Strunk v. United States Department of State , 845 F. Supp. 2d 38 ( 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 ai., )
)
Defendants. )
--------------------------)
MEMORANDUM OPINION
February 1~[Dkt. #50, 52]
Plaintiff brings this action under the Freedom ofInformation Act ("FOIA"), see 5 U.S.C.
§ 552 (2006), seeking information from United States Customs and Border Protection ("CBP"), a
component of the United States Department of Homeland Security ("DHS"), about Stanley Ann
Dunham, the late mother of President Barack Obama. This matter is before the Court on
Defendant's Motion for Summary Judgment [Dkt. #52],1 and for the reasons discussed below,
the motion is granted, in part, and denied, in part, without prejudice.
The Court previously dismissed plaintiffs claims regarding his requests to the U.S.
Department of State and the DHS for information about President Obama, see Strunk v. u.s.
Dep" a/State, 693 F. Supp. 2d 112, 115 (D.D.C. 2010) [Dkt. #31], and to the U.S. Department
of State for information about Ms. Dunham, see Strunk v. Us. Dep't a/State, 770 F. Supp. 2d
10,16 (D.D.C. 2011) [Dkt. #48].
Also before the Court is plaintiffs Notice of Motion for Reconsideration []by Leave to
File a Motion for Vaughn Index [Dkt. #50]. The Court construes this "Notice" as a motion to
reconsider the prior rulings with respect to plaintiffs FOIA requests to the State Department and
finds it meritless. The motion is denied.
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I. BACKGROUND
Plaintiff describes the subject of his FOIA request as follows:
Stanley Ann Dunham, a/k/a Ann Dunham a/k/a Stanley Ann
Obama a/k/a Ann Obama a/k/a Stanley Ann Soetoro a/k/a Ann
Soetoro a/k/a Stanley Ann Sutoro a/k/a Ann Sutoro a/k/a Stanley
Ann Dunham Obama a/k/a Ann Dunham Obama, born November
29, 1942 at Fort Leavenworth KS. U.S., a.k.a. Stanley Ann
Dunham Obama and who died on November 7, 1995 under the
name Stanley Ann Dunham Soetoro (a.k.a. Sutoro).
Compo ~ 3. He requested the following information about Ms. Dunham:
a. Any and all u.s. Applications for a U.S. Passport;
b. Entry and Exit Passport Records pertaining to the United States
and Kenya from the period of time of January 01, 1960 to
December 31,1975 and January 1, 1979 to December 31,1985;
C. Entry and Exit Passport Records pertaining to the United States
and Indonesia from the period of time of January 01, 1960 to
December 31,1973 and January 1, 1979 to December 31,1985;
d. The above travel records on for [sic] the dates specified traveling
on a U.S. Passport, Kenyan Passport, Indonesian Passport or any
other foreign passport and/or visa;
e. Foreign Birth Certificate registered and filed with the U.S.
Embassy, Kenya and/or U.S. Embassy of Indonesia for Barack H.
Obama a/k/a Barry Soetoro, Date of Birth: August 4, 1961;
f. Foreign Birth Registry filed with the U.S. Embassy, Kenya and/or
U.S. Embassy of Indonesia by Stanley Ann Dunham, et al.
[r]egistering the birth of Barack H. Obama a/k/a Barry Soetoro,
Date of Birth: August 4,1961; and
g. Adoption Records and/or Governmental "Acknowledgment"
wherein Barack H. Obama a/k/a Barry Soetoro was
"acknowledged" as Lolo Soetoro, M.A.' s son.
Id. ~ 4.
CBP does not collect or maintain records regarding applications for United States
passports, foreign birth certificates or registries, or adoption records and/or governmental
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"acknowledgments" of paternity. Declaration of Dorothy Pullo ("Pullo Decl.") ~ 6, Ex. 1 to
Def.'s Mot. for Summ. J., Apr. 29, 2011 ("Def.'s Mot."). It does, however, maintain "border
crossing information on travelers who are admitted or paroled into the United States." Id. ~ 8.
