UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CENTER FOR BIOLOGICAL DIVERSITY,
Plaintiff,
v. Civ. No. 17-1037 (EGS)
U.S. ARMY CORPS OF ENGINEERS, and U.S. CUSTOMS AND BORDER PROTECTION,
Defendants.
MEMORANDUM OPINION
Plaintiff Center for Biological Diversity (“Center”) brings
this action pursuant to the Freedom of Information Act, 5 U.S.C.
§ 552 (“FOIA”), seeking, among other things, disclosure of
records withheld by Defendants U.S. Army Corps of Engineers
(“Army Corps”) and U.S. Customs and Border Protection (“CBP”)
(collectively “Defendants”). The withholdings are documents that
were provided to President-elect Trump’s Transition Team that
concern then-candidate Trump’s campaign promise to construct a
wall along the United States’ southern border.
Concerned for the biological diversity of the U.S.-Mexico
Borderlands, particularly the allegedly imperiled wildlife
species that currently reside there, the Center submitted a FOIA
request to the Army Corps and CBP in an attempt to understand
how the defendants advised the Presidential Transition Team on
the border wall. In response to the FOIA request, defendants produced over 5,000 documents with many records redacted or
withheld pursuant to several FOIA exemptions.
The Center has challenged defendants’ withholdings pursuant
to the various claimed FOIA exemptions. Pending before the Court
are the parties’ cross-motions for summary judgment. Upon
careful consideration of the parties’ submissions, the
applicable law, and the entire record herein, the Court GRANTS
defendants’ motion for summary judgment, and DENIES the
plaintiff’s cross-motion.
I. Background
Unless otherwise noted, the following facts are taken from
the Complaint, ECF No. 1, and from the parties’ statements of
undisputed material facts, See Defs.’ Statement of Material
Facts (“Defs.’ SOMF”), ECF No. 21-1; Pl.’s Statement of Material
Facts (“Pl.’s SOMF”), ECF No. 22-2.
This case involves a FOIA request by the Center to the
United States Army Corps, in which the Center requested the
following documents: “all records . . . that reference walls,
barriers, and/or other physical constructions along the U.S.-
Mexico border and/or U.S. Canada border, for purposes of the
Presidential transition process, created for and/or provided to
brief members of the Presidential Transition Team and/or their
2 representatives.” Defs.’ SOMF, ECF No. 21-1 at 1 ¶ 1. 1 The
Center made the same request of the U.S. Department of Homeland
Security (“DHS”). Pl.’s SOMF, ECF No. 22-2 ¶ 5.
The Army Corps “produced . . . a total of 661 records . . .
in full or in part,” and “with[eld] 152 pages of ‘attachments’
in their entirety.” 2 Pl.’s SOMF, ECF No. 22-2 ¶¶ 18, 19. The
Army Corps withheld the information pursuant to FOIA Exemptions
5, 6, and 7(E). Id. ¶¶ 21–23. CBP released in whole or in part
“approximately 4,264 pages of responsive records.” Howard Decl.,
ECF No. 21-2 ¶ 25. CBP withheld information pursuant to FOIA
Exemptions 4, 5, 6, 7(C) and 7(E). Id. DHS made a final
determination on the Center’s FOIA request on May 30, 2017.
Pl.’s SOMF, ECF No. 22-2 ¶ 14. The Center appealed the decision
on July 3, 2017,id. ¶ 15, and DHS made a final determination on
the appeal on March 1, 2018, id. ¶ 16.
On May 31, 2017, the Center filed this action alleging that
defendants violated FOIA, Compl., ECF No. 1 at 9-15 ¶¶ 46-90, or
alternatively, the Administrative Procedure Act. Id. at 15-20 ¶¶
1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 2 Roberts determined that he “miscalculated the number of pages
of documents withheld in their entirety in the November 1, 2017 production” when he prepared the declaration. Defs.’ Counter- Statement of Disputed Facts, ECF No. 28-2 ¶ 8. He previously reported that the Army Corps entirely withheld 695 pages of attachments, partially released 88 pages of emails, and partially released 573 pages of attachments. Id. at ¶ 7.
3 91-116. The Center “seeks declaratory relief establishing that
defendants are in violation of FOIA, or alternatively APA”, and
“injunctive relief directing defendants to provide it with
responsive records without any further delay.” Id. ¶ 7.
On October 31, 2017, pursuant to a court-ordered schedule,
Army Corps produced 661 pages of partially redacted records,
including emails and attachments. See Declaration of Damon
Roberts (“Roberts Decl.”), ECF No. 21-3 ¶ 7. Army Corps redacted
employee names and contact information from 30 records pursuant
to Exemption 6, sections of 27 records in part or records in
full pursuant to Exemption 5, and portions of 6 records
containing photos, maps, and specific locations of fencing and
infrastructure pursuant to Exemption 7(E). See Roberts Decl.,
ECF No. 21-3 ¶¶ 8, 10, 13, 15; id. at Ex. D.
CBP released 7 batches of records totaling 4,494 pages,
with many records redacted or withheld pursuant to Exemptions 4,
5, 6, 7(C), and 7(E). Howard Decl., ECF No. 21-2 ¶ 25; id. at
Ex. D. CBP redacted information from 7 records pursuant to
Exemption 4, redacted or withheld 50 records pursuant to
Exemption 5, redacted names and contact information from 68
records pursuant to Exemption 6, and redacted 92 records
pursuant to Exemption 7(E). Howard Decl., ECF No. 21-2 ¶¶ 34-35,
42, 46, 52-55; id. at Ex. A.
Defendants filed a motion for summary judgment arguing that
4 they were entitled to relief because they “performed multiple
searches which were reasonably calculated to locate responsive
records,” and “produced all non-exempt responsive records to
[the Center] after properly withholding only such information
that is subject to . . . FOIA Exemptions 4, 5, 6, and 7.” Defs.’
