KXTV, LLC v. U.S. Citizenship and Immigration Services ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KXTV, LLC dba ABC10, No. 2:19-cv-00415-JAM-CKD 11 Plaintiff, 12 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, 14 Defendant. 15 16 On March 7, 2019, KXTV, LLC (“Plaintiff”) filed suit 17 against United States Citizenship and Immigration Services 18 (“Defendant”) after it withheld agency records on intervenor, 19 Omar Abdulsattar Ameen (“Ameen”). Compl., ECF No. 1. Plaintiff 20 alleges Defendant violated the Freedom of Information Act 21 (“FOIA”), 5 U.S.C. § 552, in doing so. Id. Defendant filed a 22 Motion for Summary Judgment asserting Plaintiff is not entitled 23 to the records because they are subject to FOIA exemptions that 24 prohibit their release. Mot. Summ. J. (“Mot.”), ECF No. 21. 25 Plaintiff opposed the motion with Ameen’s support. Opp’n, ECF 26 No. 22; Mem. in Supp. of Opp’n, ECF No. 27. 27 For the reasons set forth below, the Court GRANTS 28 Defendant’s Motion for Summary Judgment. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff’s claim arises from Defendant’s denial of a FOIA 3 request for “all immigration files, photos, annotations, and 4 investigations compiled” on Ameen, who is the subject of an 5 extradition matter brought by the United States. Am. Compl. 6 ¶ 14, ECF No. 6. In effect, Plaintiff requested the entirety of 7 Ameen’s Alien File (“A-File”). The A-File is an official record 8 that contains information obtained by the Government on an 9 individual as they pass through the United States immigration 10 and inspection process. Mot. at 6. After an administrative 11 appeal of the denial, Defendant maintained its position and 12 continued to withhold the requested records. Mot. at 2. 13 Plaintiff subsequently filed suit. Id. Upon the commencement 14 of the suit, the parties agreed to narrow the amount of 15 information at issue. Mot. at 2. As part of this effort, 16 Defendant produced a Vaughn index describing what information 17 was withheld and why. See Vaughn v. Rosen, 484 F.2d 820, 827 18 (D.C. Cir. 1973) (“[A] Vaughn index [] provides the court with a 19 method to analyze the propriety of the withholding in sufficient 20 detail to show the applicability of the exemption.”). With the 21 Vaughn index, Defendant released a large portion of Ameen’s A- 22 File. Mot. at 2. Defendant claimed the non-released 23 information was exempt pursuant to 5 U.S.C § 552(b)(3), (b)(6), 24 (b)(7)(A), (b)(7)(C), and (b)(7)(E). Id. Around this time, 25 Ameen intervened in the case based on his privacy interests in 26 his A-File. See Mot. to Intervene, ECF No. 15. After reviewing 27 the file, Ameen provided a list of documents he would waive his 28 interests in and consent to Defendant producing. Mot. at 3. 1 Approximately one month later, Ameen changed his position on 2 waiving his privacy interest through FOIA and decided to provide 3 many of the documents directly to Plaintiff himself. Id. Ameen 4 shared 187 pages of documents from his A-File with Plaintiff and 5 subsequently waived his privacy interest in the remaining 6 documents. Id. Following Ameen’s disclosure of the documents, 7 Defendant revised the Vaughn index, provided Plaintiff with an 8 updated response letter, and released more of Ameen’s A-File. 9 Id. Then, in response to Plaintiff’s opposition to the instant 10 motion, Defendant released some additional information. Suppl. 11 Decl. of Kelli Taylor (“Taylor Suppl. Decl.”) ¶ 2, ECF No. 30-3. 12 Soon thereafter, in Ameen’s extradition proceedings, 13 Defendant released partially redacted portions of three 14 memoranda still withheld in full in this action (Doc. Nos. 119, 15 124–25, and 131). See Exs. 16, 17, 18, 19 to Sur-Reply, ECF No. 16 32. Defendant continues to withhold in full three pages from 17 those memoranda in both proceedings (Doc. Nos. 126, 130, and 18 132). See Ex. 17 to Sur-Reply. The Court will treat the 19 documents that were released in part in the extradition 20 proceedings as released in part in this action. Thus, only 21 three pages of the memoranda remain withheld in full. 22 On February 25, 2020, the Court held a hearing on the 23 motion during which it requested in camera review of several of 24 the documents withheld in full (Doc. Nos. 114–16, 117, 127–29, 