CBP staff conducted a search of TECS, an electronic database containing "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," id. ~ 7, for
responsive records "for the time period January 1, 1982 (when TECS began capturing
arrival/departure information) through December 31,1985, using variations of the subject's
name and date of birth as search terms," id. ~ 9. This search yielded "[0 ]ne page of responsive
records," from which CBP redacted certain information pursuant to Exemptions 2, 6, 7(C) and
7(E) prior to releasing the document to the plaintiff. Id. `` 9, 10, 12.
II. DISCUSSION
A. Summary Judgment in a FOIA Case
"FOIA cases typically and appropriately are decided on motions for summary judgment."
Defenders of Wildlife v. us. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). "An agency
is entitled to summary judgment in a FOIA suit once it demonstrates that no material facts are in
dispute and that it conducted a search of records in its custody or control ... that was reasonably
calculated to uncover all relevant information ... which either has been released to the requestor
or is exempt from disclosure." Tunchez v. us. Dep't ofJustice, 715 F. Supp. 2d 49,53 (D.D.C.
2010) (internal citations omitted), aff'd, No. 10-5228,2011 WL 1113423 (D.C. Cir. Mar. 14,
2011) (per curiam); see Students Against Genocide v. Dep 't ofState, 257 F.3d 828, 833 (D.C.
Cir. 2001).
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The Court may grant summary judgment based solely on information provided in an
agency's supporting affidavits or declarations if they are relatively detailed and describe "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 nor by evidence of agency bad faith.,,2
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see Beltranena v. Clinton,
770 F. Supp. 2d 175, 181-82 (D.D.C. 2011). Such affidavits or declarations are "accorded a
presumption of good faith, which cannot be rebutted by 'purely speculative claims about the
existence and discoverability of other documents.'" Safe Card Servs., Inc. v. SEC, 926 F.2d
1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771
(D.C. Cir. 1981)).
B. CBP's Search for Responsive Records
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." Ancient Coin
Collectors Guild v. Us. Dep't ofState , 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and
internal quotation marks omitted). The "search need not be exhaustive." Barnard v. Dep't of
Homeland Sec., 598 F. Supp. 2d 1,9 (D.D.C. 2009) (citation omitted). "The issue in a[] FOIA
case is not whether the agenc[y's] searches uncovered responsive documents, but rather whether
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CBP's declarant is "the current Director of the Freedom [of] Information Act (FOIA)
Division, Office oflnternational Trade, U.S. Customs and Border Protection (CBP)," who "is
responsible for the overall supervision of the processing of [FOIA] requests for information in
CBP record systems, including records related to the processing of arriving international
travelers at the border." Pullo Decl. ~ 1. She makes her declaration based on: "(1) [her] review
of the official files and records of this office; (2) [her] personal knowledge of the internal
operations ofthis office and agency; and (3) information acquired by [her] in the course of the
performance of [her] official duties." Id. ~ 2.
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the searches were reasonable." Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996) (citation
omitted).
To meet its burden, the agency may submit affidavits or declarations that explain in
reasonable detail the scope and method of the agency's search. Perry v. Block, 684 F.2d 121,
126 (D.C. Cir. 1982). The affidavits or declarations must describe "what records were searched,
by whom, and through what processes," Steinberg v. Us. Dep 't 0/Justice, 23 F.3d 548, 552
(D.C. Cir. 1994), and also must show that the search was "reasonably calculated to uncover all
relevant documents," Wilderness Soc y v. us. Dep't 0/ the Interior, 344 F. Supp. 2d 1, 20
(D.D.C. 2004) (citing Weisberg v. Us. Dep 't ofJustice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)).
In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate
compliance with FOIA. Perry, 684 F.2d at 127. "If, however, the record leaves substantial
doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt
v. Dep't o/State, 897 F.2d 540, 542 (D.C. Cir. 1990).