Mot. Summ. J., ECF No. 21 at 3-4. In support of their motion,
the Army Corps submitted the declaration of Damon Roberts,
counsel responsible for processing FIOA requests at Army Corps
at the time. Roberts Decl., ECF No. 21-3 ¶ 2. CBP submitted the
declaration of Patrick Howard, Branch Chief within the FOIA
Division at CBP. Howard Decl., ECF No. 21-2 ¶ 1. The Army Corps
and CBP also submitted their respective Vaughn indices. Ex. D,
ECF No. 21-3 at 20; Ex. A, ECF No. 21-2 at 18. See Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973).
The Center opposed defendants’ motion and filed a cross-
motion for summary judgment challenging the withholdings to
certain pages of produced documents on the basis of Exemptions
4, 5, 6, and 7. Pl.’s Cross-Mot., ECF No. 22 at 11. The parties
have filed replies and the parties’ motions are now ripe for
disposition.
II. Standard of Review
A. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted if the moving party has shown that
5 there are no genuine issues of material fact and it is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex
Corp v. Catrett, 477 U.S. 317, 325 (1986). In determining
whether a genuine issue of material fact exists, the court must
view all facts in the light most favorable to the non-moving
party. See Mastushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). FOIA cases are typically and
appropriately decided on motions for summary judgment. Gold
Anti-Trust Action Comm. Inc. v. Bd. Of Governors of Fed. Reserve
Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011)(citations omitted).
In ruling on cross-motions for summary judgment, the court shall
grant summary judgment only if one of the moving parties is
entitled to judgment as a matter of law upon material facts that
are not genuinely disputed. Shays v. FEC, 424 F. Supp. 2d 100,
109 (D.D.C. 2006).
B. FOIA Exemptions
FOIA requires agencies to disclose all requested agency
records, unless one of nine statutory exemptions applies. 5
U.S.C. § 552 (a),(b). Congress enacted FOIA to “pierce the veil
of administrative secrecy and to open agency action to the light
of public scrutiny.” Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C.
Cir. 2007)(quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976)). Because disclosure rather than secrecy is the “dominant
objective of the Act,” the statutory exemptions are “narrowly
6 construed.” See McKneely v. United States Dept. of Justice, 2015
WL 5675515 at *2 (D.D.C. 2015) (internal citations omitted).
The government bears the burden of justifying
nondisclosure, either through declarations or an index of
information withheld. See e.g., Consumers’ Checkbook, 554 F.3d
1046 at 1057 (D.C. Cir. 2009) and Vaughn v. Rosen, 484 F.2d 820
(D.C. Cir. 1973) (holding that an indexing system was necessary
in FOIA cases to “(1) assure that a party’s right to information
is not submerged beneath governmental obfuscation and
mischaracterization, and (2) permit the Court system effectively
and efficiently to evaluate the factual nature of disputed
information.”).
Agency affidavits and declarations must be “relatively
detailed and non-conclusory.” SafeCard Services v. SEC, 926 F.2d
1197, 1200 (D.C. Cir. 1991)(internal quotation marks and
citation omitted). Such affidavits or declarations are accorded
“a presumption of good faith, which cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.” Id. Courts must conduct a de novo review of
the record and may grant summary judgment solely on the basis of
information provided by the department or agency in affidavits
or declarations that describe the documents and justifications
for nondisclosure with “reasonably specific detail.” Cause of
Action v. Federal Trade Com’n, 961 F. Supp. 2d 142, 153 (D.D.C.
7 2013)(quoting Military Audit Project v. Casey, 656 F. 2d 724,
738 (D.C. Cir. 1981)).
III. Analysis
Defendants initially withheld information pursuant to FOIA
Exemptions 4, 5, 6, 7(C), and 7(E). The Center, however, has
clarified that it “does not challenge the Army Corps’ redactions
of ‘names and contact information of active duty and civilian
[Department of Defense “(DoD)”] personnel,’ or ‘personal phone
numbers and personal email addresses of DoD employees’ pursuant
to Exemption 6.” 3 Pl.’s Cross-Mot., ECF No. 22 at 14 n.1 (quoting
Roberts Decl., ECF No. 21-3 ¶¶ 12–13). Nor does the Center
challenge “CBP’s redactions of law enforcement officers’ and
contractors’ names or contact information pursuant to Exemption
6 and Exemption 7(C).” 4 Id. (citing Howard Decl., ECF No. 21-2 ¶¶
46, 49). The Center contested the withholding of certain
information pursuant to Exemption 4, but in defendants’ reply
brief, CBP stated that it was releasing the contested
3 FOIA Exemption 6 exempts from disclosure “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). 4 FOIA Exemption 7(C) exempts from disclosure “records or
information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
8 information. 5 Defs.’ Reply, ECF No. 27 at 2. Therefore, no
disputes remain concerning CBP’s Exemption 4 withholdings, or
withholdings pursuant to Exemption 7(C) and Army Corps
withholdings pursuant to Exemption 6.
Accordingly, the only disputed issues are both defendants’
withholdings pursuant to Exemptions 5 and 7(E), and CBP’s
withholdings pursuant to Exemption 6, as to non-law enforcement
and agency employees only. The Court first discusses the
adequacy of defendants’ search for records; and then discusses
each claimed Exemption.
A. Adequacy of the Search for Records
Under FOIA, an agency must conduct a search that is
“reasonably calculated to uncover all relevant documents.”
Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.
Cir. 1983). The adequacy of an agency’s search is measured by a
standard of reasonableness “ and is dependent upon the
circumstances of the case.” Braun v. U.S. Postal Service, 317 F.
