CREW v. DHS: Regarding Border Fence: 12/3/08 - DHS Motion for Summary Judgement
Transcript of CREW v. DHS: Regarding Border Fence: 12/3/08 - DHS Motion for Summary Judgement
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, ))
Plaintiff, ) Civil Action No. 08-1046 (JDB)
)
v. )
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendant. )
)
DEFENDANTS MOTION FOR SUMMARY JUDGMENT IN PART
Pursuant to Fed. R. Civ. P. 56, Defendant, United States Department of Homeland Security
(DHS), by and through undersigned counsel, respectfully moves the Court for summary judgment
in part in this action brought under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as
amended. Specifically, U.S. Customs and Border Protection (CBP), a component of DHS, has
released all non-exempt records that are responsive to the first part of Plaintiffs March 17, 2008
FOIA request, which seeks certain records relating to the U.S.-Mexico border fence. See Compl.
(Document 1), 7(a). Accordingly, there is no genuine issue as to any material fact, and defendant
is entitled to judgment as a matter of law.
In support of this motion, defendant respectfully refers the Court to the accompanying
memorandum of points and authorities and statement of materials facts as to which there is no
genuine issue. A proposed Order consistent with this motion is attached hereto.
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Respectfully submitted,
/s/
JEFFREY A. TAYLOR, D.C. Bar #498610
United States Attorney
/s/
RUDOLPH CONTRERAS, D.C. Bar #434122
Assistant United States Attorney
/s/
JOHN G. INTERRANTE, PA Bar #61373Assistant United States Attorney
Civil Division, E-4806555 4th Street, N.W.Washington, D.C. 20530
(202) 514-7220
(202) 514-8780 (fax)
Of Counsel:
Simon Fisherow, U.S. Customs and Border Protection
Susan Shama, U.S. Customs and Border Protection
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1 Plaintiffs March 17, 2008 FOIA request was addressed and sent to the FOIA Officer, CBP,
and therefore the records sought are those maintained by CBP. See 6 CFR 5.3(a) (You may
make a request for records of the Department [of Homeland Security] by writing directly to the
Department component that maintains those records.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, ))
Plaintiff, ) Civil Action No. 08-1046 (JDB)
)
v. )
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendant. )
)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT IN PART
This case arises under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as
amended, and pertains to the March 17, 2008 request of Plaintiff, Citizens for Responsibility and
Ethics in Washington (CREW), which seeks certain records from U.S. Customs and Border
Protection (CBP), a component of United States Department of Homeland Security (DHS),
relating to the U.S.-Mexico border fence. See Compl. (Document 1), 7.1 Plaintiffs FOIA
request has been bifurcated into two parts for purposes of this litigation, and this memorandum
addresses the first part of Plaintiffs request. Specifically, the first part of Plaintiffs FOIA request
seeks records, reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any
properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., and the construction
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2 This request followed a newspaper article about Mr. Hunt published in the Texas Observer on
February 18, 2008. See Compl., 6.
3 By agreement of the parties on July 15, 2008, the first part of Plaintiffs FOIA request wasclarified to seek the following records from CBP:
Any and all records, regardless of format, dating from January 20, 2001 to the
present reflecting communications concerning Ray L. Hunt, Hunt Consolidated,Inc., or any properties known to be owned by Ray L. Hunt and/or Hunt
Consolidated, Inc., and the construction of fencing along the border between the
U.S. and Mexico, including, but not limited to, input sought or received from Mr.Hunt and/or Hunt Consolidated on border fence construction.
See Defs Answer (Document 4), 7 & Ex. A. Defendants motion for summary judgment on
the first part of Plaintiffs FOIA request is due on December 3, 2008, by the Courts Order datedNovember 18, 2008.
CBP is processing non-exempt records responsive to the second part of Plaintiffs FOIA
request pursuant to the Courts Orders dated September 25, 2008 (Document 10) and November
24, 2008 (Document 22). CBP will file a motion for summary judgment in part upon completionof the processing of those records.
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of fencing along the border between the U.S. and Mexico.2 See Defs Answer (Document 4),
7.3 As set forth in the accompanying declaration, CBP has conducted a reasonable search of
agency records, has disclosed all non-exempt responsive records, and has not improperly withheld
any responsive records from Plaintiff. Thus, there is no genuine issue as to any material fact, and
Defendant is entitled to judgment in part as a matter of law.
STATEMENT OF FACTS
Defendant hereby incorporates the Statement of Material Facts Not In Genuine Dispute
(SFNGD), and the Declaration of Mark Hanson (Hanson Decl.), Director of FOIA Division,
Office of International Trade, CBP, DHS, filed contemporaneously with this Memorandum.
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LEGAL STANDARD
In a FOIA action, the courts have jurisdiction only when an agency has improperly withheld
agency records. 5 U.S.C. 552(a)(4)(B). "[I]t is well established that under the FOIA, 'once the
records are produced the substance of the controversy disappears and becomes moot, since
disclosure which the suit seeks has already been made.'" Trueblood v. U.S. Dept of Treasury, 943
F. Supp. 64, 67 (D.D.C. 1996) (quoting Crooker v. U.S. State Dept, 628 F.2d 9, 10 (D.C. Cir.
1980)); see also Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982).
FOIA, however, does not allow the public to have unfettered access to government files.
McCutchen v. U.S. Dept of Health and Human Services, 30 F.3d 183, 184 (D.C. Cir. 1994).
Although disclosure is the dominant objective of FOIA, there are several exemptions to the statutes
disclosure requirements. Department of Defense v. FLRA, 510 U.S. 487, 494 (1994). To protect
materials from disclosure, the agency must show that they come within one of the FOIA exemptions.
Public Citizen Health Research Group v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999).
Summary judgment is appropriate in a FOIA action, such as the instant case, where the
pleadings, together with the declaration, demonstrate that there are no material facts in dispute and
the requested information has been produced or is exempted from disclosure, and the agency, as the
moving party, is entitled to judgment as a matter of law under Fed. R Civ. P. 56(c). See, e.g.,
Students Against Genocide v. Dept of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisberg v. U.S.
Dept of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).
A. Summary Judgment
Where no genuine dispute exists as to any material fact, summary judgment is required.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A genuine issue of material fact is one that
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would change the outcome of the litigation. Id. at 247. The burden on the moving party may be
discharged by showing -- that is, pointing out to the [Court] -- that there is an absence of evidence
to support the non-moving partys case. Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833
F.2d 1560, 1563 (Fed. Cir. 1987).
Once the moving party has met its burden, the non-movant may not rest on mere allegations,
but must instead proffer specific facts showing that a genuine issue exists for trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, to avoid summary judgment
here, plaintiff (as the non-moving party) must present some objective evidence that would enable
the Court to find he is entitled to relief. In Celotex Corp. v. Catrett, the Supreme Court held that,
in responding to a proper motion for summary judgment, the party who bears the burden of proof
on an issue at trial must make a sufficient showing on an essential element of [his] case to
establish a genuine dispute. 477 U.S. 317, 322-23 (1986). In Anderson, the Supreme Court further
explained that the mere existence of a scintilla of evidence in support of the Plaintiff's position will
be insufficient; there must be evidence on which the jury could reasonably find for the Plaintiff.
Anderson, 477 U.S. at 252; see alsoLaningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (the
non-moving party is required to provide evidence that would permit a reasonable jury to find in
its favor). In Celotex, the Supreme Court further instructed that the [s]ummary judgment procedure
is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the
Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive
determination of every action. 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).
