UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
American Civil Liberties Union Foundation of New Hampshire
v. Civil No. 19-cv-977-LM Opinion No. 2022 DNH 018 P United States Customs and Border Protection
ORDER
The American Civil Liberties Union Foundation of New Hampshire (“ACLU”)
brings this suit under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”),
challenging the United States Custom and Border Protection’s (“CBP”) refusal to
disclose certain documents and information that it requested pursuant to that
statute. Presently before the court is the ACLU’s “Motion to Compel Defendant
CBP to Produce Adequate Vaughn Index” (doc. no. 16). CBP objects, and the ACLU
filed a reply. For the following reasons, the court grants the ACLU’s motion in part
and denies it in part.
BACKGROUND
The ACLU seeks records concerning CBP’s immigration patrol operations in
New Hampshire. It alleges that CBP has engaged in aggressive immigration
enforcement actions far from the Canadian border. The ACLU thus argues that the
requested records “would facilitate the public’s understanding of how CBP enforces immigration laws in New Hampshire,” and that such information is critical to the
public’s ability to hold the government accountable. Id. at 1-2.
The ACLU asserts that CBP uses both checkpoints and roving patrol
operations to enforce immigration laws. As to checkpoints, the ACLU alleges that
CBP had recently used checkpoints on at least eight occasions almost 100 miles
from the Canadian border. CBP’s checkpoint operations are presently the subject of
a separate lawsuit. See Drewniak v. U.S. CBP, 20-cv-852-LM (alleging CBP’s
warrantless checkpoints are unreasonable under the Fourth Amendment).
The present lawsuit deals with information concerning roving patrol
operations that do not take place at checkpoints. To illustrate the alleged issue, the
ACLU describes two instances of noncitizens who were followed, approached, and
ultimately arrested by plainclothes Border Patrol1 agents. For example, the ACLU
alleges that in March 2019, two plainclothes Border Patrol agents in an unmarked
vehicle trailed a man named Florentin Avila Lucas, followed him into a thrift store
and then back outside into the parking lot, then pushed him to the ground,
handcuffed him, and took him into custody. Doc. no. 7 at 4-5. This incident, the
ACLU states, took place nearly 100 miles from the Canadian border. Similarly, the
ACLU describes an April 2019 incident in which a man and his family were eating
lunch in Littleton, NH—nearly 65 miles from the border—and two plainclothes
1 The United States Border Patrol is the mobile, uniformed arm of CBP. See What is the Border Patrol and what is its mission?, https://www.cbp.gov/faqs/what- border-patrol-and-what-its-mission (last visited Feb. 1, 2022).
2 agents in an unmarked vehicle put the man into the vehicle in front of his wife and
children. Id. at 7.
Seeking information about these enforcement actions, the ACLU submitted
two FOIA requests to CBP. The first, submitted on March 25, 2019, requested
“records about [CBP’s] non-checkpoint patrol operations conducted in New
Hampshire to surveil and arrest undocumented and documented immigrants.” Doc.
no. 7-1 at 1. The request then went on to delineate specific categories of records
under this umbrella that it sought. Id. at 2. Then, on October 17, 2019, the ACLU
submitted a supplemental FOIA request to CBP. Doc. no. 7-2. That request also
sought information concerning “non-checkpoint patrol operations conducted in New
Hampshire.” Id. at 1. It included a list of specific categories of documents, which
referred to documents pertaining to “roving patrol operations.” Id. at 3.
In response, CBP produced documents on December 6, 2019 and April 8,
2020. Among those documents were 108 I-213 forms. An I-213 is a record—similar
to a police report—that details the arrest of a noncitizen, including “the
circumstances of the arrest . . . the name, alien number, address, date of birth,
photograph, fingerprints, criminal and immigration history, and other information
about the arrestee.” Union Leader Corp. v. U.S. Dep’t of Homeland Sec., 749 F.3d
45, 48 n.2 (1st Cir. 2014). CBP produced only the first page of each I-213.
The ACLU initially filed suit to enforce its FOIA request on September 17,
2019. On December 16, 2019, the ACLU amended its complaint to include
information about its supplemental FOIA request.
3 During the course of litigation, counsel for the parties met and conferred
regarding the scope of the ACLU’s demand for information relating to the I-213s.
