Phillips v. Department of Homeland Security

• Court: District Court, District of Columbia
• Decided: March 22, 2024
• Docket: Civil Action No. 2019-0928
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSHUA PHILLIPS,

Plaintiff,

v. Civil Action No. 1:19-cv-0928 (CJN)

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants.

MEMORANDUM OPINION

The only remaining issue in this FOIA case is whether the government is properly

withholding videos of two interviews of alien detainees as part of the government’s investigation

into allegations of sexual abuse of detainees in CBP detention facilities. The Court concludes that

the withholdings are appropriate and thus grants the government’s Motion for Summary Judgment,

ECF No. 26.

I. Background

In July 2018, Plaintiff submitted a FOIA request to the Department of Homeland Security,

its various component agencies (including CBP), and other government departments seeking

documents related to the treatment of alien minors in government detention facilities. See

Complaint, ECF No. 1 at 3; see also Declaration of Patrick Howard (“Howard Decl.”), ECF No.

26-1 at 2. As part of its production, CBP released to Plaintiff 654 pages of documents with

redactions, as well as three videos (with blurred faces and without audio). Id. CBP also withheld

142 pages of records. Plaintiff does not challenge the adequacy of CBP’s search, the withholding

of documents, or the redactions of either the documents or the three produced videos. Id. at 3.

2 But CBP also withheld two video interviews (both of alien detainees), and Plaintiff

challenges those withholdings. The first video, dated May 16, 2018, involved an interview with a

detainee who alleged that he had been drugged and sexually abused while in CBP custody. Id. at

4. In the video, the detainee declined to make a statement each time he was asked by criminal

investigators to explain what happened. Id. at 4–5. When investigators reviewed video footage of

the detainee’s “entire time in his holding cell,” they found that the “footage revealed no evidence

of [the detainee’s] sexual assault allegation.” See Jul. 3, 2018 Report of Investigation, ECF No.

26-1 at 79.

The second video, dated February 6, 2019, involved an interview with a minor detainee

who alleged that he had been sexually assaulted by another minor detainee multiple times. See

Apr. 6, 2019 Report of Investigation, ECF No. 26-1 at 90. During the relevant interview, the

detainee retracted most of his testimony. Id. In both cases, CBP ultimately made no referral for

prosecution. And although CBP withheld the two videos, it did produce to Plaintiff redacted copies

of the respective Reports of Investigation, which contained detailed summaries of the interviews.

See Howard Decl., ECF No. 26-1 at 8.

Here, CBP justifies withholding both videos under FOIA Exemptions 6 and 7(C), arguing

that disclosure of the videos would constitute an invasion of the detainees’ and investigators’

privacy interests. See ECF No. 26 at 4–5. CBP also argues that it is impossible to segregate the

exempt portions of the videos from the non-exempt portions. Id. at 14–15.

Plaintiff does not challenge CBP’s assertion of privacy or law enforcement interests, but

does challenge the position that exempt portions cannot be segregated from non-exempt portions.

See ECF No. 27 at 2. Plaintiff suggests that CBP can redact the voices and images of individuals

to remove information protected by Exemptions 6 and 7(C). Id. This would be consistent, Plaintiff

3 argues, with the way in which the government redacted the three videos it previously produced to

him.

II. Analysis

As noted above, Plaintiff concedes that portions of the withheld videos are subject to

Exemptions 6 and 7(C). The only question, then, is whether the non-exempt portions can be

segregated from the exempt. The Court agrees with the government that they cannot.

Relying on the redacted videos that CBP already produced to him (which show certain

alien detainees waiting in a holding room with blurred faces and no audio), Plaintiff argues that

CBP could similarly redact the two interview videos to leave what Plaintiff calls “non-lexical”

information—such as video showing the movements of the detainees and interviewers, their

reactions, and general emotional states. Id. at 7. Plaintiff alternatively argues that the videos could

be released with voice modulation (to mask the participants’ voices) and the deletion of any

statements that might identify the participants. Id. at 8.

CBP responds that Plaintiffs’ proposed steps would be severely burdensome and would

result in videos that convey no useful information. See ECF No. 29 at 6. According to CBP, it

would take 75 to 150 hours to create the “non-lexical” version suggested by Plaintiff, and the result

would be videos showing only “images of people seated, which is not responsive to the FOIA

request.” ECF No. 29 at 7. As for voice modulation, CBP argues doing so would constitute the

“creation” of a new record, which it is not required to do, and since one of the interviews was

conducted in Spanish, CBP would have to translate the video into English to know which audio

portions to delete and which to keep. Id.

These steps, the Court concludes, would go well beyond reasonable efforts to segregate

exempt portions of the videos from the non-exempt. Even if Plaintiff were correct that a video

that blurred the individuals’ faces and muted the audio might still convey the detainees’ emotional

4 state, it is unclear that that information would be responsive to the FOIA request—and in any

event, that marginal information would be substantially outweighed by the excessive costs of

redaction. See 5 U.S.C. § 552(b) (requiring agencies to only release “[a]ny reasonably segregable

portion of a record”) (emphasis added); see also Mead Data Cen. Inc. v. U.S. Dep’t of Air Force,

566 F.2d at 261, n.55 (D.C. Cir. 1977) (holding that a court may decline to order an agency to

“commit significant time and resources to the separation of disjointed words, phrases, or even

sentences which taken separately or together have minimal or no information content”). As for

the voice modulation alternative proposed by Plaintiff, that would require creating an essentially

new record at substantial effort and expense. These significant costs must also be considered in

light of the fact that CBP has produced redacted Reports of Investigation that describe in detail the

most relevant parts of the investigations that Plaintiff and the public would have a reasonable

interest in learning.

* * *

For the foregoing reasons, the Court grants Defendant’s Motion for Summary Judgment,

ECF No. 26. An appropriate order will accompany this opinion.

DATE: March 22, 2024 CARL J. NICHOLS United States District Judge