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BUFFALO EVENING NEWS, INC. v. UNITED STATES BORDER

April 10, 1992

THE BUFFALO EVENING NEWS, INC., Plaintiff,
v.
UNITED STATES BORDER PATROL, Defendant.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 INTRODUCTION

 Now before this Court are opposing motions for summary judgment of the plaintiff The Buffalo Evening News, Inc. ("the News") and defendant United States Border Patrol ("USBP"), pursuant to Fed.R.Civ.P. 56.

 The News brought suit under the Freedom Of Information Act ("FOIA"), 5 U.S.C. §§ 552 et. seq., challenging the USBP's nondisclosure of information which the News sought pursuant to a request for information under the FOIA. In connection with its investigation of the USBP's apprehension and reporting of excludable non-resident aliens found within United States borders in the Buffalo area the News sought all Forms I-213 (the "Forms") completed by the USBP from June to August 1988. An internal form document used nationwide by the USBP, a Form is completed by the USBP upon the apprehension or identification of aliens believed to be illegally in the United States.

 In response to the News' request, the USBP released in excess of two hundred fifty (250) Forms, each representing a separate alien, virtually all containing redacted information pursuant to three different exemptions from disclosure contained in the FOIA. Based on the Forms provided to this Court, and the USBP's representation, the redactions were uniformly and consistently applied to all the released documents.

 Pursuant to 5 U.S.C. §§ 552(a)(4)(B) & 552(a)(6), this Court has jurisdiction of this appeal from the USBP's FOIA determination and reviews the USBP's FOIA determination de novo.

 Both parties now move for summary judgment. For the reasons set forth below, this Court denies the News' motion and grants the USBP's motion.

 FACTS

 The following material facts are not in dispute.

 By letter dated September 15, 1988 addressed to the United States Immigration and Naturalization Service ("INS") Robert McCarthy ("McCarthy"), a reporter for the News, pursuant to the FOIA sought ". . . . copies of all I-213 forms submitted by the Buffalo Sector Headquarters office and the Watertown Station of the U.S. Border Patrol for the months of June, July and August 1988." (Dickman, exh. A1; McCarthy, P8). According to McCarthy, the FOIA request stemmed from his investigation of a possible "secret policy" of the USBP Buffalo Sector to inflate or enhance its law enforcement statistics. (McCarthy, PP5-8).

 By letter dated September 22, 1988, the INS informed McCarthy that records responsive to his request were located with the United States Border Patrol, Tonawanda, New York and that McCarthy's request would be forwarded to that office. (Dickman, exh. A2).

 Subsequently, by letter dated November 16, 1988 signed by Chief Patrol Agent William F. Dickman ("Dickman"), the USBP released fourteen pages (14) in their entirety and two hundred sixty nine (269) pages containing redacted information. The redactions prevented disclosure of 23 items or blocks of information on each Form. The USBP relied on three express exemptions from disclosure in support of the redactions: 5 U.S.C. § 552(b)(2) ("Exemption 2"); 5 U.S.C. § 552(b)(7)(C) ("Exemption (7)(C)") and 5 U.S.C. § 552(b)(7)(D) ("Exemption (7)(D)"). In defense of this lawsuit, the USBP has raised an additional exemption, 5 U.S.C. § 552(b)(7)(E) ("Exemption (7)(E)").

 By letter dated December 19, 1988 addressed to the Office of Information and Privacy, United States Department of Justice, the News appealed the USBP's decision. (Complaint, exh. B). By letter dated December 23, 1988 the Department of Justice acknowledged receipt of the appeal and notified the News that the processing of the appeal would be delayed due to a backlog of pending FOIA appeals. (Complaint, exh. C).

 After no further correspondence from the Department of Justice, the News filed this lawsuit. Both parties have filed motions for summary judgment, arguing that as a matter of law, disclosure or nondisclosure, as the case may be, is mandated by the FOIA.