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B. FOIA Cases
The summary judgment standards set forth above also apply to FOIA cases, which are
typically and appropriately decided on motions for summary judgment. See, e.g., Citizens for
Responsibility and Ethics in Washington v. U.S. Dept of Labor, 478 F.Supp.2d 77, 80 (D.D.C.
2007) (citing Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir.1993); Rushford v. Civiletti, 485 F.Supp.
477, 481 n. 13 (D.D.C.1980)). In a FOIA suit, as stated, an agency is entitled to summary judgment
once it demonstrates that no material facts are in dispute and that each document that falls within
the class requested either has been produced, not withheld, is unidentifiable, or is exempt from
disclosure. Students Against Genocide, 257 F.3d at 833; Weisberg, 627 F.2d at 368.
An agency satisfies the summary judgment requirements in a FOIA case by providing the
Court and the Plaintiff with affidavits or declarations and other evidence which show that the
documents in question were produced or are exempt from disclosure. Hayden v. NSA, 608 F.2d
1381, 1384, 1386 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980); Church of Scientology v. U.S.
Dept. of Army, 611 F.2d 738, 742 (9th Cir. 1980); Trans Union LLC v. FTC, 141 F. Supp. 2d 62,
67 (D.D.C. 2001) (summary judgment in FOIA cases may be awarded solely on the basis of agency
affidavits when the affidavits describe the documents and the justifications for non-disclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.
Cir. 1981)). See also
Public Citizen, Inc. v. Dept. of State, 100 F. Supp. 2d 10, 16 (D.D.C. 2000),
affd in part, revd in part, 276 F.3d 634 (D.C. Cir. 2002).
Typically, the agency's declarations or affidavits are referred to as a Vaughn index, after the
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case of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). There
is no set formula for a Vaughn index. [I]t is well established that the critical elements of the
Vaughn index lie in its function, and not in its form. Kay v. FCC, 976 F. Supp. 23, 35 (D.D.C.
1997). The purpose of a Vaughn index is to permit adequate adversary testing of the agency's
claimed right to an exemption. NTEU v. Customs, 802 F.2d 525, 527 (D.C. Cir. 1986) (citing
Mead Data Central v. United States Dept. of the Air Force, 566, F.2d 242, 251 (D.C. Cir. 1977), and
Vaughn, 484 F.2d at 828). Thus, the index must contain an adequate description of the records
and a plain statement of the exemptions relied upon to withhold each record. NTEU, 802 F.2d at
527 n.9.
The Vaughn index serves a threefold purpose: (1) it identifies each document withheld; (2)
it states the statutory exemption claimed; and (3) it explains how disclosure would damage the
interests protected by the claimed exemption. See Citizens Commn on Human Rights v. Food and
Drug Admin., 45 F.3d 1325, 1326 (9th Cir. 1995). Of course the explanation of the exemption
claim and the descriptions of withheld material need not be so detailed as to reveal that which the
agency wishes to conceal, but they must be sufficiently specific to permit a reasoned judgment as
to whether the material is actually exempt under FOIA. Founding Church of Scientology of
Washington, D.C., Inc. v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).
Here, CBP has submitted a declaration and a coded Vaughn index in support of this motion
for summary judgment. See Hanson Decl. at 1-20 & Ex. A thereto. The declaration and index
were prepared by Mark Hanson, Director of the FOIA Division, Office of International Trade, CBP,
DHS. Id. at 10. The Hanson declaration meets the requirements of Vaughn v. Rosen, and provides
the Court with the requisite bases to grant defendants motion. The Vaughn itemizations identify
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and describe the documents responsive to plaintiffs FOIA requests, and set forth the justification
for exemptions claimed for the withholding of certain documents.
A court exercises de novo review over a FOIA matter, and the burden is on the agency to
justify all non-disclosures pursuant to 5 U.S.C. 552(a)(4)(B). U.S. Dept of Justice v. Reporters
Committee For Freedom of Press, 489 U.S. 749, 755 (1989). The agency, however, may carry its
burden by relying on the declaration of a government official because courts normally accord a
presumption of expertise in FOIA as long as the declaration is sufficiently clear and detailed and
submitted in good faith. See, e.g., Oglesby v. U.S. Dept of Army, 920 F.2d 57, 68 (D.C. Cir. 1990);
Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979). A court may therefore
award summary judgment in a FOIA case solely on the basis of information provided by the
department or agency affidavits or declarations. See Hayden, 608 F.2d at 1387; Key v. Dept of
Homeland Security, 510 F.Supp.2d 121, 126-27 (D.D.C. 2007).
ARGUMENT
Defendant Is Entitled to Judgment as a Matter of Law Because an Adequate
Search Was Conducted and Non-Exempt Responsive Materials Have BeenReleased
In responding to a FOIA request, an agency must conduct a reasonable search for responsive
records. Oglesby, 920 F.2d at 68; Weisberg v. U.S. Dept of Justice, 705 F.2d 1344, 1352 (D.C. Cir.
1983). This reasonableness standard focuses on the method of the search, not its results, so that
a search is not unreasonable simply because it fails to produce responsive information. Cleary,
Gottlieb, Steen & Hamilton v. Dept of Health and Human Services, 844 F. Supp. 770, 777 n.4
(D.D.C. 1993). An agency is not required to search every record system, but need only search those
systems in which it believes responsive records are likely to be located. Oglesby, 920 F.2d at 68.
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Consistent with the reasonableness standard, the adequacy of the search is dependent upon the
circumstances of the case. Truitt v. Dept of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The
fundamental question is not whether there might exist any other documents responsive to the
request, but rather whether the search for those documents was adequate. Steinberg v. Dept. of
Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. U.S. Dept of Justice, 745 F.2d
1476, 1485 (D.C. Cir. 1984)).
Even when a requested document indisputably exists or once existed, summary judgment
will not be defeated by an unsuccessful search for the document so long as the search was diligent
and reasonable. Nation Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 892
n.7 (D.C. Cir. 1995). Additionally, the mere fact that a document once existed does not mean that
it now exists; nor does the fact that an agency created a document necessarily imply that the agency
has retained it. Maynard v. CIA, 986 F.2d 547, 564 (1st Cir. 1993).
The burden rests with the agency to establish that it has 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, 920 F.2d at 68; seeSafeCard Services v. SEC, 926 F.2d 1197,
1201 (D.C. Cir. 1991). An agency may prove the reasonableness of its search through affidavits
of responsible agency officials so long as the affidavits are relatively detailed, non-conclusory and
submitted in good faith. Miller v. U.S. Dept of State, 779 F.2d 1378, 1383 (8th Cir. 1985); Goland
v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927
(1980). Although the agency has the burden of proof on the adequacy of its search, the affidavits
submitted by an agency are accorded a presumption of good faith, Carney v. U.S. Dept of
Justice, 19 F.3d 807, 812 (2d Cir.), cert. denied, 513 U.S. 823 (1994) (quoting SafeCard Services,
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926 F.2d at 1200). Thus, once the agency has met its burden regarding adequacy of its search, the
burden shifts to the requester to rebut the evidence by a showing of bad faith on the part of the
agency. Miller, 779 F.2d at 1383. A requester may not rebut agency affidavits with purely
speculative allegations. SeeCarney, 19 F.3d at 813; SafeCard Services, 926 F.2d at 1200; Maynard
v. CIA, 986 F.2d 547, 559-560 (1st Cir. 1993). As discussed below, defendant met the
reasonableness standard in conducting its search and is therefore entitled to summary judgment.
