Strunk v. United States Department of State , 905 F. Supp. 2d 142 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHRISTOPHER EARL STRUNK,
Plaintiff,
v. Civil Action No. 08-2234 (RJL)
UNITED STATES DEPARTMENT
OF STATE, et al.,
= F I L E D
Defendants. :: NOV 2 § Zmz
C|erk, U.S. Disttict & Bankruptcy
Courts for the Ui~;trict of Columb»a
MEMORANDUM OPINION
(N0vember _Z._Q_ 2012) [Dkt. #58]
This matter is before the Court on Defendant’s Renewed Motion for Summary
Judgment [Dkt. #58]. F or the reasons discussed below, the motion is GRANTED.
BACKGROUND
Plaintiff brought this action under the Freedom of information Act ("FOIA"), see
5 U.S.C. § 552, in order to obtain information about President Barack ()bama and his late
mother, Stanley Ann Dunham, from the United States Department of State ("State
Department") and United States Customs and Border Protection ("CBP"), a component
of the United States Department of Homeland Security ("DHS"). With respect to
plaintiffs request for information about President Obama, the Court has ruled that
plaintiff failed to submit proper FOIA requests to the State Department and DHS because
neither request included a written authorization from President Obama for the release of
information to plaintiff Strunk v. U.S. Dep’t ofSz‘ale, 693 F. Supp. 2d ll2, ll5 (D.D.C.
20l0). The Court also has concluded that the State Department and CBP conducted
reasonable searches for records responsive to plaintiffs requests for information about
Ms. Dunham. Strunk v. U.S. Dep’l ofState, 770 F. Supp. 2d lO, 16 (D.D.C. 2011);
Strunk v. U.S. Dep ’Z ofStaz‘e, 845 F. Supp. 2d 38, 45 (D.D.C. 2012). Although CBP
properly withheld certain information under Exemption 6, Strunk, 845 F. Supp. 2d at 45-
46, it did not previously demonstrate that it properly withheld other pieces of information
under Exemption 7(E), id. at 47.
The sole issue remaining for resolution is whether the CBP properly withheld
information under Exemption 7(E) from a one~page document described as a "TECS
Printout of Travel Documents for Stanley Dunham for Dates january l, 1982 to
December 31, 1985." Vaughn Index, Ex. B to Declaration of Dorothy Pullo ("Second
Pullo Decl.") [Dkt. #52-1], Attach. to Mem. of Law in Supp. of Def.’s Mot. for Summ. J.,
Apr. 29, 2011 [Dkt. #52].‘
l The declarant explained that TECS "began capturing traveler arrivals and
departures into and out of the United States beginning in January of 1982," and that paper
records in use prior to TECS "no longer exist and are no longer archived." Second Pullo
Decl. ‘ll 8.
l)iscussloNz
1. Summary judgment in a FOIA Case
"FOIA cases typically and appropriately are decided on motions for summary
judgment." Defenders of Wildlz``fe v. U.S. Border Paz‘rol, 623 F. Supp. 2d 83, 87 (D.I).C.
2009), The Court will grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). In a FOIA action to compel production of agency rccords, the
agency "is entitled to summary judgment if no material facts are in dispute and if it
demonstrates ‘that each document that falls within the class requested either has been
produced . . . or is wholly exempt from the [FOIA’S] inspection requirements."’ Stucz’ents
Against Geriocia’e v. Dep’l ofState, 257 F.3d 828, 833 (D.C. Cir. 2()01) (quoting Goland
v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978\)3). t
Summary judgment may be based solely on information provided in an agency’s
supporting affidavits or declarations if they are relatively detailed and when they describe
2 The Court has reviewed plaintiffs opposition to the renewed motion for summary
judgment, and finds that it utterly fails to address CBP’s reliance on Exemption 7(E) in
withholding certain information. Ordinarily, the Court may treat as conceded any
argument raised in a motion which the opposing party fails to address. See, e.g. ,
Augustus v. M€Hugh, No. 02-cv-2545, 2012 WL 2512930, at *4 (D.D.C. July 2, 20l2)
(holding that because plaintiffs "opposition did not challenge the Secretary’s proffered
justifications under FOIA for having redacted [information,]" the arguments were
"deemed conceded, and summary judgment [was] entered in favor of the Secretary");
Feople for the Ethz``ca[ T reatment of Am``mals v. Nat’l Inst. of Health, 853 F. Supp. 2d 146,
151 (D.D.C. 20l2) ("Plaintiff also did not respond to defendant’s arguments with respect
to Count l or Count III in its opposition to defendant’s motion for summary judgment,"
and, accordingly, "the Court . . . treat[ed] Count l and III as conceded and . . . dismiss[ed]
these claims without prejudice"); see also LCvR 7(h). In this case, however, the Court
will discuss briefly the applicability of Exemption 7(E) to CBP’s rcdactions from the
TECS-generated document at issue§ f ``
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"the documents and the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption,
and are not controverted by either contrary evidence in the record [or] by evidence of
agency bad faith." Mz``litaryAua’it Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
"To successfully challenge an agency’s showing that it complied with the FOIA, the
plaintiff must come forward with ‘specitic[facts’ demonstrating that there is a genuine
issue with respect to whether the agency has;'improperly withheld extant agency records."
