['GILMAN v. U.S. DEPARTMENT OF HOMELAND SECURITY'] , 32 F. Supp. 3d 1 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DENISE GILMAN,
Plaintiff,
v. Civil Action No. 09-0468 (BAH)
Judge Beryl A. Howell
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.
MEMORANDUM OPINION
The plaintiff, Denise Gilman, brings this case under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, seeking release of certain U.S. Customs and Border Protection
(“CBP”) records concerning the construction of a fence on the Texas-Mexico border. Pending
before the Court are the parties’ cross-motions for summary judgment regarding CBP’s
production of email records in response to the plaintiff’s FOIA request, which response withheld
landowner names and addresses, under FOIA Exemption 6, and information related to CBP’s
assessments of the need for fencing, under FOIA Exemption 7(E), and excluded email
attachments from the records produced to the plaintiff.1 For the reasons explained below, CBP’s
motion is granted in part, with respect to portions of records withheld pursuant to FOIA
Exemption 7(E) and the exclusion of email attachments from production to the plaintiff, and
denied in part, as to its redaction of landowner names and addresses pursuant to FOIA
1
The plaintiff has also named as defendants the Army Corps of Engineers (“ACE”) and the Department of
Homeland Security (“DHS”), but has settled her claims with defendant ACE, which was dismissed as a party. See
Stip. Settlement Order Dismissal of ACE, ECF No. 24; see also Def.’s Mem. Supp. Def. CBP’s Mot. Summ. J.
Email Recs. (“Def.’s Mem.”) at 3. Although both DHS and CBP remain parties to the action, after DHS referred the
request to CBP, see July 23, 2009, Joint Status Report (“7/23/09 JSR”) at 3, the parties agree that DHS is only
“nominally a defendant . . . [but] has no further involvement in this action.” Def.’s Mem. at 3; Pl.’s Mem. Opp’n
Def.’s Mot. Summ. J. Email Recs. Supp. Pl.’s Mot. (“Pl.’s Mem.”) at 4, ECF No. 35. Consequently, “only CBP
records remain at issue.” Pl.’s Mem.
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Exemption 6, and the plaintiff’s motion is granted in part with respect to the redaction of
landowner names and addresses under FOIA Exemption 6 and is otherwise denied.2
I. BACKGROUND
A. The Texas-Mexico Border Fence
In 2006, Congress passed the Secure Fence Act, ordering “construction of a fence or wall
along specific portions of the U.S.-Mexico border, including areas in Texas.” See Complaint
(“Compl.”) ¶ 5, ECF No. 1 (citing Secure Fence Act, Pub. L. No. 109-367, § 3, 120 Stat. 2638(2006)). The Act was later amended to mandate “reinforced fencing along not less than 700
miles of the southwest border” and charged the Secretary of Homeland Security with completing
370 miles of the reinforced fencing by the end of 2008. Consolidated Appropriations Act, FY
2008, Pub. L. No. 110-161, § 564, 121 Stat. 1844, 2090–91 (2007). The precise location of the
fence, however, was left to the U.S. Department of Homeland Security (“DHS”) to determine
“where fencing would be most practical and effective,” provided that DHS consult with, inter
alia, “states, local governments, Indian tribes, and property owners . . . to minimize the impact”
on those living near the site of the future fence. Id.B. FOIA Requests
The plaintiff is a clinical professor at the University of Texas School of Law. Decl.
Denise Gilman (“Gilman Decl.”) ¶ 1, ECF No. 35-1. In late 2007, the plaintiff spearheaded a
working group that focused on the human rights impact of the border fence by “conduct[ing]
research and analysis of the legal, historical, property, environmental, indigenous, community,
and other impacts of the border wall.” Id. ¶ 4–5. As part of that effort, the plaintiff submitted
several FOIA requests to the CBP, DHS, and the U.S. Army Corps of Engineers (“ACE”). See
2
As of November 12, 2013, defendant CBP had completed production of all email and non-email records that it
believed were responsive to the plaintiff’s request, and no challenge has been raised to the agency’s search. See
Nov. 12, 2013 Joint Status Report at 1–2, ECF No. 48; Def.’s Mem. at 1.
2
Def.’s Mem. Supp. Def. CBP’s Mot. Summ. J. Email Recs. (“Def.’s Mem.”) at 3, ECF No. 32.
The plaintiff’s request to CBP asked for: (1) “Maps of possible locations for segments of fence
or wall along the Texas/Mexico border;” (2) “files including geographic coordinates . . . for
surveyed points along potential routes for segments of fence or wall along the Texas/Mexico
border;” (3) “Documents identifying the properties possibly affected by the construction of the
border fence or wall along the Texas/Mexico border, including documents that provide
information regarding the ownership of the possibly affected properties and any other
information about the characteristics of those properties;” (4) “Documents identifying the
properties for which the United States government has sought to obtain access through
consent/waiver or through litigation;” (5) “Documents reflecting appraisals of properties possibly
affected by the construction of the border fence or wall along the Texas/Mexico border;” (6)
“Documents reflecting surveys or other analyses of the areas possibly affected by the border
fence or wall along the Texas/Mexico border;” (7) “Documents that describe the considerations
or factors taken into account in making decisions regarding potential routes for segments of
fence or wall along the Texas/Mexico border;” (8) “Communications received from, provided to
or referenced by the Department of Homeland Security that make recommendations or
suggestions regarding the route for segments of fence or wall along the . . . Texas/Mexico
Border;” and (9) “Documents relating to potential or actual contracts for the execution of land
surveys or construction of segments of fence or wall along the Texas/Mexico border.” Gilman
Decl. Ex. 2 at 18–19 (Plaintiff’s FOIA request to CBP dated April 11, 2008). Near-identical
requests were also sent to DHS and ACE. See Compl. ¶ 6.
DHS informed the plaintiff by letter that it referred her request to CBP “as the component
of DHS likely to possess the records requested.” See July 23, 2009, Joint Status Report
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(“7/23/09 JSR”) at 3, ECF No. 6. Before the plaintiff filed suit, she received from CBP two
records, from ACE, 69 pages of records, and from DHS, no records. See Gilman Decl. ¶ 10;
Pl.’s Mot. Summ. J. (“Pl.’s Mem.”) at 4, ECF No. 35.
C. FOIA LITIGATION
The plaintiff filed the instant action to compel the disclosure of responsive records, but
subsequently agreed with CBP to bifurcate the email production and non-email production of
records. See 7/23/09 JSR at 2–3; see also July 27, 2009 Scheduling Order (“7/27/09 Sched.
Order”) ¶¶ 1–3, ECF No. 7. The parties submitted a joint status report informing the Court that
“in the interest of expediting the release of e-mails to Plaintiff,” CBP could “satisfy Plaintiff’s
FOIA request with respect to the processing of e-mails by providing to Plaintiff the e-mails as
released in Crew v. DHS pursuant to the search described in the Joint Status Report and Proposed
Disclosure Schedule . . . in that case.” See 7/23/09 JSR at 3 (citing Citizens for Responsibility &
Ethics in Wash. v. U.S. Dep’t of Homeland Sec. (“CREW”), No. 08-1046 (D.D.C. filed June 18,
2008)). The parties further explained that CREW involved a search for emails “of the 25 CBP
officials most directly involved in the border fence placement division” and was scheduled to
produce “1,000 pages of e-mails per month” until there were no remaining responsive records.
Id. at 2–3. This was a “broader” search for records than that which the plaintiff had requested
because the plaintiff in CREW sought records “for the entire Southwest border of the United
States instead of just the Texas-Mexico border.” Def.’s Mem. at 4–5. CBP was already
processing email records in CREW, id. at 4, and the arrangement meant CBP “would not have to
expend its limited resources to search for, retrieve and process email records in response to
Plaintiff’s FOIA request,” id. at 5, and “allowed Plaintiff to receive email records more
expeditiously than she otherwise would,” id. at 4. CBP agreed to release to the plaintiff “all e-
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mails already released in CREW v. DHS” and to continue to provide the plaintiff with “further e-
mails as they are released on a rolling basis in that case.” 7/23/09 JSR at 3. The Court
subsequently entered an order stating that “CBP will release to Plaintiff all email records already
released in [CREW], and, going forward, CBP will release to Plaintiff on a rolling basis all e-
mail records released in [CREW], on the same schedule as they are released in that case.”
7/27/09 Sched. Order ¶ 2.