25 159–66, 198, 200). ECF No. 38. Upon review, the Court found 26 those documents had been properly withheld by Defendant and that 27 the FOIA exemptions identified were correctly applied. Min. 28 Order, ECF No. 39. As to those documents, the Court GRANTED 1 Defendant’s Motion for Summary Judgement. Id. 2 Accordingly, the information that remains in dispute 3 consists of twenty-six (26) partially redacted pages and three 4 (3) pages withheld in full. See Ex. M to Reply, ECF No. 30-4; 5 Ex. N to Reply, ECF No. 30–5; Ex. 17 to Sur-Reply; Min. Order, 6 ECF No. 39. Defendant applied FOIA exemptions (b)(6) and 7 (b)(7)(A), (C), (E), and (F) to prevent the release of all or 8 part of the remaining documents. Mot. at 7. 9 10 II. OPINION 11 A. Evidentiary Objections 12 Plaintiff raises several evidentiary objections in its 13 responses to Defendant’s statement of undisputed facts. See 14 Plaintiff’s Response to Defendant’s Statement of Undisputed 15 Facts (“SUF”) ¶¶ 21, 22, 26, 27, ECF No. 22-1; Objs. at ECF No. 16 25. The Court has reviewed these evidentiary objections but 17 declines to rule on them as courts self-police evidentiary 18 issues on motions for summary judgment and a formal ruling is 19 unnecessary to the determination of this motion. See Burch v. 20 Regents of the University of California, 433 F.Supp.2d 1110, 21 1118–1122 (E.D. Cal. 2006). 22 B. Plaintiff’s Request for Judicial Notice 23 Plaintiff requests that the Court take judicial notice of 24 fourteen exhibits. See Req. for Jud. Notice, ECF No. 23.; 25 Suppl. Req. for Jud. Notice, ECF No. 33. Several of those 26 exhibits originate from Ameen’s extradition matter, USA v. 27 Ameen, Case No. 2:18-MJ-00152-EFB (E.D. Cal.), including: 28 (1) the docket itself; (2) the Complaint; (3) the Memorandum of 1 Extradition Law and Request for Detention Pending Extradition 2 Proceedings; (4) Exhibit 6 to the Extradition Hearing Brief; (5) 3 the Updated Exhibit List; (6) Ameen’s Passport filed at Exhibit 4 11-B; and (7) Reply to Defense Second Supplemental Extradition 5 Hearing Brief. Plaintiff also requests judicial notice of the 6 docket in Muchnick v. Dep’t of Homeland Sec., Case No. 3:15-cv- 7 03060-CRB (N.D. Cal.). 8 In addition to court filings, Plaintiff requests the Court 9 take judicial notice of the following public records: (1) United 10 States Department of Homeland Security’s “DHS/USCIS/PIA-068 11 Refugee Case Processing and Security Vetting” Document; (2) The 12 Sacramento Bee article, “Is this Iraqi Sacramento resident an 13 ISIS killer, or victim of a mentally ill witness?”; (3) CBS 14 Sacramento article, “Sacramento Man Linked to Iraqi ISIS Murder 15 Denied Bail”; (4) The New York Times article, “ISIS Member 16 Arrested in Sacramento, U.S. Says”; (5) The New Yorker article, 17 “The Fight to Save an Innocent Refugee from Almost Certain 18 Death”; and (6) The New Yorker article, “The Evidence That Could 19 Save Omar Ameen’s Life.” 20 “A judicially noticed fact must be one not subject to 21 reasonable dispute in that it is either (1) generally known 22 within the territorial jurisdiction of the trial court or 23 (2) capable of accurate and ready determination by resort to 24 sources whose accuracy cannot reasonably be questioned.” Fed. 25 R. Evid. 201(b). Accordingly, a court may take judicial notice 26 of “undisputed matters of public record . . . including 27 documents on file in federal or state courts.” Harris v. County 28 of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). A court may 1 not, however, judicially notice a disputed fact stated within 2 those records. Lee v. City of Los Angeles, 250 F.3d 668, 689–90 3 (9th Cir. 2001). Moreover, a court should not take judicial 4 notice of adjudicative facts that are irrelevant to the case at 5 issue. Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 6 692 F.3d 983, 991 n.8 (9th Cir. 2012). 7 All the exhibits Plaintiff requests that the Court 8 judicially notice are undisputed matters of public record. 9 Accordingly, the Court takes judicial notice of their existence. 