Doc. no. 21-1 at 4. As a result of those discussions, CBP agreed to supplement its
productions with more I-213 information. On January 12, 2021, CBP produced the
subsequent pages—with redactions—for 14 of the I-213s. For the other 94 I-213s,
however, CBP provided no additional information, and no explanation of why it was
not producing those documents.
On May 14, 2021, CBP produced three Vaughn indexes containing the names
of the documents partially or fully withheld, the number of pages of each document,
the claimed exemptions, and a description of the material withheld. The three
indexes included a Partial Redaction Production Index, a Partial Redaction
Supplemental Production Index, and a Withheld in Full Production Index. Among
other documents, the Withheld in Full index listed eight Operations Order Reports
that were withheld in full.
The ACLU viewed these indexes as insufficient and wrote CBP two letters
detailing its concerns. The ACLU’s first letter detailed three concerns: (1) the
indexes did not explain why CBP withheld the full pages of 94 of the I-213s; (2) even
for the 14 I-213s that CBP more fully produced, CBP failed to explain its efforts to
segregate non-exempt information from purportedly exempt information; and (3)
CBP withheld the eight Operation Order Reports in full without explaining any
efforts to segregate the documents. In its second letter, the ACLU asserted that
CBP had previously provided a partially redacted Operation Order Report in an
4 unrelated FOIA lawsuit, which demonstrated that at least portions of the Operation
Order Reports at issue here could be released. The ACLU attached the sample
Operation Order Report from the unrelated lawsuit to its letter.
The ACLU asserts that this dispute remains unresolved and therefore files
the instant motion to compel CBP to supplement its indexes.
DISCUSSION
FOIA requires federal agencies to make their records available to any person
upon request. 5 U.S.C. § 552. The law was “‘enacted to facilitate public access to
Government documents’ and ‘designed to pierce the veil of administrative secrecy
and to open agency action to the light of public scrutiny.’” Union Leader, 749 F.3d
at 49-50 (quoting U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)). Public
access serves “to ensure an informed citizenry, vital to the functioning of a
democratic society.” Church of Scientology Int’l. v. U.S. Dep’t of Justice, 30 F.3d
224, 228 (1st Cir. 1994) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978)). In essence, FOIA furthers “the rights of citizens to know ‘what their
government is up to.’” Carpenter v. U.S. Dep’t of Justice, 470 F.3d 434, 437 (1st Cir.
2006) (quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 773 (1989)).
The statute’s “right of access is not absolute, however, as FOIA exempts
certain categories of materials from disclosure in order to effectuate the goals of the
FOIA while safeguarding the efficient administration of the government.” Union
Leader, 749 F.3d at 50. FOIA contains nine exemptions, which “are to be construed
5 narrowly, with any doubts resolved in favor of disclosure.” Carpenter, 470 F.3d at
438. “FOIA further mandates that ‘any reasonably segregable portion of a record
shall be provided to any person requesting such records after deletion of the
portions which are exempt . . . .’” Id. at 442 (quoting 5 U.S.C. §552(b)). “Non-
exempt information or materials may be withheld only where it ‘is so interspersed
with exempt material that separation by the agency, and policing of this by the
courts would impose an inordinate burden.’” Id. (quoting Church of Scientology, 30
F.3d at 228)). “The government bears the burden of demonstrating the applicability
of a claimed exemption.” Union Leader, 749 F.3d at 50.
“To provide for the broadest possible disclosure and further the adversary
process, courts often require the withholding agency to provide a ‘Vaughn’ index.”
Carpenter, 470 F.3d at 442. These indexes derive their name from the seminal D.C.
Circuit case, Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). “Generally, a Vaughn
index provides a broad description of the requested material or information, and the
agency’s reason for withholding each document or portion of a document.”
Carpenter, 470 U.S. at 442. A Vaughn index serves three functions:
[I]t forces the government to analyze carefully any material withheld, it enables the trial court to fulfill its duty of ruling on the applicability of the exemption, and it enables the adversary system to operate by giving the requester as much information as possible, on the basis of which he can present his case to the trial court.
Church of Scientology, 30 F.3d at 228 (quoting Maynard v. CIA, 986 F.2d 547, 557
(1st Cir. 1993)). Although there is “no set formula for a Vaughn index,” it “must be
sufficiently detailed to permit the trial court and requester to obtain a ‘clear
6 explanation of why each document or portion of a document withheld is putatively
exempt from disclosure.’” Manna v. U.S. Dep’t of Justice, 832 F. Supp. 866, 873
(D.N.J. 1993).