A. CBP Conducted an Adequate Search
On or about March 17, 2008, CREW sent a letter to the FOIA Director, CBP, requesting the
following records under FOIA:
any and all records dating from January 20, 2001 to the present reflectingcommunications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any properties
known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., and the
construction of fencing along the border between the U.S. and Mexico.
See SFNGD, 1. The parties subsequently agreed to narrow Plaintiffs March 17, 2008 request, and
also to bifurcate the processing of the request. Id., 2. Subsequent to the filing of Plaintiffs
Complaint, the parties conferred on July 8, 2008 in order to narrow the terms of the request due to
the fact that there are voluminous responsive records. Id. The following new terms of the request
were agreed to by the parties on July 15, 2008:
(1) Any and all records, regardless of format, dating from January 20, 2001 to the
present reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc.,
or any properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc.,and the construction of fencing along the border between the U.S. and Mexico,
including, but not limited to, input sought or received from Mr. Hunt and/or Hunt
Consolidated on border fence construction;
(2) Any and all records, regardless of format, concerning deliberations, standards,
and criteria encompassing the decision-making process surrounding where SBI
fencing should be constructed along the U.S. border with Mexico. This requestexcludes any records relating to fencing done prior to the inception of the Secure
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Id. Each employee was directed to distribute the notice to all personnel in his or her office who may
be involved in, or have information relating to, the records requested. Id.
In response to the above memorandum, two offices produced documents responsive to the
first part of the bifurcated request the Office of the Secure Border Initiative (SBI) within the
Office of the Commissioner and the Office of Border Patrol. See Hanson Decl., 7-8; SFNGD,
5-6. The first responsive search was directed by the SBI Communications Director, who
instructed personnel to provide all relevant documentation responsive to Plaintiffs FOIA request.
See Hanson Decl., 7; SFNGD, 5. Program staff were instructed to search in all potentially
relevant locations for responsive documents, including individual hard drives, shared electronic
drives, and any hard-copy documents. Id. Administrative staff were also directed to search the
same places for potentially responsive records. Id. In response to Plaintiffs request, program staff
searched for all potentially responsive records related to Ray L. Hunt, Hunt Consolidated, Inc., or
any properties known to be owned by Ray L. Hunt or Hunt Consolidated, Inc. Records found as a
result of the above search have been produced to Plaintiff pursuant to Plaintiffs FOIA request. Id.
Also in response to the search memorandum, the Office of Border Patrol searched and
produced responsive records. See Hanson Decl., 8; SFNGD, 6. A search was conducted at
Border Patrol Headquarters in Washington, DC, as well as Border Patrol offices located in the Rio
Grande Valley sector where properties owned by Ray L. Hunt are located. Id. Offices were
instructed to search both hard-copy and electronic files, and offices searched electronic hard drives
and portable thumb drives in addition to hard-copy documents. Id. The search terms used by the
Office of Border Patrol to conduct the search for responsive records were those posed by Plaintiff
in its FOIA request: records reflecting communications concerning Ray L. Hunt, Hunt Consolidated,
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Inc., or any properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., involving
the construction of fencing along the border between the United States and Mexico. Id. Records
identified as a result of that search have been processed by CBP and produced to Plaintiff. Id.
The Hanson declaration demonstrates that the agency has conducted a reasonable search for
responsive records by searching those systems of records in which the agency believes responsive
records are likely to be located. Oglesby, 920 F.2d at 68; Weisberg v. U.S. Dept of Justice, 705
F.2d 1344, 1352 (D.C. Cir. 1983). The Hanson declaration also establishes that the agency has 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, 920 F.2d at 68; see
SafeCard
Services v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). Specifically, CBP identified the offices
most likely to have records responsive to the first part of Plaintiffs FOIA request, as revised by
agreement of the parties, and the CBP Chief of Staff issued a memorandum directing those offices
to search for responsive records. A litigation hold notice was also issued instructing certain CBP
employees to preserve all records and information related to Plaintiffs request. Responsive records
were identified by the Office of the Secure Border Initiative within the Office of the Commissioner
and the Office of Border Patrol. The documents were then processed for FOIA exemptions and
disclosed to Plaintiff, in whole or part, subject to the asserted exemptions. The agency search for
records was therefore adequate. See Steinberg, 23 F.3d at 551 (quoting Weisberg, 745 F.2d at
1485).
B. CBP Has Released All Responsive Non-Exempt Records
On September 2, 2008, CBP released the first group of documents responsive to the first part
of the bifurcated request. CBP released additional documents to Plaintiff in supplemental responses
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on October 10, 2008 and November 17, 2008. See Hanson Decl., 9; SFNGD, 7. Prior to release,
these documents were redacted in accordance with 5 U.S.C. 552. Id. The documents were
redacted pursuant to FOIA Exemptions 5, 6, and 7(E), 5 U.S.C. 552 (b)(5), (b)(6), and (b)(7)(E),
each of which will be discussed in greater detail below. Id.
Redactions made on all responsive documents are detailed in an index identifying
information responsive to Plaintiffs FOIA request, but exempt from disclosure under the FOIA, in
accordance with Vaughn v. Rosen. See Hanson Decl., 10; SFNGD, 8. The Hanson declaration
and its attachments, along with the Vaughn index, provide the Court and Plaintiff with an
identification of information that is withheld, the statutory exemption(s) claimed, and the
justification for asserting the exemptions used to withhold certain information contained in the
records at issue. Id. Thus, the Hanson declaration establishes that all responsive documents located
have either been released, or, to the extent all or part of the records have been withheld under a
FOIA Exemption, are described in the Vaughn index. See id.
C. CBP Properly Invoked FOIA Exemptions 5, 6, and 7(E)
To Withhold Information Protected From Disclosure
As explained below, CBP withheld documents responsive to plaintiffs FOIA requests
pursuant to FOIA Exemptions 5, 6, and 7(E). The Declaration of Mark Hanson, and the extensive
Vaughn index, demonstrate that CBP carefully reviewed responsive records, and withheld
information subject to these exemptions. See Hanson Decl., 11-20. Because no non-exempt
responsive records have been improperly withheld from plaintiff, summary judgment should be
entered in favor of DHS on the first part of Plaintiffs FOIA request.
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1. Exemption 5
Exemption 5 of FOIA exempts from disclosure inter-agency or intra-agency memorandums
or letters which 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). The Supreme Court has interpreted Exemption 5 as allowing an
agency to withhold from the public documents which a private party could not discover in litigation
with the agency. U.S. v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); National Labor Relations
Board v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975). Exemption 5 incorporates privileges that
the Government enjoys under the relevant statutory and case law in the pretrial discovery context.
Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 26 (1983). Agency documents that are not
routinely discoverable in civil litigation are exempted from disclosure under Exemption 5. Id. at 27.
Accordingly, Exemption 5 allows an agency to invoke traditional civil discovery privileges,
including the attorney-client privilege, attorney work-product privilege, and the executive
deliberative process privilege, to justify the withholding of documents that are responsive to a FOIA
request. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980).