10 However, the Court declines to take judicial notice of their 11 substance, including any disputed or irrelevant facts within 12 them. 13 C. Applicable Legal Standards 14 1. The Freedom of Information Act 15 “FOIA was enacted to facilitate public access to Government 16 documents.” Llahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 17 973 (9th Cir. 2009) (internal quotation marks and citation 18 omitted). Nonetheless, “FOIA contemplates that some information 19 may legitimately be kept from the public.” Id. To this end, 20 the statute contains nine enumerated exemptions allowing the 21 Government to withhold documents or portions of documents. Id. 22 (citing 5 U.S.C. § 552(b)(1)-(9)). FOIA’s presumption in favor 23 of disclosure means that an agency invoking one of the 24 exemptions bears the burden of demonstrating that the exemption 25 properly applies to the documents. Id. (internal quotation 26 marks and citation omitted). 27 This presumption also means that the exemptions are to be 28 interpreted narrowly. Id. (internal quotation marks and 1 citation omitted). But they are nonetheless “intended to have 2 meaningful reach and application.” John Doe Agency v. John Doe 3 Corp., 493 U.S. 146, 152 (1989). Thus, if an agency refuses to 4 disclose records that correctly fall within one of the 5 exemptions, courts lack the statutory authority to order 6 disclosure. Spurlock v. F.B.I., 68 F.3d 1010, 1015–16 (9th Cir. 7 1995) (citations omitted). With FOIA’s exemptions, “Congress [] 8 created a scheme of categorial exclusion; it did not invite a 9 judicial weighing of the benefits and evils of disclosure on a 10 case-by-case basis.” F.B.I. v. Abramson, 456 U.S. 615, 631 11 (1982). 12 When an agency is tasked with establishing that its records 13 search was adequate and that any withheld documents fall within 14 an exemption, it “must provide tailored reasons in response to a 15 FOIA request.” Shannahan v. I.R.S., 672 F.3d 1142, 1148 (9th 16 Cir. 2012). It may not respond with boilerplate or conclusory 17 statements. Id. (citation omitted). But when an agency 18 provides sufficiently detailed declarations, courts are to 19 “accord [those declarations] substantial weight.” Id. 20 Further, courts may rely solely on agency declarations or 21 affidavits so long as “the affiants are knowledgeable about the 22 information sought and the affidavits are detailed enough to 23 allow the court to make an independent assessment of the 24 [agency’s] claim. Lane v. Dep’t of Interior, 523 F.3d 1128, 25 1135–36 (9th Cir. 2008) (internal quotation marks and citation 26 omitted). Upon receiving detailed descriptions of the documents 27 and facts sufficient to establish an exemption, the “court need 28 look no further”. Id. (internal quotation marks and citations 1 omitted). 2 2. Summary Judgment in FOIA Cases 3 “Summary judgment is the procedural vehicle by which nearly 4 all FOIA cases are resolved.” Brown v. U.S. Dep’t of Just., WL 5 1237274 at *3 (E.D. Cal. 2015) (citations omitted). However, 6 the typical summary judgment standard is insufficient in a FOIA 7 proceeding. Nat’l Res. Def. Council v. U.S. Dep’t of Def., 388 8 F.Supp.2d 1086, 1095–97 (C.D. Cal. 2005). Because the facts are 9 rarely in dispute in a FOIA case, the Court need not ask whether 10 there is a genuine issue of material fact. Minier v. Cent. 11 Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996). Instead, 12 the summary judgment standard in a FOIA case requires a two- 13 stage inquiry. Nat’l Res. Def. Council, 388 F.Supp.2d at 1095– 14 97. 15 First, the Court must determine whether the agency has met 16 its burden of proving that it fully discharged its obligations 17 under FOIA. Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985) 18 (citation omitted). To do so, the agency must demonstrate that 19 it conducted a search reasonably calculated to uncover all 20 relevant documents. Id. The question is not whether any other 21 relevant documents could possibly exist, but whether the 22 agency’s search for the documents was adequate, as measured by a 23 reasonableness standard. Weisberg v. U.S. Dep’t of Just., 705 24 F.2d 1344, 1351 (D.C. Cir. 1983). If this initial burden is 25 met, the next stage of the inquiry examines whether the agency 26 has proven that the withheld information falls within one of the 27 nine FOIA exemptions. U.S. Dep’t of State v. Ray, 502 U.S. 164, 28 173 (1991). 