quotation marks omitted). Defendants claim the

deliberative process privilege and attorney-client privilege to

13
justify the withholdings pursuant to FOIA Exemption 5. The Court

discusses each in turn.

1. Deliberative Process Privilege

Army Corps claims the deliberative process privilege for 17

documents. These documents are mostly emails, but also include

draft documents, and communications between DoD personnel

regarding the “infrastructure along our nation’s borders.”

Roberts Decl., ECF No. 21-3 ¶¶ 9–10. CBP claims the privilege

for 29 documents which contain information concerning the

agency’s approach to implement law enforcement measures along

the U.S.-Mexico border under programs and initiatives, such as

the Secure Border Initiative Network (“SBInet”) (a concept for

providing fencing, communications systems, sensors, and

operators as an approach to surveillance along the southwest

border), the Integrated Fixed Tower (“IFT”) Program (a

surveillance program utilizing fixed surveillance towers along

the Arizona border), and the Aerostat surveillance system

(aircraft which monitor air and ground movement along the

border), as well as the agency’s potential plans for

construction of new tactical border infrastructure as directed

by the President. Howard Decl., ECF No. 21-2 ¶ 42.

To fall within the scope of the deliberative-process

privilege, withheld materials must be both “predecisional” and

“deliberative.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537

14
(D.C. Cir. 1993). A communication is predecisional if “it was

generated before the adoption of an agency policy” and

deliberative if it “reflects the give-and-take of the

consultative process.” Coastal States Gas Corp. v. Dep’t of

Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). “Even if the

document is predecisional at the time it is prepared, it can

lose that status if it is adopted, formally or informally, as

the agency position on an issue[.]” Id. For a document to be

deliberative it “must be a direct part of the deliberative-

process in that it makes recommendations or express[es] opinions

on legal or policy matters.” Elec. Privacy Info. Ctr., 384 F.

Supp. 2d at 112 (quoting Vaughn, 484 F.2d at 823-24)(internal

quotation marks omitted). “The critical factor in determining

whether the material is deliberative in nature is whether

disclosure of the information would discourage candid discussion

within the agency.” Id. “In determining whether a document is

predecisional, an agency does not necessarily have to point

specifically to a final decision, but need only establish ‘what

deliberative process is involved, and the role played by the

documents in issue in the course of that process.’” Id. at 112

(quoting Coastal States Gas Corp., 617 F.2d at 868). However,

the deliberative process privilege is to be construed “as

narrowly as consistent with efficient Government operation.”

15
United States v. Phillip Morris, 218 F.R.D. 312, 315 (D.D.C.

2003)(internal quotation marks and citation omitted).

The Center challenges Army Corp’s withholdings pursuant to

Exemption 5 on several grounds. First, the Center argues that

defendants fail to identify a policy decision at issue in the

withheld records; rather, the Center argues, many of the records

consist of factual information. Pl.’s Cross-Mot., ECF No. 22 at

23–27. Second, the Center argues that the withholdings are not

predecisional because they appear to decide or explain decisions

that have already been made. Id. at 27–28. Last, and related to

its first argument, the Center argues that both defendants have

failed to identify any deliberative process in the records. Id.

at 28–29.

Army Corps has established that the withheld documents were

a part of a deliberative process. Army Corps meets the inter- or

intra-agency document prerequisite; the declaration avers that

it withheld “communications between Department of Defense [ ]

personnel,” Roberts Decl., ECF No. 21-3 ¶ 10. As to the Center’s

argument that the information withheld is factual and therefore

cannot be protected, “[i]n some circumstances, even material

that could be characterized as ‘factual’ would so expose the

deliberative process that it must be covered by the privilege.”