Supp. 3d 540, 547 (D.D.C. 2018). An agency has the burden to
“show that it made a good faith effort to conduct a search for
the requested records, using methods which can be reasonably
expected to produce the information requested . . . .” Oglesby
5 FOIA Exemption (b)4 exempts “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(7)(C).
9 v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir.
1990)(citations omitted).
A court generally determines the adequacy of a search “not
by the fruits of the search, but by the appropriateness of the
methods used to carry out the search.” Media Research Ctr. v.
U.S. Dep’t of Justice, 818 F. Supp. 2d 131, 137 (D.D.C. 2001)
(quoting Iturralde v. Comptroller of the Currency, 315 F.3d 311,
315 (D.C. Cir. 2003)(internal quotations omitted)). “A
reasonably detailed affidavit, setting forth the search terms
and the type of search performed, and averring that all files
likely to contain responsive materials (if such records exist)
were searched, is necessary . . . to allow the district court to
determine if the search was adequate in order to grant summary
judgment.” Oglesby, 920 F.2d at 68.
The Center does not challenge the adequacy of the
defendants’ search. However the Court has an independent duty to
determine whether the government has met its FOIA obligations.
See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C.
Cir. 2007); see also 5 U.S.C. § 552(a)(3)(C)(stating agency
“shall make reasonable efforts to search for the records”).
After reviewing the declarations provided, the Court finds that
the defendants have met the statutory requirement to perform a
reasonable search. Army Corps explained that the following
methods were used to carry out the search:
10 [Mr. Steven Roberts], the Project Manager in USACE Headquarters responsible for working with Customs and Border Patrol . . .would have a copy of all responsive documents . . . . Mr. Roberts stored all of his documents related to the construction of a physical barrier in an electronic folder on his network drive. He stored all of his electronic correspondence related to the construction of a physical barrier in a specific Outlook folder. Mr. Roberts searched [both folders and his physical papers] for all documents responsive to the FOIA request. Mr. Roberts also searched his physical paper files or responsive documents. On April 18, 2017, Mr. Roberts provided me all records within his possession related [to] the construction of a physical barrier along the U.S.-Mexico border.
Roberts Decl., ECF No. 21-3 ¶4. Additionally, the declaration
avers that the Army Corps’ IT personnel “electronically
search[ed] the email account of [Army Corp’s] Commanding General
. . . for any emails that included the terms ‘border wall’ or
‘border fence.’ The IT search was undertaken to ensure all
responsive emails to or from Army Corps leadership had been
located and produced.” Id. ¶ 6. The Army Corps’ declaration
sufficiently explains the type of searches conducted, the search
terms used, and explains that all files likely to contain
responsive materials were located and searched. See Walston v.
U.S. Dep’t of Defense, 238 F. Supp. 3d 57, 64 (D.D.C.
2017)(noting that “[i]t is ‘necessary’ that the declaration that
[the agency] relies upon aver that ‘all files likely to contain
11 responsive materials . . . were searched.’” (quoting Oglesby,
920 F.2d at 68)(emphasis in original)). Consequently, Army
Corps’ search was sufficient.
Regarding the methods used to carry out CBP’s search, CBP
determined that “the da[y] after the Presidential election until
one month following the swearing in of President Trump,” was the
most likely “time [period] that any communications or drafts
would have been prepared for the Presidential Transition Team.
As such, this time period is reasonably calculated to locate the
records requested by Plaintiff.” Howard Decl., ECF No. 21-2 ¶
21. CBP determined that “the offices most likely to have
information responsive to the Request were the Office of
Facilities and Asset Management (“OFAM”), U.S. Border Patrol
(“USBP”), and the Policy Directorate [“OPD”]. . . .” Howard
Decl., ECF No. 21-2 ¶ 16. The declaration provided the search
terms that were used by each office to locate documents in
electronic files. Id. at 6 ¶¶ 22-24. Therefore, CBP’s
declaration sufficiently explains the type of search and the
search terms, and the files likely to contain responsive
materials were searched. Consequently, CBP’s search was
sufficient. Accordingly, the Court GRANTS defendants’ motion for
summary judgment as to the adequacy of the searches.
12 B. FOIA Exemption 5
FOIA’s Exemption 5 exempts from disclosure “inter-agency or
intra-agency memorandums or letters that would not be available
by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5); see also Tax Analysts v. IRS, 117
F.3d 607, 616 (D.C. Cir. 1997). To qualify as exempt pursuant to
Exemption 5, “a document must meet two conditions: its source
must be a Government agency, and it must fall within the ambit
of a privilege against discovery under judicial standards that
would govern litigation against the agency that holds it.”
Stolt–Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728,
733 (D.C. Cir. 2008)(internal quotation marks omitted and
citation omitted). “[C]ourts have construed this exemption to
encompass the protections traditionally afforded certain
documents pursuant to evidentiary privileges in the civil
discovery context, including materials which would be protected
under the attorney-client privilege, the attorney work-product
privilege, or the executive deliberative process privilege.” Dow
Jones & Co., Inc. v. Dep’t of Justice, 917 F.2d 571, 573 (D.C.
Cir. 1990)(quoting Formaldehyde Institute v. Department of
Health and Human Serv., 889 F.2d 1118, 1121 (D.C. Cir. 1989)
(internal quotation marks omitted). Defendants claim the
deliberative process privilege and attorney-client privilege to
13 justify the withholdings pursuant to FOIA Exemption 5. The Court
discusses each in turn.
1. Deliberative Process Privilege
Army Corps claims the deliberative process privilege for 17
documents. These documents are mostly emails, but also include
draft documents, and communications between DoD personnel
regarding the “infrastructure along our nation’s borders.”