1 Thus, to prevail on summary judgment, “the agency must 2 prove it has fully discharged these burdens under FOIA, after 3 the underlying facts and inferences to be drawn from them are 4 construed in the light most favorable to the FOIA requester.” 5 Nat’l Res. Def. Council, 388 F.Supp.2d at 1095. 6 D. Analysis 7 1. Adequacy of Search 8 As an initial matter, it is undisputed that Defendant 9 searched for responsive records in accordance with its standard 10 procedures for processing FOIA requests. See Am. Compl. 11 Plaintiff does not challenge Defendant’s search for responsive 12 documents. Id. Further, Defendant provides a declaration from 13 the Associate Director of the FOIA Unit within the Department of 14 Homeland Security (“DHS”) that details Defendant’s search for 15 responsive records and establishes it as sufficiently thorough. 16 Decl. of Jill Eggleston (“Eggleston Decl.”) ¶¶ 16–18, ECF No. 17 21–3. See Zemansky, 767 F.2d at 571 (“In demonstrating the 18 adequacy of the search, the agency may rely upon reasonably 19 detailed, nonconclusory affidavits submitted in good faith.”). 20 Accordingly, Defendant has satisfied the initial burden of 21 the summary judgment inquiry. 22 2. Claimed Exemptions 23 Next, Defendant must prove that the withheld information 24 falls within each of the FOIA exemptions applied. Ray, 502 U.S. 25 at 173. Defendant has applied several exemptions to the 26 following documents that were either partially redacted or 27 withheld in full: 28 1 Partially Redacted Documents FOIA Exemptions Applied 2 118 6, 7(C), 7(E) 3 120 6, 7(C), 7(E) 4 121–23 6, 7(C), 7(E) 5 138 6, 7(C) 6 153 6, 7(C), 7(E) 7 154–55 6, 7(C), 7(E) 8 157–58 6, 7(C), 7(E) 9 167 6, 7(C), 7(E) 10 171 6, 7(C) 11 192–97 6, 7(C), 7(E) 12 199 6, 7(C), 7(E) 13 259–60 6, 7(C) 14 15 Documents Withheld in Full FOIA Exemptions Applied 16 126 6, 7(A), 7(C), 7(E), 7(F) 17 130 6, 7(A), 7(C), 7(E), 7(F) 18 132 6, 7(A), 7(C), 7(E), 7(F) 19 20 Taylor Suppl. Decl. ¶¶ 2–3; Ex. M to Reply; Ex. N to Reply; Ex. 21 17 to Sur-Reply. 22 a. Exemption 7 23 FOIA’s seventh exemption applies to certain “records or 24 information compiled for law enforcement purposes.” 5 U.S.C 25 § 552(b)(7). Judicial review of Exemption 7 requires another 26 two-stage inquiry. Abramson, 456 U.S. at 622. “First, a 27 requested document must be shown to have been an investigatory 28 1 record compiled for law enforcement purposes.” Id. (internal 2 quotation marks and citation omitted). Then the agency must 3 demonstrate that release of the document would have one of the 4 six results specified within that exemption. Id.; see 5 U.S.C 5 § 552(b)(7)(A)-(F). 6 The first part of the inquiry is easily resolved. “An 7 agency with a clear law enforcement mandate need only establish 8 a rational nexus between enforcement of a federal law and the 9 document for which an exemption is claimed.” Los Angeles Times 10 Comm’cs, LLC v. Dep’t of Army, 442 F. Supp. 2d 880, 895 (C.D. 11 Cal. 2006) (internal quotation marks and citation omitted). DHS 12 and its components are law enforcement agencies. Eggleston 13 Decl. ¶ 32. Of those components, Defendant and ICE are 14 responsible for the administration and enforcement of federal 15 laws relating to the immigration and naturalization of aliens 16 and identifying and eliminating vulnerabilities at the nation’s 17 borders. Eggleston Decl. ¶ 32; Decl. of Toni Fuentes (“Fuentes 18 Decl.”) ¶¶ 9–11, ECF No. 21–9. Ameen’s A-File was put together 19 by these law enforcement agencies and A-Files have routinely 20 been found to “meet [the Exemption 7] test because they are 21 ‘compiled for adjudicative and enforcement purposes’ within 22 DHS’s statutory authority.” Muchnick v. Dep’t of Homeland Sec., 23 225 F. Supp. 3d 1069, 1077 (N.D. Cal. 2016). 24 Thus, the documents at issue are investigatory records 25 compiled for law enforcement purposes. 26 (i) Exemption 7(A) 27 Defendant invokes Exemption 7(A) to withhold portions of 28 three memoranda that “could reasonably be expected to interfere 1 with enforcement proceedings.” Mot. at 9. Under Exemption 2 7(A), the agency “need only make a general showing” that 3 disclosure would frustrate ongoing proceedings. Lewis v. 4 I.R.S., 823 F.2d 375, 380 (9th Cir. 1987) (citations omitted). 