Here, the ACLU alleges that the CBP’s Vaughn indexes are deficient because
they do not explain: (1) why 94 of the I-213s were missing full pages, (2) whether
and how CBP made efforts to segregate non-exempt information from purportedly
exempt information on the narrative sections of the 14 remaining I-213s, and (3)
whether and how CBP made efforts to segregate non-exempt information from
purportedly exempt information on the Operation Order Reports that CBP is
withholding in full. CBP objects and contends that its Vaughn indexes are
adequate. The court analyzes each of the ACLU’s arguments in turn.
I. 94 I-213s missing full pages
First, the ACLU argues that the indexes are deficient because they do not
explain why CBP has withheld everything but the first page for 94 of the I-213s. In
response, CBP argues that the 94 I-213s are not responsive to the ACLU’s requests,
and thus are not required to be included in the Vaughn indexes at all. Specifically,
CBP attached to its objection the declaration of Patrick Howard, the Branch Chief
within the FOIA division at CBP, stating that CBP initially disclosed the first pages
of these documents, but “after additional review,” CBP determined they were non-
responsive because “they did not pertain to roving patrol operations conducted in
New Hampshire.” Doc. no. 21-1 at 4. In its reply brief, the ACLU calls into
7 question CBP’s determination that the documents are not responsive because (1)
CBP initially produced the I-213s and then appeared to change its mind about
whether they were responsive, and (2) Howard’s declaration evinces an unduly
narrow interpretation of the ACLU’s request.
As an initial matter, CBP contends that the ACLU’s argument goes to the
adequacy of CBP’s search for responsive documents, rather than to the sufficiency of
the Vaughn indexes, and thus is best addressed at summary judgment. The ACLU
argues that the issue is ripe, and thus the court should address it now in the
interest of judicial economy. The court agrees with the ACLU and addresses the
dispute on the merits.
Agencies need not produce documents that are “non-responsive” to a FOIA
request. See Competitive Enter. Inst. v. U.S. EPA, 12 F. Supp. 3d 100, 114 (D.D.C.
2014). Agencies have a duty, however, to construe FOIA requests liberally. See 5
U.S.C. § 552(a)(3)(A) (agencies shall disclose records that the request “reasonably
describes”); Inst. for Just. v. IRS, 941 F.3d 567, 572 (D.C. Cir. 2019) (congressional
intent shows requests should be construed liberally). “[T]he adequacy of an
agency’s search for [responsive] documents under FOIA is judged by a standard of
reasonableness.” Church of Scientology, 30 F.3d at 230. Courts take pause “where
the agency’s responses raise serious doubts as to the completeness of the search.”
ACLU v. FBI, No. 12-3728, 2013 WL 3346845, at *3 (N.D. Cal. July 1, 2013) (citing
Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)).
8 If a document is not responsive, an agency has no duty to include it in its
Vaughn index at all. See Competitive Enter. Inst., 12 F. Supp. 3d at 114. The mere
fact that an agency initially does so erroneously, and then changes its mind, does
not alone call into question whether the document was properly withheld. See
Flores v. U.S. Dep’t of Justice, 391 F. Supp. 3d 353, 365 (S.D.N.Y. 2019);
Competitive Enter. Inst., 12 F. Supp. 3d at 114.
For example, in Flores v. U.S. Department of Justice, the agency initially
included certain documents in the Vaughn index but labeled them nonresponsive
and did not disclose them. 391 F. Supp. 3d at 365. The agency explained that it
included them in the index—even though it later determined they were
nonresponsive—because removing them from the index would have caused gaps in
the numbering system. Id. 365 n.8. The court ruled that that initial inclusion did
not require the release of the records or any further justification of their
withholding. Id. at 365; see also Competitive Enter. Inst., 12 F. Supp. 3d at 114
(agency’s inclusion of non-responsive documents in its Vaughn index was “an
abundance of caution that border[ed] on confusion” but inclusion in the index did
not require any further justification of their withholding).