Two years after the plaintiff filed suit, CBP “completed or was near completion” of its
production of records in both the CREW litigation and the instant case. Gilman Decl. ¶ 12. CBP
was ordered to produce any remaining responsive email records to the plaintiff within a month,
see March 28, 2011 Order, ECF No. 27, and the plaintiff was ordered to raise any disputes with
the claimed exemptions within 60 days. Id.; see also June 27, 2011 Joint Status Report
(“6/27/2011 JSR”), ECF No. 28. In total, CBP “made 15 productions of email records . . .
representing all emails produced in the CREW v. DHS case.” Id. at 2 n.1. The plaintiff
“identified for CBP the 289 emails with redactions and/or withholdings she is challenging,” Pl.’s
Mot. Summ. J. (“Pl.’s Mem.”) at 5, and CBP agreed to conduct a further review of the
challenged records, 6/27/11 JSR at 3. The parties were aware when the 6/27/11 JSR was filed
that the plaintiff challenged “the fact that attachments were not part of the email production.” Id.CBP explained that it would satisfy its obligation to the plaintiff by releasing to her emails which
were identical to those released in CREW, “and, therefore, to the extent attachments were not
included in the email release made in CREW v. DHS, they were not provided to Plaintiff.” Id.This was contrary to the plaintiff’s understanding that, to the extent the CBP withheld portions of
emails, the plaintiff would still be able to challenge those redactions. Id. In the plaintiff’s view,
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CBP’s non-production of attachments to responsive emails was a withholding without any
applicable exemption that must therefore be disclosed. Id.The plaintiff has substantially narrowed her challenges to CBP’s production of
responsive records. See Pl.’s Reply Def.’s Opp. Pl.’s Mot. Summ. J. Re. Email Discl. (“Pl.’s
Reply”) at 1, ECF No. 42. The plaintiff has expressly stated that she no longer challenges (1)
“CBP’s redaction of emails under Exemption 5,” Pl.’s Reply at 1; (2) the “Exemption 7(E)
redactions on” Record 24 listed in the Vaughn index, id.; (3) the “withholding of the phone
numbers or email addresses of landowners” or the withholding of names and contact information
of “CBP employees or of individual employees of contractors,” Pl.’s Mem. at 5; and (4) the
withholding of email attachments beyond those attached to the “289 emails at issue in these
cross-motions,” id. at 25. Due to the plaintiff’s decision not to challenge these withholdings,
summary judgment is granted to CBP as to those issues. The reasons for the plaintiff’s
remaining challenges are discussed below.
II. LEGAL STANDARD
Congress enacted the FOIA to promote transparency across the government. See 5
U.S.C. § 552; Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984). The Supreme Court has explained
that the FOIA is “a means for citizens to know ‘what their Government is up to.’ This phrase
should not be dismissed as a convenient formalism. It defines a structural necessity in a real
democracy.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171–72 (2004) (citation
and internal quotation marks omitted). “The basic purpose of FOIA is to ensure an informed
citizenry, vital to the functioning of a democratic society, needed to check against corruption and
to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437
U.S. 214, 242 (1978); see also SEC v. Am. Int’l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013) (“The
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public has a fundamental interest in ‘keeping a watchful eye on the workings of public
agencies.’” (quoting Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 905 (D.C.
Cir.1996))). As a result, the FOIA requires federal agencies to release all nonexempt records
responsive to a request. See 5 U.S.C. § 552(a)(3)(A).
To protect “legitimate governmental and private interests [that] could be harmed by
release of certain types of information,” United Techs. Corp. v. U.S. Dep’t of Def., 601 F.3d 557,
559 (D.C. Cir. 2010) (internal quotation marks omitted), Congress included nine exemptions
permitting agencies to withhold information from FOIA disclosure. See 5 U.S.C. § 552(b).
“These exemptions are explicitly made exclusive, and must be narrowly construed.” Milner v.
U.S. Dep’t of the Navy, 131 S.Ct. 1259, 1262 (2011) (citations and internal quotation marks
omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir.
2010) (“FOIA allows agencies to withhold only those documents that fall under one of nine
specific exemptions, which are construed narrowly in keeping with FOIA’s presumption in favor
of disclosure.”) (citations omitted). Upon exhaustion of administrative remedies, a FOIA
requester may file a civil action challenging an agency’s response to its request. See 5 U.S.C. §
552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Once such an action is filed,
the agency generally has the burden of demonstrating that its response to the plaintiff's FOIA
request was appropriate. See id. at 678. Federal courts are authorized under the FOIA “to enjoin
the agency from withholding agency records and to order the production of any agency records
improperly withheld from the complainant.” Id. § 552(a)(4)(B).
It is typically appropriate to resolve FOIA cases on summary judgment. See Brayton v.
Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011) (“the vast majority of FOIA
cases can be resolved on summary judgment”). When an agency’s response to a FOIA request is
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to withhold responsive records, either in whole or in part, the agency “bears the burden of
proving the applicability of claimed exemptions.” Am. Civil Liberties Union v. U.S. Dep’t of
Def. (“ACLU/DOD ”), 628 F.3d 612, 619 (D.C. Cir. 2011). The agency may sustain its burden
of establishing that requested records were appropriately withheld through the submission of
declarations detailing the reason that a FOIA exemption applies, along with an index, as
necessary, describing the materials withheld. See, e.g., id. at 619; Students Against Genocide v.
U.S. Dep’t of State, 257 F.3d 828, 840 (D.C. Cir. 2001); Vaughn v. Rosen, 484 F.2d 820, 827–28
(D.C. Cir. 1973). “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.” ACLU/DOD, 628 F.3d at 619. As the D.C. Circuit recently explained, in FOIA cases
“‘[s]ummary judgment may be granted on the basis of agency affidavits if they contain
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.’”
Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer
Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006) and Gallant v. NLRB,
26 F.3d 168, 171 (D.C. Cir. 1994)). While the burden remains on the moving party to
demonstrate that there is an “absence of a genuine issue of material fact” in dispute, Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986), in FOIA cases, “an agency’s justification for
invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” ACLU/DOD, 628
F.3d at 619 (quoting Larson v. U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
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III. DISCUSSION
The plaintiff contends that CBP: (1) improperly redacted “the names and addresses of
landowners who would potentially be affected by the border wall,” under FOIA Exemption 6; (2)
improperly redacted “records containing an assessment of the need for fencing in certain areas,”
under FOIA Exemption 7(E); and (3) improperly withheld email attachments pursuant to no
specific FOIA exemption. Pl.’s Reply at 1. The plaintiff’s challenges are addressed seriatim
below.
A. FOIA Exemption 6
The plaintiff challenges CBP’s withholding, under Exemption 6, of the names and
addresses of private citizen landowners that are referenced in emails to and from CBP
employees.3 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 information in the file ‘need not be intimate’ for the file to satisfy the standard,
and the threshold for determining whether information applies to a particular individual is
minimal.” Milton v. U.S. Dep’t of Justice, 783 F. Supp. 2d 55, 58 (D.D.C. 2011) (quoting N.Y.
Times Co. v. Nat’l Aeronautics & Space Admin., 920 F.2d 1002, 1006 (D.C. Cir. 1990) (en
banc)). Once this threshold determination is met, the Court next inquires whether disclosure
“would compromise a substantial, as opposed to de minimis, privacy interest,” because FOIA
demands disclosure “[i]f no significant privacy interest is implicated.” See Multi Ag Media LLC
v. U.S. Dep’t of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008) (citing Nat’l Ass’n of Retired Fed.
Emps. v. Horner (“Horner”), 879 F.2d 873, 874 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078(1990)). The standard “means less than it might seem,” as a substantial privacy interest is
3
At issue is the withholding of names and addresses of private citizen landowners, not commercial landowners,
individuals who were points of contact for commercial entities, or employees of the CBP. See Supplemental Decl.
of David E. Wade (“Suppl. Wade Decl.”) ¶ 15 & n.1.
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“anything greater than a de minimis privacy interest.” Id. at 1229–30. If there is a substantial
privacy interest in the information, the Court employs a balancing test to determine whether
release of such information constitutes a clearly unwarranted invasion of personal privacy,
Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 260 (D.C. Cir. 1982);
U.S. Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976); see also U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989), by weighing “the privacy
interest that would be compromised by disclosure against any public interest in the requested
information.” Multi Ag Media LLC, 515 F.3d at 1228. “Exemption 6’s requirement that
disclosure be ‘clearly unwarranted’ instructs us to ‘tilt the balance (of disclosure interests against
privacy interest) in favor of disclosure.’” Morley, 508 F.3d 1108, 1127 (D.C. Cir. 2007) (quoting
Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d at 261).