5 It “is not required to make a specific factual showing with 6 respect to each withheld document that disclosure would actually 7 interfere with a particular enforcement proceeding.” Id. 8 (internal quotation marks and citation omitted). This exemption 9 is meant to allow courts to determine that the release of 10 certain types of investigatory records would generally hamper a 11 pending case. Id. (internal quotation marks and citation 12 omitted). 13 The three memoranda in question (Doc. Nos. 119, 124–26, and 14 130–32) were produced by United States Immigration and Customs 15 Enforcement (“ICE”) during a joint terrorism task force 16 investigation of Ameen. Fuentes Decl. ¶ 13. As of the filing 17 of the instant motion, ICE’s investigation into Ameen is 18 considered ongoing. Id. According to Officer Fuentes, the 19 Deputy Officer of ICE’s FOIA Office, the release of these 20 documents would interfere with the ongoing investigation by 21 “reveal[ing] law enforcement techniques, and guidelines and 22 tools used by ICE in investigating targets.” Suppl. Decl. of 23 Toni Fuentes (“Fuentes Suppl. Decl.”) ¶ 6, ECF No. 30-1. Their 24 disclosure “would reveal the status of specific actions being 25 taken by [ICE],” and if “the subject(s) of the investigation was 26 to discover the contents of these memos, they may change their 27 behaviors, activities, or start destroying critical evidence.” 28 Fuentes Suppl. Decl. ¶ 6. 1 But Officer Fuentes does not reveal much more than that. 2 Under Exemption 7(A), Defendant need only make a general showing 3 that disclosure would frustrate ongoing proceedings. Lewis, 823 4 F.2d at 380. Nonetheless, the Court must receive enough detail 5 to make an independent assessment of Defendant’s claim. Lane, 6 523 F.3d at 1135–36. The names of the documents, without much 7 more, do not give the Court any insight as to why the release of 8 these types of investigatory records would interfere with the 9 ongoing case. See Fuentes Decl. ¶¶ 6, 7. That their disclosure 10 would reveal law enforcement techniques and the status of 11 specific actions being taken is vague and veers into the 12 territory of “boilerplate or conclusory statements.” Shannahan, 13 672 F.3d at 1148. 14 In cases where Exemption 7(A) was validly applied to 15 prevent the release of certain types of investigatory documents, 16 the declarations or affidavits were more insightful. For 17 instance, in Lewis, the affidavits described “in sufficient 18 detail” the undisclosed materials and more specifically 19 “addressed why disclosure would impair the IRS’s investigation.” 20 823 F.2d at 378. One of the affidavits explained that 21 disclosure would: reveal the evidence developed against the 22 plaintiff; the reliance placed by the Government on that 23 evidence; the names of witnesses and potential witnesses; the 24 scope and limits of the investigation; the identities of third 25 parties contacted; the specific transactions being investigated; 26 the strengths and weaknesses of the government’s case; and 27 potential impeachment material. Id. at 378 n. 5. 28 Without more information as to why the types of 1 investigatory records listed in Officer Fuentes’ declarations 2 would interfere with the ongoing investigation, the Court cannot 3 independently assess whether Exemption 7(A) was justifiably 4 asserted. Furthermore, Defendant did not apply Exemption 7(A) 5 to these memoranda in Ameen’s extradition proceedings. Ex. 17 6 to Sur-Reply. This suggests to the Court that Exemption 7(A) 7 was superfluously applied, running afoul of the principle that 8 the exemptions be narrowly interpreted. Llahr, 569 F.3d at 973 9 (internal quotation marks and citation omitted). 10 Accordingly, Defendant invalidly claimed FOIA Exemption 11 7(A) to prevent the release of this information. 12 (ii) Exemption 7(C) 13 Defendant invokes Exemption 7(C) to withhold personal 14 information belonging to third-party individuals who, unlike 15 Ameen, did not consent to the release of their information. 16 Mot. at 10. Defendant applies Exemption 7(C) to portions of all 17 the documents at issue. Id. Exemption 7(C) can be asserted to 18 prevent the release of documents that “could reasonably be 19 expected to constitute an unwarranted invasion of personal 20 privacy.” 