Here, the fact that CBP initially produced the 94 I-213s and then changed its
mind about whether they were responsive does not—in isolation—call into question
CBP’s ultimate determination that the documents are not responsive. Howard’s
declaration states that CBP initially provided the first page of 108 I-213s. During
the course of litigation, counsel conferred regarding the scope of the ACLU’s request
9 for information relating to the I-213s, and CBP agreed to supplement its
productions. CBP then conducted an “additional review” of the 108 I-213s it had
previously produced. Doc. no. 21-1 at 4. It determined that 14 of those I-213s were
responsive, but that 94 of them were not responsive. CBP’s about-face is analogous
to those of the agencies in Competitive Enterprise and Flores. The change of course
during the “additional review” alone does not justify requiring CBP to turn over
these purportedly nonresponsive I-213s.
The ACLU’s next concern is that CBP has construed its request too narrowly.
The ACLU requested information concerning “CBP’s non-checkpoint patrol
operations in the State of New Hampshire.” Doc. no. 7-1 at 8.2 Howard’s
declaration asserts that the 94 I-213s in question were determined to be
unresponsive because they “did not pertain to roving patrol operations in New
Hampshire.” Doc. no. 21-1 at 4. The ACLU contends that Howard’s reference to
“roving patrol” is too narrow an interpretation of its request for “non-checkpoint
patrol.”
In cases where the agency’s response raised questions about whether specific
documents an agency claimed to be nonresponsive were in fact so, courts have
requested that the agency submit a supplemental declaration, permitted in camera
review, or both. See Dunaway v. Webster, 519 F. Supp. 1059, 1083 (N.D. Cal. 1981);
ACLU v. FBI, 2013 WL 3346845, at *3. For example, in Dunaway v. Webster, an
2 In its second request, the ACLU requested records about CBP’s “non-
checkpoint patrol operations conducted in New Hampshire” and later specified certain documents pertaining to “roving patrol operations.” Doc. no. 7-2 at 2-3.
10 agency withheld various material on the ground that it did not fall within the scope
of the plaintiff’s request. 519 F. Supp. at 1083. The court reviewed in camera the
documents at issue and determined that some material was improperly withheld.
Id.
Similarly, in ACLU v. FBI, one of the agencies redacted certain topics as non-
responsive. 2013 WL 3346845, at *10. The court noted that given the purpose of
FOIA and the strong presumption in favor of disclosure, it would review certain
non-responsive redactions to ensure they were “utterly unrelated to the subject of
the plaintiff’s request.” Id. at *10-11 (citing Dunaway, 519 F. Supp. at 1083). With
respect to a different set of documents, the court ruled that the plaintiff validly
called into question the adequacy of the search. Id. at *4. The court therefore
ordered that the FBI provide a supplemental declaration addressing the court’s
concerns. Id. at *5.
In contrast, in Leopold v. CIA, the plaintiff contested the adequacy of the
agency’s search, but the court declined to require a supplemental declaration or
conduct in camera review, rejecting the plaintiff’s argument that the agency had
construed the request too narrowly. 177 F. Supp. 3d 479, 487 (D.D.C. 2016). There,
the plaintiff requested “all written agreements and correspondence” between two
agencies. Id. The agency employee’s declaration appeared to omit “written
agreements” in describing its search efforts; it referred only to “correspondence.” Id.
The court found that the declaration—when read in context—was simply the
agency’s attempt to provide a condensed summary of its search efforts. Id. at 488.
11 Further, the agency submitted a supplemental declaration on its own accord,
confirming that original declaration was merely a summary, and any omissions in
the wording of the first declaration did not indicate a narrowing of the plaintiff’s
request. Id. In addition, the plaintiff attempted to call into question the agency’s
determinations of nonresponsiveness. Id. at 490. The court contrasted Dunaway
and ACLU v. FBI, stating that in those cases, certain documents claimed to be
unresponsive were already before the court and thus in camera review was
reasonable, whereas in Leopold there were no allegedly nonresponsive documents
before the court. Id. The court thus declined to require more detailed explanations.
Here, the court finds that the ACLU has raised a reasonable concern about
whether the 94 I-213s are responsive to its request. Although the fact that the
documents were initially produced does not alone call into question the adequacy of
the search, that issue coupled with the language of Howard’s declaration raise a
reasonable concern. Like the documents at issue in Dunaway and the first set of
documents in ACLU v. FBI, the contested items here are a discrete list of
documents that are already before the court, and thus it should be of minimal
burden to CBP to file a supplemental affidavit detailing its process and reasoning.
