Kilmer v. U.S. Customs and Border Protection ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PAUL F. KILMER,
Plaintiff
v. Civil Action No. 17-1566 (CKK)
U.S. CUSTOMS AND BORDER PROTECTION,
Defendant
MEMORANDUM OPINION
(May 14, 2021)
This lawsuit arises from a Freedom of Information Act (“FOIA”) request made by pro se
Plaintiff Paul Kilmer to Defendant U.S. Customs and Border Protection (“CBP”). Currently before
the Court are Defendant CBP’s [19] Motion for Summary Judgment and Plaintiff’s [20] Cross-
Motion for Summary Judgment. Upon consideration of the pleadings, 1 the relevant legal
authorities, and the record as whole, for the reasons stated below, the Court will GRANT IN
PART and DENY IN PART CBP’s Motion for Summary Judgment, and will GRANT IN PART
and DENY IN PART Plaintiff’s Cross-Motion for Summary Judgment.
I. BACKGROUND
On January 21, 2017, individuals from around the country traveled to Washington, D.C.
and other major American cities to participate in a demonstration known as the “Women’s March.”
Pl.’s Stmt. of Facts, ECF No. 20-2, at ¶ 31. Following the event, select news outlets reported that
1
The Court’s consideration has focused on the following documents:
• Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 19;
• Pl.’s Mem. of P. & A. in Supp. of Cross-Mot. for Partial Summ. J. (“Pl.’s Cross-Mot.”), ECF No.
20-1;
• Def.’s Reply Mem. in Supp. of Def.’s Mot. & in Opp’n to Pl.’s Cross-Mot. (“Def.’s Reply”), ECF
No. 25; and,
• Pl.’s Reply Mem. in Supp. of Cross-Mot. for Partial Summ. J. (“Pl.’s Reply”), ECF No. 27.
In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of
assistance in rendering a decision. See LCvR 7(f).
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CBP officials had denied entry to Canadian citizens at the border, after learning of their intention
to join the Women’s March. See Kilmer Decl., Ex. 1, ECF No. 20-4, at 8–14. Two members of
Congress subsequently raised these reports to the Secretary of Homeland Security, expressing their
concerns that CBP officials had improperly denied entry to Canadian citizens on the basis of
political affiliations. See id.
Plaintiff, himself, participated in the Women’s March in Washington, D.C. on January
21, 2017. See Kilmer Decl., ECF No. 20-3, at ¶ 2. According to Plaintiff, there is “reason to
believe” that CBP officers denied Canadian citizens entry into the United States “based upon their
espoused intent to participate in Women’s March events.” Pl.’s Stmt. of Facts, ECF No. 20-2, at
¶ 28. Plaintiff further contends that these denials implicated his First Amendment right to
associate with “certain residents of Canada and certain United States citizens traveling with them”
who were unable to join the Women’s March on January 21, 2017. Kilmer Decl., ECF No. 20-3,
at ¶ 2.
On January 29, 2017, Plaintiff filed a FOIA request with CBP. Therein, Plaintiff requested
“documents” 2 regarding CBP’s interactions with Canadian citizens seeking entry into the United
States to participate in the Women’s March. Def.’s Stmt. of Facts, ECF No. 19, at ¶ 1. Plaintiff’s
2
In his FOIA request to CBP, Plaintiff defined “documents” as:
“[T]he term ‘documents’ as used herein shall mean and include not only physical documents printed or
reduced to writing but also electronic records of any description, photographs, videos, sound recordings or
other means by which information or images may be stored and/or reproduced, in addition to email and
other forms of electronic communication of any description including, but not limited to, text messages and
messages sent via any form of social media. The term ‘documents’ shall also mean and include records of
verbal communications (whether such communications occurred in face-to-face meetings or discussions or
via telecommunications devices or facilities), instructions, minutes, reports, calendar entries, inter-office
communications, bulletins, circulars, statements, manuals, summaries, maps, charts, graphs or statistical
material or information. A document bearing any notation not a part of the original text is to be considered
a separate document. A draft or nonidentical copy is also to be considered a separate document.” Suzuki
Decl., ECF No. 19-1, Ex. A, at 1.
2
FOIA request covered a three-day period in 2017 from January 19th through January 21st. See
Suzuki Decl., ECF No. 19-1, at ¶ 5. In total, Plaintiff’s FOIA request comprised six categories:
1) “Documents referring to, relating to or mentioning the Women’s March (or Women’s
Marches) scheduled to be held on January 21, 2017, that also mention or refer to
persons entering or who might enter the United States from Canada.”
2) “Documents mentioning, referring to or otherwise relating to any person or persons
denied entry to the United States from Canada on January 19, January 20 or January
21, 2017, including the reason or reasons such persons were denied entry to the United
States.”
3) “Documents consisting of, referring to or relating to orders, directives, guidance or
suggestions of any nature that persons attempting to enter the United States from
Canada on January 19, January 20 or January 21, 2017 should be barred from entry if
such persons might be entering the United States to participate in the Women’s
March.”
4) “Documents consisting of, referring to or relating to communications (verbal or in
writing) from any person or persons alleging that they were denied entry into the
United States from Canada on January 19, January 20 or January 21, 2017.”
5) “Documents consisting of a report, memorandum or communication from any official,
officer, employee or contractor of the CBP regarding persons denied entry to the
United States from Canada on January 19, January 20 or January 21, 2017.”
6) “Documents consisting of, including or mentioning any communications (verbal or in
writing) from officials or employees of any branch, division, agency or other body of
the government of Canada, or any Province or municipality thereof, regarding
allegations that persons were denied entry to the United States from Canada on January
19, January 20 or January 21, 2017.”
Suzuki Decl., ECF No. 19-1, Ex. A, at 1–2.
In March 2017, CBP provided its initial response to Plaintiff’s FOIA request, explaining
that the agency had conducted a comprehensive records search, but had not identified any records
responsive to Plaintiff’s request. See Compl., ECF No. 1, at ¶¶ 6–10; Pl.’s Stmt. of Fact, ECF No.
20-2, at ¶ 32. Plaintiff then filed internal FOIA appeals with CBP on April 8, 2017, and again on
June 10, 2017. See Compl., ECF No. 1, at ¶¶ 9–12. CBP, however, did not respond to either of
Plaintiff’s internal appeals. See Pl.’s Stmt. of Fact, ECF No. 20-2, at ¶ 33. On August 2, 2017,
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Plaintiff commenced this civil action, seeking to compel CPB to produce documents responsive
to his FOIA request. See Compl., ECF No. 1, at ¶¶ 34–37. Thereafter, CBP conducted additional
searches and produced 937 pages it identified as responsive to Parts One, Two, and Five of
Plaintiff’s FOIA request. Suzuki Decl., ECF No. 19-1, at ¶ 6. CBP, however, still “did not locate
any records responsive to Parts Three, Four, and Six of the request.” Id. On the 937 pages
produced, CBP made redactions, pursuant to FOIA exemptions (b)(5), (b)(6), (b)(7)(C), and
(b)(7)(E). Id. ¶ 29. CBP did not withhold any responsive documents in full. Id.
CBP has now moved for summary judgment, arguing that the agency “has conducted a
reasonable search for responsive records, and has produced all nonexempt, segregable documents
subject to FOIA.” Def.’s Mot. at 1. In response, Plaintiff has filed a cross-motion for summary
judgment, wherein he maintains that “CBP has failed to conduct appropriate searches for records
responsive to [his] Request, failed to produce relevant records reasonably available to it, claimed
FOIA Exemptions that do not apply to records and portions of records subject to the Request, and
failed to properly segregate and produce documents and portions of documents called for by the
Request.” Pl.’s Cross-Mot. at 4. Plaintiff requests that the Court order CBP “to conduct a full
and appropriate search for records relevant” to his FOIA request, review the agency’s redactions
under the claimed FOIA exemptions, and evaluate the agency’s segregability obligations. Id.
Plaintiff also asks the Court to reserve his ability “to conduct limited discovery in the event there
is reason to doubt CBP has complied with its responsibilities under FOIA.” Id. The parties’ cross-
motions are now fully briefed and ripe for this Court’s review.