The first part of Plaintiffs March 17, 2008 FOIA request appears to arise from a newspaper
article about Ray Hunt that was published in the Texas Observer on February 18, 2008. See Compl.,
6. In this case, Exemption 5 has been applied in order to protect chains of e-mail messages that
detail the internal deliberations of CBP personnel that would reveal both the deliberative-thought
process of CBP individuals and the overall decision-making process of CBP as an agency. See
Hanson Decl., 13. Specifically, these records reflect internal agency deliberations about how to
properly respond to allegations raised in the media about supposed improprieties resulting from
action taken by CBP. See id., 14. These messages reflect the normal back-and-forth that precedes
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5 The Hanson Declaration explains that the agency withheld [i]nformation that illustrates thedeliberative process within CBP was redacted pursuant to Exemption (b)(5). See Hanson Decl.,
11. The declaration further explains that the agency properly withheld information under
Exemption 5:
The general purpose of this privilege is to prevent injury to the quality of agency
decisions. Specifically, three policy purposes have been consistently held toconstitute the bases for this privilege: (1) to encourage open, frank discussions on
matters of policy between subordinates and superiors; (2) to protect against
premature disclosure of proposed policies before they are adopted; and (3) to
protect against public confusion that might result from the disclosure of reasons
and rationales that were not in fact ultimately the grounds for an agencysdecision. Logically flowing from the foregoing policy considerations is the
privileges protection of the decision-making process of government agencies.The privilege protects not only documents but also the integrity of the process
itself, where exposing that process would result in harm.
Id., 12.
15
an agency decision, in this case the agency response to allegations of improper preferential treatment
being afforded to Ray L. Hunt. Id.
Exemption (b)(5) was also applied to draft documents that reflect the agencys deliberative
process. See Hanson Decl., 15. The very nature of a draft, and the process by which a draft
becomes a final document, can constitute a deliberative process warranting protection under
Exemption (b)(5). Id. The release of draft documents would reveal deliberations regarding what
should, and should not, have been included in the final version of the document. Id.
To withhold a responsive document under the deliberative process privilege, the agency must
demonstrate that the document is both predecisional and deliberative.5 Mapother v. Dept of
Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). A communication is predecisional if it was generated
before the adoption of an agency policy and it is deliberative if it reflects the give-and-take of the
consultative process. Coastal States, 617 F.2d at 866. The privilege covers recommendations,
draft documents, proposals, suggestions, and other subjective documents which reflect the personal
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6 CBP asserted Exemption 5 to withhold information from the following documents listed on the
Vaughn index, attached as Ex. A to the Hanson Declaration: 1, 9-25, 28, and an issue paperdated November 17, 2008, addressing media allegations in Texas Observer article.
16
opinions of the writer rather than the policy of the agency. Id. The deliberative process privilege
reflects Congresss judgment that public disclosure of predecisional, deliberative documents would
inhibit the full and frank exchange of ideas on legal policy matters within an agency. Mead Data
Cent. v. U.S. Dept of the Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977). The Supreme Court has
commented that, [h]uman experience teaches that those who expect public dissemination of their
remarks may well temper candor with a concern for appearances and for their own interests to the
detriment of the decisionmaking process. United States v. Nixon, 418 U.S. 683, 705 (1974).
CBP properly withheld records relating to internal agency discussions about how to respond
to allegations of improper preferential treatment being afforded to Ray L. Hunt.6 See Nielson v.
BLM, 252 FRD 499, 520 (D. Minn. 2008) (BLMs use of deliberative process under Exemption 5
to withhold a document which reflects an agency employees reaction to a newspaper article was
proper; document was predecisional because it contained the opinion of the author of the public
misconception concerning an agency program). In this case, the predecisional documents contained
the deliberative process of CBP officials in their consideration of the agencys response to the media
account. To disclose this information would reveal predecisional communications among
government personnel. Disclosure would jeopardize the candid and comprehensive considerations
essential for efficient and effective agency decision-making.
Furthermore, CBP asserted Exemption 5 to withhold, in part, Document No. 28, which is an
email string beginning on June 27, 2008 related to potential agency responses to media accusations.
This email string included a reference to a confidential attorney-client communication relating to
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7 CBP asserted Exemption 5, along with Exemptions 6, to withhold information from thefollowing documents listed on the Vaughn index, attached as Ex. A to the Hanson Declaration:
10-25, 28, and an issue paper dated November 17, 2008, addressing media allegations in Texas
Observer article. CBP asserted Exemptions 5, 6, and 7(E) to withhold information from thefollowing documents listed on the Vaughn index: 10, 11, 24 and 25.
17
the agencys response. See Mead, 566 F.2d at 252 (The third traditional privilege incorporated into
Exemption 5 concerns confidential communications between an attorney and his client relating to
a legal matter for which the client has sought professional advise.). Thus, CBP properly redacted
Document No. 28 under FOIA Exemption 5 to protect both attorney-client communications and
internal predecisional discussions on the same matter.
Finally, Exemption 5 has been asserted in conjunction with Exemptions 6 and 7(E) to protect
the privacy of CBP employees, agency law enforcement techniques and procedures, and privileged
communications.7
2. Exemption 6
Exemption 6 of the FOIA protects "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). "The Supreme Court has interpreted the phrase 'similar files' to include all information
that applies to a particular individual." Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999),
quoting Dept of State v. Washington Post Co., 456 U.S. 595, 602 (1982). The Court has also
emphasized that "both the common law and the literal understanding of privacy encompass the
individual's control of information concerning his or her person." U.S. Dept of Justice v. Reporters
Committee for Freedom of the Press, 489 U.S. 749, 763 (1989).
The Supreme Court has found that [i]ncorporated in the clearly unwarranted language is
the requirement for ... [a] balancing of interests between the protection of an individual's private
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8 CBP asserted Exemption 6 to withhold information from the following documents listed on the
Vaughn index, attached as Ex. A to the Hanson Declaration: 10-28, and an issue paper dated
November 17, 2008, addressing media allegations in Texas Observer article. See also n. 8, supra(listing documents redacted under Exemptions 5 and 6).
18
affairs from unnecessary public scrutiny, and the preservation of the public's right to governmental
information. Lepelletier, 164 F.3d at 46 (citing U.S. Dept of Defense v. FLRA, 964 F.2d 26, 29
(D.C. Cir. 1992), quoting Dept of Air Force v. Rose, 425 U.S. 352, 372 (1976)). In determining
how to balance the private and public interests involved, the Supreme Court has sharply limited the
notion of "public interest" under the FOIA: "[T]he only relevant public interest in the FOIA
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.'" Lepelletier, 164 F.3d at 46 (quotingFLRA, 510 U.S. at 497) (editing in
original)). See also
Reporters Committee, 489 U.S. at 773. Information that does not directly
reveal the operation or activities of the federal government "falls outside the ambit of the public
interest that the FOIA was enacted to serve." Id. at 775. Further, "something, even a modest privacy
interest, outweighs nothing every time." National Ass'n of Retired Fed. Employees v. Horner, 879
F.2d 873, 879 (D.C. Cir. 1989); but seeLepelletier, 164 F.3d at 48 (in extraordinary circumstances
where the individuals whose privacy the government seeks to protect have a "clear interest" in
release of the requested information, the balancing under Exemption 6 must include consideration
of that interest).
The Hanson declaration explains that CBP withheld certain information under FOIA
Exemption 6 to protect information that would infringe on the personal privacy of the individual
about whom the information relates. See Hanson Decl., 11. Specifically, in this case, Exemption
6 has been applied to the names of lower-level CBP employees.8 Id., 17. These CBP employees
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have a privacy interest in the non-disclosure of their names, and the privacy consideration is to
protect CBP personnel and third parties from unnecessary questioning and harassment. Id. Even
if Plaintiff is already familiar with the names of certain CBP employees, disclosure puts the
information into the public domain. Id.