Roberts Decl., ECF No. 21-3 ¶¶ 9–10. CBP claims the privilege
for 29 documents which contain information concerning the
agency’s approach to implement law enforcement measures along
the U.S.-Mexico border under programs and initiatives, such as
the Secure Border Initiative Network (“SBInet”) (a concept for
providing fencing, communications systems, sensors, and
operators as an approach to surveillance along the southwest
border), the Integrated Fixed Tower (“IFT”) Program (a
surveillance program utilizing fixed surveillance towers along
the Arizona border), and the Aerostat surveillance system
(aircraft which monitor air and ground movement along the
border), as well as the agency’s potential plans for
construction of new tactical border infrastructure as directed
by the President. Howard Decl., ECF No. 21-2 ¶ 42.
To fall within the scope of the deliberative-process
privilege, withheld materials must be both “predecisional” and
“deliberative.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537
14 (D.C. Cir. 1993). A communication is predecisional if “it was
generated before the adoption of an agency policy” and
deliberative if it “reflects the give-and-take of the
consultative process.” Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). “Even if the
document is predecisional at the time it is prepared, it can
lose that status if it is adopted, formally or informally, as
the agency position on an issue[.]” Id. For a document to be
deliberative it “must be a direct part of the deliberative-
process in that it makes recommendations or express[es] opinions
on legal or policy matters.” Elec. Privacy Info. Ctr., 384 F.
Supp. 2d at 112 (quoting Vaughn, 484 F.2d at 823-24)(internal
quotation marks omitted). “The critical factor in determining
whether the material is deliberative in nature is whether
disclosure of the information would discourage candid discussion
within the agency.” Id. “In determining whether a document is
predecisional, an agency does not necessarily have to point
specifically to a final decision, but need only establish ‘what
deliberative process is involved, and the role played by the
documents in issue in the course of that process.’” Id. at 112
(quoting Coastal States Gas Corp., 617 F.2d at 868). However,
the deliberative process privilege is to be construed “as
narrowly as consistent with efficient Government operation.”
15 United States v. Phillip Morris, 218 F.R.D. 312, 315 (D.D.C.
2003)(internal quotation marks and citation omitted).
The Center challenges Army Corp’s withholdings pursuant to
Exemption 5 on several grounds. First, the Center argues that
defendants fail to identify a policy decision at issue in the
withheld records; rather, the Center argues, many of the records
consist of factual information. Pl.’s Cross-Mot., ECF No. 22 at
23–27. Second, the Center argues that the withholdings are not
predecisional because they appear to decide or explain decisions
that have already been made. Id. at 27–28. Last, and related to
its first argument, the Center argues that both defendants have
failed to identify any deliberative process in the records. Id.
at 28–29.
Army Corps has established that the withheld documents were
a part of a deliberative process. Army Corps meets the inter- or
intra-agency document prerequisite; the declaration avers that
it withheld “communications between Department of Defense [ ]
personnel,” Roberts Decl., ECF No. 21-3 ¶ 10. As to the Center’s
argument that the information withheld is factual and therefore
cannot be protected, “[i]n some circumstances, even material
that could be characterized as ‘factual’ would so expose the
deliberative process that it must be covered by the privilege.”
Wolfe v. Dep't of Health and Human Serv., 839 F.2d 768, 774
(D.C. Cir. 1988). The Court of Appeals for the District of
16 Columbia Circuit (“D.C. Circuit”) has explained that “the
legitimacy of withholding does not turn on whether the material
is purely factual in nature or whether it is already in the
public domain, but rather on whether the selection or
organization of facts is part of an agency's deliberative
process.” Ancient Coin Collectors Guild v. U.S. Dep’t of State,
641 F.3d 504, 513 (D.C. Cir. 2011)(citation omitted).
Similarly, CBP has established that the withheld documents
were a part of a deliberative process. First, CBP meets the
inter- or intra-agency document prerequisite; the declaration
avers that it withheld “information concerning the agency's
approach to implement law enforcement measures along the U.S.-
Mexico border. . ., as well as the agency's potential plans for
construction of new tactical border infrastructure as directed
by President Trump.” Howard Decl., ECF No. 21-2 ¶ 42. Second,
CBP has shown that the information was predecisional and
deliberative; CBP’s declaration avers that “[t]he redacted
information includes the qualitative and quantitative metrics
across which USBP identified law enforcement capability gaps,
the results of tests and analyses of alternatives for potential
law enforcement strategies, and recommendations to CBP
leadership to inform acquisition and other decisions concerning
the deployment of law enforcement strategies.” Howard Decl., ECF
No. 21-2 ¶ 42. This explains how the document at issue was
17 created prior to the adoption of an agency policy. CBP’s
declaration further states how production would discourage
discussions: “[d]isclosure of such information could reasonably
be expected to affect the agency's decision-making process in
effecting presidential policy.” Id.
The Vaughn index provides detailed explanations regarding
how the documents were created prior to the adoption of an
agency policy, and how disclosure would discourage discussion
within the agencies. See, e.g. Ex. D, ECF No. 21-3. To
demonstrate that withheld documents played a part in the “give-
and-take” of agency decisionmaking, the agency “must establish
‘what deliberative process is involved, and the role played by
the documents in issue in the course of that process.’” Senate
of the Commonwealth of P.R. v. DOJ, 823 F.2d at 574, 585–86
(D.C. Cir. 1987)(citation omitted). Defendants have identified
the deliberative process at issue in this case: Army Corp has
identified its process of determining the appropriate
“infrastructure along our nation’s borders,” and CBP has
identified its process for “potential plans for construction of
new tactical border infrastructure as directed by President Trump.”