II. LEGAL STANDARD
Congress enacted the Freedom of Information Act, 5 U.S.C. § 552, to “pierce the veil of
administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of Air
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Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Nonetheless, Congress also balanced
this objective of transparency with the potential that “legitimate governmental and private interests
could be harmed by release of certain types of information.” Critical Mass Energy Project v.
Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (citation omitted),
cert. denied, 507 U.S. 984 (1993). To that end, FOIA “requires federal agencies to make
Government records available to the public, subject to nine exemptions for categories of material.”
Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1261-62 (2011). Ultimately, “disclosure, not secrecy, is
the dominant objective of the act.” Rose, 425 U.S. at 361. For this reason, the “exemptions are
explicitly made exclusive, and must be narrowly construed.” Milner, 131 S. Ct. at 1262 (citations
omitted).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood
v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). “The agency is entitled to
summary judgment if no material facts are genuinely in dispute and the agency demonstrates that
its search for responsive records was adequate, that any exemptions claimed actually apply, and
that any reasonably segregable non-exempt parts of records have been disclosed after redaction of
exempt information.” Prop. of the People, Inc. v. Off. of Mgmt. & Budget, 330 F. Supp. 3d 373,
380 (D.D.C. 2018) (citation omitted); see also Fed. R. Civ. P. 56(a). When an agency invokes an
exemption to disclosure, district courts must “determine de novo whether non-disclosure was
permissible.” Elec. Priv. Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir.
2015).
The burden is on the agency to justify its response to the plaintiff’s request. 5 U.S.C. §
552(a)(4)(B). “An agency may sustain its burden by means of affidavits, but only if they contain
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reasonable specificity of detail rather than merely conclusory statements, and if they are not called
into question by contradictory evidence in the record or by evidence of agency bad faith.” Multi
Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). “If an
agency’s affidavit describes the justifications for withholding the information with specific detail,
demonstrates that the information withheld logically falls within the claimed exemption, and is not
contradicted by contrary evidence in the record or by evidence of the agency’s bad faith, then
summary judgment is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v.
Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). “Uncontradicted,
plausible affidavits showing reasonable specificity and a logical relation to the exemption are
likely to prevail.” Ancient Coin Collectors Guild v. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir.
2011) (citation omitted). With these principles in mind, the Court turns to the merits of the parties’
cross-motions for summary judgment.
III. DISCUSSION
The Court’s analysis proceeds in three parts. First, the Court will address the adequacy
CBP’s search in response to Plaintiff’s FOIA request. Next, the Court will consider the propriety
of CBP’s claimed FOIA exemptions. And finally, the Court will address Plaintiff’s outstanding
challenge regarding “segregability” and Plaintiff’s request for limited discovery.
A. Adequacy of the Search
The Court begins by addressing the parties competing assertions regarding the adequacy
of CBP’s search in response to Plaintiff’s January 29, 2017 FOIA request. To do so, the Court
will first describe the nature of CBP’s search for responsive records. Then, the Court will evaluate
the adequacy of that search, taking into account Plaintiff’s various objections.
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1. CBP’s Search
In this case, CBP’s FOIA Appeals Officer Ms. Shari Suzuki oversaw the agency’s search
and document production in response to Plaintiff’s FOIA request. Ms. Suzuki has been responsible
for “overseeing all CBP activities related to information disclosure under FOIA” since 2006.
Suzuki Decl., ECF No. 19-1, at ¶ 1. In October 2018, Ms. Suzuki provided an initial declaration,
which “inform[ed] the Court . . . of CBP’s actions since receiving Plaintiff’s FOIA request” and
“provide[d] an explanation of the procedures used in the search, review, and processing of the CBP
records that were released to Plaintiff by CBP.” Id. ¶ 4. Ms. Suzuki then supplemented her
declaration in February 2019, providing further details regarding the scope and nature of CBP’s
document search. See Suppl. Suzuki Decl., ECF No. 25-3, at ¶¶ 6–20. The Court will rely on
these declarations, as well as the record as a whole, when evaluating CBP’s search for documents
responsive to Plaintiff’s six-part FOIA request.
a. Part One
Part One of Plaintiff’s FOIA request asked for “[d]ocuments referring to, relating to or
mentioning the Women’s March (or Women’s Marches) scheduled to be held on January 21, 2017,
that also mention or refer to persons entering or who might enter the United States from Canada.”
Suzuki Decl., ECF No. 19-1, Ex. A, at 1. To search for such documents, CBP’s FOIA Appeals
office “referred this portion of the request” to six offices within CBP: (1) the Office of
Congressional Affairs, (2) the Office of Public Affairs, (3) the Intergovernmental Public Liaison
Office, (4) the Office of the Commissioner, (5) the Policy Directorate, and (6) the Office of Field
Operations.” Id. ¶ 9. In her declaration, Ms. Suzuki explained why CBP identified each of these
offices as appropriate places to search for responsive documents and detailed the search methods
employed by each respective office. See id. ¶¶ 10–14. In total, CBP’s searches through these
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selected agency offices yielded 932 pages of records responsive to Part One of Plaintiff’s FOIA
request. Id. ¶ 7.
First, CBP conducted its search within the “Office of Congressional Affairs (OCA)”
because this office “serves as the single point of contact within CBP for all communications
between CBP and Congress.” Id. ¶ 10. In response to Part One of Plaintiff’s FOIA requests, CBP
employees within OCA searched the office’s “correspondence tracking system for any
correspondence relating to the Women’s March.” Id. The OCA’s “correspondence tracking
system contains all official correspondence sent from and to Members of Congress,” as well as the
“correspondence sent to and from the Intergovernmental Public Liaison at CBP.” Id. OCA
employees conducted their search using “the search terms ‘womens march’, ‘women's march’,
‘women’, ‘woman’, and ‘inauguration.’” Id. Their search yielded one responsive letter and
envelope consisting of two pages. Id.
Second, CBP elected to search for responsive documents within the Office of Public Affairs
(OPA), which “informs the American public through media outreach and public awareness
campaigns conducted via media events, news, video and photography as well as the public website
CBP.gov and informational brochures.” Id. ¶ 11. Within OPA, the Director of Media searched
for responsive documents, given that “[a]ny emails, correspondence or policies related to media
engagement regarding the Women’s March would have been communicated through the Director
of Media.” Id. Using the search terms “womens march” and “women’s march,” the Director of
Media “searched his inbound, outbound, deleted and archived emails for any emails related to
people found inadmissible for reasons related to the Women’s March.” Id. “The Director also
searched the OPA shared drive,” which “contains records about all media issues and events
handled by OPA at CBP headquarters” and was, therefore, “the most reasonable place to conduct
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a search for responsive records.” Id. Lastly, the Director of Media also searched his own “personal
computer files.” Id. CBP did not find any records within OPA responsive to Part One of Plaintiff’s
FOIA request. See id.
Third, CBP elected to search for responsive documents within the Intergovernmental
Public Liaison Office (IPL), which is the CBP component “responsible for providing an effective
bridge between local entities and the agency.” Id. ¶ 12. “The CBP Information Center, which
houses the national customer service call center to address public questions and complaints, is
located within IPL.” Id. Within the CBP Information Center, CBP officials “search[ed] . . . the
Complaint Management System (CMS) which contains all complaints received by CBP via the
website and phone calls,” and this search covered the entire month of January 2017 and “all ports
of entry.” Id. Moreover, CBP officials manually opened and reviewed “all complaints and
incidents” identified for this time period “to determine if they were about the Women’s March.”
Id. “Lastly, since many of the complaints and comments referred to a newspaper article about a
certain named individual, the name of that named individual was also queried as a search term to
make sure that no complaints were missed.” Id. IPL’s search retrieved “nine pages of responsive
documents.” Id.
Fourth, CBP carried out a search for documents responsive to Part One of Plaintiff’s FOIA
request within the Office of the Commissioner. The Commissioner is “[t]he agency’s chief
executive [who] oversees 60,000 employees.” Id. ¶ 13. “Within the Office of the Commissioner,
the Office of the Executive Secretariat (OES) is responsible for ensuring appropriate and
expeditious action on all requests for information, executive correspondence and official
memoranda addressed to the Commissioner and other CBP and DHS senior officials.” Id. “OES
reviews, analyzes and tasks incoming correspondence from Congress, private sector, state and
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local entities, foreign government officials and the public; creates correspondence records via a
correspondence tracking database and keeps track of office records through this database; provides
information and serves as the liaison between DHS and CBP on all correspondence matters tasked
to CBP by DHS; and maintains and tracks correspondence of all CBP component-drafted materials
for the Commissioner and Deputy Commissioner.” Id. In response to Plaintiff’s FOIA request, a
“correspondence analyst” within OES “searched the correspondence tracking database, for any
correspondence relating to the Women’s March” using the search terms “womens march” and
“women’s march.” Id. This search of the OES correspondence tracking database, which contains
“all correspondence sent to and from the Commissioner” of CBP, yielded four responsive letters,
totaling seven pages. Id.