Span v. U.S. Dep’t ofJuslice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (quoting U.S.
Dep’t of]ustz``ce v. Tax Ana[ysts, 492 U.S. 136, 142 (1989)).
II. Law Enforcement Records
Exemption 7 protects from disclosure "records or information compiled for law
enforcement purposes," but only to the extent that disclosure of such records would cause
an enumerated harm.
A record is deemed to have‘been created or compiled for a
law enforcement purpose only if (l) it arose from an
investigation related to the enforcement of federal laws or to
the maintenance of national security (thc nexus requirement),
and (2) the nexus betweenther-investigation and one of the
agency’s law enforcement duties is based on information
sufficient to support at least a colorable claim of its
rationality.
Sz``mon v. Dep ’z‘ of./ustz``ce, 980 F.2d 782, 783 (D.C. Cir. l992) (quoting Pmtt v. Webster,
673 F.2d 408, 420-21 (D.C. Cir. 1982)) (brackets and internal quotation marks omitted).
A law enforcement agency’s "decision to invoke [E]xeinption 7 is entitled to deference,"
Carnpbell v. U.S. Dep’t ofJusti``ce, 164 F.3d 20, 32 (D.C. Cir. 1998) (citing Pralt, 673
F.2d at 419), but deference does not amount to blind acceptance of the agency’s
assertions, see Lardner v. Dep’t of./usli'ce, 638 F. Supp. 2d 14, 32 (D.D.C. 2009) (citing
Campbell, 164 F.3d at 32) ("The D.C. Circuit has made clear. . . that an agency’s broad
claim that its files are law enforcement files-without addressing the particular
documents at issue~is insufficient to establish that the specific documents in dispute
within those files are law enforcement records under FOIA."), ajj”’d, 398 F. App’x 609
(D.C. Cir. 2010) (per curiam).
CBP’s declarant states that the agency is "a law enforcement agency with
enforcement responsibilities for over 400 Federal statutes, on behalf of over 20 different
federal agencies." Second Pullo Decl. 11‘211. Itsi principal functions include the protection
of the United States’ borders "against terrorists and the instruments of terror,"
enforcement of customs and immigration laws, facilitation of "lawful international trade
and travel [and] the processing of passengers, conveyances, and merchandise entering,
transiting and departing the United States.” Id.
TECS is described as "an overarching law enforcement information, collection,
analysis, and sharing environment that securely links telecommunications devices and
personal computers to a central system and database." Id. 11 7. Its "several modules [are]
designed to collect, maintain, and screen data as well as conduct analysis, screening, and
information sharing." Ia’. Its databases`` "contain temporary and permanent enforcement,
inspection and intelligence records relevant to the anti~terrorism and law enforcement
mission of CBP and numerous other federal agencies that it supports," and it is a means
for "direct access to other major law enforcement systems, including the Department of
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Justice’s National Crime information Center (NCIC), the National Law Enforcement
Telecommunications System (NLETS). and the Canadian Police information Centre
(CPIC)." Ia’. Further, "TECS maintains limited information on those individuals who
have been granted access to the system." Ia'.
"Border Crossing information (BCi) is a subset of data connected to TECS. BCI
receives and maintains border crossing information on travelers who are admitted . . . into
the United States," such as biographical information, photographs, itinerary information
provided by air and sea carriers, and the time and location of the border crossing Id. 11 8.
CBP operates and uses TECS "to conduct enforcement checks on individuals seeking to
enter or depart the United States." Id. 11 7. information responsive to plaintiff s FOiA
request "for travel documents related to Stanley Ann Dunham," i'a’. 11 5, is maintained in
TECS and TECS is "the only place to search for arrival and departure records"’ of a
particular individual, z``d. 11 9. CBP thus establishes that the relevant records were
compiled for a law enforcement purpose.