Defs.’ Reply, ECF No. 27 at 4–5. As a general rule, “an agency
in possession of material it considers exempt from FOIA [must]
provide the requestor with a description of each document being
withheld, and an explanation of the reason for the agency's
18 nondisclosure.” Oglesby, 79 F.3d at 1176. In this case, the
Vaughn indices have provided the Center descriptions of each
withheld document and explained the reasons for the
withholdings. Because defendants have shown that the
withholdings were predecisional and deliberative the Court
GRANTS defendants’ motion for summary judgment as to FOIA
Exemption 5 withholdings on the basis of the deliberative
process privilege.
2. Attorney-Client Privilege
CBP relies on the attorney-client privilege justification
of Exemption 5 to partially withhold information provided to the
“United States Border Patrol (“USBP”)from the CBP’s Office of
Chief for the purpose of providing legal advice.” Howard Decl.,
ECF No. 21-2 ¶ 44. “The attorney-client privilege protects
confidential communications from clients to their attorneys made
for the purpose of securing legal advice or services.” Tax
Analyst, 117 F.3d at 618. “The privilege also protects
communications from attorneys to their clients if the
communications rest on confidential information obtained from
the client.” Id. (internal quotation marks omitted). “In the
governmental context, the ‘client’ may be the agency and the
attorney may be an agency lawyer.” Id. “[T]he privilege
‘protects only those disclosures necessary to obtain informed
legal advice which might not have been made absent the
19 privilege.’” Coastal State, 617 F.2d at 862 (quoting Fisher v.
United States, 425 U.S. 391, 403 (1976)).
The Center does not contest the applicability of the
withholdings of information subject to the attorney-client
privilege. See generally Pl.’s Cross-Mot., ECF No. 22
(contesting Exemption 5 on deliberative process basis, but
failing to address attorney-client privilege justification). The
Court deems this issue conceded. See Lewis v. District of
Columbia, No. 10–5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2,
2011) (per curiam) (“It is well understood in this Circuit that
when a plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a
court may treat arguments that the plaintiff failed to address
as conceded.” (citation and internal quotation marks omitted)).
The Court has an independent obligation to determine
whether the government has met its FOIA obligations, however.
See Sussman, 494 F.3d 1106, 1116 (D.C. Cir. 2007). Having
reviewed the CBP’s declaration and the Vaughn indices, the Court
finds that CBP has fulfilled its obligations with respect to
this issue. See Elec. Privacy Info. Ctr. v. U.S. Dep't of
Homeland Sec., 117 F. Supp. 3d 46, 65 (D.D.C. 2015) (explaining
that there is “no question” that an exemption pursuant to the
attorney-client privilege is proper when the exempted material
“contains a communication between a[n] [agency] employee and
20 a[n] [agency] attorney seeking legal review and advice.”).
Accordingly, defendants’ motion for summary judgment on this
issue is GRANTED.
C. FOIA Exemption 6
The Center seeks the names of non-law enforcement and
civilian agency employees, including the names of agency
biologists. 6 Pl.’s Cross-Mot., ECF No. 22 at 31. Defendants have
claimed FOIA Exemption 6 to withhold this information. See
Defs.’ Reply, ECF No. 27 at 5. FOIA Exemption 6 exempts from
disclosure “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).
Exemption 6 permits withholding of information when two
requirements have been met. See U.S. Dep't of State v.
Washington Post Co., 456 U.S. 595, 598 (1982). The first
requirement is that “the information must be contained in
personnel, medical or ‘similar’ files.” Id. That requirement is
met in this case. The statutory formulation “similar files” is
understood broadly to include any “[g]overnment records on an
individual which can be identified as applying to that
individual.” Id. at 602 (internal quotation marks omitted).
6 Other than the names of non-law enforcement personnel, “the Center does not dispute [d]efendants’ redaction of contact information from the records.” Pl.’s Cross-Mot., ECF No. 22 at 31 n.4.
21 Thus, Exemption 6 permits exemption of “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.”
Walston, 238 F. Supp. 3d at 66 (quoting Judicial Watch, Inc. v.
FDA, 449 F.3d 141, 152 (D.C. Cir. 2006)).
The second requirement is that “the information must be of
such a nature that its disclosure would constitute a clearly
unwarranted invasion of personal privacy.” See Washington Post
Co., 456 U.S. at 598. To constitute a clearly unwarranted
invasion of personal privacy, there must be a significant or
substantial privacy interest. See id. A substantial privacy
interest is one that is “more than de minimis.” Nat’l Assoc. of
Retired Fed. Ems. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989).
This second requirement demands that a court “weigh the privacy
interest in non-disclosure against the public interest in the
release of the records in order to determine whether, on
balance, the disclosure would work a clearly unwarranted
invasion of privacy.” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C.
Cir. 1999)(internal quotation marks omitted). The only relevant
public interest in this balancing analysis is “the extent to
which disclosure of the information sought would she[d] light on
an agency's performance of its statutory duties or otherwise let
citizens know what their government is up to.” Id. at 46
(internal quotation marks omitted).
22 In this case CBP, pursuant to Exemption 6, redacted names
of low-level employees who appear on documents concerning the
United States-Mexico border. ECF No. 27 at 5. The redacted
documents largely consist of internal agency emails between CBP
offices coordinating the collection of records in response to
specific requests from the Presidential Transition Team. Id. The
names were redacted pursuant to DHS guidance concerning the
protection of personal information in light of “general threats
against DHS employees stemming from the Government’s actions
surrounding immigration.” Defs.’ Reply, ECF No. 27 at 5–6. This
information is the type that satisfies Exemption 6’s first
requirement since the “civilian federal employees have a right
to control information related to themselves and to avoid
disclosures that ‘could conceivably subject them to annoyance or
harassment in either their official or private lives.’” EPIC v.