Fifth, CBP elected to search for responsive documents within the agency’s Policy
Directorate. “The Policy Directorate serves as the designated lead in guiding CBP’s overall policy
development and implementation, and coordination with DHS and other governmental agencies,
for matters that are of a significant, cross-cutting and/or agency-wide nature.” Id. ¶ 14. In
particular, CBP identified the Policy Directorate as a custodian in response to Plaintiff’s FOIA
request, because that office “handled all of the transition materials and meetings around the
inauguration,” and “[t]he office’s shared drive would contain any records created or received by
the Policy Directorate related to the Women’s March.” Id. Accordingly, the Acting Strategic
Policy Advisor within CBP’s Policy Directorate conducted “a search of the office’s shared drive
and emails for any records relating to the Women’s March,” using the search terms “womens
march” and “women’s march.” Id. Furthermore, the Acting Strategic Policy Advisor “also
directed the individuals in the office who handled issues relating to the inauguration to search their
emails for any emails related to the Women’s March,” using those same search terms. Id. These
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search efforts within the Policy Directorate produced no responsive records. Id.
Sixth, and finally, CBP carried out a search for documents responsive to Part One of
Plaintiff’s FOIA request within the Office of Field Operations (OFO), which is the “largest
component” of the agency. Id. ¶ 15. There are 20 CBP Field Offices in the United States,
established geographically by region. Id. Additionally, the OFO contains a Field Liaison
“responsible for the oversight of the timely, accurate, comprehensive information and analysis and
appropriate follow-up regarding significant incidents” that occur at the Field Offices. Id. In
response to Plaintiff’s FOIA request, CBP and its Field Liaison directed the Seattle, Boston,
Detroit, Chicago, Buffalo, and Preclearance Offices to search for responsive records. Id. ¶ 16.
“These Field Offices were identified as those that would have potentially processed the individuals
being asked about in [Plaintiff’s] request,” in particular because these Field Offices covered the
northern border with Canada. Id.
In total, the “majority” of CBP’s responsive documents for Part One of Plaintiff’s FOIA
request came from the searches conducted by CBP’s Field Offices. Id. “The Chicago Field Office
conducted a manual search in the applicable CBP database to pull up all adverse action cases by
the Area Ports within the Chicago Field Office during the specified time frame,” resulting in the
identification of “63 adverse action cases.” Id. CBP officials in the Chicago Field Office then
reviewed “each case . . . to determine if” the potential entrant’s flight had originated in Canada.
Id. “After reviewing the cases, the Chicago Field Office concluded that the Area Ports under the
[Chicago Field Office] did not deem any individuals seeking entry to the U.S. from Canada
inadmissible,” and, therefore, identified “no responsive records.” Id. Next, the Detroit Field
Office “searched the two systems most likely to have responsive records . . . for refusals that
occurred January 19th through 21st, 2017, at the ports of entry within its area of responsibility.”
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Id. Field Office personnel in the Detroit Office also “searched emails in Microsoft Outlook to
locate additional correspondence related to Washington, D.C.,” and “the ports were asked to search
all systems . . . as well as Outlook” for responsive records. Id. Altogether, the Detroit Field Office
identified one refusal of admission at the border that “had a reference to Washington, D.C.” and
“four pages of emails” responsive to Part One of Plaintiff’s FOIA request. Id. CPB also conducted
a record search through the Boston Field Office, which “directed the ports located within its area
of responsibility to search the two systems most likely to have responsive information for adverse
actions that occurred January 19th through 21st, 2017, that pertained to the Women’s March.” Id.
The Boston Field Office also conducted searches of its email regarding the Women’s March. Id.
The Boston Field Office did not identify any responsive documents. Id.
Furthermore, the Seattle Field Office “conducted an email search in Microsoft Outlook”
using the search terms “women’s march,” “womens march,” “women march,” “women’s,”
“womens,” and “march.” Id. The Seattle Office also “searched the system likely to have
responsive records for adverse actions from January 19th through 21st, 2017, related to the
Women’s March,” yet the Seattle Office did not identify any “responsive records.” Id. CBP also
directed record searches through its Buffalo Field Office, which “searched the two systems likely
to have responsive records for withdrawals and refusals that occurred at the ports of entry within
its area of responsibility from January 19th through 21st, 2017.” Id. Moreover, “[a]ll managers
at the Buffalo Field Office and the ports of entry within the Buffalo Field Office were directed to
search all email traffic and other records during the time period January 19th through 21st, 2017
for any records related to refusals/withdrawals, the presidential inauguration, and the Women’s
March and intelligence products relating to potential threats against the presidential inauguration
or related events.” Id. CBP officials at the Buffalo Office “also performed an internet search for
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media coverage related to the presidential inauguration and associated Women’s March.” Id.
Through these searches, the Buffalo Field Office identified “612 pages of emails and attachments”
responsive to Part One of Plaintiff’s FOIA request. Id. Finally, CBP also directed searches
through its Preclearance Field Office. “The Preclearance Field Office searched the two systems
from which Plaintiff was provided records, which were not responsive” to Part One of Plaintiff’s
FOIA request. Id.
b. Part Two
Part Two of Plaintiff’s FOIA request asked for “[d]ocuments mentioning, referring to or
otherwise relating to any person or persons denied entry to the United States from Canada on
January 19, January 20 or January 21, 2017, including the reason or reasons such persons were
denied entry to the United States.” Id., Ex. A, at 1. CBP conducted its search for documents under
Part Two of Plaintiff’s FOIA request in three principal stages.
First, in response to Part Two of Plaintiff’s FOIA request, CBP directed the Policy,
Programs, Analysis, and Evaluation Office (PPAE) within the Office of Field Operations to
compile “a report listing every individual who was found to be inadmissible on the northern border
land ports of entry and at the Canada Preclearance airports on the days in question—January 19,
20, and 21, 2017.” Id. ¶ 18. To generate this report, PPAE used “the Enterprise Management
Information System-Enterprise Data Warehouse (EMIS-EDW), which consolidates data from
various systems within CBP for analysis and reporting.” Id. The EMIS-EDW database “is used
by CBP Officers to record passengers processed during inspection for adverse actions.” Id.
Utilizing this data, PPAE created a spreadsheet with “over 230 line entries that listed the calendar
date, the field office name, the port name, the ground of inadmissibility, and the charge description
of persons seeking entry from Canada who were deemed inadmissible during the time period in
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question.” Id. CBP produced this spreadsheet to Plaintiff in response to Part Two of his FOIA
request. Id.
Second, in addition to the spreadsheet produced by PPAE, CBP’s FOIA Appeals Office
also asked CBP’s Office of Information Technology “to conduct a search of information for
individuals who were found inadmissible at northern border land ports of entry or Canada
Preclearance airports on January 19, 20, or 21, 2017 and had ‘Women’s March’ in the narrative
associated with the incidents.” Id. ¶ 19. Accordingly, a program manager at the Office of
Information Technology “queried EMIS-EDW for all individuals who were not admitted at
northern land border ports of entry and Canada Preclearance airports from January 19, 20 & 21,
2017.” Id. This search utilized a number of search terms, including “women march,” “Women
March,” “WOMEN MARCH,” “women’s march,” “Women’s March,” “women’s march,” or
“WOMEN’s MARCH.” Id. “The query resulted in the names of 11 individuals,” and CBP’s FOIA
Appeals Office “then asked the Office of Field Operations, Admissibility and Passenger Programs,
to pull the records associated with these individuals from relevant databases.” Id. In total, this
search yielded 186 pages responsive to Part Two of Plaintiff’s FOIA request. Id.