In applying Exemption (b)(6), the public interest must be weighed against the privacy
interest in non-disclosure. See Hanson Decl., 18. Disclosure must benefit not just the individual
requester, but the public in general. Id. In this case, the privacy interest in non-disclosure of
individual names and contact information far outweighs the public interest in ascertaining their
identities. Id. As a preliminary matter, CBP asserts FOIA Exemption 6 for the names of lower-level
CBP employees involved in after-the-fact discussions about the alleged agency improprieties alleged
in the Texas Observer article. See Ex. A to the Hanson Declaration, Document Nos. 10-28, and the
issue paper dated November 17, 2008. Thus, none of the responsive documents related to the
involvement of the lower-level employees in any events discussed in the article. Under these
circumstances, the privacy consideration, necessary to prevent CBP employees from questioning
and harassment, overrides the public interest in disclosure of lower-level CBP employees who did
not anticipate that their identities would become public information. Id. Disclosure of their
identities will not sufficiently enhance the understanding of how CBP functions such that privacy
considerations should be overridden. Id.
Thus, CBP properly withheld the names of lower-level CBP employees and their contact
information under FOIA Exemption 6 because the release of this information would be considered
a clearly unwarranted invasion of privacy and may subject the employees to unwanted questioning
and harrassment. See, e.g., Electronic Privacy Information Center v. DHS, 384 F.Supp.2d 100, 115-
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18 (D.D.C. 2005) (district court ruled that DHS properly withheld the names of agency employees
who help to formulate airline security policy under FOIA Exemption 6 to protect the employees
from annoyance or harassment). Furthermore, each time Exemption 6 was invoked the agency
performed a balancing test to ensure that the public interest did not outweigh the privacy interest of
the individual involved.
3. Exemption 7(E)
Exemption 7 of FOIA protects from disclosure records or information compiled for law
enforcement purposes, but only to the extent that disclosure of such records would cause an
enumerated harm. 5 U.S.C. 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). In order
to withhold materials properly under Exemption 7, an agency must establish that the records at issue
were compiled for law enforcement purposes, and that the material satisfies the requirements of one
of the subparts of Exemption 7. See Pratt v. Webster, 673 F.3d 408, 413 (D.C. Cir. 1982). In
assessing whether records are compiled for law enforcement purposes, the focus is on how and
under what circumstances the requested files were compiled, and whether the files sought relate to
anything that can fairly be characterized as an enforcement proceeding. Jefferson v. Dept of
Justice, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (citations and internal quotations omitted).
[T]he term law enforcement purpose is not limited to criminal investigations but can also
include civil investigations and proceedings in its scope. Mittleman v. Office of Personnel
Management, 76 F.3d 1240, 1243 (D.C. Cir. 1996), cert. denied, 519 U.S. 1123 (1997), citing Pratt
v. Webster, 673 F.2d 408, 420 n.32 (D.C. Cir. 1982). When, however, a criminal law enforcement
agency invokes Exemption 7, it warrants greater deference than do like claims by other agencies.
Keys v. U.S. Dept of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987), citing Pratt, 673 F.2d at 418. A
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criminal law enforcement agency must simply show that the nexus between the agency's activity
. . . and its law enforcement duties is based on information sufficient to support at least a
colorable claim of its rationality. Keys, 830 F.2d at 340, quoting Pratt, 673 F.2d at 421.
DHS clearly satisfies the standard for invoking Exemption 7 of the FOIA because of its law
enforcement mission. Rugiero v. U.S. Dept of Justice, 257 F.3d 534, 550 (6th Cir. 2001)
(explaining that the "Court has adopted a per se rule" that applies not only to criminal enforcement
actions, but to "records compiled for civil enforcement purposes as well.") Indeed, the Hanson
declaration explains that Plaintiffs FOIA request for information about the Secure Border Initiative
necessarily implicates certain law enforcement functions of CBP. For example, [m]aps containing
locations and types of surveillance cameras, as well as known and documented smuggling routes
across the United States border, could compromise effective law enforcement procedures and
techniques if disclosed to the public. Thus, Exemption 7's requirement that responsive records
were compiled for law enforcement purposes is clearly met in this case.
Exemption 7(E) of the FOIA provides protection for all information compiled for law
enforcement purposes when release "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 first clause of Exemption 7(E) affords "categorical" protection for
"techniques and procedures" used in law enforcement investigations or prosecutions. Smith v.
Bureau of Alcohol, Tobacco and Firearms, 977 F. Supp. 496, 501 (D.D.C. 1997), citing
Fisher v.
U.S. Dept of Justice, 772 F. Supp. 7, 12 n. 9 (D.D.C. 1991), aff'd, 968 F.2d 92 (D.C. Cir. 1992).
While Exemption 7(E)'s protection is generally limited to techniques or procedures that are not well
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9 CBP asserted Exemption 7(E) to withhold information from the following documents listed on
the Vaughn index, attached as Ex. A to the Hanson Declaration: 2-8, 10, 11, 24, 25. See also n.8, supra (listing documents redacted under Exemptions 5 and 7(E)).
23
The Hanson declaration explains that CBP has invoked FOIA Exemption 7(E) in this case
to protect[] information, the disclosure of which, would disclose techniques or procedures for law
enforcement investigations or prosecutions. See Hanson Decl., 19. As a result, withholding of
information is proper when disclosure would shed light on certain law enforcement techniques or
procedures. Id. Law enforcement agencies are entitled to withhold records under Exemption 7(E)
to protect law enforcement records that illustrate enforcement techniques or procedures, as well as
records that if disclosed could reasonably be expected to risk circumvention of the law. Id.
In this case, Exemption 7(E) has been applied to prevent disclosure of information that
would disclose law enforcement techniques and could, if disclosed, reasonably be expected to risk
circumvention of the law.9 See Hanson Decl., 20. Maps containing locations and types of
surveillance cameras, as well as known and documented smuggling routes across the United States
border, could compromise effective law enforcement procedures and techniques if disclosed to the
public. Id. In addition, records which include details of specific vanishing points, the locations that
allow for easy assimilation into the local population after crossing the border, could if disclosed lead
to circumvention of the law by allowing a comparison of which vanishing points prove to be more
effective. Id.
If DHS were to disclose this law enforcement information, and release details of the specific
techniques used, it could jeopardize the effectiveness of any future investigation or enforcement
action. See Key, 510 F.Supp.2d at 130 (The Court finds that the Secret Service properly relied on
Exemption 7(E) to withhold information relating to methods used to investigate criminal
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counterfeiting activity because the release of such information could compromise future
investigation.).
C. All Reasonably Segregable Material Has Been Released to Plaintiff
The FOIA requires that if a record contains information that is exempt from disclosure, any
"reasonably segregable" information must be disclosed after deletion of the exempt information
unless the non-exempt portions are "inextricably intertwined with exempt portions." 5 U.S.C.
552(b); Mead Data, 566 F.2d at 260. The Court of Appeals for the District of Columbia Circuit has
held that a District Court considering a FOIA action has "an affirmative duty to consider the
segregability issue sua sponte.
" Trans-Pacific Policing Agreement v. United States Customs Serv.,
177 F.3d 1022, 1028 (D.C. Cir. 1999).
In order to demonstrate that all reasonably segregable material has been released, the agency
must provide a "detailed justification" rather than "conclusory statements." Mead Data, 566 F.2d
at 261. The agency is not, however, required "to provide such a detailed justification" that the
exempt material would effectively be disclosed. Id. All that is required is that the government show
"with 'reasonable specificity'" why a document cannot be further segregated. Armstrong v.