DHS, 384 F. Supp. 2d 100, 116 (D.D.C. 2015)(citing Lesar v. U.S.
Dep't of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980)). Therefore
the employees have a cognizable interest in keeping their names
from being disclosed. Id.; see also Judicial Watch v. Dep’t of
State, 875 F. Supp. 2d 37, 46 (D.D.C. 2012)(“A substantial
privacy interest exists in avoiding embarrassment, retaliation,
or harassment and intense scrutiny by the media that would
likely follow disclosure.”).
23 Although a party must show that a threat is not merely
speculative to justify its withholding pursuant to Exemption 6,
see EPIC, 384 F. Supp. 2d at 116, defendants have explained in
this case that the nature of their work and the subject-matter
have led to credible threats. The defendants have explained that
there has been an increase in general threats against DHS
employees. ECF No. 27 at 6; Second Howard Decl., ECF No. 28-1 ¶
8. Indeed a threat to privacy may be derived from the nature of
an employment agency “that advocates for security measures that
may be unpopular.” EPIC, 384 F. Supp. 2d at 116. The standard
for demonstrating a substantial privacy interest is not onerous,
see Horner, 879 F.2d at 874 (substantial privacy interest is
anything greater than de minimis ), and defendants have
demonstrated that the privacy interest in the names of the lower
level CBP employees in this case is more than de minimis.
The next step in an Exemption 6 analysis step is to balance
the privacy interest with the public interest in disclosure. “In
this balancing analysis, [plaintiff] bears the burden of
establishing a legitimate public interest supporting disclosure
which is in line with the core purpose of FOIA, to contribute to
greater general understanding of agency practice and procedure.”
Clemmons v. U.S. Army Crime Records Ctr., No. 05-2353, 2007 WL
1020827, at *5 (D.D.C. Mar. 30, 2007)(citing U.S. Dep't of
Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 495,
24 (1994)). The Center has identified the public’s interest in
knowing if “CBP has adequately conveyed the U.S.-Mexico border
wall’s far-reaching and irreversible environmental harms to the
Presidential Transition team, and if the employees who provided
the information were qualified to do so.” Pl.’s Reply, ECF No.
29 at 17.
The Court finds that the Center has identified an
appropriate public interest. The level of expertise of the
individuals providing information to the government related to
environmental effects of the construction of the wall clearly
falls under the ambit of information that “let[s] citizens know
what their government is up to.” See Lepelletier, 164 F.3d at
46. Defendants, however, have provided to plaintiffs the names
of “higher ranking CBP officials . . . as the information bears
more closely to the agency’s actions.” Second Howard Decl., ECF
No. 27-1 ¶ 8. In light of the fact that the Center has the names
of higher-ranking officials who provided information to the
Transition team, the Center’s claimed public interest in
disclosure of the names of lower-level employees is diminished.
The Court finds that, on balance, the lower-level employees’
interest in avoiding harassment outweighs the interest of public
disclosure which is moderated by the release of names of higher-
ranking agency personnel. Therefore the Court concludes that
defendants properly invoked Exemption 6 as to the names of the
25 lower-level federal employees included in the documents in
dispute. Accordingly, the Court GRANTS defendants’ motion for
summary judgment as to its withholdings pursuant to Exemption 6.
D. FOIA Exemption 7(E)
FOIA Exemption 7(E) permits the withholding of information
collected for law enforcement purposes if release of that
information would:
disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
5 U.S.C. § 552(b)(7)(E). The purpose of Exemption 7(E) is to
prevent publication of information that would “train potential
violators to evade the law or instruct them how to break the
law,” and to protect information that, if disclosed,
“increase[s] the risks that a law will be violated or that past
violators will escape legal consequences.” Mayer Brown v.
I.R.S., 562 F.3d 1190, 1193 (D.C. Cir. 2009). Exemption 7(E) sets
a “relatively low bar” for an agency to justify withholding
information” but the government must “demonstrate logically how
the release of the requested information might create a risk of
circumvention of the law.” Blackwell v. F.B.I., 646 F.3d 37, 42
(D.C. Cir. 2011)(quoting Mayor Brown).
Under Exemption 7(E), the government must demonstrate: (1)
26 that the withheld information would disclose techniques;
procedures or guidelines for law enforcement investigations and
(2) that the disclosure would reasonably “risk circumvention of
the law.” 5 U.S.C. § 552(b)(7)(E); see also Blackwell, 646 F.3d
at 41–42. If the agency's principal function is law enforcement,
courts are “more deferential” to the agency's claimed purpose
for the particular records. See Tax Analysts, 294 F.3d at 77. If
the agency has mixed law enforcement and administrative
functions, we will “scrutinize with some skepticism the
particular purpose claimed.” Id.
As a preliminary matter, the Center argues that defendants
have failed to demonstrate that the records withheld pursuant to
Exemption 7(E) are in fact agency materials relating to
guidelines, techniques or procedures related to law enforcement
investigations and prosecutions. Pl.’s Cross-Mot. ECF No. 22 at
34. In response, CBP argues 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.” Defs.’ Reply, ECF No. 27 at 7 (quoting Gilman v.
DHS, 32 F. Supp. 3d 1, 19 (D.D.C. 2014).
The Court is persuaded that defendants have the better
argument. In Gilman, the court found that “although the
27 information in the challenged records [were] 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.”
Gilman, 32 F. Supp. 3d at 19 (internal quotation marks and
citation omitted)). This explanation was sufficient because the
assessment of border vulnerabilities was directly related to
protentional violations of federal immigration laws. Id. at 23.
Similar to the explanation provided in Gilman, here, Army Corps’
declaration explains that it redacted specific information
related to security an infrastructure and that disclosing the
information would reveal CBP’s assessments of vulnerabilities
along the U.S.-Mexico Border. See Roberts Decl., ECF No. 21-3 ¶
15.