Third, and finally, CBP later went back and collaborated with Plaintiff in 2018 to more
effectively tailor the agency’s original 230-line spreadsheet to search for targeted documents
responsive to Part Two of Plaintiff’s FOIA request. Id. ¶ 20. Specifically, Plaintiff (1) limited the
relevant time period on January 21, 2017 to any time until 3:00 PM, (2) requested that CBP exclude
individuals “found inadmissible on multiple grounds and [where] one of those grounds was related
to a crime,” and (3) requested that CBP focus its search on “highlighted entries” in the spreadsheet,
along with “all individuals within the jurisdiction of the Buffalo Field Office.” Id. Plaintiff also
requested the exclusion of records lacking any reference to an individual participation in the
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Women’s March. Id. CBP’s Office of Chief Counsel and CBP’s FOIA Appeals Office then went
through the spreadsheet and narrowed the scope of individuals referenced therein, in accordance
with Plaintiff’s requests. Id. ¶ 21. Thereafter, CBP’s FOIA Appeals Office “asked the Office of
Field Operations, Admissibility and Passenger Programs, to pull the records associated with these
individuals from relevant databases.” Id. ¶ 22. CBP’s FOIA Appeals Office then “manually went
through each document to determine whether there was any indication in the records that the
person had expressed an interest in participating [in the] Women’s March,” and “[i]n an effort to
be as inclusive as possible, records were included that did not mention the ‘Women’s March’ but
could be interpreted as related to those events.” Id. In total, CBP reviewed 1228 pages of
potentially responsive material and, within this set, identified and produced 76 pages responsive
to Part Two of Plaintiff’s FOIA request. Id.
c. Parts Three and Four
Part Three of Plaintiff’s FOIA request asked for “[d]ocuments consisting of, referring to or
relating to orders, directives, guidance or suggestions of any nature that persons attempting to enter
the United States from Canada on January 19, January 20 or January 21, 2017 should be barred
from entry if such persons might be entering the United States to participate in the Women’s
March.” Id., Ex. A, at 2. In response, CBP’s “Office of Field Operations, Field Liaison Division
asked” the Seattle, Boston, Detroit, Chicago, Buffalo, and Preclearance Field Offices to conduct a
search for responsive records. Id. ¶ 23. According to the declaration of Ms. Suzuki, these Field
Offices conducted their search for records responsive to Part Three of Plaintiff’s FOIA request by
using the same search methods and search terms employed in searching for records responsive to
Part One. Id.; see also disc. supra at § III.A.1.a (discussing search for records responsive to Part
One of Plaintiff’s FOIA request). CBP did not locate any responsive records for Part Three of
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Plaintiff’s FOIA request. See Suzuki Decl., ECF No. 19-1, at ¶ 23.
Part Four of Plaintiff’s FOIA request asked for “[d]ocuments consisting of, referring to or
relating to communications (verbal or in writing) from any person or persons alleging that they
were denied entry into the United States from Canada on January 19, January 20 or January 21,
2017.” Id., Ex. A, at 2. In response to this request, CBP searched “the Complaint Management
System (CMS) which contains all complaints received by CBP via the website and phone calls.”
Id. ¶ 24. In this search, CBP identified “comments . . . received about persons denied entry into
the United States,” but found no comments “from a person alleging that they were denied entry.”
Id. (emphasis added). In addition to complaints in CMS, CBP identified “the Department of
Homeland Security Traveler Redress Inquiry Program (DHS TRIP) . . . as another possible source
of potentially responsive information.” Id. CBP requested that the DHS TRIP Branch Chief search
for documents responsive to Part Four of Plaintiff’s FOIA request. Id. The Branch Chief reported,
however, that the redress management system within DHS TRIP was not searchable by time
period, specified location, or key word. Id. “Accordingly, no responsive records were located in
connection with Part Four of the request.” Id.
d. Parts Five and Six
Part Five of Plaintiff’s FOIA request asked for “[d]ocuments consisting of a report,
memorandum or communication from any official, officer, employee or contractor of the CBP
regarding persons denied entry to the United States from Canada on January 19, January 20 or
January 21, 2017.” Id., Ex. A, at 2. CBP treated this request similarly to Part One of Plaintiff’s
FOIA request. See id. ¶ 25. Like with Part One, CBP instructed “various ports within the Office
of Field Operations [to] provide[] emails and other policy documents responsive to this request.”
Id. CBP selected the same Field Offices along the northern border for its search, as it did in
16
response to Part One of Plaintiff’s FOIA request. See disc. supra at § III.A.1.a (describing searches
conducted by individual CBP Field Offices). Moreover, the Office of Congressional Affairs
searched Microsoft Outlook “for all emails (internal and to Congressional staff) related to the
request for information from Senate and House Appropriations Committee staff on news reports
of individuals being stopped at the Canadian border.” Suzuki Decl., ECF No. 19-1, at ¶ 25. As a
result of these search efforts, CBP retrieved and produced 653 pages of record responsive to Part
Five of Plaintiff’s FOIA request, see id. ¶ 7, which included “social media posts from CBP’s
Twitter” account, id. ¶ 25.
Lastly, Part Six of Plaintiff’s FOIA request asked for “[d]ocuments consisting of, including
or mentioning any communications (verbal or in writing) from officials or employees of any
branch, division, agency or other body of the government of Canada, or any Province or
municipality thereof, regarding allegations that persons were denied entry to the United States
from Canada on January 19, January 20 or January 21, 2017.” Id., Ex. A, at 2. To search for
documents responsive to Part Six, CBP referred Plaintiff’s request to the Office of International
Affairs as a custodian. See id. ¶ 26. CBP made this referral because the Office of International
Affairs “provides unified coordination of CBP’s international activities” and “supports all of
CBP’s foreign initiatives, policies, programs, and activities.” Id. Because the Office of
International Affairs does not have a “correspondence tracking database,” the Assistant Attaché
for Canada conducted the search by searching the Office’s Microsoft Outlook email system, using
the search terms “woman,” “women,” “women’s,” “woman’s,” and “march.” Id. CBP identified
“no records responsive to [Plaintiff’s] request for communications from officials or employees
from the government of Canada.” Id.
17
2. CBP’s Search Was Adequate
Having described in detail the scope and methodology of CBP’s search, the Court will now
assess its adequacy in response to Plaintiff’s FOIA request. The Court will then address each of
Plaintiff’s related objections to CBP’s search.
a. CBP’s Search Was Reasonably Calculated To Produce Responsive
Documents
“An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt
that its search was reasonably calculated to uncover all relevant documents.” Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (internal quotation omitted). “The agency
must show that it made a good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested.” Id. at 326(internal quotation and alterations omitted). “The agency cannot limit its search to only one or
more places if there are additional sources that are likely to turn up the information requested.” Id.(internal quotations omitted). “In a suit seeking agency documents . . . at the summary judgment
stage, where the agency has the burden to show that it acted in accordance with the statute, the
court may rely on a reasonably detailed affidavit, setting forth the search terms and the type of
search performed, and averring that all files likely to contain responsive materials (if such records
exist) were searched.” Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009)
(internal quotations omitted).
CBP’s search for records responsive to Plaintiff’s FOIA request was adequate, with one
narrow exception noted herein. As described at length above, the detailed declaration provided by
CBP’s Chief of FOIA Appeals demonstrates the agency’s fulsome response to each of Plaintiff’s
six categories of requests. See Suzuki Decl., ECF No. 19-1, at ¶¶ 6–20. In response to those
requests, CBP conducted multiple searches of its relevant electronic databases, which collect and
18
store the agency’s information related to individuals deemed inadmissible at the border. See id.
¶¶ 16, 18, 42. CBP has explained the scope and contents of the databases searched, and may rely
on such “authoritative” agency databases as part of a reasonable search for responsive records.
Long v. ICE, 149 F. Supp. 3d 39, 60 (D.D.C. 2015).
Furthermore, CBP’s database searches were both iterative and collaborative. For example,
to provide Plaintiff with complete, yet target-specific data, CBP generated a spreadsheet from its
EMIS-EDW database “that listed the calendar date, the field office name, the port name, the ground
of inadmissibility, and the charge description of persons seeking entry from Canada who were
deemed inadmissible during the time period in question.” Suzuki Decl., ECF No. 19-1, at ¶ 18.