Wolfe v. Dep't of Health and Human Serv., 839 F.2d 768, 774

(D.C. Cir. 1988). The Court of Appeals for the District of

16
Columbia Circuit (“D.C. Circuit”) has explained that “the

legitimacy of withholding does not turn on whether the material

is purely factual in nature or whether it is already in the

public domain, but rather on whether the selection or

organization of facts is part of an agency's deliberative

process.” Ancient Coin Collectors Guild v. U.S. Dep’t of State,

641 F.3d 504, 513 (D.C. Cir. 2011)(citation omitted).

Similarly, CBP has established that the withheld documents

were a part of a deliberative process. First, CBP meets the

inter- or intra-agency document prerequisite; the declaration

avers that it withheld “information concerning the agency's

approach to implement law enforcement measures along the U.S.-

Mexico border. . ., as well as the agency's potential plans for

construction of new tactical border infrastructure as directed

by President Trump.” Howard Decl., ECF No. 21-2 ¶ 42. Second,

CBP has shown that the information was predecisional and

deliberative; CBP’s declaration avers that “[t]he redacted

information includes the qualitative and quantitative metrics

across which USBP identified law enforcement capability gaps,

the results of tests and analyses of alternatives for potential

law enforcement strategies, and recommendations to CBP

leadership to inform acquisition and other decisions concerning

the deployment of law enforcement strategies.” Howard Decl., ECF

No. 21-2 ¶ 42. This explains how the document at issue was

17
created prior to the adoption of an agency policy. CBP’s

declaration further states how production would discourage

discussions: “[d]isclosure of such information could reasonably

be expected to affect the agency's decision-making process in

effecting presidential policy.” Id.

The Vaughn index provides detailed explanations regarding

how the documents were created prior to the adoption of an

agency policy, and how disclosure would discourage discussion

within the agencies. See, e.g. Ex. D, ECF No. 21-3. To

demonstrate that withheld documents played a part in the “give-

and-take” of agency decisionmaking, the agency “must establish

‘what deliberative process is involved, and the role played by

the documents in issue in the course of that process.’” Senate

of the Commonwealth of P.R. v. DOJ, 823 F.2d at 574, 585–86

(D.C. Cir. 1987)(citation omitted). Defendants have identified

the deliberative process at issue in this case: Army Corp has

identified its process of determining the appropriate

“infrastructure along our nation’s borders,” and CBP has

identified its process for “potential plans for construction of

new tactical border infrastructure as directed by President Trump.”

Defs.’ Reply, ECF No. 27 at 4–5. As a general rule, “an agency

in possession of material it considers exempt from FOIA [must]

provide the requestor with a description of each document being

withheld, and an explanation of the reason for the agency's

18
nondisclosure.” Oglesby, 79 F.3d at 1176. In this case, the

Vaughn indices have provided the Center descriptions of each

withheld document and explained the reasons for the

withholdings. Because defendants have shown that the

withholdings were predecisional and deliberative the Court

GRANTS defendants’ motion for summary judgment as to FOIA

Exemption 5 withholdings on the basis of the deliberative

process privilege.

2. Attorney-Client Privilege

CBP relies on the attorney-client privilege justification

of Exemption 5 to partially withhold information provided to the

“United States Border Patrol (“USBP”)from the CBP’s Office of

Chief for the purpose of providing legal advice.” Howard Decl.,

ECF No. 21-2 ¶ 44. “The attorney-client privilege protects

confidential communications from clients to their attorneys made

for the purpose of securing legal advice or services.” Tax

Analyst, 117 F.3d at 618. “The privilege also protects

communications from attorneys to their clients if the

communications rest on confidential information obtained from

the client.” Id. (internal quotation marks omitted). “In the

governmental context, the ‘client’ may be the agency and the

attorney may be an agency lawyer.” Id. “[T]he privilege

‘protects only those disclosures necessary to obtain informed

legal advice which might not have been made absent the

19
privilege.’” Coastal State, 617 F.2d at 862 (quoting Fisher v.

United States, 425 U.S. 391, 403 (1976)).

The Center does not contest the applicability of the

withholdings of information subject to the attorney-client

privilege. See generally Pl.’s Cross-Mot., ECF No. 22

(contesting Exemption 5 on deliberative process basis, but

failing to address attorney-client privilege justification). The

Court deems this issue conceded. See Lewis v. District of

Columbia, No. 10–5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2,

2011) (per curiam) (“It is well understood in this Circuit that

when a plaintiff files an opposition to a dispositive motion and

addresses only certain arguments raised by the defendant, a

court may treat arguments that the plaintiff failed to address

as conceded.” (citation and internal quotation marks omitted)).

The Court has an independent obligation to determine

whether the government has met its FOIA obligations, however.