As a threshold matter, the Court must determine whether the withheld information
constitutes “similar files” to “personnel and medical files” that are subject to exemption 6. 5
U.S.C. § 552(b)(6). “The terms [sic] ‘similar files’ is construed broadly and ‘is intended to cover
detailed Government records on an individual which can be identified as applying to that
individual.’” Gov’t Accountability Project, 699 F. Supp. 2d at 105–06 (quoting U.S. Dep’t of
State v. Wash. Post Co., 456 U.S. 595, 602 (1982)). Courts look to the “nature of the
information at issue,” not necessarily “the nature of the files.” See Skybridge Spectrum Found. v.
FCC, 842 F. Supp. 2d 65, 83 (D.D.C. 2012) (quoting N.Y. Times Co. v. Nat’l Aeronautics &
Space Admin., 920 F.2d at 1006 (quotation marks omitted)); see also Judicial Watch, Inc. v.
FDA, 449 F.3d 141, 152–53 (D.C. Cir. 2006) (“similar files” encompasses “not just files, but
also bits of personal information, such as names and addresses, the release of which would
‘create[] a palpable threat to privacy.’”) (quoting Carter v. U.S. Dep’t of Commerce, 830 F.2d
10388, 391 (D.C. Cir. 1987)). The plaintiff does not dispute that the requested information is a
“similar file,” see Pl.’s Mem. at 7–12, and because the names and addresses of landowners are
“bits of personal information,” Judicial Watch, 449 F.3d at 152, that “applies to [] particular
individual[s],” see Wash. Post Co., 690 F.2d at 260, Exemption 6 may be triggered. The Court
must next examine whether the requested information implicates a substantial privacy interest
and, if so, whether release of the information would be “clearly unwarranted” in view of the
public interest, if any, in the requested documents.
1. A Substantial Privacy Interest Exists In The Withheld Name And Address
Information
In construing Exemption 6, the D.C. Circuit has held that “the disclosure of names and
addresses is not inherently and always a significant threat to the privacy of those listed; whether
it is a significant or a de minimis threat depends upon the characteristic(s) revealed by virtue of
being on the particular list, and the consequences likely to ensue.” Horner, 879 F.2d at 877; see
also United States Dep’t of State v. Ray, 502 U.S. 164, 176 n.12 (1991) (noting that disclosure of
a list of names and other identifying information is not “inherently and always a significant
threat to the privacy of the individuals on the list.”). “In the context of an individual residence,
the court has recognized that ‘the privacy interest of an individual in avoiding the unlimited
disclosure of his or her name and address is significant.’” Nat’l Ass’n of Home Builders v.
Norton (“Norton”), 309 F.3d 26, 35 (D.C. Cir. 2002) (quoting Horner, 879 F.2d at 875); see also
Skybridge Spectrum Found., 842 F. Supp. 2d at 84 (same). CBP supports its position that there
are substantial privacy interests in the names and addresses of private citizens referenced in the
289 challenged emails for three reasons.
First, CBP asserts that there is a “potential [for] unwanted contact that might ensue from
such a disclosure,” and this risk creates a heightened privacy interest. Def.’s Combined Reply
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Supp. Mot. Summ. J. Re Email Records & Opp’n Pl.’s Cross-Mot. Summ. J. (“Def.’s Reply”) at
3, 7, ECF No. 40. According to the CBP, the unwanted contact to which the landowners could
be exposed may come from “the media, other members of the public, including other landowners
involved in a similar process, and potential harassment.” Supplemental Decl. of David E. Wade
(“Suppl. Wade Decl.”) ¶ 15; see also Def.’s Reply at 3 (explaining that disclosure would risk
exposing landowners to unwanted media attention because the border fence “touched a nerve
among many groups.”). CBP is correct that “a justified and articulable risk of media
harassment” implicates a substantial privacy interest. Judicial Watch, Inc. v. U.S. Dep’t of State,
875 F. Supp. 2d 37, 47 (D.D.C. 2012) (citing Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland
Sec., 384 F. Supp. 2d 100, 118 (D.D.C. 2005) (withholding of employee names upheld where
media scrutiny and harassment were likely)). Given that the plaintiff herself admits that the
construction of the wall received “significant public interest and attention,” and “extensive
coverage . . . in the national, international and state and local press,” see Gilman Decl. ¶ 6 (citing
articles), there is sufficient evidence to support CBP’s claim that disclosure may expose the
landowners to unwanted contact from the media. See Judicial Watch, Inc., 875 F. Supp. 2d at 47
(court found government employees had a substantial privacy interest in withholding names from
emails discussing a meeting on the Keystone Alaska pipeline because it could lead to “possible
harassment and undesired contact by media.”).
Second, CBP argues that disclosure implicates a substantial privacy interest because the
email threads discussing the landowners also discuss details of “specific negotiations between
landowners and the government, sometimes including a discussion of the particular terms a
landowner was willing to accept to permit access or purchase,” Suppl. Wade Decl. ¶ 15, or
whether “land was subject to pending condemnations for right of entry.” Def.’s Reply at 4, 8.
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CBP contends that disclosure of the names would, in many instances, provide information about
the landowners’ discussions with the CBP about their valuation of the use or sale of their land.
Def.’s Reply at 3; see, e.g., Suppl. Wade Decl. Ex. 1 at 18 (email dated November 26, 2007,
recounting one landowner’s extended negotiations with CBP officials seeking $10,000 and a
fence structure agreement); Suppl. Wade Decl. at 22 (email dated November 21, 2007, stating
that a landowner “is agreeable to allowing us to complete our survey . . . [and] is very pleased
with the progress thus far and looks forward to working together, but he does have some requests
(fence type)”); id. at 16 (email dated December 6, 2007, commenting that “[name redacted] is
not going to relent . . . [and] is absolutely sure that he has the upper hand” and wants “money and
a fence structure agreement from” CBP). This information, if disclosed, would “allow for an
inference to be drawn about the financial situation of an individual,” see Multi Ag Media LLC,
515 F.3d at 1230, which creates an amplified privacy interest in the names and addresses. See
Horner, 879 F.2d at 876–77; Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of
Health & Human Servs., 554 F.3d 1046, 1050 (D.C. Cir. 2009) (recognizing that the D.C. Circuit
has “consistently held that an individual has a substantial privacy interest under FOIA in his
financial information, including income”); Jurewicz v. U.S. Dep’t of Agric., 741 F.3d 1326, 1332
(D.C. Cir. 2014) (affirming district court’s finding that there is a “non-negligible, limited privacy
interest” in information related to dog breeders’ gross sales under Exemption 6 privacy interest
analysis); Multi Ag Media LLC, 515 F.3d at 1230 (finding a substantial privacy interest in
disclosure of a farm’s reported acreage and the “number and width of rows of tobacco” because
it “‘may provide a snapshot’ of a farm’s financial circumstances and ‘shed[] light on the
financial condition of the farmer’”) (citation omitted).
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Third, CBP contends that the names implicate a substantial privacy interest because the
names are referenced as part of discussions between CBP employees that reveal the landowners’
personal relationships and “specific statements” that the landowners have made regarding their
views about the border fence. See Suppl. Wade Decl. ¶ 15; Def.’s Mem. at 8; see, e.g.,
Supplemental Gilman Decl. (“Suppl. Gilman Decl.”) Ex. E at 16 (email dated February 25, 2008,
stated that “[redacted name] admitted that he could not see the controversy after looking into the
maps available on the internet”); Gilman Decl. Ex. 4 at 30 (email dated April 30, 2007, that
references area along the proposed fence “belong[ing] to one owner [name redacted] who is a
friend of the President and a staunch supporter of the Border Patrol . . . [but] is adamantly
opposed to the fence concept”).
The plaintiff responds that there is no substantial privacy interest because “the main
information that would be revealed” would be “that the named people owned land that was
potentially going to be affected by the building of the border wall.” Pl.’s Mem. at 8; see, e.g.,
Suppl. Wade Decl. Ex. 1 at 17 (email dated November 26, 2007, in which CBP employee asks,
“[w]ill [name redacted] sell the property needed for the fence alignment as well as the ROE for
survey?”). She contends that other emails with redactions only reference names with respect to
information that is already publicly disclosed. Pl.’s Mem. at 8; see, e.g., Suppl. Gilman Decl.