CBP officials then worked with Plaintiff to refine the scope of those spreadsheet entries and
conduct subsequent record searches based upon a narrowed subset of entries meeting Plaintiff’s
designated parameters. See id. ¶¶ 20–22. In addition, CBP officials also conducted manual
document reviews where appropriate, see, e.g., id. ¶¶ 16, 22, and employed targeted email searches
within specific agency offices, see, e.g., id. ¶¶ 16, 25. CBP has also specified its use of reasonable
search terms to the Court. See, e.g., id. ¶¶ 14, 19.
Finally, the “reasonableness” of CBP’s FOIA search “is necessarily ‘dependent upon the
circumstances of the case.’” Swick v. United States Dep’t of the Army, 471 F. Supp. 3d 246, 251
(D.D.C. 2020) (quoting Davis v. Dep’t of Justice, 460 F.3d 92, 103 (D.C. Cir. 2006)). And here,
the “circumstances of the case” include the realities of coordinating a document search across a
large executive agency like CBP, which includes 60,000 employees over numerous offices and
regions. Suzuki Decl., ECF No. 19-1, ¶ 13. Accounting for this disparate reach, CBP’s search
methodology in this case broadly employed the assistance of various agency components. In her
declaration, Ms. Suzuki plausibly explains why CBP selected these components as likely sources
19
of responsive records, based on both their geographic relevance, see id. ¶ 16 (describing selection
of Field Offices along the northern border), and subject-matter relevance, see id. ¶¶ 9, 26, to
Plaintiff’s six-part FOIA request. This comprehensive, agency-wide approach further
demonstrates the overall “reasonableness” of CBP’s FOIA search in this case.
Altogether, CBP’s multi-faceted response to Plaintiff’s FOIA request reflects the agency’s
“good faith effort to conduct a search for the requested records, using methods which [could] be
reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t of Army, 920
F.2d 57, 68 (D.C. Cir. 1990); see also Barnard v. Dep’t of Homeland Sec., 598 F. Supp. 2d 1, 10
(D.D.C. 2009) (finding agency search adequate where supporting declarations described the
searches performed, the databases and ports of entry implicated, and the search terms employed).
b. Plaintiff’s Objections To CBP’s Search Are Unpersuasive
Plaintiff has asserted a wide array of overlapping objections to the adequacy of CBP’s
FOIA search. See Pl.’s Cross-Mot. at 7–19. Broadly speaking, Plaintiff first urges the Court to
draw certain unfavorable inferences against CBP and its search for responsive records. See id. at
8–10. Then, Plaintiff presents a long list of individualized objections to the methodology of CBP’s
records search. See id. at 11–19. Below, the Court has endeavored to organize Plaintiff’s disparate
objections and then explain why these objections are ultimately insufficient to rebut the
reasonableness of CBP’s FOIA search, save for one narrow exception.
First, Plaintiff asks the Court to draw a variety of adverse “inferences,” which pertain to
CPB’s alleged misconduct surrounding the January 2017 Women’s March. Specifically, Plaintiff
asks the Court to infer that: (1) CBP “denied entry to the United States to both residents of Canada
and U.S. citizens accompanying them whose espoused purpose was to come into this country in
order to participate in Women’s March events held, inter alia, in Washington, D.C.,” (2) “[s]ome
20
of the denials of entry surrounding Women’s March events appear to have been unwarranted,
improper and unlawful,” (3) CBP’s “potentially unlawful and otherwise improper denials of entry
by CBP . . . may have, inter alia, violated Plaintiff’s First Amendment rights and the rights of
Canadian residents,” (4) CBP’s records “may disclose that CBP misled Members of Congress and
the press regarding the facts and circumstances surrounding certain denials of entry in relation to
persons wishing to enter the United States to participate in Women’s March events,” and (5) many
CBP employees “expressed support for Donald J. Trump in his bid to become President of the
United States” and “therefore had politically motivated reasons” to reduce attendance at the
Women’s March. Id. at 8–9.
These proposed “inferences” miss the mark. To begin, the parties are not litigating the
lawfulness of CBP’s underlying conduct surrounding border admissions and the Women’s March.
Rather, the Court is now considering the adequacy of CBP’s FOIA search, a question that turns on
whether the agency’s search “was reasonably calculated to uncover all relevant documents.”
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999). The five
aforementioned “inferences,” however, do not speak to a defect in CBP’s search methodology, but
rather make assertions about CBP’s supposed misconduct surrounding the Women’s March. And
to the extent Plaintiff hopes these inferences will raise a specter of “bad faith,” the Court finds that
Plaintiff’s speculation about CBP’s hypothetical misconduct regarding the Women’s March is
insufficiently specific to serve as “evidence that the agency’s search” for records about such
misconduct under FOIA “was not made in good faith.” Kowal v. United States Dep’t of Just., 464
F. Supp. 3d 376, 382 (D.D.C. 2020) (emphasis added).
Second, Plaintiff argues that the Court should draw inferences against CBP because it
originally “denied that it had records responsive to Plaintiff’s Request . . . and then fail[ed] to
21
timely act on Plaintiff’s agency appeals, despite repeated efforts by Plaintiff to elicit the
cooperation of CBP in that regard.” Pl.’s Cross-Mot. at 8–9. The Court finds this assertion
unavailing, as well. The fact that CBP supplemented its initial search and subsequently retrieved
additional responsive documents, does not necessarily evince bad faith on behalf of the agency.
“[A]n inquiry regarding the adequacy of an agency’s search requires a court to focus on the actual
search or searches, not on the results of the same.” Barnard, 598 F. Supp. 2d at 10 (citing Weisberg
v. Dep’t of Justice, 705 F.2d 1344, 1351–52 (D.C. Cir. 1983)). And “courts routinely uphold the
sufficiency of an[] agency’s search even when additional records are located after multiple
searches.” Id. As such, the Court declines to find bad faith or draw inferences against CBP here,
based upon the agency’s initial inability to locate responsive documents, which it later identified
and produced to Plaintiff.
Third, Plaintiff presents multiple objections related to CBP’s decision not to conduct
personalized follow-up searches with the specific CBP agents who interacted with Canadians
crossing the northern border between January 19 through January 21, 2017. See Pl.’s Cross-Mot.
at 11–17 (¶¶ a, b, & i); see also Pl.’s Stmt. of Facts, ECF No. 20-2, at ¶¶ 62–63, 96. In particular,
Plaintiff contends that CBP should have “made inquiries to individual border agents or other CBP
employees involved in denials of entry,” Pl.’s Cross-Mot. at 12 (¶ a), and then searched their
personal devices, including their email, social media, and messaging history, see id. at 12 (¶ b).
According to Plaintiff, such a search “would not have overly burdensome,” given the relatively
small subset of CBP agents involved. Id. at 17 (¶ i).
Excluding a narrow exception addressed below, see disc. infra at 27–28, the Court is not
persuaded by this category of objections. CBP has plausibly explained why the agent-specific
“follow-up” searches Plaintiff proposes were not reasonably likely to produce responsive
22
documents. First, “it is not the agency’s practice to maintain individual or personal records related
to inadmissibility determinations in individual files of employees.” Suzuki Suppl. Decl., ECF No.
25-3, at ¶ 14. Moreover, because CBP’s records of inadmissibility “are completed electronically
and stored in centralized databases . . . it is not reasonably likely that any individual CBP employee
would maintain his or her own records regarding an inadmissibility determination for a particular
traveler, nor is it the practice of CBP for individual employees to take individual notes not reflected
in the centrally maintained records.” Id.And with regards to the collection of personal messages and social media posts, CBP has
explained that “any emails sent over [government-issued and personal communication devices]
would be captured in the Outlook mailbox of th[at] individual” and would, therefore, be subject to
the email searches carried out by the agency. Id. ¶ 16. Furthermore, it is not the agency’s “practice
for employees to send work-related communications on personal (as opposed to government-
issued) mobile communication devices, or through personal texting and personal social media.”
Id. ¶ 17. Finally, as CBP notes, executive agency employees “may not create or send a record
using a non-official electronic messaging account” unless the employee either copies an official
account on the correspondence or subsequently forwards the message to an official agency
account. 44 U.S.C. § 2911(a). For these reasons, the Court is unpersuaded by Plaintiff’s objection
that CBP should have generally conducted follow-up searches with specific border agents and their
personal communications.