See Sussman, 494 F.3d 1106, 1116 (D.C. Cir. 2007). Having

reviewed the CBP’s declaration and the Vaughn indices, the Court

finds that CBP has fulfilled its obligations with respect to

this issue. See Elec. Privacy Info. Ctr. v. U.S. Dep't of

Homeland Sec., 117 F. Supp. 3d 46, 65 (D.D.C. 2015) (explaining

that there is “no question” that an exemption pursuant to the

attorney-client privilege is proper when the exempted material

“contains a communication between a[n] [agency] employee and

20
a[n] [agency] attorney seeking legal review and advice.”).

Accordingly, defendants’ motion for summary judgment on this

issue is GRANTED.

C. FOIA Exemption 6

The Center seeks the names of non-law enforcement and

civilian agency employees, including the names of agency

biologists. 6 Pl.’s Cross-Mot., ECF No. 22 at 31. Defendants have

claimed FOIA Exemption 6 to withhold this information. See

Defs.’ Reply, ECF No. 27 at 5. FOIA Exemption 6 exempts from

disclosure “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).

Exemption 6 permits withholding of information when two

requirements have been met. See U.S. Dep't of State v.

Washington Post Co., 456 U.S. 595, 598 (1982). The first

requirement is that “the information must be contained in

personnel, medical or ‘similar’ files.” Id. That requirement is

met in this case. The statutory formulation “similar files” is

understood broadly to include any “[g]overnment records on an

individual which can be identified as applying to that

individual.” Id. at 602 (internal quotation marks omitted).

6 Other than the names of non-law enforcement personnel, “the
Center does not dispute [d]efendants’ redaction of contact
information from the records.” Pl.’s Cross-Mot., ECF No. 22 at
31 n.4.

21
Thus, Exemption 6 permits exemption of “not just files, but also

bits of personal information, such as names and addresses, the

release of which would create[ ] a palpable threat to privacy.”

Walston, 238 F. Supp. 3d at 66 (quoting Judicial Watch, Inc. v.

FDA, 449 F.3d 141, 152 (D.C. Cir. 2006)).

The second requirement is that “the information must be of

such a nature that its disclosure would constitute a clearly

unwarranted invasion of personal privacy.” See Washington Post

Co., 456 U.S. at 598. To constitute a clearly unwarranted

invasion of personal privacy, there must be a significant or

substantial privacy interest. See id. A substantial privacy

interest is one that is “more than de minimis.” Nat’l Assoc. of

Retired Fed. Ems. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989).

This second requirement demands that a court “weigh the privacy

interest in non-disclosure against the public interest in the

release of the records in order to determine whether, on

balance, the disclosure would work a clearly unwarranted

invasion of privacy.” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C.

Cir. 1999)(internal quotation marks omitted). The only relevant

public interest in this balancing analysis is “the extent to

which disclosure of the information sought would she[d] light on

an agency's performance of its statutory duties or otherwise let

citizens know what their government is up to.” Id. at 46

(internal quotation marks omitted).

22
 In this case CBP, pursuant to Exemption 6, redacted names

of low-level employees who appear on documents concerning the

United States-Mexico border. ECF No. 27 at 5. The redacted

documents largely consist of internal agency emails between CBP

offices coordinating the collection of records in response to

specific requests from the Presidential Transition Team. Id. The

names were redacted pursuant to DHS guidance concerning the

protection of personal information in light of “general threats

against DHS employees stemming from the Government’s actions

surrounding immigration.” Defs.’ Reply, ECF No. 27 at 5–6. This

information is the type that satisfies Exemption 6’s first

requirement since the “civilian federal employees have a right

to control information related to themselves and to avoid

disclosures that ‘could conceivably subject them to annoyance or

harassment in either their official or private lives.’” EPIC v.

DHS, 384 F. Supp. 2d 100, 116 (D.D.C. 2015)(citing Lesar v. U.S.

Dep't of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980)). Therefore

the employees have a cognizable interest in keeping their names

from being disclosed. Id.; see also Judicial Watch v. Dep’t of

State, 875 F. Supp. 2d 37, 46 (D.D.C. 2012)(“A substantial

privacy interest exists in avoiding embarrassment, retaliation,

or harassment and intense scrutiny by the media that would

likely follow disclosure.”).