II]. Exemption 7(E)
Exemption 7(E) protects from disclosure law enforcement records "to the extent
that the production of such . . . information . . . would disclose techniques and procedures
for law enforcement investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the lawl" 5 U.S.C. § 552(b)(7)(E). "The first clause of
Exemption 7(E) affords ‘categorical’ protection for ‘techniques and proccdures’ used in
law enforcement investigations or prosecutions.” Pub. Emps. for Envtl. Responsibi!izy v_
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U.S. Sectz'on [nt'l Boundary & Water Comm ’n, U.S. - Mexz``co, 839 F. Supp. 2d 304, 327
(D.D.C. 2012) (citing Showz``ng Am'mals Respect & Ki'ndness v. U.S. Dep ’t ofthe [nterior,
730 F. Supp. 2d 180, 199-200 (D.D.C. 2010)). "Exemption 7(E)’s second clause
separately protects ‘guidelines for law enforcement investigations or prosecutions if
[their] disclosure could reasonably be expected to risk circumvention of the law."’ Id.
(quoting 5 U.S.C. § 552(b)(7)(E)).
The "information withheld pursuant to Exemption [7(E)] includes computer screen
transaction codes . . . [and] law enforcement techniques and procedures, which includes
certain types of inspection, clearance, authorization procedures, and its results which, if
disclosed, could be used to develop countermeasures to circumvent CBP operations and
[the agency’s] ability to enforce the laws of the United States." Second Pullo Decl. 11 27.
More specifically, CBP relies on Exemption 7(E) to protect the l``ollowing:
(l) information relating to the TECS system and operating
programs, including computer screen transaction codes,
computer program transaction codes, and computer function
codes (e.g., ‘PF codes’ or ‘navigation keys’); and
(2) information contained in the system that reflects the
results of specific law enforcement database queries (the
‘RSLT’ column).
Decl. of Dorothy Pullo [Dkt. #58-1] ("Third Pullo Decl."), Attach. to Mem. of Law in
Supp. ofDef.’s Renewed Mot. for Summ. J., Mar. 30, 2012, [Dkt. #58], 11 10; see Second
Pullo Decl. 11 27.
CBP’s declarant explains that, with respect "to computer screen transaction codes,
computer transaction codes, and computer function codes," release of this information
"l``acilitates access to and navigation through TECS and reveals mechanisms for access to
' i
t
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and navigation through TECS." Third Pullo Decl. 11 11. T he transaction codes "consist
of the master record code and page record code," and thus, the declarant explains, "show
precisely how information is retrieved from the database." Id. "Similarly, computer
function codes reflect exact keys and keystrokes used for navigating TECS.” Ia’.
According to the declarant, if such computer code information were disclosed, an
individual might obtain "[d]etailed knowledge about the system and its intricacies,"
which in turn "could lead individuals to alter their behavior to mislead law enforcement
and avoid detection." Ia’. The declarant further states:
[R]elease of this information could not only allow an
individual knowledgeable in computer mainframes and
systems to have unauthorized access (or hack) into the
system, but also, once an unauthorized user has gained access
to the system, knowledge of the withheld codes further
facilitates the unauthorized user’s ability to navigate through
TECS. it would also arm unauthorized users with the ability
to corrupt the integrity of the data contained therein through
the alteration/manipulation of such data, which could leave to
loss of the ability to timely recognize, detect, and apprehend
certain individuals or otherwise detect and enforce against
violations or attempts to violate the law. Similarly, if the
system were to be hacked, knowledge of this information
could permit the intruder to potentially manipulate the way
certain records are created and maintained. Accordingly,
public disclosure of such information could put at risk
ongoing investigations and border security operations.
Id. 11 12. in short, in the agency’s view, release of these computer codes "could reveal the
precise procedures for retrieving records from a law enforcement database containing
information related to [CBP’s] law enforcement mission," and thus "expose the system to
vulnerabilities and compromise the . . . data compiled for law enforcement purposes and
other . . . missions." Second Pullo Decl. 11 26.
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The RSLT column, the declarant explains, "contains codes and information
reflecting the use, application, and results of certain types of inspection, clearance, and
authorization procedures as utilized at the time of an individual’s entry or exit from the
United States." Third Pullo Decl, 11 13. Such "inherently law enforcement-related
information, if disclosed, could be used to develop counterineasures to circumvent CBP
operations and its ability to enforce the laws of the United States," the declarant states.
[a’. For example, release of this information "could reveal the names of law enforcement
databases that were queried at the time of arrival and the results of those queries," and, it
follows that disclosure of this information "reveal1s] CBP targeting and inspection
techniques used in the processing of international travelers," such that "potential violators
[could] design strategies to circumvent the examination procedures developed by CBP."``
Id. "[P]ut differently, individuals who knew the meaning of the codes contained in the
‘RSLT’ column would gain access to CBP law enforcement techniques and procedures
that would permit them to alter their patterns of conduct, adopt new methods of
operation, relocate, change associations, and effectuate other countermeasures, thus
corrupting the integrity of ongoing investigations." Id.