Fourth, Plaintiff objects to the adequacy of CBP’s selected search terms. See Pl.’s Cross-
Mot. at 17–18 (¶¶ j & k); see also Pl.’s Stmt. of Facts, ECF No. 20-2, at ¶¶ 40–42, 50–51. These
objections also come up short. “Agencies generally have discretion in crafting a list of search
terms as long as they are reasonably tailored to uncover documents responsive to the FOIA
23
request.” Tushnet v. ICE, 246 F. Supp. 3d 422, 434 (D.D.C. 2017) (quotation omitted). “Where
the agency’s search terms are reasonable, the Court will not second guess the agency regarding
whether other search terms might have been superior.” Liberation Newspaper v. Dep’t of State,
80 F. Supp. 3d 137, 146 (D.D.C. 2015). Here, Plaintiff first criticizes CBP for omitting some of
Plaintiff’s proposed search terms from its FOIA searches. See Pl.’s Cross-Mot. at 17. But “[i]n
general, a FOIA petitioner cannot dictate the search terms for his or her FOIA request.” Bigwood
v. United States Dep’t of Def., 132 F. Supp. 3d 124, 140 (D.D.C. 2015). Moreover, the Court finds
that the search terms employed by CBP in this case—specifically enumerated in Ms. Suzuki’s
supporting declaration—are reasonable, see Suzuki Decl., ECF No. 19-1, at ¶¶ 10–19 (setting forth
agency search terms), and the Court, therefore, refuses to “second guess the agency regarding
whether other search terms might have been superior,” Liberation Newspaper, 80 F. Supp. 3d at
146. Furthermore, Ms. Suzuki’s supplemental declaration plausibly explains why CBP did not
adopt certain of Plaintiff’s proposed search terms. See Suzuki Suppl. Decl., ECF No. 25-3, at ¶¶
10–12. Finally, while Plaintiff complains that the Buffalo Field Office failed to disclose the search
terms used in its searches, see Pl.’s Cross-Mot. at 18, the agency reasonably explains that the
Buffalo Office conducted a “manual review,” rather than an automated email search, Suzuki Suppl.
Decl., ECF No. 25-3, at ¶ 13. For these reasons, the Court is unpersuaded by Plaintiff’s objections
to CBP’s search terms.
Fifth, Plaintiff raises objections to the end-results of CBP’s FOIA search and production.
Specifically, Plaintiff argues for the inadequacy of CBP’s FOIA search, by pointing to the agency’s
failure to produce (1) “videos or sound recordings, or transcripts thereof,” documenting
interactions between CBP officials and potential border entrants and (2) “other records of verbal
communications by or with persons denied entry.” Pl.’s Cross-Mot. at 15–16 (¶¶ f–g); see also
24
Pl.’s Stmt. of Facts, ECF No. 20-2, at ¶¶ 70–73. To begin, this argument contravenes the principle
that the adequacy of a FOIA search “is generally determined not by the fruits of the search, but by
the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of
Currency, 315 F.3d 311, 315 (D.C. Cir. 2003); see also Media Research Center v. U.S. Dep’t of
Justice, 818 F. Supp. 2d 131, 138 (D.D.C. 2011) (“An agency’s search is not presumed
unreasonable because it fails to find every potentially responsive document.”). As such, Plaintiff
cannot prove CBP’s FOIA search inadequate simply by identifying certain types of omitted
documents he expected his FOIA request to yield, like “video recordings” or “other records of
verbal communications.” Pl.’s Cross-Mot. at 15–16 (¶¶ f–g). Furthermore, CBP has explained
that “[v]ideo and sound recordings are not the normal way of processing travelers,” Suzuki Decl.,
ECF No. 19-1, at ¶ 27, and the agency “does not generally retain video of the inspection of arriving
travelers,” Suzuki Suppl. Decl., ECF No. 25-3, at ¶ 18. For these reasons, the Court is unpersuaded
by Plaintiff’s objections to the results of CBP’s search.
Sixth, Plaintiff objects to CBP’s statement that Parts Three, Four, Five, and Six of
Plaintiff’s FOIA requests are “somewhat duplicative” and that, in responding to those requests,
the agency “relied where appropriate on its search for the first and second part[s]” of Plaintiff’s
FOIA request. See Pl.’s Cross-Mot. at 16 (¶ h); see also Pl.’s Stmt. of Facts, ECF No. 20-2, at ¶
38. From this, Plaintiff extrapolates that CBP “may not have thoroughly searched for documents
responsive to [Parts] 3, 4, 5, and 6.” Pl.’s Cross-Mot. at 16 (¶ h). This objection clearly falls short
and does not merit much discussion. First, the Court agrees that the various components of
Plaintiff’s FOIA request do overlap to a certain extent. See Suzuki Decl., ECF No. 19-1, Ex. A,
at 1–2. And regardless, CBP’s attempt to rely “where appropriate” on material retrieved from
earlier searches when responding to other parts of Plaintiff’s request does not itself render CBP’s
25
search inadequate. To the contrary, the agency has delineated its comprehensive approach to each
aspect of Plaintiff’s six-part FOIA request. See disc. supra at § III.A.1.
Seventh, Plaintiff raises a variety of miscellaneous objections to the location and
methodology of CBP’s search for responsive records. The Court finds each of these objections to
be unavailing, but for the sake of comprehensiveness, the Court will address each objection below:
• Search History: Plaintiff contends that CBP’s search was inadequate because
it did not review the search history on the browsers of its agents’ computers and
personal devices. See Pl.’s Cross-Mot. at 13 (¶ c); Pl.’s Stmt. of Fact, ECF No.
20-2, at ¶ 95. CBP, however, reasonably explained that relevant documentation
produced by border agents regarding the admissibility of travelers at the border
would have been collected on centralized databases, already searched by the
agency. See Suzuki Suppl. Decl., ECF No. 25-3, at ¶ 14.
• Personnel Files: Plaintiff argues that CBP should have searched for
“complaints” and related information by reviewing “the personnel files of that
subset of border agents and other CBP employees involved in denying entry to
Canadian residents on the dates, and relevant to the grounds, specified in his
[FOIA] request.” Pl.’s Cross-Mot. at 14 (¶ e). CBP, however, reasonably
explained that it has already “conducted its search for complaints in the location
in which all complaints were reasonably likely to be found,” the agency’s
centralized Complaint Management System (CMS). Suzuki Suppl. Decl., ECF
No. 25-3, at ¶ 9. Moreover, CBP explains that an “individual employee’s
official personnel file is not a location likely to contain information regarding
any complaints that might have been made against a CBP employee by a
member of the public.” Id.
• Search for Complaints: Plaintiff asserts that CBP should have searched for
relevant “complaints” outside of “the confines of its Complaint Management
System (CMS).” Pl.’s Cross-Mot. at 18 (¶ l); see also Pl.’s Stmt. of Facts, ¶¶
45–46. Moreover, Plaintiff complains that CBP’s search for complaints within
the CMS database was too narrow. See Pl.’s Cross-Mot. at 18 (¶ l). The Court
disagrees. First, CBP has persuasively explained that CMS is the agency’s
centralized complaint database, containing all complaints received via CBP’s
website, by phone, or in person. See Suzuki Suppl. Decl., ECF No. 25-3, at ¶
8. Moreover, CBP officials conducted a manual review of all complaints and
incidents recorded for January 2017 within the CMS database, to determine
whether any pertained to the Women’s March. See Suzuki Decl., ECF No. 19-
1, at ¶¶ 12, 24. This approach was reasonable and adequate.
• DHS TRIP Search: Plaintiff complains that CBP “failed to conduct a manual
search after its automated search of the Department of Homeland Security
26
Traveler Redress Inquiry Program (DHS TRIP) failed to produce relevant
records.” Pl.’s Cross-Mot. at 19 (¶ m). In particular, Plaintiff contends that
within the DHS TRIP system, CBP should have conducted email searches and
manual reviews of “physical files.” Id.; see also Pl.’s Stmt. of Fact, ECF No.