Ex. B at 8 (email dated February 4, 2008, referencing a news article that is attached in the email
about a lawsuit filed by “the Mennonite Brethren Church and private landowner [name
redacted]”). Other emails mention names as a shorthand way to identify property. Pl.’s Mem. at
8 (citing Gilman Decl. Ex. 5 at 34 (email dated February 26, 2008, stating that “[w]e actually just
drove by [name redacted] house on segment O-15”); id. Ex. 6 at 37 (email dated February 1,
2008, stating that CBP was granted possession to investigate a list of properties that are all
14
identified by redacted names)); see also Suppl. Gilman Decl. Ex. E at 19 (email dated February
22, 2008, referring to “property owned by the [name redacted]”).
The Court agrees with the CBP. Contrary to the plaintiff’s claims, the information at
issue here comprises more than just publicly available names and addresses. Notably, even if
these names and addresses were publicly available, a finding of a substantial privacy interest
would not be precluded. See Am. Civil Liberties Union v. U.S. Dep’t of Justice (“ACLU”), 655
F.3d 1, 12 (D.C. Cir. 2011) (finding a minimal but “more than a de minimis” privacy interest in
docket numbers and names of defendants when information was “already publicly available and
readily accessible” and disclosure would “simply provide one more place in which a
computerized search will find the same person’s name and conviction”). In any event, the
context in which these names appear in the CBP emails is not publicly accessible information,
which creates a heightened privacy interest. Indeed, some of the names and addresses are part of
discussions revealing, at least to a limited extent, the property owner’s financial information,
opinions, or the substance of their conversations with the CBP. See Suppl. Wade Decl. Ex. 1;
see also Def.’s Mem. at 4, 8. Cf. Columbia Riverkeeper v. Fed. Energy Regulatory Comm’n, 650
F. Supp. 2d 1121, 1129 (D. Or. 2009) (finding that agency failed to establish sufficient privacy
interest in mailing list of landowners on the path of proposed pipeline in part because “the names
and addresses themselves [did not] reveal private decisions of those individuals” and agency had
released names on similar lists in the past). In this case, because CBP has demonstrated that
disclosure would create “a justified and articulable risk of media harassment” for all the
landowners, Judicial Watch, Inc., 875 F. Supp. 2d at 47, and that disclosure would reveal
financial information, or opinions and views of some landowners, there is a more than de
minimis privacy interest. As noted, the standard for demonstrating a substantial privacy interest
15
is not a high one, see Horner, 879 F.2d at 874 (substantial privacy interest is anything greater
than de minimis), and CBP has demonstrated that the privacy interest is more than de minimis.
2. The Public Interest Outweighs The Private Interest
“The public interest to be weighed against the privacy interest in this balancing test is
‘the extent to which disclosure would serve the ‘core purposes of the FOIA’” by “‘contribut[ing]
significantly to public understanding of the operations or activities of the government.’” Norton,
309 F.3d at 33–34 (citing U.S. Dep’t of Def. v. Fed. Labor Relations Authority (“Dep’t of Def.”),
510 U.S. 487, 495 (1994)). In making the requisite balancing analysis here, the Court finds that
CBP has failed to demonstrate that the public interest outweighs the landowners’ privacy
interest.
The plaintiff claims that the public interest is “significant” because it will “help the public
understand the actual dimensions and location of the wall” as well as “allow the public to
analyze whether the government was treating property owners equally and fairly” or whether
CBP built the wall in such a way that it disadvantaged “minority property owners.” Pl.’s Mem.
at 10–11; see also Pl.’s Reply at 6 (“[T]he public has a significant interest in understanding
which properties were affected by the placement of the wall, and how those property owners
were affected.”). CBP responds that the public interest in the disclosure of landowner names and
addresses is “sharply limited,” Def.’s Mem. at 15, because “the names and contact information
for these individuals does not shed light on CBP’s operations or activities.” Def.’s Mem. at 17.
CBP adds that information on the personal impact of the wall on individual landowners’ families
is not a matter of public concern “but a personal issue unique to the particular landowner.”
Def.’s Reply at 9. Notwithstanding the fact that disclosure of the names the plaintiff seeks will,
at least in some instances, reveal information about the landowners’ personal opinions and
16
negotiations with the government, the plaintiff is correct that, on balance, the public interest
outweighs the landowners’ privacy interest.
CBP fails adequately to consider the extent to which the release of the landowners’
names in the aggregate will further public understanding. It cites several cases for support, all of
which are inapposite. CBP relies on U.S. Department of Justice v. Reporters Committee for
Freedom of the Press, 489 U.S. 749, 775 (1989), to support its contention that “[i]nformation
that does not directly reveal the operation or activities of the federal government ‘falls outside
the ambit of the public interest that the FOIA was enacted to serve.’” Def.’s Mem. at 15–16.
More precisely, the Supreme Court held that where the request sought only private information
and would reveal no “official information” about a government agency, the invasion of privacy
is” unwarranted. Id. at 780. Reporters Comm. Freedom of the Press, 489 U.S. at 780. Based
upon this holding, CBP makes the unremarkable observation that “even a modest privacy interest
outweighs nothing every time.” Def.’s Mem. at 16 (citing Horner, 879 F.2d at 874–75). This
holding does not, as CBP asserts, foreclose a request that indirectly reveals information about the
operations of a government agency through the disclosure of private information. Contrary to
CBP’s argument, the public interest in this case is significant and does not amount to “nothing.”
Id.The D.C. Circuit’s decision in ACLU, 655 F.3d at 1, is particularly instructive. There, the
Circuit considered the balancing of privacy and public interests under Exemption 7(C), but the
ambit of Exemption 7(C) is relevant to this discussion. Exemption 7(C) is “somewhat broader”
than Exemption 6, Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011) (quoting
Reporters Comm. Freedom of the Press, 489 U.S. at 756), because, although the cognizable harm
under both exemptions is an “unwarranted invasion of personal privacy,” this harm must be
17
“clear[ ]” under Exemption 6, yet it need only be “reasonably [] expected” under Exemption
7(C). See 5 U.S.C. §§ 552(b)(6), 552(b)(7)(C). Consequently, “‘Exemption 7(C) is more
protective of privacy than Exemption 6’ and thus establishes a lower bar for withholding
material.” ACLU, 655 F.3d at 6 (citations omitted). In ACLU, an advocacy organization sought
the disclosure of docket numbers and names of defendants who had been the targets of
warrantless cell phone tracking. Id. at 12. The Circuit found that there was “more than a de
minimis privacy interest,” but not “much more” because the information was already “readily
available to the public,” which “reduces . . . the incursion on privacy resulting from disclosure.”
Id. at 9, 12. The agency argued that despite the minimal private interest, disclosure was not
required because the case names and docket numbers “standing alone generate no public
benefit.” Id. at 15. The Court disagreed, holding that the public benefit was “significant”
because the requested information could be used derivatively in order to “shed light on
government conduct” on “a topic of considerable public interest.” Id. at 12. The information,
when compiled, would “inform [an] ongoing public policy discussion by shedding light on the
scope and effectiveness of cell phone tracking as a law enforcement tool.” Id. at 13. Even under
the more stringent 7(C) privacy protection standard, the Circuit held that this public interest
outweighed the minimal privacy interest of the publicly available information, and ordered
disclosure of the withheld information. Id. at 16.
Similarly here, although the names and addresses of the land owners implicates a stronger
privacy interest than in ACLU because the information reveals more than just publicly available
information, see Part III.A.1., supra, there is great public benefit to learning the social impact of
CBP’s construction of the wall. Revealing the identities of landowners in the wall’s planned
construction site may shed light on, inter alia, the impact on indigenous communities, the
18
disparate impact on lower-income minority communities, and the practices of private
contractors. See Gilman Decl. ¶ 7. The information, after appropriate analysis, could reveal
CBP’s decisionmaking and conduct as it relates to the Texas-Mexico border wall planning and
construction, thus it helps the public “learn something directly about the workings of the
Government.” Horner, 879 F.2d at 879 (emphasis in original). Although the privacy interest in
the requested information is not insubstantial, it does not outweigh the strong public interest in
releasing the names and addresses.
“[W]ith regard to the applicability of Exemption 6 to names and home addresses, federal
courts have differed in their conclusions when employing the private interest/public interest
balancing test.” People for the Am. Way Found. v. Nat’l Park Serv., 503 F. Supp. 2d 284, 304–
05 (D.D.C. 2007). A survey of these cases shows that, on balance, when the disclosed
information would “‘she[d] light on an agency’s performance of its statutory duties’ or otherwise
let citizens know ‘what their government is up to,’” Dep’t of Def., 510 U.S. at 497 (citations
omitted), disclosure is appropriate, even if the Court has recognized a significant privacy interest.