"TECS is CBP’s principal law enforcement and anti-terrorism database system,
and it is one of the primary tools that CBP law enforcement officers . . . regularly use[] in
order to effectively and efficiently enforce fall particular laws, particularly [relating] to
travelers and trade crossing the border into or out of the United States." Id. 11 14. it is "a
fundamental law enforcement tool," for which ~"there is a great need to defend . . . against
any threatened or real risk of threat or compromise, not only in order to ensure the
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continuance of CBP’s mission, but in order to assist the other law enforcement agencies
which TECS may support." Id.
Although the computer transaction and function codes are not themselves
"techniques and procedures for law enforcement investigations or prosecutions” entitled
to categorical protection under Exemption 7(E), the CBP’s declarant adequately
demonstrates that release of the codes, as well as"the information in the RSLT column,
"would disclose guidelines for law enforcement investigations or prosecutions[, and that]
such disclosure could reasonably be expected to risk circumvention ofthe law." 5 U.S.C.
§ 552(b)(7)(E). The CBP thus demonstrates that its decision to withhold the TECS-
related information under Exemption 7(E) is proper. See Skz'nner v. U.S. Dep ’t of Justice,
No. 09-cv-725, 2012 WL 4465788, at *3 (D.D.C. Sept. 28, 2012) (withholding "internal
computer access codes associated with a hyper-sensitive law enforcement database
containing homeland security information, »z``.le., TECS"); Mi``ller v. U.S. Dep ’t of Justz'ce,
No. 05-cv-1314, 2012 WL 25525381, at * 13 (D.D.C. July 3, 2012) (withholding TECS
numbers relating to procedures concerning use of law enforcement resources and
databases and TECS case program and access codes on the ground that "disclosing
[them] would expose a law enforcement tcchnique, promote circumvention of the law by
allowing criminals to conceal their activity, or allow fraudulent access to DEA’s
databases."); McRae v. U.S. Dep ’t of Justice, No. 09-cv-2052, 2012 WL 2428281, at *l4
(D.D.C. June 27, 2012) (redacting "codes, case numbers, and other computer information
pertaining to the TECS, NCiC, and databases maintained by the North Carolina
authorities arc techniques and procedures for law enforcement investigation"); Bloomer
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v. U.S. Dep ’t ofHomeland Sec., No. 5:11-cv-35, 2012 WL 1574468, at *8 (D. Vt. May 3,
2012) (redacting "various codes and case numbers," including the TECS Record ID,
because disclosure of "internal instructions, codes, and guidance would reveal both a law
enforcement technique and an internal investigative practice," which, in turn, "could
endanger future investigations"); cf Soghoian v. U.S. Dep ’z of Justz``ce, No. l1-cv-1080,
2012 WL 3090309, at * 10 (D.D.C. July 31, 2012) ("Knowing what information is
collected, how it is collected, and more impor:tantly, when it is not collected, is
information that law enforcement might reasonably expect to lead would-be offenders to
evade detection.").
IV. Segregabz'li``ly
FOIA requires that "[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions which are
exempt." 5 U.S.C. § 552(b). "‘it has long been the rule in this Circuit that non-exempt
portions of a document must be disclosed unless they are inextricably intertwined with
exempt portions."’ Wz``lderness Soc ’y v. U.S. Dep ’l of the Interz``or, 344 F. Supp. 2d 1, 18
(D.D.C. 2004) (quoting Mead Data Cent., v. U.S. Dep ’t ofthe Air Force, 566 F.2d
242, 260 (D.C. Cir. 1977)). The CBP’s declarant avers that she "conducted a line-by-line
review of each record identified as responsive to [p]lairitii``fs FOIA request," Third Pullo
Decl. 11 15, and has determined that "[a]ll information not exempted from
disclosure . . . was correctly segregated and non-exempt portions were released," id. 11 16;
Second Pullo Decl. 1111 28-29. The CBP’s deelarations, coupled with a detailed Vaughn
index, satisfy the Court that all reasonably segregable information has been disclosed to
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plaintiff See Abcz'elfattah v. U.S, Im)nz``gratz``on & Customs Enforce)nenz‘, 851 F. Supp. 2d
141, 146 (D.D.C. 2012) (supplying an affidavitstating that documents were reviewed
line-by-line, a sufficiently detailed Vaughn index, and declarations to explain why each
document was properly withheld meets agency obligation regarding segregability).
CONCLUSION
The Court concludes that CBP properly has withheld information from the one-
page document containing travel information about Stanley Ann Dunham, and
defendants’ renewed motion for summary judgment [Dkt. #58] therefore is GRANTED.
Now that the Court has ruled on all motions and no matters are outstanding and because
each agency has demonstrated its compliancewith the FOiA and entitlement to judgment
as a matter of law, final judgment will be entered in favor of the defendants. An Order
consistent with this Memorandum Opinion and with prior opinions and orders of this
Court will be issued this same day.
/l
Y,i,,aii.,,/
RicHARQJ;)LEoN
United States District Judge
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