TECS, which CBP operates and uses "to conduct enforcement checks on individuals
seeking to enter or depart the United States[,] ... is an overarching law enforcement information
collection, analysis, and sharing environment that securely links telecommunications devices and
personal computers to a central system and database." Pullo Decl. ~ 7. "It is comprised of
several modules designed to collect, maintain, and screen data as well as conduct analysis,
screening, and information sharing." Id. 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
"maintains limited information on those individuals who have been granted access to the
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system." Id. "TECS also allows direct access to other major law enforcement systems ... and
includes the combined sharing of information of over 20 different federal agencies." Id.Information on travelers entering or exiting the United States is maintained in "a subset
of data connected to TECS" called Border Crossing Information ("BCI"). Id. ,-r 8. Such
information might include biographical information, photographs, itinerary information, and the
time and location of border crossings. Id. Records prior to 1982 were maintained in paper form;
currently paper records "no longer exist and are no longer archived." Id. Starting in January
1982, TECS "began capturing traveler arrivals and departures into and out of the United States."
Id.CBP staff determined that "TECS is the only CBP system that would reasonably be
expected to contain the requested arrival and departure records of Stanley Ann Dunham for the
requested time periods after 1982." Id. In the experience of CBP's declarant, "queries based on
name variations and date of birth would be expected to identify all responsive documents for a
particular individual." Id. ,-r 9. Accordingly, a FOIA Division staff member under the
declarant's supervision "conducted a query in TECS for the time period January 1, 1982 (when
TECS began capturing arrival/departure information) through December 31, 1985, using
variations of the subject's name and date of birth as search terms." Id. That search yielded one
page containing information about Stanley Ann Dunham. Id.Based on his challenge to CBP's search for responsive records, plaintiff believes that
additional records exist but have not been released in order to protect Ms. Dunham's privacy.
See Pl.'s Opp'n,-r,-r 2- 3, May 27, 2011 [Dkt. #54]. He notes that "Stanley Ann
DunhamlObamaiSoetoro died in the 1990's and there could not possibly be a reason that a dead
person could be embarrassed." Id. ,-r 3. Plaintiff attaches copies of "public records available in
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the public domain" for the purpose of showing "that Stanley Ann Dunham Obama before July
1964 was in the Philippines and therefore not only had a passport before 1965 but [also that]
there are records of such travel and that such travel must be made available, notwithstanding the
allegation that such would be a violation of privacy or methods or sources of Customs." Id. ~ 14.
Plaintiff s challenges are without merit.
At no time does CBP's declarant even suggest that information has been withheld in
order to protect the privacy interests of the late Ms. Dunham. In fact, CBP acknowledges that
"Stanley Ann Dunham ... is widely known as a matter of public record to be deceased." Feb. 3,
2009 Letter from Mark Hanson to Plaintiff, Ex. A to Pullo Decl., at 1. Therefore, its decision to
withhold information is not related to concerns for Ms. Dunham's privacy.
Plaintiffs remaining objection stems from his belief that CBP controls additional
responsive records that it refuses to disclose for improper purposes, such as "covering-up for the
Usurper presently in the White House." Pl.'s Opp'n ~ 4. "[S]peculation as to the existence of
additional records ... does not render the searches inadequate." Concepcion v. FBI, 606 F.
Supp. 2d 14,30 (D.D.C. 2009). Even if the records plaintiff seeks do exist, he provides no
support for the proposition that they are maintained in the TECS database or that CBP controls
them. See Accuracy in Media, Inc. v. Nat 'I Transp. Safety Bd., No. 03-00024, 2006 WL 826070,
at *8 (D.D.C. Mar. 29,2006) (finding that plaintiffs production of parts of unproduced
documents, suggesting the existence of responsive documents, "does not mean that [the
responsive documents] exist now or that the agency has possession of them"). Without such
support, plaintiff can neither overcome the presumption of good faith afforded to agency
declarations, see SafeCard Servs., Inc., 926 F.2d at 1200 (noting the substantial weight
traditionally accorded to agency affidavits in FOIA cases), nor undermine CBP's showing as to
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the reasonableness of its search, see Baker & Hostetler LLP v. Us. Dep 't oJ Commerce , 473
F.3d 312, 318 (D.C. Cir. 2006) (finding the plaintiffs "assertion that an adequate search would
have yielded more documents is mere speculation" and affirming the district court's decision that
the agency's search procedure was "reasonably calculated to generate responsive documents");
Media Research Ctr. v. Us. Dep't ojJustice, Nos. 10-2013 & 11-0426,2011 WL 4852224, at *4
(D.D.C. Oct. 13,2011) (rejecting plaintiffs' contention "that the search was inadequate because
certain documents they believe must have been created have not been produced" as "conjecture"
deemed "insufficient to justify a finding that the search was inadequate").