20-2, at ¶¶ 57–60, 67. But in response, CBP reasonably explained that the
redress management system within DHS TRIP is not searchable “using key
word, events, locations, or time periods.” Suzuki Suppl. Decl., ECF No 25-3,
at ¶ 19. Instead, CBP generally runs searches using a “person-centric” control
number. Id. Moreover, the redress system within DHS TRIP contains a
voluminous amount of documentations—approximately 13,000 files for
2017—that is not reasonably amenable to a manual search. Id.
• Office of International Affairs Search: Plaintiff objects to the fact that
“CBP’s search for records responsive to [Part Six of his FOIA request] did not
include physical files of the Office of International Affairs, but instead relied
solely upon an email search using Microsoft Office.” Pl.’s Cross-Mot. at 19 (¶
n); see also Pl.’s Stmt. of Facts, ECF No. 20-2, at ¶ 64. CBP, however, has
reasonably explained that the Office of Internal Affairs “does not have a
correspondence tracking database.” Suzuki Suppl. Decl., ECF No. 25-3, at ¶
20. To conduct a search within the Office of International Affairs for
documents responsive to Part Six of Plaintiff’s request, CBP reasonably
appointed the Assistant Attaché for Canada to lead the search, and that official
“determined that the email system was the location reasonably likely to have
any responsive records.” Id.
For the reasons set forth above, the Court does not find that any of Plaintiff’s miscellaneous
objections to search location and methodology undermine the overall adequacy and reasonableness
of CBP’s FOIA search. See disc. supra at § III.A.2.a.
Finally, the Court separately addresses the objections Plaintiff raises regarding the
declaration supplied by Mr. Joseph DeCunha. See DeCunha Decl., ECF No. 20-3, at 5–9; Pl.’s
Reply at 5–6. Mr. DeCunha is a Canadian citizen who attempted to enter the United States on
January 19, 2021 to participate in the Women’s March. See DeCunha Decl., ECF No. 20-3, at 5
(¶¶ 3–5). In his declaration, submitted in support of Plaintiff’s cross-motion, Mr. DeCunha states
that when he attempted to enter the United States at the Champlain–St. Bernard Lacolle Border
Crossing, a CBP official initially denied him entry “because of [his] desire to participate in the
Women’s March.” Id. at 6 (¶ 13). Mr. DeCunha’s affidavit specifically identifies the CBP official
27
as Officer “Brendon Quammie.” Id. at 6 (¶ 7). As early as October 2017, Plaintiff requested that
CBP question Officer Quammie and his colleagues at the Champlain–St. Bernard de Lacolle
Border Crossing regarding the existence of any documents responsive to his FOIA request. See
Jt. Status Rep., ECF No. 8, at 10.
In his current summary judgment briefing, Plaintiff now points out that CBP “has not
sought to refute any of the contentions in Mr. DeCunha’s declaration” and has “also failed to
indicate in its submissions to the Court whether its records regarding Mr. DeCunha’s denial of
entry have been provided to Plaintiff.” Pl.’s Reply at 6. According to Plaintiff, “[f]ailure to
provide that information brings into question whether CBP conducted an adequate good-faith
search for relevant records, which surely would have disclosed Mr. DeCunha’s denial of entry.”
Id. The Court agrees with Plaintiff’s overarching argument on this point. In explaining the
contours and adequacy of its search, CBP has not specifically addressed Mr. DeCunha’s
declaration, which is clearly relevant to Plaintiff’s FOIA request. See Suzuki Decl., ECF No. 19-
1, Ex. A, at 1–2. Neither has CBP clearly addressed whether any of its searches would have
targeted Mr. DeCuhna, Officer Brendon Quammie, or the Champlain port of entry. See
https://www.cbp.gov/contact/ports/champlain. Plaintiff expressly raised this material to CBP as a
potential source of records that would likely be responsive to Plaintiff’s targeted FOIA requests.
Accordingly, the Court concludes that to complete its adequate search CBP should run targeted
searches for records related to Mr. DeCunha, Officer Brendon Quammie, and the Champlain
border crossing. Alternatively, CBP should, at a minimum, explain if and how its earlier searches
(i.e., through the Buffalo Field Office) have already addressed these concerns, or why these
specified searches are not otherwise feasible.
28
****
In sum, the Court finds that when considering the overall “circumstances of the case,”
Davis v. Dep’t of Justice, 460 F.3d 92, 103 (D.C. Cir. 2006), CBP’s FOIA search, with the minor
exception addressed above, was adequate. By in large, Plaintiff’s myriad objections rest on
speculation over potential alterations to CBP’s search methodology, but “[t]here is no requirement
that an agency search every record system” or overturn every proverbial stone. Oglesby v. U.S.
Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Instead, an agency’s search is ultimately “judged
by whether it was ‘reasonably calculated to discover the requested documents, not whether it
actually uncovered every document extant.” Kowal v. United States Dep’t of Just., 464 F. Supp.
3d 376, 382 (D.D.C. 2020) (citing SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir.
1991)). And here, CBP has demonstrated that its FOIA search was comprehensive, multi-faceted,
and iterative, in a manner that was “reasonably calculated” to retrieve documents responsive to
Plaintiff’s FOIA request. See disc. supra at § III.A.2.a. Consequently, the Court will GRANT
summary judgment on this ground, in favor of CBP as to the adequacy of its FOIA search, except
as to those narrow issues raised in the declaration of Mr. Joseph DeCunha, addressed above.
B. FOIA Exemptions
Next, the parties dispute the legitimacy of CBP’s claimed FOIA exemptions. Of the 937
pages of responsive records CBP has produced, the agency has applied redactions to 870 of those
pages under four separate FOIA exemptions: Exemptions 5, 6, 7(C), and 7(E). See Suzuki Decl.,
ECF No. 19-1, at ¶ 8. Broadly speaking, these FOIA exemptions implicate the agency’s
deliberative decision-making process (Exemption 5), personal privacy right’s (Exemptions 6 and
7(C)), and law enforcement functions (Exemption 7(E)). See 5 U.S.C. § 552(b)(5)-(7). Plaintiff
objects to each of CBP’s designated FOIA exemptions on multiple grounds. See Pl.’s Cross-Mot.
29
at 20–26.
An agency bears the burden of demonstrating the applicability of the FOIA exemptions it
claims. Public Inv’rs Arbitration Bar Ass’n v. SEC, 771 F.3d 1, 3 (D.C. Cir. 2014). “Typically,
the agency demonstrates the applicability of a FOIA exemption by providing affidavits regarding
the claimed exemptions.” Shapiro v. United States Dep’t of Just., 893 F.3d 796, 799 (D.C. Cir.
2018). The agency may also submit “a detailed description of the information withheld through
the submission of a so-called ‘Vaughn Index.’” Defs. of Wildlife v. U.S. Border Patrol, 623 F.
Supp. 2d 83, 88 (D.D.C. 2009) (citing Vaughn v. Rosen, 484 F.2d 820, 826–27 (D.C. Cir. 1973)).
“The Vaughn Index and/or accompanying affidavits or declarations must ‘provide[ ] a relatively
detailed justification, specifically identif[y] the reasons why a particular exemption is relevant, and
correlat[e] those claims with the particular part of a withheld document to which they apply.’” Id.(quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006)). “Withholding
information under conclusory, generalized, or sweeping allegations of exemptions is not
acceptable.” Elec. Priv. Info. Ctr. v. DEA, 192 F. Supp. 3d 92, 103 (D.D.C. 2016).
At this time, CBP’s support for its FOIA exemptions suffers from a threshold lack of
specificity. With its summary judgment motion, CBP proffered a single declaration from the
agency’s FOIA Appeals Officer, Ms. Shari Suzuki, to support its FOIA exemptions. See Suzuki
Decl, ECF No. 19-1, at ¶¶ 29–59. This declaration simultaneously serves as the agency’s Vaughn
Index. See Def.’s Mot. at 1 n.1. Within her declaration, Ms. Suzuki offers only broad explanations
supporting the applicability of FOIA Exemptions 5, 6, 7(C), and 7(E) to generalized categories of
documents. See Suzuki Decl., ECF No. 19-1, at ¶¶ 8, 29–59. CBP, however, has not provided the
full set of redacted documents to the Court, and has provided no other way for the Court to
specifically connect any of the agency’s categorical justifications for a claimed FOIA exemption
30
to any specific document or redaction. As such, the agency’s “broad categorical descriptions”
within the current record, do not allow the Court to “engag[e] in a meaningful review of the
agency’s decision” to withhold specific material under the agency’s claimed FOIA exemptions.