Executive Office of the President, 97 F.3d 575, 578-79 (D.C. Cir. 1996). Moreover, the agency is
not required to "commit significant time and resources to the separation of disjointed words, phrases,
or even sentences which taken separately or together have minimal or no information content."
Mead Data, 566 F.2d at 261, n.55.
A review of Mr. Hansons declaration, and the accompanying Vaughn index, reveals that
CBP carefully reviewed each document to determine if any information could be segregated and
released, that some documents were withheld in part and others in their entirety (with appropriate
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redactions), and that all reasonably segregable non-exempt material has been released. See Hanson
Decl., 10-20 & Ex. A thereto; see also SFNGD, 9; Armstrong, 97 F.3d at 578-79; Mead Data,
566 F.2d at 26.
CONCLUSION
For all the foregoing reasons, Defendants Motion for Summary Judgment in Part should be
granted.
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Respectfully submitted,
/s/
JEFFREY A. TAYLOR, D.C. Bar #498610
United States Attorney
/s/
RUDOLPH CONTRERAS, D.C. Bar #434122
Assistant United States Attorney
/s/
JOHN G. INTERRANTE, PA Bar #61373
Assistant United States AttorneyCivil Division, E-4806
555 4th Street, N.W.
Washington, D.C. 20530
(202) 514-7220
(202) 514-8780 (fax)
Of Counsel:
Simon Fisherow, U.S. Customs and Border Protection
Susan Shama, U.S. Customs and Border Protection
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CERTIFICATE OF SERVICE
I hereby certify that, on this 3rd day of December, 2008, I caused Defendants Motion for
Summary Judgment in Part, supporting memorandum of points and authorities, statement of material
facts as to which there is no genuine issue, and a proposed Order to be served on Plaintiff, though
counsel, at the ECF address of record in this case.
/s/
John G. Interrante
Assistant United States Attorney
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, ))
Plaintiff, ) Civil Action No. 08-1046 (JDB)
)
v. )
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendant. )
)
DEFENDANTS STATEMENT OF MATERIAL FACTS
AS TO WHICH THERE IS NO GENUINE DISPUTE
Pursuant to LCvR 7(h), Defendant, U.S. Department of Homeland Security (DHS) hereby
submits the following statement of material facts as to which there is no genuine dispute in support
of Defendants Motion for Summary Judgment in Part.
1. On or about March 17, 2008, plaintiff, Citizens for Responsibility and Ethics in
Washington (CREW), sent a letter to the FOIA Director, U.S. Customs and Border Protection
(CBP),requesting in part the following records under the Freedom of Information Act (FOIA),
as amended:
any and all records dating from January 20, 2001 to the present reflecting
communications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any properties
known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., and the
construction of fencing along the border between the U.S. and Mexico.
See Declaration of Mark Hanson (Hanson Decl.), Director of the FOIA Division, Office of
International Trade, CBP, DHS, 4; Defs Answer (Document 4), 7 & Ex A thereto.
2. The parties subsequently agreed to narrow Plaintiffs March 17, 2008 request, and also
to bifurcate the processing of the request. See Hanson Decl., 4. Subsequent to the filing of
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3
Congressional Affairs, Office of Finance, Office of Public Affairs, Office of Border Patrol, Office
of Field Operations, and the Secure Border Initiative within the Office of the Commissioner. Id.
4. On July 18, 2008, AnnMarie R. Highsmith, Associate Chief Counsel for Trade and
Finance, CBP Office of Chief Counsel, issued a Litigation Hold Notice instructing certain CBP
employees to preserve all records and information related to Plaintiffs request. See Hanson Decl.,
6. The notice was sent to employees from the following CBP offices: the Secure Border Initiative
within the Office of the Commissioner, Office of Border Patrol, Office of Congressional Affairs, the
FOIA Division of the Office of International Trade, and the Office of the Commissioner. Id. Each
employee was directed to distribute the notice to all personnel in his or her office who may be
involved in, or have information relating to, the records requested. Id.
5. In response to the above memorandum, two offices produced documents responsive
to the first part of the bifurcated request the Office of the Secure Border Initiative (SBI) within
the Office of the Commissioner and the Office of Border Patrol. See Hanson Decl., 7-8. The first
responsive search was directed by the SBI Communications Director, who instructed personnel to
provide all relevant documentation responsive to Plaintiffs FOIA request. Id. Program staff were
instructed to search in all potentially relevant locations for responsive documents, including
individual hard drives, shared electronic drives, and any hard-copy documents. Id. Administrative
staff were also directed to search the same places for potentially responsive records. Id. In response
to Plaintiffs request, program staff searched for all potentially responsive records related to Ray L.
Hunt, Hunt Consolidated, Inc., or any properties known to be owned by Ray L. Hunt or Hunt
Consolidated, Inc. Id. Records found as a result of the above search have been produced to Plaintiff
pursuant to Plaintiffs FOIA request. Id.
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6. Also in response to the search memorandum, the Office of Border Patrol searched
and produced responsive records. See Hanson Decl., 8. A search was conducted at Border Patrol
Headquarters in Washington, DC, as well as Border Patrol offices located in the Rio Grande Valley
sector where properties owned by Ray L. Hunt are located. Id. Offices were instructed to search
both hard-copy and electronic files, and offices searched electronic hard drives and portable thumb
drives in addition to hard-copy documents. Id. The search terms used by the Office of Border Patrol
to conduct the search for responsive records were those posed by Plaintiff in its FOIA request:
records reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any
properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., involving the
construction of fencing along the border between the United States and Mexico. Id. Records
identified as a result of that search have been processed by CBP and produced to Plaintiff. Id.
7. On September 2, 2008, CBP released the first group of documents responsive to the first
part of the bifurcated request. See Hanson Decl., 9. CBP released additional documents to Plaintiff
in supplemental responses on October 10, 2008 and November 17, 2008. Id. Prior to release, these
documents were redacted in accordance with 5 U.S.C. 552. Id. The documents were redacted
pursuant to FOIA exemptions (b)(5), (b)(6), and (b)(7)(E). Id.
8. Redactions made on the responsive documents are detailed in a Vaughn index
identifying information responsive to Plaintiffs FOIA request, but exempt from disclosure under
the FOIA, in accordance with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415
U.S. 977 (1974). See Hanson Decl., 10. The Declaration and its attachments, along with the
Vaughn index, identify information that is withheld, the statutory exemption(s) claimed, and the
justification for asserting the exemptions used to withhold certain information contained in the
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records at issue. Id.
9. No reasonably segregable non-exempt portions of the documents were withheld from
Plaintiff. See Hanson Decl., 10. Accordingly, the redacted information was exempt from
disclosure pursuant to a FOIA exemption or was not reasonably segregable because its release would
have revealed the underlying protected material. Id.
Respectfully submitted,
/s/
JEFFREY A. TAYLOR, D.C. Bar #498610
United States Attorney
/s/
RUDOLPH CONTRERAS, D.C. Bar #434122
Assistant United States Attorney
/s/
JOHN G. INTERRANTE, PA Bar #61373
Assistant United States Attorney
Civil Division, E-4806
555 4th Street, N.W.Washington, D.C. 20530
(202) 514-7220
(202) 514-8780 (fax)
Of Counsel:
Simon Fisherow, U.S. Customs and Border Protection
Susan Shama, U.S. Customs and Border Protection
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VAUGHN INDEXCitizens for Responsibility and Ethics in Washington v. Department of Homeland Security
Case No. 08-1046
Hunt Documents Release #1
(including supplemental releases of October 10, 2008 and November 17, 2008)
Document File Name
(as it appears on CD)
Originating
Office/Location
Document Description Number of Pages Disposition &
Exemption(s)One (Redacted) Office of Border Patrol (OBP) Talking points regarding Hunt
Property, City of Granjeno andBorder Fencing in RGV Sector
1 - Document redacted in full.- Information that illustrates thedeliberative process within CBP is
redacted pursuant to 5 U.S.C. 552(b)(5) because informationcontains deliberations on how to
respond to allegations raised in themedia.