The Court concludes that CBP's search for records responsive to plaintiffs FOIA request
was reasonably calculated to locate responsive records.
C. Exemptions
1. Exemption 63
Exemption 6 protects "personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C.
§ 552(b)(6). The phrase "personnel and medical files and similar files" is interpreted broadly,
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006), and the decision to withhold
information does not "turn upon the label of the file which contains the damaging information,"
Us. Dep 't oJState v. Wash. Post Co., 456 U.S. 595, 601 (1982). Nor is the term "files"
interpreted literally. "[B]its of personal information, such as names and addresses, the release of
3
CBP relies on Exemptions 2,6 and 7(C) to protect "a string of characters that identifies a
terminal user ID which is generally assigned to a single person or system user." Pullo Dec!.
~ 15. Because the Court determines that CBP properly withheld this information under
Exemption 6, it need not consider the application of the other exemptions. See Roth v. Us.
Dep't ojJustice, 642 F.3d 1161, 1173 (D.C. Cir. 2011); Simon v. Dep't ojJustice, 980 F.2d 782,
784-85 (D.C. Cir. 1992).
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which would create a palpable threat to privacy[,]" may be protected under Exemption 6.
Judicial Watch, Inc., 449 F.3d at 152 (quoting Carter v. Us. Dep't a/Commerce, 830 F.2d 388,
391 (D.C. Cir. 1987)) (brackets and internal quotation marks omitted).
The information withheld in this case "contains unique characters constituting a terminal
user ID which is generally assigned to a single person or system user," and disclosure of this
information, the declarant asserts, "could be used to identify the specific Agency
employee/TECS user accessing that record." Pullo Decl. ~ 20. Insofar as the information
"relates to or identifies specific personnel within the Agency," CBP withholds it in order to
protect "the privacy interests of the individual." Id.The Court's first step in analyzing an exemption is to "determine whether [ ] disclosure
would compromise a substantial, as opposed to a de minimis, privacy interest." Nat 'I Ass 'n 0/
Retired Fed Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989). Exemption 6 is "intended to
cover detailed Government records on an individual which can be identified as applying to that
individual." Wash. Post Co., 456 U.S. at 602 (internal quotation marks and citation omitted).
"Even seemingly innocuous information can be enough to trigger the protections of
Exemption 6." Horowitz v. Peace Corps, 428 F.3d 271, 279 (D.C. Cir. 2005). The information
need not be "embarrassing or of an intimate nature." Horner, 879 F.2d at 875. In these
circumstances, the Court finds that the TECS user has a privacy interest in the withheld
information.
The Court next considers whether the public interest in the disclosure of the redacted
information outweighs the TECS user's personal privacy interest. See Ripskis v. Dep't of Hous.