23
 Although a party must show that a threat is not merely

speculative to justify its withholding pursuant to Exemption 6,

see EPIC, 384 F. Supp. 2d at 116, defendants have explained in

this case that the nature of their work and the subject-matter

have led to credible threats. The defendants have explained that

there has been an increase in general threats against DHS

employees. ECF No. 27 at 6; Second Howard Decl., ECF No. 28-1 ¶

8. Indeed a threat to privacy may be derived from the nature of

an employment agency “that advocates for security measures that

may be unpopular.” EPIC, 384 F. Supp. 2d at 116. The standard

for demonstrating a substantial privacy interest is not onerous,

see Horner, 879 F.2d at 874 (substantial privacy interest is

anything greater than de minimis ), and defendants have

demonstrated that the privacy interest in the names of the lower

level CBP employees in this case is more than de minimis.

The next step in an Exemption 6 analysis step is to balance

the privacy interest with the public interest in disclosure. “In

this balancing analysis, [plaintiff] bears the burden of

establishing a legitimate public interest supporting disclosure

which is in line with the core purpose of FOIA, to contribute to

greater general understanding of agency practice and procedure.”

Clemmons v. U.S. Army Crime Records Ctr., No. 05-2353, 2007 WL

1020827, at *5 (D.D.C. Mar. 30, 2007)(citing U.S. Dep't of

Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 495,

24
(1994)). The Center has identified the public’s interest in

knowing if “CBP has adequately conveyed the U.S.-Mexico border

wall’s far-reaching and irreversible environmental harms to the

Presidential Transition team, and if the employees who provided

the information were qualified to do so.” Pl.’s Reply, ECF No.

29 at 17.

The Court finds that the Center has identified an

appropriate public interest. The level of expertise of the

individuals providing information to the government related to

environmental effects of the construction of the wall clearly

falls under the ambit of information that “let[s] citizens know

what their government is up to.” See Lepelletier, 164 F.3d at

46. Defendants, however, have provided to plaintiffs the names

of “higher ranking CBP officials . . . as the information bears

more closely to the agency’s actions.” Second Howard Decl., ECF

No. 27-1 ¶ 8. In light of the fact that the Center has the names

of higher-ranking officials who provided information to the

Transition team, the Center’s claimed public interest in

disclosure of the names of lower-level employees is diminished.

The Court finds that, on balance, the lower-level employees’

interest in avoiding harassment outweighs the interest of public

disclosure which is moderated by the release of names of higher-

ranking agency personnel. Therefore the Court concludes that

defendants properly invoked Exemption 6 as to the names of the

25
lower-level federal employees included in the documents in

dispute. Accordingly, the Court GRANTS defendants’ motion for

summary judgment as to its withholdings pursuant to Exemption 6.

D. FOIA Exemption 7(E)

FOIA Exemption 7(E) permits the withholding of information

collected for law enforcement purposes if release of that

information 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). The purpose of Exemption 7(E) is to

prevent publication of information that would “train potential

violators to evade the law or instruct them how to break the

law,” and to protect information that, if disclosed,

“increase[s] the risks that a law will be violated or that past

violators will escape legal consequences.” Mayer Brown v.

I.R.S., 562 F.3d 1190, 1193 (D.C. Cir. 2009). Exemption 7(E) sets

a “relatively low bar” for an agency to justify withholding

information” but the government must “demonstrate logically how

the release of the requested information might create a risk of

circumvention of the law.” Blackwell v. F.B.I., 646 F.3d 37, 42

(D.C. Cir. 2011)(quoting Mayor Brown).

Under Exemption 7(E), the government must demonstrate: (1)

26
that the withheld information would disclose techniques;

procedures or guidelines for law enforcement investigations and

(2) that the disclosure would reasonably “risk circumvention of

the law.” 5 U.S.C. § 552(b)(7)(E); see also Blackwell, 646 F.3d

at 41–42. If the agency's principal function is law enforcement,

courts are “more deferential” to the agency's claimed purpose

for the particular records. See Tax Analysts, 294 F.3d at 77. If

the agency has mixed law enforcement and administrative

functions, we will “scrutinize with some skepticism the

particular purpose claimed.” Id.