Two (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property
showing known and documentedsmuggling routes, and locations ofRemote Video Surveillance System
(RVSS) cameras
2 - Document redacted in full.
- Information is redacted pursuant to5 U.S.C. 552(b)(7)(E), as it pertainsto records compiled for law
enforcement purposes, the release ofwhich would disclose certain
techniques or procedures for lawenforcement investigations orprosecutions, including known and
documented smuggling routes, andlocations of Remote VideoSurveillance System (RVSS)
cameras.Three (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property
prepared in response to Texas
Observer article
1 - Document redacted in full.- Information is redacted pursuant to
5 U.S.C. 552(b)(7)(E), as it pertainsto records compiled for lawenforcement purposes, the release of
which would disclose certain
techniques or procedures for lawenforcement investigations orprosecutions.
Four (Redacted) Office of Border Patrol (OBP) Map referencing Hunt propertyshowing known and documentedsmuggling routes
1 - Document redacted in full.- Information is redacted pursuant to5 U.S.C. 552(b)(7)(E), as it pertains
to records compiled for law
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enforcement purposes, the release of
which would disclose certaintechniques or procedures for law
enforcement investigations orprosecutions, such as known anddocumented smuggling routes.
Five (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property
showing apprehension sites and
narcotics seizures
1 - Document redacted in full.
- Information is redacted pursuant to
5 U.S.C. 552(b)(7)(E), as it pertainsto records compiled for lawenforcement purposes, the release of
which would disclose certaintechniques or procedures for law
enforcement investigations orprosecutions such as illegal alienapprehension sites, smuggling
apprehensions, and narcoticsseizures.
Six (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property
showing known and documentedsmuggling routes
1 - Document redacted in full.
- Information is redacted pursuant to5 U.S.C. 552(b)(7)(E), as it pertainsto records compiled for law
enforcement purposes, the release ofwhich would disclose certaintechniques or procedures for law
enforcement investigations or
prosecutions such as known anddocumented smuggling routes.
Seven (Redacted) Office of Border Patrol (OBP) Map dated April 22, 2008 prepared
in response to Texas Observer articleshowing known and documented
smuggling routes
1 - Document redacted in full.
- Information is redacted pursuant to5 U.S.C. 552(b)(7)(E), as it pertains
to records compiled for law
enforcement purposes, the release ofwhich would disclose certaintechniques or procedures for law
enforcement investigations orprosecutions such as known anddocumented smuggling routes.
Eight (Redacted) Office of Border Patrol (OBP) Document related to Rio GrandValley (RGV) Pedestrian Fence (PF)
225 Fence Segments (Issues withHunt Development)
2 - Document redacted in full.- Information is redacted pursuant to
5 U.S.C. 552(b)(7)(E), as it pertainsto records compiled for law
enforcement purposes, the release ofwhich would disclose certaintechniques or procedures for law
enforcement investigations or
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prosecutions.
Nine (Redacted) Secure Border Initiative (SBI) Draft Talking Points related to TexasBorder Coalition Lawsuit
5 - Document redacted in full.- Information that illustrates thedeliberative process within CBP is
redacted pursuant to 5 U.S.C. 552(b)(5) because the document is adraft that reflects internal discussions
and is not in final form.
Ten (Redacted) Secure Border Initiative (SBI) Email string beginning April 30,2008 related to Texas Observer
article and letter to Congressman
Thompson on Texas fence
6 - Document released with partialredactions.
- Information that illustrates the
deliberative process within CBP isredacted pursuant to 5 U.S.C. 552(b)(5) because the document
reflects internal discussions on howto respond to allegations raised in themedia.
- Names of some lower-level CBPemployees or third parties and their
contact information (which containtheir names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),
because release would be considereda clearly unwarranted invasion ofprivacy.
- Information is redacted pursuant to
5 U.S.C. 552(b)(7)(E), as it pertainsto records compiled for lawenforcement purposes, the release of
which would disclose certaintechniques or procedures for lawenforcement investigations or
prosecutions.Eleven (Redacted) Secure Border Initiative Email string beginning April 30,2008 related to Texas Observer
article and letter to CongressmanThompson on Texas fence
6 - Document released with partialredactions.
- Information that illustrates thedeliberative process within CBP isredacted pursuant to 5 U.S.C.
552(b)(5) because the documentreflects internal discussions on how
to respond to allegations raised in themedia.- Names of some lower-level CBP
employees or third parties and their
contact information (which containtheir names in full) are redacted
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2008 related to tasker regarding
response to allegations related toHunt property. Attachments include
letter from Congressman Thompsonand response from Secretary Chertoff
redactions.
- Information that illustrates thedeliberative process within CBP is
redacted pursuant to 5 U.S.C. 552(b)(5) because the documentreflects internal discussions on how
to respond to allegations raised in themedia.- Names of some lower-level CBP
employees or third parties and theircontact information (which contain
their names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),
because release would be considereda clearly unwarranted invasion ofprivacy.
- Signatures of some CBP employeesor third parties are redacted pursuant
to 5 U.S.C. 5 52(b)(6), becauserelease would be considered a clearlyunwarranted invasion of privacy.
Fifteen (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008
related to tasker regarding response
to allegations related to Huntproperty
4 - Document released with partial
redactions.
- Information that illustrates thedeliberative process within CBP isredacted pursuant to 5 U.S.C. 552(b)(5) because responses
constitute deliberations on how torespond to allegations raised in themedia.
- Names of some lower-level CBP
employees or third parties and their
contact information (which containtheir names in full) are redacted
pursuant to 5 U.S.C. 552(b)(6),because release would be considereda clearly unwarranted invasion of
privacy.
Sixteen (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008related to tasker regarding response
to allegations related to Hunt
property
3 - Document released with partialredactions.
- Information that illustrates the
deliberative process within CBP isredacted pursuant to 5 U.S.C. 552(b)(5) because responses
constitute deliberations on how torespond to allegations raised in the
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media.
- Names of some lower-level CBPemployees or third parties and their
contact information (which containtheir names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),
because release would be considereda clearly unwarranted invasion ofprivacy.
Seventeen (Redacted) Secure Border Initiative (SBI) Email string beginning April 21,2008 related to tasker regarding
response to allegations related toHunt property
2 - Document released with partialredactions.
- Information that illustrates thedeliberative process within CBP is
redacted pursuant to 5 U.S.C. 552(b)(5) because responsesconstitute deliberations on how to
respond to allegations raised in themedia.- Names of some lower-level CBP
employees or third parties and theircontact information (which containtheir names in full) are redacted
pursuant to 5 U.S.C. 552(b)(6),
because release would be considereda clearly unwarranted invasion ofprivacy.
Eighteen (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008related to tasker regarding responseto allegations related to Hunt
property
3 - Document released with partialredactions.- Information that illustrates the
deliberative process within CBP isredacted pursuant to 5 U.S.C. 552(b)(5) because responses
constitute deliberations on how torespond to allegations raised in the
media.- Names of some lower-level CBPemployees or third parties and their
contact information (which containtheir names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),
because release would be considered
a clearly unwarranted invasion ofprivacy.