In other words, even when a significant privacy interest is at stake, Exemption 6 “require[s] a
balance tilted emphatically in favor of disclosure.” Stern, 737 F.2d at 91; see also News-Press v.
U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1198 (11th Cir. 2007) (“The federal courts,
including this one, have therefore generally concluded that an agency’s burden under Exemption
6 of showing that disclosure ‘would constitute a clearly unwarranted invasion of personal
privacy’ is an onerous one.”).
In considering disclosure of names and addresses of private citizens when such
information is associated with citizens’ financial information, such as receipt of government
benefits, or the value of property and acreage, courts have scrutinized the precise public interest
19
in the information. Upon articulation by a requester of a legitimate public interest in disclosure
of names and addresses, courts have required disclosure. See Multi Ag Media LLC, 515 F.3d at1232–33 (holding that Farm Service Agency’s database revealing field acreage and ownership of
land was not properly withheld, even though there was a privacy interest in the financial
information, because there was a strong public interest in enabling “the public [to] more easily
determine whether USDA is” monitoring noncompliance); News-Press, 489 F.3d at 1196, 1205(ordering disclosure of street addresses of recipients of FEMA aid because there was “a powerful
public interest” in determining where FEMA distributed “billions of taxpayer dollars” that
outweighed any privacy interest, but no disclosure of recipients’ names because “the names
[were] not necessary to determine the extent of fraud against FEMA”); W. Watersheds Project v.
Bureau of Land Mgmt., CV 09-482-CWD, 2010 WL 3735710, at *10 (D. Idaho Sept. 13, 2010)
(finding that name, address, email, phone number, and other details about grazing permittee’s
permit allotments constituted a “minimal,” but “non-trivial privacy interest,” which was
ultimately outweighed by the public interest in determining whether permits were properly
issued); Columbia Riverkeeper, 650 F. Supp. 2d at 1130 (holding that the public interest in
disclosing mailing list of names and addresses of people on path of proposed pipeline
outweighed any privacy interest in the information because disclosure would help public to
oversee whether agency was complying with public notice mandate). By contrast, where courts
have found no public interest in the release of the information whatsoever, Exemption 6 has been
applied to withhold names and addresses associated with financial information. See Consumers’
Checkbook Ctr. for the Study of Servs., 554 F.3d at 1051 (finding a strong privacy interest “in the
total payments [physicians] receive from Medicare for covered services” that prevented
20
disclosure only because revealing the physicians’ names did “not serve any FOIA-related public
interest”) (emphasis added).
Some of the challenged emails here also reveal the views of private citizens. In
analogous circumstances, courts have required the disclosure of names and addresses in
connection with a private citizen’s statements or views when the private citizen voluntarily
relayed this information to the government and the requester identified a public interest. See
Elec. Frontier Found. v. Office of the Dir. of Nat’l Intelligence, 639 F.3d 876, 887 (9th Cir.
2010) (holding that Exemption 6 did not cover names of corporate lobbyists petitioning the
government on behalf of corporate clients because there “is a clear public interest in the public
knowledge of the methods through which well-connected corporate lobbyists wield their
influence”); People for the Am. Way Found., 503 F. Supp. 2d at 305–06 (finding that agency
improperly withheld under Exemption 6 names and addresses, phone numbers, and email
addresses of citizens “who submitted unsolicited email comments . . . concerning the proposed
change of the video display at the Lincoln Memorial” because there is little privacy interest in
contact information when someone petitions the government and “the public interest in knowing
who” convinced the agency “to change the video outweighs any privacy interest in one’s name”);
Alliance for Wild Rockies v. U.S. Dep’t of Interior, 53 F. Supp. 2d 32, 37 (D.D.C. 1999) (holding
that Exemption 6 did not cover withholding of names and addresses of rulemaking commenters
because there was little privacy interest since information was voluntarily submitted and the
“public has much to learn about defendants’ rulemaking process” including whose comments
“the defendants give greater weight” to).4
4
Consistent with CBP’s observation that disclosure is not warranted when no public interest in the information is
identified, courts have applied Exemption 6 to protect names and addresses associated with a citizen’s views where
they have found no public interest in the disclosure. See, e.g., Gov’t Accountability Project v. U.S. Dep’t of State,
699 F. Supp. 2d 97, 106 (D.D.C. 2010) (finding that names and emails were properly withheld under Exemption 6
21
The outcome of the D.C. Circuit cases the parties rely on only provides further support
that disclosure here is appropriate. Both parties extensively discuss Norton and Horner, which
reach opposite conclusions in their consideration of the balancing of the privacy and public
interests at stake with the disclosure of names and addresses. See Def.’s Reply at 5–7, Pl.’s
Reply at 2–3; see also Horner, 879 F.2d at 874–77; Norton, 309 F.3d at 30. In Norton, the U.S.
Fish and Wildlife Service withheld the addresses of private landowners who had voluntarily
reported pygmy owl sightings due to a fear that “lawless birdwatchers” would trespass on the
landowners’ properties. Norton, 309 F.3d at 30, 34. Although the requester only sought the
addresses of the landowners, id. at 30, the D.C. Circuit still found a substantial privacy interest in
the information because knowledge of an individual address was “only a step from being able to
identify from state records the name of the individual property owner,” id. at 35. Nevertheless,
the Court held that this privacy interest was insufficient to overcome the significant public
interest in reviewing the agency’s use of the information to designate areas as a “critical habitat”
under the Endangered Species Act. Id. at 36.
CBP responds by arguing that the facts at issue are closer to Horner, where the D.C.
Circuit found that the Office of Personnel Management properly withheld a list of names and
addresses of retired or disabled federal employees. Horner, 879 F.2d at 879–80. The Circuit
recognized that there was a “modest personal privacy interest” that weighed against revealing the
where there was a “clear privacy interest” in avoiding disclosure of emails and such disclosure would serve no
public purpose); Voinche v. F.B.I., 940 F. Supp. 323, 330 (D.D.C. 1996) aff’d, No. 96-5304, 1997 WL 411685 (D.C.
Cir. June 19, 1997) (finding that Exemption 6 protects from disclosure names of “private citizens who wrote to
government officials” because there was “no reason to believe that the public will obtain a better understanding of
the workings of various agencies by learning the[ir] identities”); Prudential Locations LLC v. U.S. Dep’t of Hous. &
Urban Dev., 739 F.3d 424, 426, 434 (9th Cir. 2013) (per curiam) (finding that agency properly withheld names of
people who reported illegal activity because the privacy interest was great and the plaintiff presented no evidence
that disclosure of the names would shed light on agency’s investigations or activities); Lakin Law Firm, P.C. v. FTC,
352 F.3d 1122, 1125 (7th Cir. 2003) (holding that names of people who complained to agency of billing scams were
properly withheld under Exemption 6 even though they submitted complaints via website that warned that
comments could be publicly disclosed because the information would reveal nothing about agency workings and
there was no public interest).
22
names only because there was “no public interest” in disclosure where the only stated public
benefit was “inform[ing] the public . . . where its money is going.” Id. at 879 (emphasis added).
The Circuit found that this public interest is insufficient because it “say[s] nothing of
significance” about the inner workings of the government. Id.Horner and Norton are consistent with the cases discussed above. While there was no
public benefit found in Horner, the Norton court identified a strong public interest, which
warranted the intrusion into the privacy interest identified and compelled the Circuit to order
disclosure. The sum of these cases establish that where the requester has articulated a legitimate
public interest in the information, courts have ordered disclosure of names and addresses, even if
such information is associated with financial information, views held by the landowner, or would
risk unwanted contact.
Similarly here, as noted, the public interest in learning how CBP negotiated with private
citizens regarding the planning and construction of the border wall is significant. This public
interest outweighs the privacy interest in landowners’ names and addresses in CBP emails.
Accordingly, for the reasons set forth above, the Court holds that the public interest in disclosing
the names and addresses of landowners outweighs the implicated privacy interest and CBP’s
withholding of the information under Exemption 6 is improper.
B. FOIA Exemption 7(E)
CBP has withheld under exemption 7(E) information relating to its assessment of the
need for fencing. Exemption 7(E) covers “records or information compiled for law enforcement
purposes” that “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. §
23552(b)(7)(E). The “requirement that disclosure risk circumvention of the law ‘sets a relatively
low bar for the agency to justify withholding.’” See Pub. Employees for Envtl. Responsibility v.
U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 204–05 (D.C. Cir.
2014) (quoting Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011)). The agency “must
demonstrate only that release of a document might increase the risk ‘that a law will be violated
or that past violators will escape legal consequences.’” Id. at 205 (quoting Mayer Brown LLP v.