As a preliminary matter, the Center argues that defendants

have failed to demonstrate that the records withheld pursuant to

Exemption 7(E) are in fact agency materials relating to

guidelines, techniques or procedures related to law enforcement

investigations and prosecutions. Pl.’s Cross-Mot. ECF No. 22 at

34. In response, CBP argues that “an agency may seek to block

the disclosure of internal agency materials relating to

guidelines, techniques, sources, and procedures for law

enforcement investigations and prosecutions, even when the

materials have not been compiled in the course of a specific

investigation.” Defs.’ Reply, ECF No. 27 at 7 (quoting Gilman v.

DHS, 32 F. Supp. 3d 1, 19 (D.D.C. 2014).

The Court is persuaded that defendants have the better

argument. In Gilman, the court found that “although the

27
information in the challenged records [were] not styled as

formal guidelines or procedures for CBP officials, the records

refer to information, including how CBP officials assess

vulnerable areas along the border, that could be used to

encourage decisions to violate the law or evade punishment.”

Gilman, 32 F. Supp. 3d at 19 (internal quotation marks and

citation omitted)). This explanation was sufficient because the

assessment of border vulnerabilities was directly related to

protentional violations of federal immigration laws. Id. at 23.

Similar to the explanation provided in Gilman, here, Army Corps’

declaration explains that it redacted specific information

related to security an infrastructure and that disclosing the

information would reveal CBP’s assessments of vulnerabilities

along the U.S.-Mexico Border. See Roberts Decl., ECF No. 21-3 ¶

15.

CBP’s declaration sufficiently explains how information

that would result in disclosure of law enforcement

vulnerabilities is information related to law enforcement

techniques, procedures, or guidelines. Howard Decl., ECF No. 21-

2 ¶¶ 52-55. Additionally, CBP’s second declaration asserts that

“the information withheld relates to existing and proposed

tactical infrastructure in specific USBP sectors used to prevent

or detect the illegal entry of people and illicit items into the

U.S.” Second Howard Decl., ECF No. 27-1 ¶ 9. Information

28
relating to infrastructure used to prevent or detect illegal

entry of items and people is information related to law

enforcement techniques, procedures, or guidelines. See Gilman,

32 F. Supp. 3d at 23. These documents are sufficiently related

to the enforcement techniques policies and procedures. See id at

19. (finding documents related to border vulnerabilities could be

used in the same manner as a technique procedure or guideline

and therefore was exempt).

1. Army Corps

The Army Corps has withheld six records pursuant to

Exemption 7(E). These records include: (1) an Engineering and

Construction Support Office (“ESCO”) overview PowerPoint

briefing--withheld in its entirety--discussing ECSO’s structure,

organization, capabilities, past support to CBP, and

infrastructure assessment branch (Roberts Decl., Ex. D, at 2

(Doc. 4.1)); (2) a redacted slide show that CBP created to brief

Army Corps’ leadership about existing fencing along the U.S.-

Mexico border and proposed new fencing locations (id. at 3 (Doc.

6.1)); (3) four attachments to the “Presidential Transition

Narratives & Map” email, including a diagram of potential fence

locations along the U.S.-Mexico border (id. at 4 (Doc. 11.2));

(4) nine maps of potential fence locations broken down by CBP

sector (id. at 5 (Doc. 11.3)); (5) three maps of potential fence

locations broken down by state (id. at 5 (Doc. 11.4)); and (6)

29
113 maps of potential fence locations at the county or town

level (id. at 5 (Doc. 11.5)).

The Center argues that the records withheld have no

“rational nexus” between any investigation or law enforcement

duty of any agency. Pl.’s Cross-Mot., ECF No. 22 at 35.

Specifically, the Center argues that because the enforcement

duty lies with CBP, Army Corp does not have a law enforcement

duty with which to create a rationale nexus. Id. at 36. Army

Corps does not deny that its 7(E) withholdings are

“unquestionably related to CBP’s law enforcement activities.”

Defs.’ Reply, ECF No. 27 at 8. However, Army Corps argues that

this fact is not fatal to their claim because it is the nature

of the information not the classification of the agency that

governs whether the exception applies.

The Court finds that Army Corp has properly withheld the

material pursuant to Exemption 7(E). In making this

determination the Court is guided by the principle that

Exemption 7(E) sets a “relatively low bar” for an agency to

justify withholding information” and the touchstone of whether

records were complied for law enforcement purposes is “how and

under what circumstances the requested files were compiled.”