CBP’s declaration sufficiently explains how information
that would result in disclosure of law enforcement
vulnerabilities is information related to law enforcement
techniques, procedures, or guidelines. Howard Decl., ECF No. 21-
2 ¶¶ 52-55. Additionally, CBP’s second declaration asserts that
“the information withheld relates to existing and proposed
tactical infrastructure in specific USBP sectors used to prevent
or detect the illegal entry of people and illicit items into the
U.S.” Second Howard Decl., ECF No. 27-1 ¶ 9. Information
28 relating to infrastructure used to prevent or detect illegal
entry of items and people is information related to law
enforcement techniques, procedures, or guidelines. See Gilman,
32 F. Supp. 3d at 23. These documents are sufficiently related
to the enforcement techniques policies and procedures. See id at
19. (finding documents related to border vulnerabilities could be
used in the same manner as a technique procedure or guideline
and therefore was exempt).
1. Army Corps
The Army Corps has withheld six records pursuant to
Exemption 7(E). These records include: (1) an Engineering and
Construction Support Office (“ESCO”) overview PowerPoint
briefing--withheld in its entirety--discussing ECSO’s structure,
organization, capabilities, past support to CBP, and
infrastructure assessment branch (Roberts Decl., Ex. D, at 2
(Doc. 4.1)); (2) a redacted slide show that CBP created to brief
Army Corps’ leadership about existing fencing along the U.S.-
Mexico border and proposed new fencing locations (id. at 3 (Doc.
6.1)); (3) four attachments to the “Presidential Transition
Narratives & Map” email, including a diagram of potential fence
locations along the U.S.-Mexico border (id. at 4 (Doc. 11.2));
(4) nine maps of potential fence locations broken down by CBP
sector (id. at 5 (Doc. 11.3)); (5) three maps of potential fence
locations broken down by state (id. at 5 (Doc. 11.4)); and (6)
29 113 maps of potential fence locations at the county or town
level (id. at 5 (Doc. 11.5)).
The Center argues that the records withheld have no
“rational nexus” between any investigation or law enforcement
duty of any agency. Pl.’s Cross-Mot., ECF No. 22 at 35.
Specifically, the Center argues that because the enforcement
duty lies with CBP, Army Corp does not have a law enforcement
duty with which to create a rationale nexus. Id. at 36. Army
Corps does not deny that its 7(E) withholdings are
“unquestionably related to CBP’s law enforcement activities.”
Defs.’ Reply, ECF No. 27 at 8. However, Army Corps argues that
this fact is not fatal to their claim because it is the nature
of the information not the classification of the agency that
governs whether the exception applies.
The Court finds that Army Corp has properly withheld the
material pursuant to Exemption 7(E). In making this
determination the Court is guided by the principle that
Exemption 7(E) sets a “relatively low bar” for an agency to
justify withholding information” and the touchstone of whether
records were complied for law enforcement purposes is “how and
under what circumstances the requested files were compiled.”
Coleman v. Lappin, 607 F. Supp. 2d 15, 23 (D.D.C. 2009).
As to the Center’s first argument that there was no
enforcement duty by the Army Corps in this case, and therefore
30 Army Corps cannot rely on this exemption, the Court finds that
argument unpersuasive. Under the test of Exemption 7, although
“the withheld record must have been compiled for law enforcement
purposes; the withholding agency need not have statutory law
enforcement functions.” Public Employees for Environmental
Responsibility v. U.S. Section, International Boundary and Water
Com’n, U.S.-Mexico, 740 F.3d 195, 204 (D.C. Cir. 2014); Elkins
v. Federal Aviation Administration, 99 F. Supp. 3d 90, 98
(D.D.C. 2015)(stating that in considering requirements pursuant
to Exemption 7(E) “it is not the nature of the agency that
controls, but the character of the records withheld”). In light
of the statutory language, the task for this Court is to
determine whether the records were compiled for law enforcement
purposes not simply to determine the nature of the agency which
compiled the records. Elkins, 99 F. Supp. 3d at 98.
The records claimed here easily meet that test. Army Corps
seeks to withhold information pertaining to the number of border
stations and border patrol agents among the U.S.-Mexico Border,
the location and length of border patrol fencing, and proposed
border patrol fencing. Army Corps consulted with CBP to review
the documents and propose necessary redactions before it
released the information to the plaintiffs. Roberts Decl., ECF
No. 21–3. The information relating to infrastructure and used to
prevent or detect illegal entry of people and items is clearly
31 information compiled for law enforcement purposes such that
Exemption 7(E) applies. See Pub. Employees for Envtl.
Responsibility, 740 F.3d at 203 (stating the “ordinary
understanding of law enforcement includes . . . proactive steps
designed to prevent criminal activity and to maintain
security”). 7
2. CBP
CBP has redacted information pursuant to Exemption 7(E)
related to contracts, infrastructure and project summaries;
reports to policy makers; and environmental assessments; as well
as information such as miles of fencing and roads; photos and
maps of fencing and roads. See, e.g., Howard Decl., ECF No. 21-2
Ex. A (0006-BW FOIA, 0007-BW FOIA, 0025-BW FOIA, 0026-BW FOIA,
0027-BW FOIA, 0037-BW FOIA, 0038-BW FOIA, 0039-BW FOIA, 0058-BW
FOIA, 0064-BW FOIA, 0065-BW FOIA, 0073-BW FOIA, 0074-BW FOIA,
7 The Center’s argument that these documents are not law enforcement information but rather environmental information and therefore not eligible for protection under Exemption 7(E) also fails. As the D.C. Circuit has explained documents “which may have been compiled originally for architectural planning or internal purposes—may fall within Exemption 7 if that information is later compiled and given to law enforcement officers for security purposes.” See Pub. Employees for Envtl. Responsibility, 740 F.3d at 203. Here, notwithstanding any other initial purpose for the withholdings, the information was compiled for security purpose.