Hall v. U.S. Dep’t of Just., 552 F. Supp. 2d 23, 27 (D.D.C. 2008) (citing Oglesby v. U.S. Dep’t of
Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996)); see also Morley v. CIA, 508 F.3d 1108, 1122 (D.C.
Cir. 2007) (“[C]ategorical description of redacted material coupled with categorical indication of
anticipated consequences of disclosure is clearly inadequate.”) (quotation omitted).
By way of example, Ms. Suzuki’s declaration explains that CBP has redacted law
enforcement-related material under FOIA Exemption 7(E) from 555 pages of responsive records.
Suzuki Decl., ECF No. 19-1, at ¶ 8. Within this set of 555 pages, however, an unknown number
of Exemption 7(E) redactions apply to a broad category of material, identified as “information
revealed during the inspection by third-party individuals.” Id. ¶ 54. Such an assertion presents
two immediate impediments to the Court’s FOIA review. First, the categorical statement is vague
on its face. But moreover, it is also untethered from any particular document or redaction.
Therefore, it is unclear from CBP’s supporting affidavit how many documents this broad
Exemption 7(E) justification applies to, let alone the specific documents that it covers. Indeed,
Ms. Suzuki’s supporting affidavit does not clarify how many redactions are supported by any of
the various categorical justifications asserted therein. As such, the Court is left to speculate about
the number of Exemption 7(E) withholdings based vaguely on items like “information revealed
during the inspection by third-party individuals,” id. ¶ 54, or, instead, based on a more specific
grounds, such as “information about drug arrests and seizures for the week leading up to January
13, 2017,” id. ¶ 52.
The same threshold problem applies to CBP’s other claimed FOIA exemptions. In total,
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CBP has invoked Exemptions 6 and 7(C) to redact personally identifying information from 846
pages of responsive records. See id. ¶ 8. But within that large grouping, it is again unknown how
many documents bear redactions because they contain, for example, “personally identifiable
information,” id. ¶ 45, or, instead, how many redactions apply to alternative categories of
information, like “the reason for travel to the United States,” or “other factors CBP considered in
evaluating the individual’s admissibility and remarks based on those factors,” id. ¶ 48. Similarly,
CBP has applied FOIA Exemption 5 to redact deliberative agency material from 83 pages of
responsive records. Id. ¶ 8. Yet, CBP only provides a categorical explanation for these redactions
as well, stating, for example, that some redactions apply to “draft responses to questions from
Congress,” id. ¶ 31, while others apply to “deliberation for using certain photos for a public
statement and the reason behind them,” id. ¶ 33.
In short, CBP’s categorical justifications for its FOIA withholdings fail to facilitate a
“meaningful review” of its claimed FOIA exemptions. Hall, 552 F. Supp. 2d at 27. Because CBP
provides only broad categorical explanations for its claimed FOIA exemptions, the Court is unable
to clearly discern which of the agency’s justifications apply to any of the various redactions made.
This approach is contrary to the agency’s obligation to “‘provide[] a relatively detailed
justification, specifically identif[y] the reasons why a particular exemption is relevant, and
correlat[e] those claims with the particular part of a withheld document to which they apply.’”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 88 (D.D.C. 2009) (quoting Judicial
Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006)); see also Kowal v. United States Dep’t
of Just., 464 F. Supp. 3d 376, 384 (D.D.C. 2020) (rejecting Vaughn indices that “claim[ed]
exemptions for each document, but . . . d[id] not adequately correlate those claims with the
particular part of a withheld document to which they apply.”).
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This threshold shortcoming prevents the Court from addressing the full scope of Plaintiff’s
objections to CBP’s claimed FOIA exemptions. Accordingly, the Court will DENY WITHOUT
PREJUDICE the parties’ respective cross-motions regarding CBP’s claimed FOIA exemptions
at this time. See Def.’s Mot. at 7–16; Pl.’s Cross-Mot. at 20–26. The Court will ORDER CBP to
supplement the record with a more particularized Vaughn Index, separate and distinct from any
supporting agency affidavits. After the submission of this revised Vaughn Index, the Court will
permit the parties to file revised briefing addressing the validity of CBP’s claimed FOIA
exemptions.
C. Segregability And Request For Limited Discovery
The parties present two remaining issues for the Court to address. First, Plaintiff challenges
CBP’s efforts to disclose all reasonably segregable portions of its responsive records, and further
proposes that the Court should engage in a limited in camera review to ensure that the agency has
satisfied its segregability obligations. See Pl.’s Cross-Mot. at 27–28; see also Machado Amadis v.
United States Dep’t of State, 971 F.3d 364, 371 (D.C. Cir. 2020) (discussing segregability
requirement). In response, CBP rests on the “presumption” that it has complied with its obligation
to disclose all reasonably segregable materials to Plaintiff and points to the absence of any
evidence to the contrary. Def.’s Reply at 20 (quoting Sussman v. U.S. Marshals Serv., 494 F.3d
1106, 1117 (D.C. Cir. 2007)). Because the Court will order CBP to first supplement its Vaughn
Index to clarify its claimed FOIA exemptions, the Court finds that it would be premature to render
a final determination on segregability at this time. See disc. supra at § III.B. Accordingly, the
Court will DENY WITHOUT PREJUDICE the parties’ respective cross-motions on the issue of
segregability. The parties may address the issue of segregability in their subsequent summary
judgment briefing, submitted after CBP provides its revised Vaughn Index.
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Second, Plaintiff asks the Court to “reserve his ability to later request that the Court grant
Plaintiff reasonable and limited discovery to ensure that CBP has fulfilled its FOIA obligations.”
Pl.’s Cross-Mot. at 28. The Court has “broad discretion to manage the scope of discovery” in
FOIA cases. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). As a general
matter, “[d]iscovery in FOIA is rare and should be denied where an agency’s declarations are
reasonably detailed, submitted in good faith and the court is satisfied that no factual dispute
remains.” Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175, 183 (D.D.C. 2013) (quotation
omitted). Here, Plaintiff’s request to “reserve his ability” to seek discovery stands on uncertain
ground. Nonetheless, disputes in this case remain regarding CBP’s FOIA exemptions, which the
agency will address in its revised Vaughn Index. Considering the pendency of these issues, the
Court, at this juncture, will DENY WITHOUT PREJUDICE both parties’ respective cross-
motions regarding Plaintiff’s request for limited discovery. Again, the parties may address the
issue of discovery in their subsequent summary judgment briefing, submitted after CBP provides
its revised Vaughn Index.
IV. CONCLUSION
For the reasons set forth in this Memorandum Opinion, the Court will GRANT IN PART
and DENY IN PART CBP’s Motion for Summary Judgment, and will GRANT IN PART and
DENY IN PART Plaintiff’s Cross-Motion for Summary Judgment. Specifically, the Court will
order as follows:
The Court will GRANT summary judgment in favor of CBP with regards to the adequacy
of CBP’s FOIA search, with one exception. To complete its adequate FOIA search, CBP shall run
searches targeting the issues raised in the declaration of Mr. Joseph DeCunha. See DeCunha Decl.,
ECF No. 20-3, at 5–9. Alternatively, CBP should explain if and how its earlier searches have
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already addressed these issues, or why these specified searches are not otherwise feasible.
Next, the Court will DENY WITHOUT PREJUDICE both parties’ respective motions
with regards to CBP’s claimed FOIA exemptions. By or before JUNE 14, 2021, CBP shall file a
revised Vaughn Index supporting its claimed FOIA exemptions with greater particularity. This
revised Vaughn Index shall be separate and distinct from any supporting affidavits.
Finally, the Court will DENY WITHOUT PREJUDICE the parties’ respective motions
with regards to “segregability” and Plaintiff’s request for discovery. Given the outstanding
disputes regarding CBP’s claimed FOIA exemptions, the Court concludes that it would be
premature to rule on these issues, at this juncture.
Following the submission of CBP’s revised Vaughn Index by or before JUNE 14, 2021,
the Court will set a new briefing schedule, permitting the parties to file renewed cross-motions
addressing the remaining issues in this case.
An appropriate order accompanies this Memorandum Opinion.
Date: May 14, 2021 /s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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