Coleman v. Lappin, 607 F. Supp. 2d 15, 23 (D.D.C. 2009).

As to the Center’s first argument that there was no

enforcement duty by the Army Corps in this case, and therefore

30
Army Corps cannot rely on this exemption, the Court finds that

argument unpersuasive. Under the test of Exemption 7, although

“the withheld record must have been compiled for law enforcement

purposes; the withholding agency need not have statutory law

enforcement functions.” Public Employees for Environmental

Responsibility v. U.S. Section, International Boundary and Water

Com’n, U.S.-Mexico, 740 F.3d 195, 204 (D.C. Cir. 2014); Elkins

v. Federal Aviation Administration, 99 F. Supp. 3d 90, 98

(D.D.C. 2015)(stating that in considering requirements pursuant

to Exemption 7(E) “it is not the nature of the agency that

controls, but the character of the records withheld”). In light

of the statutory language, the task for this Court is to

determine whether the records were compiled for law enforcement

purposes not simply to determine the nature of the agency which

compiled the records. Elkins, 99 F. Supp. 3d at 98.

The records claimed here easily meet that test. Army Corps

seeks to withhold information pertaining to the number of border

stations and border patrol agents among the U.S.-Mexico Border,

the location and length of border patrol fencing, and proposed

border patrol fencing. Army Corps consulted with CBP to review

the documents and propose necessary redactions before it

released the information to the plaintiffs. Roberts Decl., ECF

No. 21–3. The information relating to infrastructure and used to

prevent or detect illegal entry of people and items is clearly

31
information compiled for law enforcement purposes such that

Exemption 7(E) applies. See Pub. Employees for Envtl.

Responsibility, 740 F.3d at 203 (stating the “ordinary

understanding of law enforcement includes . . . proactive steps

designed to prevent criminal activity and to maintain

security”). 7

2. CBP

CBP has redacted information pursuant to Exemption 7(E)

related to contracts, infrastructure and project summaries;

reports to policy makers; and environmental assessments; as well

as information such as miles of fencing and roads; photos and

maps of fencing and roads. See, e.g., Howard Decl., ECF No. 21-2

Ex. A (0006-BW FOIA, 0007-BW FOIA, 0025-BW FOIA, 0026-BW FOIA,

0027-BW FOIA, 0037-BW FOIA, 0038-BW FOIA, 0039-BW FOIA, 0058-BW

FOIA, 0064-BW FOIA, 0065-BW FOIA, 0073-BW FOIA, 0074-BW FOIA,

7 The Center’s argument that these documents are not law
enforcement information but rather environmental information and
therefore not eligible for protection under Exemption 7(E) also
fails. As the D.C. Circuit has explained documents “which may
have been compiled originally for architectural planning or
internal purposes—may fall within Exemption 7 if that
information is later compiled and given to law enforcement
officers for security purposes.” See Pub. Employees for Envtl.
Responsibility, 740 F.3d at 203. Here, notwithstanding any other
initial purpose for the withholdings, the information was
compiled for security purpose.

32
0117-BW FOIA, 0118-BW FOIA, 0121-BW FOIA, 0122-BW FOIA, 0124-BW

FOIA, 0125-BW FOIA). 8

The Center argues that CBP failed to prove that the

redacted records were compiled for law enforcement purposes

because it “failed to describe with reasonable detail the

technique or procedure at issue in each record; the context in

which the technique or procedure is used; how the technique or

procedure is used;[or] how the technique or procedure is

generally known to the public.” Pl.’s Cross-Mot., ECF No. 22 at

38. (internal quotation marks omitted). The Center also argues

that “release of fence photos and maps that are publicly

available does not risk circumvention of the law.” Pl.’s Cross-

Mot., ECF No. 22 at 39. CBP responds that the publicly released

information that the Center referred to is different than the

information that CBP withheld., which is generally not known to

the public. Second Howard Decl., ECF No. 28-1 ¶ 9(stating that

maps available to the public do not include information such as

USBP sectors, design specifications, or operational

assumptions).

The Court finds that CBP has established that it properly

withheld documents pursuant to Exemption 7(E). First, CBP

8 With the exception of two documents, 0010-BW FOIA and 0099-BW
FOIA, all the documents CBP withheld under the deliberative
process privilege were also withheld under Exemption 7(E).

