Concepcion v. US Customs and Border Protection Division

907 F. Supp. 2d 133
District Court, District of Columbia·Decided December 4, 2012·No. Civil Action No. 2010-0599·Published·Cited by 1 cases

Opinion

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

This matter is before the Court on the renewed motion for summary judgment filed on behalf of U.S. Customs and Border Protection (“CBP”). For the reasons discussed below, the motion will be granted.

I. BACKGROUND

A. Documents related to Miguel Concepción (FOIA Case Number 2009F1670)

According to the complaint, at one time, plaintiff, Alberto Concepción, was using the driver’s license, credit cards, and Social Security number of his deceased brother, Miguel Concepción. See Compl. ¶¶ 9, 27. He purchased airline tickets in his late brother’s name, see id. ¶27, and travelled out of the state of New Jersey during the same time period that law enforcement authorities accused him of being involved in the sale of heroin. Id. 1 In order to obtain information regarding his departures from and arrivals into the United States in connection with his defense to those charges, plaintiff submitted a request under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, to CBP for the following information:

A COPY OF ANY, & ALL OF THE RECORDS, DOCUMENTS, FILES, DATA, ETC., OF THE PRIMARY QUERY HISTORY OF PASSENGER ACTIVITY, FROM JAN. 1, 1991, UNTIL PRESENT FOR MY DECEASED!] BROTHER MIGUEL CONCEPCIÓN.

Def.’s Mem. in Supp. of the Renewed Mot. for Summ. J. [Dkt. # 37] (“Def.’s Mem.”), Decl. of Shari Suzuki (“Suzuki Deck”), Attach. A (Freedom of Information Act Request dated July 8, 2008) (emphasis in original). CBP staff interpreted the request as one “for a ‘Passenger Activity’ *137 record, which is a commonly requested record [of] an individual’s international travel history, showing the date, time, and location of each border crossing recorded by CBP.” Suzuki Decl. ¶ 8. The search of a database known as “TECS using the name ‘Miguel Concepción’ and [his] date of birth” as search terms yielded “a one page ‘Passenger Activity’ record,” id. ¶ 10, “on the international arrival of Miguel Concepción on June 11, 1997,” id. ¶ 11. The agency released the record after having redacted information under Exemptions 6, 7(C), and 7(E). See id. ¶¶ 11, 23, 44; see also id., Attach. C (Letter from Mark Hanson, Director, FOIA Division, Office of International Trade, CBP, to plaintiff dated January 30, 2009). Plaintiff pursued administrative appeals of this determination to CBP’s FOIA Appeals, Policy and Litigation Branch, id. ¶¶ 12-13, without success, see id. ¶ 19.

B. Documents related to Alberto Concepcion

Plaintiff also submitted a separate request “all records wherein [his] name is utilized, and this request is all inclusive.” Compl., Ex. N-8 (Freedom of Information/Privaey Act Request dated July 8, 2008) (emphasis in original). CBP did not process the request upon receipt, however, because it “had previously processed an almost identical request from [p]laintiff in March, 2008,” Suzuki Decl. ¶ 25, as well as a referral to CBP from the Federal Bureau of Investigation” which also sought information about plaintiff himself, id. ¶ 26, resulting in the release on April 8, 2008, of “three pages of records ... on the international arrivals of [p]laintiff on February 22, 1997[,] May 31, 1999 and June 7, 1999,” in redacted form, id. ¶ 28. 2 Plaintiff did not appeal this determination, so it is the request for documents related to travel in the name of his brother that is before the Court. 3 Id. ¶ 30.

Plaintiff asserts that there were trips for which no records were produced, so his first contention is that the search was inadequate and/or the records have been deliberately destroyed. While the agency did produce one Passenger Activity Record for Miguel Conception, it redacted certain information from the document before providing it to the plaintiff. So plaintiffs second challenge goes to the grounds for redactions.

II. DISCUSSION

A. Summary Judgment in a FOIA Case

Summary judgment is granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party must support the assertion that no facts are in dispute by “citing to particular parts of materials in the record, including ... affidavits.” Fed.R.Civ.P. 56(c)(1)(A). The non-moving party has the burden “to produce admissible evidence establishing a genuine issue of material fact.” Bush v. District of Columbia, 595 F.3d 384, 386 *138 (D.C.Cir.2010) (citing Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . If the nonmoving party fails to “make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof,” then the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The .Supreme . Court defines material facts as “those that might affect the outcome of the suit under governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and a dispute over a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

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Concepcion v. US Customs and Border Protection Division, 907 F. Supp. 2d 133 (D.D.C. 2012).

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