IRS (“Mayer Brown”), 562 F.3d 1190, 1193 (D.C. Cir. 2009)). “Rather than requiring a highly
specific burden of showing how the law will be circumvented, exemption 7(E) only requires that
the [agency] demonstrate logically how the release of the requested information might create a
risk of circumvention of the law.” Blackwell, 646 F.3d at 42 (quoting Mayer Brown, 562 F.3d at
1194 (internal quotation marks and alterations omitted)).
The plaintiff challenges the CBP’s withholdings under exemption 7(E) on three grounds.
First, the plaintiff argues that the records are not “compiled for law enforcement purposes,” 5
U.S.C. §552(b)(7), because they do not relate to an enforcement proceeding. Pl.’s Mem. at 20.
The Court disagrees. As the D.C. Circuit recently pointed out, “Law enforcement entails more
than just investigating and prosecuting individuals after a violation of the law . . . the ordinary
understanding of law enforcement includes . . . proactive steps designed to prevent criminal
activity and to maintain security.’” See Pub. Empls. for Envtl. Responsibility, 740 F.3d at 203
(citing Milner, 131 S.Ct. at 1272 (Alito, J., concurring)). This Circuit has long employed a two-
part test, first set forth in Pratt v. Webster, 673 F.2d 408 (D.C. Cir. 1982), to determine whether
records are law enforcement records. Id. A record is used for law enforcement where: “the
investigatory activity that gave rise to the documents is ‘related to the enforcement of federal
laws,’ and there is a rational nexus between the investigation at issue and the agency’s law
24
enforcement duties.” Tax Analysts v. IRS, 294 F.3d 71, 78 (D.C. Cir. 2002) (citing Pratt, 673
F.2d at 420–21). Moreover, courts are “more deferential to the agency’s claimed purpose for the
particular records” where “the agency’s principal function is law enforcement.” Pub-Employees
for Envtl. Responsibility, 740 F.3d at 203 (quoting Tax Analysts, 294 F.3d at 77).
Here, CBP is indisputably a law enforcement agency and is entitled to deference in its
determination that the records were compiled for a law enforcement purpose. CBP contends that
the challenged redactions relate to its “risk and vulnerabilities assessment of illicit cross-border
activity in order to assess fencing needs,” which includes information such as “terrain,
floodplain, waterways . . . migration patterns,” as well as “areas that are difficult for Border
Patrol to access” and “areas patrolled by fewer agents, and urban areas where illegal traffic has a
greater chance of blending in quickly without being apprehended.” Wade Decl. ¶ 15. This
information “inform[s CBP’s] decisions relating to fence placement.” Suppl. Wade Decl. ¶ 18.
Furthermore, some emails “contain references to specific Border Patrol Station ‘border zones,’”
which are designations used internally for assignment coverage, and knowledge of these border
zones could be used to parse law enforcement radio discussions referencing them. Wade Decl. ¶
15. CBP contends that “release of this information would essentially provide a ‘roadmap’ to
those attempting to cross the border.” Wade Decl. ¶ 15.
CBP’s declarations sufficiently demonstrate that the redacted information is related to the
enforcement of federal laws, as the assessment of border vulnerabilities is directly related to the
potential violation of federal immigration laws and the CBP’s duty to deter illegal immigration
and to apprehend illegal immigrants. See Tax Analysts, 294 F.3d at 78. Thus, the CBP has
demonstrated that the records were created for a law enforcement purpose.
25
Second, the plaintiff asserts that Exemption 7(E) does not apply because the CBP has not
shown that the challenged emails qualify as “techniques, procedures, or guidelines.” Pl.’s Mem.
at 19 (citing Wade Decl. ¶ 15). According to the plaintiff, the challenged emails “contain
‘assessments of the operational need for fencing,’ not information relating to investigations or
prosecutions.” Id. The plaintiff’s interpretation of the statutory language is overly restrictive.
The D.C. Circuit has held that “an agency may seek to block the disclosure of internal agency
materials relating to guidelines, techniques, sources, and procedures for law enforcement
investigations and prosecutions, even when the materials have not been compiled in the course of
a specific investigation.” Tax Analysts, 294 F.3d at 79. Even if withheld documents “are not
‘how-to’ manuals for law-breakers, the exemption is broader than that.” See Mayer Brown, 562
F.3d at 1192–93. “Information that relates to law enforcement techniques, policies, and
procedures is properly withheld under this exemption.” Showing Animals Respect & Kindness v.
U.S. Dep’t of Interior, 730 F. Supp. 2d 180, 199 (D.D.C. 2010) (citing Boyd v. Bureau of
Alcohol, Tobacco, Firearms, and Explosives, 570 F. Supp. 2d 156, 158 (D.D.C. 2008)).
In Mayer Brown, the D.C. Circuit held that records relating to “settlement strategies and
objectives, assessments of litigating hazards, [and] acceptable ranges of percentages for
settlement” were exempt under 7(E) because, although not a “blueprint for tax shelter schemes, it
could encourage decisions to violate the law or evade punishment.” Mayer Brown, 562 F.3d at1192–93 (citing Mayer Brown LLP v. IRS, No. 04–2187, slip op. at 3 (D.D.C. Nov. 28, 2006)).
Here, although the information in the challenged records are not styled as formal guidelines or
procedures for CBP officials, the records refer to information, including how CBP officials
assess vulnerable areas along the border, that could be used to “encourage decisions to violate
the law or evade punishment.” Id. at 1193; see also Showing Animals Respect & Kindness, 730
26
F. Supp. 2d at 199–200 (finding that files revealing “specific details of surveillance techniques,
including equipment used and location and timing of use,” was exempt under 7(E) because it
“could compromise [the agency’s] ability to conduct future investigations”); Strunk v. U.S. Dep’t
of State, 905 F. Supp. 2d 142, 148 (D.D.C. 2012) (concluding that release of computer screen
transaction codes, computer transaction codes and computer function codes, although “not
themselves techniques and procedures for law enforcement investigations or prosecutions” are
exempt under 7(E) because it “could reasonably be expected to risk circumvention of the law”
(internal quotation marks omitted)). Accordingly, while the emails in question do not reveal
formal guidelines, CBP has demonstrated that the information contained in the emails could be
used in the same manner as a “technique, procedure, or guideline.”
Finally, the plaintiff claims that CBP has not “logically shown that release of the records
could be reasonably expected to risk circumvention of the law.” Pl.’s Mem. at 19.5 In the
plaintiff’s view, details “such as terrain and geographic location are identifiable by sight,” and
therefore the challenged records will not add to criminals’ knowledge of the conditions along the
border wall. Id. at 19–20. The plaintiff argues further that since “Border Patrol operations may
have changed” since the emails were drafted, Pl.’s Mem. at 20, the information no longer
“provide[s] a roadmap of where it would currently be best to cross the border,” and, thus, does
not risk circumvention of the law. Pl.’s Reply at 11. The Court disagrees.
5
“[C]ourts have disagreed over whether” the qualifying clause requiring that disclosure “reasonably be expected to
risk circumvention of the law,” 5 U.S.C. § 552(b)(7)(E), applies to “techniques and procedures for law enforcement
investigations or prosecutions.” Pub. Empls. for Envtl. Responsibility, 740 F.3d at 205 n.4. This Circuit has applied
the qualifying clause to “techniques and procedures,” id. (citing Blackwell, 646 F.3d at 41–42), but “given the low
bar posed by the ‘risk circumvention of the law’ requirement, it is not clear that the difference matters much in
practice.” Id. CBP argues that the final clause does not apply to “techniques and procedures,” and that the
exemption thus “afford[s] ‘categorical protection’” for techniques and procedures. See Def.’s Mem. at 20 (citing
Smith v. Bureau of Alcohol, Tobacco and Firearms, 977 F. Supp. 496, 501 (D.D.C. 1997)). As discussed below,
CBP has demonstrated through its declarations that disclosure “could reasonably be expected to risk circumvention
of the law.” Thus the exemption is applicable in any event and the Court need not decide the scope of the qualifying
clause of Exemption 7(E).