5 U.S.C. § 552(b)(7)(C). In analyzing whether 21 Exemption 7(C) applies, the third-parties’ privacy interests in 22 the documents must be balanced against the public interest in 23 their release. U.S. Dep’t. of Just. v. Comm. for Freedom of the 24 Press, 489 U.S. 749, 762 (1989). 25 To trigger this balancing, the requester must first “show 26 that the public interest sought to be advanced is a significant 27 one, an interest more specific than having the information for 28 its own sake.” Nat’l Archives & Records Admin. v. Favish, 541 1 U.S. 157, 172 (2004). Next, the requester “must show the 2 information is likely to advance that interest.” Id. If the 3 requester fails to make both showings, “the invasion of privacy 4 is unwarranted.” Id. 5 Defendant has refused to release the personal information 6 of third parties that appears throughout all the documents. 7 Decl. of Jill Eggleston (“Eggleston Decl.”) ¶¶ 30–31, ECF No. 8 21–3; Fuentes Decl. ¶¶ 16–20. Some of these individuals are 9 private citizens. See Eggleston Decl. ¶ 30. Others are 10 government employees involved in Ameen’s case. Id. 11 Investigatory records generated by law enforcement agencies 12 often contain information about private citizens whose link to 13 the official inquiry is tenuous. Favish, 541 U.S. at 166. 14 “There is special reason, therefore, to give protection to this 15 intimate personal data, to which the public does not have a 16 general right of access in the ordinary course.” Id. (internal 17 citation omitted). In these instances, “the privacy interest is 18 at its apex.” Id. (internal quotation marks and citation 19 omitted). Likewise, “[l]aw enforcement personnel involved in a 20 criminal investigation have a [] privacy interest under 21 Exemption 7(C) in not having their identities disclosed.” Brown 22 v. U.S. Dep’t of Just., WL 1237274 at *9 (E.D. Cal. 2015) 23 (internal citations omitted). Thus, these third parties have a 24 privacy interest in any personal information contained in these 25 documents. 26 Plaintiff argues the public has an interest in knowing 27 whether Defendant is “adequately performing its job and properly 28 vetting refugee applicants such that murderers and terrorists 1 are not allowed into the country.” Opp’n at 15. When “the 2 public interest is being asserted to show that responsible 3 officials acted negligently or otherwise improperly in the 4 performance of their duties, the requester must establish more 5 than a bare suspicion in order to obtain disclosure.” Favish, 6 541 U.S. at 176. Instead, “the requester must produce evidence 7 that would warrant a belief by a reasonable person that the 8 alleged Government impropriety might have occurred.” Id. 9 Further, there is a presumption of legitimacy accorded to the 10 Government’s official conduct. Id. (internal citation omitted). 11 And where that presumption is applicable, “clear evidence is 12 usually required to displace it.” Id. (internal citation 13 omitted). 14 Plaintiff is only able to point to allegations against 15 Ameen from the Government’s extradition memorandum as evidence 16 that Defendant acted negligently or improperly in executing its 17 duties. See Opp’n at 15–16; Ex. 3 to Req. for Jud. Notice, ECF 18 No. 23. The Court declines to treat mere allegations against 19 Ameen as clear evidence of governmental misconduct. Meanwhile, 20 Plaintiff fails to explain how the information at issue is 21 likely to advance that interest. Thus, Plaintiff has failed to 22 make the requisite showings and the invasion of privacy that 23 would result from releasing the third-party information is 24 unwarranted. Favish, 541 U.S. at 172. 25 Accordingly, Defendant’s motion is GRANTED as to the 26 information withheld under FOIA Exemption 7(C). 27 (iii) Exemption 7(E) 28 Defendant invokes Exemption 7(E) to withhold information 1 relating to law enforcement techniques and procedures. Mot. at 2 14. Exemption 7(E) protects records compiled for law 3 enforcement purposes from disclosure if those records would 4 reveal techniques, procedures, or guidelines for investigations 5 or prosecutions that could reasonably be expected to risk 6 circumvention of the law. Hamdan v. U.S. Dep’t. of Just., 797 7 F.3d 759, 777 (9th Cir. 2015). However, a showing that 8 disclosure would lead to a danger of future lawbreaking is not 9 necessary. Id. (internal quotation marks and citation omitted). 