32 0117-BW FOIA, 0118-BW FOIA, 0121-BW FOIA, 0122-BW FOIA, 0124-BW
FOIA, 0125-BW FOIA). 8
The Center argues that CBP failed to prove that the
redacted records were compiled for law enforcement purposes
because it “failed to describe with reasonable detail the
technique or procedure at issue in each record; the context in
which the technique or procedure is used; how the technique or
procedure is used;[or] how the technique or procedure is
generally known to the public.” Pl.’s Cross-Mot., ECF No. 22 at
38. (internal quotation marks omitted). The Center also argues
that “release of fence photos and maps that are publicly
available does not risk circumvention of the law.” Pl.’s Cross-
Mot., ECF No. 22 at 39. CBP responds that the publicly released
information that the Center referred to is different than the
information that CBP withheld., which is generally not known to
the public. Second Howard Decl., ECF No. 28-1 ¶ 9(stating that
maps available to the public do not include information such as
USBP sectors, design specifications, or operational
assumptions).
The Court finds that CBP has established that it properly
withheld documents pursuant to Exemption 7(E). First, CBP
8 With the exception of two documents, 0010-BW FOIA and 0099-BW FOIA, all the documents CBP withheld under the deliberative process privilege were also withheld under Exemption 7(E).
33 established that the withheld documents were compiled for law
enforcement purposes. Because CBP is an enforcement agency, it
is entitled to deference in its determination that the records
were compiled for a law enforcement purpose. See Tax Analysts,
294 F.3d at 77. The declaration avers that the “[r]edacted
information includes technical specifications and locations of
tactical infrastructure and related surveillance technology
(including its capabilities and limitations . . .), and other
similar information that directly relates to CBP's law
enforcement mission.” Howard Decl., ECF No. 21-2 ¶ 52.
CBP’s declaration sufficiently explains how disclosure of
the withheld information could risk circumvention of the law.
The declaration avers that disclosure “could reveal law
enforcement sensitive information that could reasonably be
expected to permit individuals to effectuate countermeasures,
alter their patterns of conduct to avoid deception, or otherwise
circumvent the law.” Id. CBP additionally avers that
“[d]isclosure of CBP’s asset investments along the southern
border could reveal capability gaps that would permit
individuals to effect countermeasures in order to circumvent the
law,” Id. at 15 ¶ 53; disclosure of the reimbursable work
authorization “would reveal the level of tactical infrastructure
investment made in these areas, which could reveal capability
gaps that would permit individuals to . . . circumvent the law,”
34 id. at 15-16 ¶ 54; and disclosure of cost estimates “could
reveal capability gaps that would permit individuals to . . .
circumvent the law.” Id. at 16 ¶ 55; see also Gilman, 32 F.
Supp. 3d at 19 (stating information related to “how CBP
officials assess vulnerable areas along the border, that could
be used to encourage decisions to violate the law or evade
punishment.” (internal quotation marks and citation omitted)).
This information, if disclosed, has the potential to aid
criminality.
Accordingly, the Court GRANTS defendants’ motion for
summary judgment as to its withholdings pursuant to Exemption
7(E).
E. Segregability
FOIA requires that “any reasonably segregable portion of a
record shall be provided to any person requesting such record
after deletion of the portions which are” otherwise exempt
pursuant to the Act. 5 U.S.C. § 552(b). This rule of segregation
applies to all FOIA exemptions. Ctr. for Auto Safety v. EPA, 731
F.2d 16, 21 (D.C. Cir. 1984). “It has long been a rule in this
Circuit that non-exempt portions of a document must be disclosed
unless they are inextricably intertwined with exempt portions.”
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242,
260 (D.C. Cir. 1977). Before approving the application of a FOIA
exemption, a district court must make “specific findings of
35 segregability” regarding the documents to be withheld. Summers
v. DOJ, 140 F.3d 1077, 1081 (D.C. Cir. 1998). Agencies are
“entitled to a presumption that they complied with their
obligation to disclose” reasonably segregable material. Boyd v.
Criminal Div. of U.S. Dept. of Justice, 475 F.3d 381, 391 (D.C.
Cir. 2007).
Army Corp’s declaration avers that “[a]ll documents were
processed to achieve maximum disclosure consistent with the
provisions of FOIA [and] every effort was made to provide the
Plaintiff will all releasable material and to reasonably
segregate exempt information from releasable information.”
Roberts Decl., ECF No. 21-3 ¶ 16. CBP’s declaration avers that
“[a]ll information withheld is exempt from disclosure pursuant
to a FOIA exemption or is not reasonably segregable because it
is so intertwined with protected material that segregation is
not possible, or its release would have revealed the underlying
protected material.” Howard Decl., ECF No. 21-2 ¶ 56.
Upon review of the Roberts and Howard declarations
explaining the process for reasonably segregating non-exempt
material, the Court is satisfied that the government only
withheld information that is exempt from disclosure and material
“inextricably intertwined with exempt portions.” See Mead Data
Cent., Inc., 566 F.2d at 260. Both declarations “show with
‘reasonable specificity’ why the documents cannot be further
36 segregated.” Braun, 317 F. Supp. 3d at 551. Accordingly, the
Court finds that the DEA has discharged its obligation to ensure
it has not withheld any segregable non-exempt materials.
IV. Conclusion
For the foregoing reasons the Court GRANTS defendants’
motion for summary judgment, and DENIES the Center’s cross-
motion for summary judgment. An appropriate Order accompanies
this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge September 27, 2019