Nineteen (Redacted) Secure Border Initiative (SBI) Email string beginning April 21,
2008 related to tasker regardingresponse to allegations related to
3 - Document released with partial
redactions.- Information that illustrates the
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a clearly unwarranted invasion of
privacy.
Twenty-two (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008related to tasker regarding response
to allegations related to Huntproperty. Attachments includeTalking Points related to border
fence at Hunt Ranch
5 - Document released with partialredactions.
- Information that illustrates thedeliberative process within CBP isredacted pursuant to 5 U.S.C.
552(b)(5) because the document
reflects internal discussions on howto respond to allegations raised in themedia.
- Names of some lower-level CBPemployees or third parties and their
contact information (which containtheir names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),
because release would be considereda clearly unwarranted invasion ofprivacy.
Twenty-three (Redacted) Secure Border Initiative (SBI) Email string beginning April 21,2008 related to tasker regardingresponse to allegations related to
Hunt property. Attachment: letterfrom Congressman Thompson toSecretary Chertoff
5 - Document released with partialredactions.- Information that illustrates the
deliberative process within CBP isredacted pursuant to 5 U.S.C. 552(b)(5) because the document
reflects internal discussions on how
to respond to allegations raised in themedia.- Names of some lower-level CBP
employees or third parties and theircontact information (which containtheir names in full) are redacted
pursuant to 5 U.S.C. 552(b)(6),because release would be considered
a clearly unwarranted invasion ofprivacy.
Twenty-four (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008related to tasker regarding response
to allegations related to Huntproperty. Attachments include
Document Related to Rio GrandValley (RGV) Pedestrian Fence (PF)225 Fence Segments (Issues with
Hunt Development), minutes from
Office of Border Patrol (OBP)meeting, After Action Report (AAR)
12 - Document released with partialredactions.
- Information that illustrates thedeliberative process within CBP is
redacted pursuant to 5 U.S.C. 552(b)(5) because the documentreflects internal discussions on how
to respond to allegations raised in the
media.- Names of some lower-level CBP
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on Sabal Palm property issues,
Tamez property updated briefing,and Tamez property talking points
employees or third parties and their
contact information (which containtheir names in full) are redacted
pursuant to 5 U.S.C. 552(b)(6),because release would be considereda clearly unwarranted invasion of
privacy.- Information is redacted pursuant to5 U.S.C. 552(b)(7)(E), as it pertains
to records compiled for lawenforcement purposes, the release of
which would disclose certaintechniques or procedures for law
enforcement investigations orprosecutions, such as particularpoints of vulnerability along the U.S.
border with Mexico and details ofvanishing points, locations where
illegal immigrants can quickly andeasily assimilate into the localpopulation.
Twenty-five (Redacted) Secure Border Initiative (SBI) Email string beginning January 22,
2008 related to fence segment
requirements. Attachment includesdetailed synopses of fence sectors,including vulnerabilities andvanishing points
12 - Document released with partial
redactions.
- Information that illustrates thedeliberative process within CBP isredacted pursuant to 5 U.S.C. 552(b)(5) because the document
reflects internal discussions ofproposed construction projects of apre-decisional nature.
- Names of some lower-level CBP
employees or third parties and their
contact information (which containtheir names in full) are redacted
pursuant to 5 U.S.C. 552(b)(6),because release would be considereda clearly unwarranted invasion of
privacy.- Information is redacted pursuant to
5 U.S.C. 552(b)(7)(E), as it pertainsto records compiled for lawenforcement purposes, the release of
which would disclose certaintechniques or procedures for lawenforcement investigations or
prosecutions such as detailed
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synopses of fence sectors, in cluding
vulnerabilities and vanishing points.
Twenty-six (Redacted) Secure Border Initiative (SBI) Letter from Secretary Chertoff toCongressman Thompson dated May
22, 2008 regarding border fencing inTexas. Attachment includesmemorandum written by
Commissioner Basham on placement
on border fencing
5 - Document released with partialredactions.
- Names of some lower-level CBPemployees or third parties and theircontact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. 552(b)(6),because release would be considereda clearly unwarranted invasion of
privacy.- Signatures of some CBP employees
or third parties are redacted pursuantto 5 U.S.C. 5 52(b)(6), becauserelease would be considered a clearly
unwarranted invasion of privacy.
Twenty-seven (Redacted) Secure Border Initiative (SBI) Media response dated June 17, 2008pertaining to fence construction
questions
2 - Document released with partialredactions.
- Names of some lower-level CBPemployees or third parties and theircontact information (which contain
their names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),because release would be considered
a clearly unwarranted invasion of
privacy.
Twenty-eight (Redacted)
Supplemental Release #1
(October 10, 2008)
Secure Border Initiative (SBI) Email string beginning June 27, 2008
related to potential agency responses
to media accusations
3 - Document released with partial
redactions.
- Information that illustrates thedeliberative process within CBP is
redacted pursuant to 5 U.S.C.
552(b)(5) because the documentreflects internal discussions on howto respond to allegations raised in the
media.- Information is redacted pursuant to5 U.S.C. 552(b)(5) because it
contains confidentialcommunications between attorney
and client.- Names of some lower-level CBPemployees or third parties and their
contact information (which contain
their names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),
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because release would be considered
a clearly unwarranted invasion ofprivacy.
Fence Justification Response to
Texas Observer _ 2-21-08 (edited on4-08-08) (Redacted)
Supplemental Release #2
(November 17, 2008)
Office of Border Patrol (OBP) Document discussing lack of outside
influence on decisions related toparticular section of fencing
1 - Document released in full.
Fence Justification Response toTexas Observer _ 2-21-08 (Redacted)
Supplemental Release #2
(November 17, 2008)
Office of Border Patrol (OBP) Document discussing lack of outsideinfluence on decisions related to
particular section of fencing
3 - Document released in full.
Issue Paper _ 2-21-08 NewspaperArticle (Redacted)
Supplemental Release #2(November 17, 2008)
Office of Border Patrol (OBP) Issue paper addressing mediaallegations made in Texas Observer
newspaper article
2 - Document released with partialredactions.
- Information that illustrates thedeliberative process within CBP isredacted pursuant to 5 U.S.C.
552(b)(5) because the documentreflects internal discussions on howto respond to allegations raised in the
media.
- Names of some lower-level CBPemployees or third parties and theircontact information (which contain
their names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),because release would be considereda clearly unwarranted invasion of
privacy.
Issue Paper _ 5-19-08 Affluent vs.
Non-Affluent (HL) (Redacted)Supplemental Release #2
(November 17, 2008)
Office of Border Patrol (OBP) Issue paper addressing media
allegations made in Texas Observernewspaper article
1 - Document released in full.
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Vaughn Index
Document:One (Redacted)
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(b) (5)
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7)(e)
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7)(E)
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Vaughn Index
Document:Three (Redacted)
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7)(E)
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Document:Four (Redacted)
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7)(E)
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Document:Five (Redacted)
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(b) (7)(E) Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2
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Document:Six (Redacted)
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Document:Seven (Redacted)
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Document:Eight (Redacted)
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RGV PF 225 Fence Segments
(b) (7)(E)
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(b) (7)(E)
(b) (7)(E)
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Document:Nine (Redacted)
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(b) (5)
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(b) (5)
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(b) (5)
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(b) (5)
Case 1:08-cv-01046-JD