10 Exemption 7(E) applies even when the identity of the 11 techniques has been disclosed or are generally known, but the 12 manner and circumstances of the techniques are not generally 13 known, or the disclosure of additional details could reduce 14 their effectiveness. See Bowen v. U.S. Food & Drug Admin., 925 15 F.2d 1225, 1228–29 (9th Cir. 1991) (upholding application of 16 Exemption 7(E) to withhold publicly-known investigative 17 techniques and procedures when disclosure would reveal 18 additional details that would hamper future agency 19 investigations). 20 Here, Exemption 7(E) is used to withhold law enforcement 21 techniques and procedures used to investigate Ameen. Mot. at 22 15. Defendant alleges this information was withheld because it 23 could reveal the law enforcement procedures used when 24 adjudicating certain types of applications. Eggleston Decl. ¶ 25 32; Fuentes Decl. ¶ 21. According to Defendant, their 26 disclosure “could assist people seeking to violate or circumvent 27 the law by taking proactive steps to counter operational and 28 investigative actions taken by ICE and USCIS during enforcement 1 operations.” Eggleston Decl. ¶ 32; Fuentes Decl. ¶ 21. 2 Exemption 7(E) “sets a relatively low bar for the agency to 3 justify withholding.” Blackwell v. F.B.I., 646 F.3d 37, 42 4 (D.C. Cir. 2010). It “only requires that the agency demonstrate 5 logically how the release of the requested information might 6 create a risk of circumvention of the law.” Id. (internal 7 quotation marks and citation omitted). For instance, in Hamdan, 8 Exemption 7(E) was appropriately applied to documents described 9 as revealing “techniques and procedures related to surveillance 10 and credit searches.” 797 F.3d at 777. It was of no 11 consequence that credit searches and surveillance are publicly 12 known law enforcement techniques. Id. at 777–78. The 13 affidavits claimed the records revealed techniques that, if 14 known, could enable criminals to educate themselves about 15 methods used to locate and apprehend persons. Id. at 777. This 16 implied specific means of conducting surveillance and credit 17 searches would be released, rather than merely application of 18 the techniques. Id. at 777–78. And “affidavits which state 19 that further detail would compromise the very techniques the 20 government is trying to keep secret, are sufficient to meet the 21 [agency’s] burden.” Id. at 778. 22 Thus, Defendant has met its burden. These documents are 23 withheld to prevent potential violators from evading and 24 exploiting United States immigration laws. Eggleston Decl. 25 ¶ 30. This is sufficient justification for their continued 26 withholding under Exemption 7(E). Hamdan, 797 F.3d at 777. 27 Plaintiff’s argument that these documents fall under the 28 “routine-technique exception” has no teeth. See Opp’n at 19–20. 1 As long as the manner and circumstances of the techniques are 2 not generally known, or the disclosure of additional details 3 could reduce their effectiveness, Exemption 7(E) applies even 4 where the identity of the techniques has been disclosed. 5 Accordingly, Defendant’s motion is GRANTED as to the 6 information withheld under FOIA Exemption 7(E). 7 (iv) Exemption 7(F) 8 Defendant invokes Exemption 7(F) to withhold information 9 that could reasonably be expected to result in harm if released. 10 Mot. at 17. Exemption 7(F) permits withholding records or 11 information that, if disclosed, “could reasonably be expected to 12 endanger the life or physical safety of any individual.” 5 13 U.S.C. § 552(b)(7)(F). Defendant invokes Exemption 7(F) to 14 prevent the release of the names of federal employees and third 15 parties involved in investigating Ameen. Mot. at 17. 16 Because the Court finds Exemption 7(C) applies to that 17 information, it need not make a finding on Exemption 7(F). See 18 Center for Nat. Sec. Studies v. U.S. Dep’t of Just., 331 F.3d 19 918, 925 (D.C. Cir. 2003) (reserving judgment on whether 7(F) 20 would support withholding the names of detainees and lawyers 21 when 7(A) was properly invoked). 