& Urban Dev., 746 F.2d 1, 3 (D.C. Cir. 1984) (per curiam). "Exemption 6 requires "a balancing
of the individual's right of privacy against the preservation of the basic purpose of the Freedom
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oflnformation Act to open agency action to the light of public scrutiny." Dep't of the Air Force
v. Rose, 425 U.S. 352, 372 (1976) (internal quotation marks and citation omitted). The only
relevant public interest in disclosure is the extent to which disclosure would serve the core
purpose of [] FOIA, which is contribut[ing] significantly to public understanding of the
operations or activities of the government." Consumers' Checkbook Ctr. for the Study ofServs.
v. Us. Dep 't of Health & Human Servs., 554 F.3d 1046, 1052 (D.C. Cir. 2009) (internal
quotation marks and citation omitted). CBP argues that "[r]evealing the information would do
nothing to shed light on the operations of government," but would pose a substantial "risk of
harassment of the employee associated with the information," and therefore, withholding the
information is warranted. Def. 's Mot. for Summ. J. at 12. Plaintiff articulates no public interest,
significant or otherwise, to show that the public interest outweighs the privacy interest at stake.
See Taitz v. Astrue, No. 11-402,2011 WL 3805741, at *4 (D.D.C. Aug. 30, 2011) (finding that
the Social Security Administration properly redacted information under Exemption 6 from
application forms for social security cards because "[d]isclosure of the requested [forms] would
implicate a substantial privacy interest while serving no public interest cognizable under FOIA");
see also Horner, 879 F.2d at 879 ("[S]omething, even a modest privacy interest, outweighs
nothing every time."). The Court concludes that no public interest is served by disclosure of the
unique characters constituting a terminal user ID, and therefore, the terminal user ID is properly
withheld under Exemption 6.
2. Exemption 7(E)
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. 5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). CBP
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withheld information which purportedly "would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law." 5 U.S.C. § 552(b)(7)(E).
According to CBP's declarant, the information withheld under Exemption 7(E) "consists
of inspection for entry activities and dispositions" and "contains computer screen transaction
codes." Vaughn Index, Ex. B to Pullo Dec!., at 2. The declarant further explains:
Generally, such information may include examination and
inspection procedures, internal reporting requirements, names of
specific law enforcement databases used in a particular context,
names of specific database modules searched in a particular
context, procedures related to internal coordination, information
which would reveal the strengths or weaknesses of certain law
enforcement methods, information which would reveal the scope
and focus of certain law enforcement techniques, particular types
of secondary inspection, clearance or authorization procedures,
names of specific equipment or capabilities used, external
coordination procedures, internal coordination procedures and
step-by-step instructions on how to process certain information
Pullo Dec!. ~ 25. Release of this information, the declarant avers, "would permit potential
violators ... to develop countermeasures to evade detection, inspection and examination
methods," and "would divulge to the Plaintiff the examination and inspection procedures,
internal reporting requirements and instructions on how to process international travelers and
goods seeking admission or entry into the United States, the very information that CBP seeks to
protect." Id.D.C. Circuit precedent "sets a relatively low bar for the agency to justify withholding"
information under Exemption 7(E). Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). The
exemption allows for withholding information "not just for circumvention of the law, but for a
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risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected
risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk;
and not just for certitude of a reasonably expected risk, but for the chance of a reasonably
expected risk." Id. (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009)).
CBP does not meet even this low standard. It withholds "law enforcement techniques,
procedures and guidelines," which "may include" several items listed in the declaration, Pullo
Decl. ~ 25, but FOIA demands "a relatively detailed justification, specifically identifying the
reasons why a particular exemption is relevant and correlating those claims with the particular
part of a withheld document to which they apply." Mead Data Cent., Inc. v. Us. Dep't of the
Air Force, 566 F.2d 242,251 (D.C. Cir. 1977). CBP's submissions offer too little detail to allow
this Court to undertake a meaningful assessment of the redacted material.
III. CONCLUSION
For the reasons discussed above, the Court finds that CBP conducted an adequate and
reasonable search for records responsive to plaintiffs FOIA request for information pertaining to
Stanley Ann Dunham and that it properly withheld information under Exemption 6. However,
CBP has not demonstrated that it properly withheld information under Exemption 7(E).
Accordingly, Defendant's Motion for Summary Judgment is granted, in part, and denied, in part,
without prejudice. An Order accompanies this Memorandum Opinion.
RICHARD J. LEON
United States District Judge
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