27
Although some geological factors may be readily identifiable by sight or through publicly
available information, CBP has also attested that the emails reveal “areas that are difficult for
Border Patrol to access” and “areas patrolled by fewer agents.” Wade Decl. ¶ 15. Such
information discloses the CBP’s operations and vulnerabilities, which are not readily-accessible
public information, the disclosure of which could risk appropriation to circumvent the law. See
Showing Animals Respect & Kindness, 730 F. Supp. 2d at 200 (finding that documents detailing
surveillance techniques logically risked circumvention of the law because, “although trespassers
and poachers . . . likely know that they are subject to surveillance, the details of the surveillance
techniques are unknown to them”); Blanton v. U.S. Dep’t of Justice, 63 F. Supp. 2d 35, 49–50
(D.D.C. 1999) (holding that Exemption 7(E) applies to documents revealing FBI polygraph
techniques because although general information on the polygraph test is “often depicted and
discussed,” the “specific methods employed by the FBI” are not generally known). Moreover,
the discussion of publicly available information, itself, reveals what information CBP considers
when analyzing its vulnerabilities at the border, and this analysis, itself, is not publicly known
and may risk circumvention of the law. See Blackwell, 646 F.3d at 42 (manner in which FBI
data is “searched, organized, and reported to the FBI is an internal technique, not known to the
public” therefore is subject to exemption 7(E)). Although the plaintiff claims that vulnerabilities
at the border may have changed since the emails were drafted, making this information
ineffectual, the plaintiff has put forth no evidence to prove that the information is no longer
current and lacks all value to would-be violators. See Pl.’s Mem. at 20; Pl.’s Reply at 11. Here,
CBP has submitted two declarations declaring that release of this information would aid those
attempting to cross the border as well as “smugglers and criminal elements” in their
determination of CBP’s vulnerabilities along the border. See Wade Decl. ¶ 15; Suppl. Wade
28
Decl. ¶ 18. In FOIA cases, agency declarations are viewed with “a presumption of good faith,”
Ground Saucer Watch v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981), and since the plaintiff has
presented no counter-evidence and no evidence of the agency’s bad faith in its declarations, the
Court finds that CBP has shown that the challenged withholding under Exemption 7(E) would
risk circumvention of the law. Id.The plaintiff has failed to present sufficient evidence contradicting the CBP’s contention
that the redacted information falls under Exemption 7(E) as techniques or procedures that are
reasonably shown to risk circumvention of the law. Accordingly, the Court finds that CBP has
shown that the challenged withholdings detailing the operational need to determine fencing are
appropriately withheld under FOIA exemption 7(E).
C. Email Attachments
The plaintiff and CBP dispute whether CBP is improperly withholding the attachments to
responsive emails pursuant to the parties’ agreement to limit the scope of CBP’s production of
emails. The crux of the parties’ dispute is the interpretation of the language of their joint status
report, which embodies the parties’ agreement on the scope of the agency’s obligations in
fulfilling the plaintiff’s FOIA request. See generally 7/23/09 JSR. As described below, the plain
meaning of the parties’ joint status report and the language of this Court’s order ratifying the
parties’ agreement make it apparent that CBP was only obliged to produce to the plaintiff the
same records that CBP produced in the CREW litigation.
The parties fundamentally disagree over the terms of the agreement governing the CBP’s
production of records to the plaintiff. The parties submitted a joint status report to the Court
advising that:
[I]n the interest of expediting the release of emails to Plaintiff, CBP may satisfy
Plaintiff’s FOIA request with respect to the processing of emails by providing to
29
Plaintiff the emails as released in CREW v. DHS pursuant to the search described
in the Joint Status Report and Proposed Disclosure Schedule . . . in that case as
follows: (1) by providing Plaintiff, within 30 days of the entry of the
accompanying order, all emails already released in CREW v. DHS and (2) going
forward, by providing Plaintiff further emails as they are released on a rolling
basis in that case.
7/23/09 JSR at 3 (emphasis added). The Court entered a Scheduling Order effectuating this
agreement based on the proposed order submitted by the parties with their joint status report.
See Proposed Order ¶ 2, ECF No. 6-1; 7/27/09 Sched. Order ¶ 2; Def.’s Reply at 21 n.6. The
Order required CBP to, inter alia, “release to Plaintiff all email records already released in
[CREW], and, going forward, CBP will release to Plaintiff on a rolling basis all email records
released in CREW v. DHS, on the same schedule as they are released in that case.” See 7/27/09
Sched. Order ¶ 2.
Both parties construe the phrase “as released” in the joint status report to impose different
requirements on CBP with respect to the production of records. CBP contends that this wording
limits the scope of the plaintiff’s FOIA request and reflects the parties’ agreement that CBP
would only produce to the plaintiff the documents that were “actually released in CREW and
nothing else” and that “any email related records not released in CREW because the parties in
CREW did not consider them to be responsive were . . . not responsive to Plaintiff’s FOIA
request.” See Def.’s Reply at 23. Thus, CBP contends that it satisfied its FOIA obligation to the
plaintiff by “undertak[ing] the administrative act of forwarding emails released in CREW to
Plaintiff.” Def.’s Reply at 21.
The plaintiff responds that CBP’s agreement to produce documents “as released” in
CREW refers merely to the timing of the release of the records. Pl.’s Mem. at 22. The plaintiff
asserts that under the agreement, CBP agreed to release the documents to the plaintiff according
to the scheduled release of documents in CREW. Id. The plaintiff further explains that the
30
language of the joint status report stating that CBP would release records “pursuant to the search
described” in CREW, indicates that the parties agreed to limit the “scope of the search for
records” only, and not the scope of the documents that CBP was obliged to produce. Id. at 21
(emphasis added). The plaintiff reasons that the agreement relieved CBP of “retrieving and
processing additional records,” but did not permit CBP to withhold portions of records that were
deemed responsive, even if these portions of records were not released to the plaintiff in CREW.
Pl.’s Reply at 12 (emphasis in original). Consequently, the plaintiff claims that CBP is
improperly withholding the attachments to the responsive emails because the attachments are a
“portion of the records.” Pl.’s Mem. at 21.
The plain meaning of the joint status report makes clear that the plaintiff narrowed her
FOIA request to require CBP to produce only emails that the CBP actually produced to the
CREW plaintiff “on a rolling basis in that case.” 7/23/09 JSR at 3. The phrase “as released”
plainly refers to the records actually released to the plaintiff in CREW, rather than the timing of
the releases, as the plaintiff contends. Thus, CBP is correct that it “may satisfy Plaintiff’s FOIA
request” by providing the plaintiff the same emails that the CBP produced in CREW. The
attachments, therefore, are not being withheld, but, as memorialized by the parties’ joint status
report, are not responsive to the plaintiff’s amended FOIA request.
Even if the joint status report were ambiguous on this point, the Court’s subsequent
Scheduling Order based on the parties’ proposed order supports CBP’s interpretation of the joint
status report. See Act Now to Stop War & End Racism Coal. v. D.C., 286 F.R.D. 117, 129
(D.D.C. 2012) (explaining that scheduling orders “should be read as being specific and
comprehensive” and that “[w]hen an Order details the scope of permissible discovery, a party
should not read into the gaps permission to propound whatever discovery it so wishes”). The
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Order states that CBP “will release to Plaintiff on a rolling basis all email records released in
CREW, on the same schedule as they are released in that case.” 7/27/09 Sched. Order ¶ 2. The
Order clarifies CBP’s two separate obligations: the first phrase requires CBP to release to the
plaintiff the same records “released” in CREW, while the latter phrase requires that CBP release
the responsive email records to the plaintiff at the same time that the records are released to the
plaintiff in CREW. See Pl.’s Mem. at 21–25; Def.’s Mem. 4–9. The plain meaning of both the
parties’ joint status report and this Court’s subsequent Order are clear that CBP had to release to
the plaintiff the same records released in CREW at the same time that they were released in
CREW. The plaintiff’s post hoc effort to re-write the agreement with CBP as limiting her FOIA
request only to the same search conducted but not the same production as in CREW is simply not
sustainable. The agreement limited both CBP’s search and production obligation to the agency’s
efforts in CREW. Thus, contrary to the plaintiff’s contention, the responsive documents to which
the plaintiff is entitled are defined both by the search conducted by CBP, and also by the
documents actually produced in CREW. Since the email attachments were not actually produced
in CREW because they were deemed nonresponsive, they correspondingly need not be produced
to the plaintiff.6
The plaintiff argues that the Order ratifies her interpretation of the language of the joint
status report because it omits the phrase “as released” from the Order. Pl.’s Mem. at 22; see
7/27/09 Sched. Order ¶ 2 (requiring that “going forward, CBP will release to Plaintiff on a
rolling basis all email records released in CREW v. DHS”). The omission of this phrase in the
6
CBP further argues that the challenged email attachments are not required to be disclosed, first, because the
plaintiff did not challenge the withholding of the email attachments while CBP was making its rolling productions,
Def.’s Mem. at 8 (“It was not until late May 2011—nearly 21 months after the first release of email records—that
Plaintiff first raised any issue regarding the lack of attachments to the emails released in CREW”), and, second,
because producing the attachments would frustrate the parties’ purpose of expediting disclosure, id. at 8–9. Since
the Court finds in CBP’s favor, the Court need not address these arguments.