22 b. Exemption 6 23 Defendant invokes Exemption 6 to withhold personal 24 information belonging to third-party individuals who, unlike 25 Ameen, did not consent to release of their information. Mot. at 26 18. This exemption is applied to portions of all the documents 27 at issue. Mot. at 10. Exemption 6 provides that “personnel and 28 medical files and similar files” may be withheld if their 1 disclosure “would constitute a clearly unwarranted invasion of 2 personal privacy.” 5 U.S.C. § 552(b)(6). 3 As with Exception 7(C), the Exemption 6 analysis involves a 4 balancing of the privacy interest protected by withholding the 5 documents against the public interest in their release. Forest 6 Serv. Employees for Envt’l Ethics v. U.S. Forest Service, 524 7 F.3d 1021, 1024 n. 2 (9th Cir. 2008). The only distinction 8 between the two tests is the magnitude of the public interest 9 required to override the privacy interests protected by the 10 exemptions. Id. Under Exemption 6, the invasion of privacy 11 must be “clearly unwarranted.” 5 U.S.C. § 552(b)(6). 12 But, where the documents at issue are compiled for law 13 enforcement purposes, only the lower requirement of Exemption 14 7(C) must be met. See Lane, 523 F.3d at 1137 (where Exemption 15 7(C) applies, the court need not reach whether the information 16 might also be protected under Exemption 6). Because the third- 17 party information was properly withheld under Exemption 7(C), 18 the Court need not make a finding on Exemption 6. 19 3. The Segregability Requirement 20 Even where records fall within one of the exemptions, FOIA 21 further requires disclosure of “any reasonably segregable 22 portion of a record . . . after deletion of the portions which 23 are exempt.” 5 U.S.C. § 552(b). It is reversible error for a 24 district court “to simply approve the withholding of an entire 25 document without entering a finding on segregability, or the 26 lack thereof.” Church of Scientology of Cal. v. U.S. Dep’t of 27 Army, 611 F.2d 738, 744 (9th Cir. 1979). Non-exempt portions of 28 a document must be disclosed unless they are “inextricably 1 intertwined with exempt portions” to such a degree that 2 separating the two would “impose significant costs on the agency 3 and produce an edited document with little informational value.” 4 Willamette Indus., Inc. v. United States, 689 F.2d 865, 867–68 5 (9th Cir. 1982). 6 The burden of proof is on the agency to show that all 7 reasonably segregable portions of a document have been 8 segregated and disclosed. Pac. Fisheries Inc. v. United States, 9 539 F.3d 1143, 1148 (9th Cir. 2008). The agency must provide a 10 detailed justification for its claim on non-segregability, but 11 it is not obligated to provide so much detail that the exempt 12 information would effectively be disclosed. Johnson v. Exec. 13 Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002). 14 The burden can be met with an affidavit containing reasonably 15 detailed descriptions of the withheld portions of the documents 16 and alleging facts sufficient to establish an exemption. Pac. 17 Fisheries, 539 F.3d at 1148. 18 The Court finds that, between the Vaughn Index and the four 19 declarations, Defendant has justified not disclosing the few 20 documents withheld in full under Exemptions 7(C) and 7(E). See 21 Vaughn Index, Ex. A to Mot.; Fuentes Decl., ECF No. 21-9; 22 Fuentes Suppl. Decl., ECF No. 30-1; Eggleston Decl.; ECF No. 21– 23 3; Suppl. Decl. of Jill Eggleston (“Eggleston Suppl. Decl.”), 24 ECF No. 30-2. Those exemptions were validly applied. Defendant 25 withheld those documents in their entirety only where it 26 “determined that no further segregation . . . was possible 27 without disclosing information that warrants protection under 28 the law.” Eggleston Decl. ¶ 33. 1 In sum, the Court finds Defendant failed to meet its burden 2 with regard to Exemption 7(A) but has established the 3 applicability of Exemptions 7(C) and 7(E) to these documents. 4 Meanwhile, the Court need not make a finding on Exemptions 6 and 5 7(F). Thus, because Exemptions 7(C) and 7(E) apply to all or 6 | portions of the documents that remain withheld, Defendant is not 7 required to disclose the information protected by either of 8 those exemptions. 9 10 TILT. ORDER 11 For the reasons set forth above, the Court GRANTS 12 Defendant’s Motion for Summary Judgment. 13 IT IS SO ORDERED. 14 Dated: March 6, 2020 15 kA 16 teiren staves odermacr 7008 17 18 19 20 21 22 23 24 25 26 27 28 22