33
established that the withheld documents were compiled for law

enforcement purposes. Because CBP is an enforcement agency, it

is entitled to deference in its determination that the records

were compiled for a law enforcement purpose. See Tax Analysts,

294 F.3d at 77. The declaration avers that the “[r]edacted

information includes technical specifications and locations of

tactical infrastructure and related surveillance technology

(including its capabilities and limitations . . .), and other

similar information that directly relates to CBP's law

enforcement mission.” Howard Decl., ECF No. 21-2 ¶ 52.

CBP’s declaration sufficiently explains how disclosure of

the withheld information could risk circumvention of the law.

The declaration avers that disclosure “could reveal law

enforcement sensitive information that could reasonably be

expected to permit individuals to effectuate countermeasures,

alter their patterns of conduct to avoid deception, or otherwise

circumvent the law.” Id. CBP additionally avers that

“[d]isclosure of CBP’s asset investments along the southern

border could reveal capability gaps that would permit

individuals to effect countermeasures in order to circumvent the

law,” Id. at 15 ¶ 53; disclosure of the reimbursable work

authorization “would reveal the level of tactical infrastructure

investment made in these areas, which could reveal capability

gaps that would permit individuals to . . . circumvent the law,”

34
id. at 15-16 ¶ 54; and disclosure of cost estimates “could

reveal capability gaps that would permit individuals to . . .

circumvent the law.” Id. at 16 ¶ 55; see also Gilman, 32 F.

Supp. 3d at 19 (stating information related to “how CBP

officials assess vulnerable areas along the border, that could

be used to encourage decisions to violate the law or evade

punishment.” (internal quotation marks and citation omitted)).

This information, if disclosed, has the potential to aid

criminality.

Accordingly, the Court GRANTS defendants’ motion for

summary judgment as to its withholdings pursuant to Exemption

7(E).

E. Segregability

FOIA requires that “any reasonably segregable portion of a

record shall be provided to any person requesting such record

after deletion of the portions which are” otherwise exempt

pursuant to the Act. 5 U.S.C. § 552(b). This rule of segregation

applies to all FOIA exemptions. Ctr. for Auto Safety v. EPA, 731

F.2d 16, 21 (D.C. Cir. 1984). “It has long been a 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. v. U.S. Dep’t of Air Force, 566 F.2d 242,

260 (D.C. Cir. 1977). Before approving the application of a FOIA

exemption, a district court must make “specific findings of

35
segregability” regarding the documents to be withheld. Summers

v. DOJ, 140 F.3d 1077, 1081 (D.C. Cir. 1998). Agencies are

“entitled to a presumption that they complied with their

obligation to disclose” reasonably segregable material. Boyd v.

Criminal Div. of U.S. Dept. of Justice, 475 F.3d 381, 391 (D.C.

Cir. 2007).

Army Corp’s declaration avers that “[a]ll documents were

processed to achieve maximum disclosure consistent with the

provisions of FOIA [and] every effort was made to provide the

Plaintiff will all releasable material and to reasonably

segregate exempt information from releasable information.”

Roberts Decl., ECF No. 21-3 ¶ 16. CBP’s declaration avers that

“[a]ll information withheld is exempt from disclosure pursuant

to a FOIA exemption or is not reasonably segregable because it

is so intertwined with protected material that segregation is

not possible, or its release would have revealed the underlying

protected material.” Howard Decl., ECF No. 21-2 ¶ 56.

Upon review of the Roberts and Howard declarations

explaining the process for reasonably segregating non-exempt

material, the Court is satisfied that the government only

withheld information that is exempt from disclosure and material

“inextricably intertwined with exempt portions.” See Mead Data

Cent., Inc., 566 F.2d at 260. Both declarations “show with

‘reasonable specificity’ why the documents cannot be further

36
segregated.” Braun, 317 F. Supp. 3d at 551. Accordingly, the

Court finds that the DEA has discharged its obligation to ensure

it has not withheld any segregable non-exempt materials.

IV. Conclusion

For the foregoing reasons the Court GRANTS defendants’

motion for summary judgment, and DENIES the Center’s cross-

motion for summary judgment. An appropriate Order accompanies

this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
September 27, 2019

37