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Order does not support the plaintiff’s interpretation. Indeed, the language of the Order lends
stronger support to CBP’s claim because the Order states, in two separate clauses, that (1) CBP
must “release to Plaintiff all email records already released in [CREW]” and that they must
continue to release to the plaintiff “on a rolling basis all email records released in” CREW, and
(2) this production must occur “on the same schedule as they are released in that case.” 7/27/09
Sched. Order ¶ 2. See also Def.’s Reply at 21 n.6. The schedule on which CBP was required to
release records to the plaintiff is set out in the second clause and was thus a separate requirement
from the scope of the responsive records set out in the first clause. The plaintiff’s interpretation
conflates both clauses to refer to the timing of the releases, but this is inconsistent with the canon
of statutory interpretation against surplusage. Courts have used canons of statutory interpretation
to clarify court orders. See Act Now to Stop War & End Racism Coal., 286 F.R.D. at 129
(interpreting court’s standing order); see also Bhd. of Locomotive Eng’rs & Trainmen v.
Burlington N. Santa Fe Ry. Co., 925 F. Supp. 2d 1252, 1256 (D. Wyo. 2013), aff’d sub nom.,
Bhd. of Locomotive Eng’rs & Trainmen v. BNSF Ry. Co., 13-8025, 2013 WL 6404962 (10th Cir.
Dec. 9, 2013) (interpreting order of a railroad adjustment board). Accordingly, applying the
canon against surplusage to the Court’s order dictates an interpretation that none of the phrases
are “inoperative or superfluous, void or insignificant.” See Corley v. United States, 129 S.Ct.
1558, 1566 (2009) (“[O]ne of the most basic interpretive canons [is] that ‘[a] statute should be
construed so that effect is given to all its provisions’” (quoting Hibbs v. Winn, 542 U.S. 88, 101,
124 (2004))); Jones v. United States, 529 U.S. 848, 849 (2000) (“Judges should hesitate to treat
statutory terms in any setting as surplusage” (citing Ratzlaf v. United States, 510 U.S. 135, 140–
41 (1994))). In short, the inclusion in the Order of the second clause requiring CBP to release
the emails “on the same schedule as they are released in that case,” is the relevant phrase to
33
control the timing of disclosure, while the scope of the responsive records is defined by the
records released in CREW. 7/27/09 Sched. Order.
Although CBP’s interpretation of the parties’ agreement is correct, this is a classic
Pyrrhic victory. The plaintiff may simply file a new FOIA request seeking these same email
attachments. See Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 61 (D.C. Cir. 1987) (discussing
a plaintiff’s ability to resurrect a FOIA claim for statute of limitations purposes because a
requester could simply “refile his FOIA request tomorrow and restart the process” because
“nothing prevents him from requesting the same withheld documents decade after decade”)
(cited in Aftergood v. CIA, 225 F. Supp. 2d 27, 30–31 (D.D.C. 2002)). Nevertheless, for the
purposes of the plaintiff’s present FOIA request, as narrowed pursuant to the parties’ joint status
report and this Court’s Order, this Court holds that CBP is not required to produce the email
attachments of responsive records to the plaintiff.
D. Segregability
The 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). The plaintiff has not challenged CBP’s failure to release all reasonably
segregable information to the plaintiff pursuant to its obligation to do so under the FOIA. See id.Nevertheless, even when a plaintiff does not challenge the segregability efforts of an agency, the
Court has “an affirmative duty to consider the segregability issue sua sponte.” Trans-Pac.
Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999); see also
Juarez v. U.S. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008) (“Under this Circuit’s law, the
district court’s failure to address segregability in its memorandum opinion is reversible error.”).
The D.C. Circuit has acknowledged that establishing the non-segregability of non-exempt
34
material “presents problems for the agency since ... segregability depends entirely on what
information is in a document and how it is presented.” Mead Data Inc. v. U.S. Dep’t of the Air
Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Therefore, although “agencies should not be forced
to provide such a detailed justification that would itself compromise the secret nature of
potentially exempt information,” agencies “must be required to provide the reasons behind their
conclusions in order that they may be challenged by FOIA plaintiffs and reviewed by the courts.”
Id.To this end, the Circuit has said that “[i]n addition to a statement of its reasons, an agency
should also describe what proportion of the information in a document is non-exempt and how
that material is dispersed throughout the document.” Id. Under Mead Data, if a small
proportion of the information is non-exempt, the agency’s explanatory burden is less, and if a
larger proportion of the information is non-exempt, “the courts should require a high standard of
proof for an agency claim that the burden of separation justifies nondisclosure or that disclosure
of the non-exempt material would indirectly reveal the exempt information.” Id. Since Mead
Data, the Circuit has relaxed this standard, holding that “[a]gencies are entitled to a presumption
that they complied with the obligation to disclose reasonably segregable material,” which must
be overcome by some “quantum of evidence” by the requester. Sussman v. U.S. Marshals Serv.,
494 F.3d 1106, 1117 (D.C. Cir. 2007). Indeed, more recent decisions from the D.C. Circuit have
held that an agency may satisfy its segregability obligations by (1) providing a Vaughn index that
adequately describes each withheld document and the exemption under which it was withheld;
and (2) submitting a declaration attesting that the agency released all segregable material. See,
e.g., Loving v. U.S. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (stating that “the description
of the document set forth in the Vaughn index and the agency’s declaration that it released all
35
segregable material” are “sufficient for [the segregability] determination”); Johnson v. Exec.
Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002) (upholding agency’s segregation
efforts based on “comprehensive Vaughn index” and “the affidavits of” agency officials).
In the instant case, CBP has provided the plaintiff with a Vaughn index of the 289
challenged records listing the justification for withholding information. See Wade Decl. at 15.
CBP has also submitted two declarations by David E. Wade, the Operations Officer with the
Office of Border Patrol within the Department of Homeland Security, which attest that CBP “has
processed and released all reasonably segregable information within the disputed email
documents” after “carefully evaluat[ing] each email document.” Wade Decl. ¶ 16. Moreover,
CBP reviewed the challenged records for segregability throughout the course of the litigation,
releasing to the plaintiff new copies of challenged records with fewer redactions when the CBP
filed its summary judgment motion, Gilman Decl. ¶ 12, and after the plaintiff filed her cross-
motion for summary judgment. Suppl. Wade Decl. ¶¶ 12–13. In sum, there is ample evidence
that CBP fulfilled its segregability obligation, which the plaintiff does not challenge in her briefs.
Accordingly, the Court finds that CBP has satisfied its burden of demonstrating that the
challenged records were examined and portions of the records were withheld only after
considering whether CBP could disclose any “reasonably segregable portion[s]” of the records
pursuant to its obligation under 5 U.S.C. § 552(b).
IV. CONCLUSION
For the foregoing reasons, CBP’s Motion for Summary Judgment, ECF No. 32, is
GRANTED in part and DENIED in part and the plaintiff’s Motion for Summary Judgment, ECF
No. 35, is GRANTED in part and DENIED in part. CBP’s motion for summary judgment is
granted, as conceded, with respect to the redaction of emails under Exemption 5, the redaction of
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Record 24 in the Vaughn index under Exemption 7(E), the redaction of phone numbers or email
addresses of landowners, the redaction of names and contact information of CBP employees or
of individual employees of contractors, and the withholding of attachments to emails other than
the 289 emails challenged in this suit. CBP is further entitled to summary judgment on its
withholding of information under FOIA Exemption 7(E) and the non-production of email
attachments for the 289 challenged emails. The plaintiff is entitled to summary judgment on
CBP’s withholding of information under FOIA Exemption 6. CBP shall release, by May 15,
2014, to the plaintiff portions of the challenged email records that were previously withheld
under Exemption 6.
Digitally signed by Hon. Beryl A.
Date: March 14, 2014 Howell
DN: cn=Hon. Beryl A. Howell,
o=District of Columbia, ou=U.S.
District Court for the,
email=Howell_Chambers@dcd.usc
ourts.gov, c=US
Date: 2014.03.14 08:37:42 -04'00'
____________________
BERYL A. HOWELL
United States District Judge
37