With respect to the wording of Howard’s declaration, it could turn out that it was
simply an innocuous rewording of the ACLU’s request—like that in Leopold. But
given FOIA’s “strong presumption in favor of disclosure,” Ray, 502 U.S. at 173,
requiring a supplemental declaration enables the adversarial system to operate by
12 giving the requester as much information as possible. See Church of Scientology, 30
F.3d at 228.
The court thus orders CBP to file a supplemental declaration regarding these
94 I-213s. CBP should address (1) why the agency initially turned over the
documents but then determined after “additional review” that they were not
responsive, and (2) whether the agency searched for the broader “non-checkpoint
patrol operations” that the ACLU requested, and not just the arguably narrower
“roving patrol operations” referenced in Howard’s declaration.
II. 14 redacted I-213s
Next, the ACLU argues that for the 14 remaining I-213s, the indexes do not
explain whether and how CBP made efforts to segregate purportedly exempt from
non-exempt information. For each of these 14 forms, the narrative section is
heavily redacted. For example, File 52(1) reads: “On [redacted] Border Patrol
Agents [redacted] and [redacted] . . . .” At least thirteen lines of redacted text follow
that uninformative statement. After that portion, the form states that agents
“approached the subjects, identified themselves as Border Patrol Agents, and
questioned them as to their citizenship.” Doc. no. 16-6 at 72. Given these
redactions, there is no information about how and why Border Patrol Agents singled
out the subjects. For the other I-213s, too, CBP heavily redacted the portion of the
narrative sections describing what indications led Border Patrol Agents to make
contact with subjects. In each of these instances, CBP claims the redactions fall
13 into Exemptions 6, 7(C), and 7(E).3 The ACLU argues that CBP must revise its
indexes to describe whether and how it made efforts to segregate this redacted
information.
In its opposition, CBP cited Howard’s declaration which detailed how CBP
performs the segregability analysis. Howard stated that a CBP FOIA processor “(1)
meticulously examine[s], line-by-line, each responsive page to identify potential
redactions, (2) appl[ies] redactions (if necessary), and (3) individually label[s] each
redaction (which could be a name, email address or phone number, a single word or
phrase, or substantial portions of a document), with the applicable exemption or
exemptions.” Doc. no. 21-1 ¶ 7. CBP thus argues that it did exactly what the law
requires: it explained how it performed the segregability analysis, and the Vaughn
indexes asserted which exemptions applied to each portion of redacted material.
In its reply brief, the ACLU did not respond to CBP’s position or otherwise
detail why CBP’s explanation is inadequate. It is thus unclear whether the ACLU
believes that Howard’s declaration satisfies its concerns.
A Vaughn index “must supply a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant and correlating those
3 Exemption 6 pertains to “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” § 552(b)(6). Exemption 7(C) covers law enforcement records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” § 552(b)(7)(C). Finally, Exemption 7(E) is for law enforcement records 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.” § 552(b)(7)(E).
14 claims with the particular part of a withheld document to which they apply.”
Church of Scientology, 30 F.3d at 231 (cleaned up). To determine whether a
Vaughn index is adequate, the question is whether it “affords the FOIA requester a
meaningful opportunity to contest, and the district court an adequate foundation to
review, the soundness of the withholding.” Id. (cleaned up). Courts look not only at
the Vaughn indexes themselves, but also at affidavits by agency employees
detailing the redaction process. See Mead Data Central, Inc. v. U.S. Dep’t of Air
Force, 566 F.2d 242, 251 (D.C. Cir. 1977).
For example, in Johnson v. Exec. Office for U.S. Att’ys, the plaintiff argued
that a Vaughn index was inadequate because it provided an insufficient
justification for its claim that none of the withheld documents could reasonably be
segregated for release. 310 F.3d 771, 776 (D.C. Cir. 2002). The court disagreed. Id.
The court noted that the agency had provided a comprehensive Vaughn index,
describing each document withheld and the applicable exemptions. Id. In addition,
the agency submitted a supplemental affidavit by an agency attorney, asserting
that she “personally conducted a line-by-line review of each document withheld in
full and determined that ‘no documents contained releasable information which
could be reasonably segregated from the nonreleasable portions.’” Id. The court
held that the combination of the Vaughn index and the agency attorney affidavits
was sufficient to fulfill the agency’s obligation to show with “reasonable specificity”
why the relevant documents could not be further segregated. Id.; see also Loving v.
Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008); Muttitt v. Dep’t of State, 926 F. Supp.
15 2d 284, 302 (D.D.C. 2013) (“[A]n 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.”).
Here, like in Johnson, the combination of the Vaughn index and the agency
affidavit provides a sufficiently “detailed justification” specifying why the claimed
exemptions are relevant and correlating those claims with particular parts of the
documents. Church of Scientology, 30 F.3d at 231. Howard’s declaration explains
CBP’s process for examining documents line-by-line to determine what information
is segregable. Doc. no. 21-1 at ¶ 7. Moreover, the indexes themselves describe why
the redacted information purportedly falls into the claimed exemptions. For
example, the indexes assert that Exemption 7(E)—which covers law enforcement
records that, if disclosed, could help individuals circumvent the law—applies to the
procedures and methods CBP uses to target individuals. CBP asserts that the
exemption also applies to operation locations, because Border Patrol could be
conducting patrol operations in the same locations in the future.
The court thus finds that the Vaughn index is “sufficiently detailed to permit
the trial court and requester to obtain a ‘clear explanation of why each document or
portion of a document withheld is putatively exempt from disclosure.’” Manna, 832
F. Supp. at 873. CBP has detailed why it believes certain information is exempted,
and that justification is detailed enough that it affords ACLU an opportunity to
contest whether the information is, in fact, exempted. Because this information is
16 sufficient to allow the adversarial process to function, the court sees “nothing to be
gained from requiring more detail.” Church of Scientology, 30 F.3d at 233.
Whether CBP’s determinations of exempted material are overbroad is another
matter, but one which is reserved for summary judgment.4
III. Eight Operation Order Reports withheld in full
Finally, the ACLU argues that the indexes do not explain whether and how
CBP made efforts to segregate information on the eight Operation Order Reports
that it has withheld in full. The ACLU attaches to its motion a sample Operation
Order Report dated 2006 that was produced by CBP in an ACLU affiliate’s FOIA
lawsuit; in that sample, CBP disclosed a substantial amount of information,
whereas here the Operation Order Reports were withheld in full. The ACLU argues
this discrepancy calls into question whether CBP made efforts to segregate the
information in the Operation Order Reports at issue in this case.
In response, CBP cites Howard’s declaration, stating that each page of the
Operation Order Reports was “meticulously examined,” and that CBP has
determined that they must be withheld in full. Doc. no. 21 at 6. Howard’s
4 The ACLU also attached to its motion a sample I-213—obtained through an
ACLU affiliate’s lawsuit—dated 2011 and describing the stop and detention of a noncitizen in California. In the sample, the narrative section is much less heavily redacted than in those produced here. The ACLU calls into question CBP’s redactions here on the basis of the I-213 it obtained in the other lawsuit. The ACLU has not asserted how the sample I-213 undercuts the adequacy of the Vaughn indexes. Rather, the ACLU’s argument appears to go to the applicability of the claimed exemptions. The parties agree that the latter concern will be addressed at summary judgment.
17 declaration also states that this decision “was made after careful review and
individualized assessment of the contents of each of the Operations Orders.” Doc.
no. 21-1 ¶ 9. This is in addition to the general statement—cited previously—that
when a CBP FOIA processor reviews records in connection with a FOIA request, the
processor “meticulously examine[s], line-by-line, each responsive page to identify
potential redactions.” Id. ¶ 7. As to the Operation Order Reports disclosed in an
unrelated case, CBP argues that its disclosure of a redacted Operations Order
Report from Arizona more than a decade ago in a factually distinguishable case, is
irrelevant to the Operations Order Reports at issue here.
Similar to the ACLU’s concern about the 14 partially redacted I-213s, the
court finds that the Vaughn index, combined with Howard’s declaration, adequately
fulfills CBP’s segregability obligations with respect to the Operations Order
Reports. See Loving, 550 F.3d at 41; Johnson, 310 F.3d at 776; Muttitt, 926 F.
Supp. 2d at 302. Further, the court agrees with the government that the fact that
CBP disclosed an Operations Order Report in an unrelated case in a different
jurisdiction more than a decade ago does not alone cast doubt on the adequacy of
CBP’s segregability determinations in this case.
CONCLUSION
The court grants in part and denies in part the ACLU’s motion for an
adequate Vaughn index (doc. no. 16). The court orders that by March 21, 2022, CBP
18 shall supplement its declaration with respect to the 94 I-213s (as to which only the
first page was disclosed) in a manner consistent with this order.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
February 22, 2022
cc: Counsel of Record