 SUMMARY JUDGMENT

 Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate where " . . . there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The burden is upon the moving party to demonstrate the absence of a material factual dispute. Fed.R.Civ.P. 56(e). Once that burden is met, the non-moving party ". . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). This Court must draw all reasonable inferences in favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 1608-09, 26 L. Ed. 2d 142 (1970). However, courts should not be reluctant to grant summary judgment in appropriate cases since "one of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims," Celotex Corp. v. Cateret, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986), thereby permitting courts to avoid ". . . protracted, expensive and harassing trials." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. denied, 474 U.S. 829, 106 S. Ct. 91, 88 L. Ed. 2d 74 (1985).

 Applying this standard to this case, this Court concludes that the News' motion must be denied and the USBP's motion must be granted.

 DISCUSSION

 1. The FOIA Generally

 The principle underlying the FOIA is ". . .'to open agency action to the light of public scrutiny'. . . by requiring agencies to adhere to a 'general philosophy of full agency disclosure.'" Department of Justice v. Tax Analysts, 492 U.S. 136, 141, 109 S. Ct. 2841, 2846, 106 L. Ed. 2d 112 (1989) (citations omitted). Accordingly, on public request made pursuant to the FOIA, federal agencies must disclose records and related materials in their possession unless the FOIA specifically exempts disclosure.

 Pursuant to 5 U.S.C. § 552(a)(4)(B), on judicial review of an agency's nondisclosure, such as here, the agency has the burden of demonstrating the applicability of a claimed exemption. An agency may sustain its burden of proof as to the applicability of a claimed exemption by submission of a Vaughn index *fn1" which

 describes with reasonable specificity the nature of the documents at issue and the claimed justification for nondisclosure, and that indicates the requested material logically comes within the claimed exemption. Malizia v. U.S. Department of Justice, 519 F. Supp. 338, 342 (S.D.N.Y. 1981); See King v. U.S. Department of Justice, 265 App. D.C. 62, 830 F.2d 210, 224 (D.C. Cir. 1987). In this case, the USBP has submitted the Vaughn index of Dickman, a USBP Chief Patrol Agent for the Buffalo Sector. In order to facilitate this Court's review of the USBP's action, this Court required the USBP to submit a chart (the "Chart") briefly describing each withheld item of information keyed to the exemptions claimed and cross-referenced to the relevant portions of the Dickman affidavit.

 2. Information Withheld And The Claimed Exemptions

 The USBP withheld information from the News based on four FOIA exemptions. Some information has been withheld pursuant to more than one exemption. This Court now addresses each claimed exemption in turn.

 A. Exemption 2

 Exemption 2 exempts from disclosure matters ". . . related solely to the internal personnel rules and practices of an agency. . . ."

 According to the Chart, the USBP redacted the following information on the Forms pursuant to Exemption 2: a) Block 1A, a "soundex" encoding of the alien's family name (Dickman, P9); b) Block 19, a short description of the method of apprehension (Dickman, P14); c) Block 45, the fact of whether the USBP listed an alien in the USBP Lookout Book (Dickman, P19); d) Block 46, code words used by the USBP to identify deportability charges (Dickman, P20); e) Block 49, portions of a narrative by a USBP agent explaining circumstances of apprehension, including statements by the alien and informants and names of third parties associated with the investigation (Dickman, P22); f) Block 51, information concerning internal routing within the USBP (Dickman, P24); and g) Block 53, a statement of the ultimate disposition of the case (Dickman, P26). Most of this information was also withheld pursuant to other exemptions, which this Court also addresses below.

 In a series of decisions the District of Columbia Circuit has articulated an instructive two step approach to judging the propriety of an agency withholding pursuant to Exemption 2.

 First, as a threshold matter, this Court must determine whether the material redacted pursuant to Exemption 2 relates solely to the agency's internal rules and practices. Exemption 2's internality requirement ". . . plainly limits the exemption to those rules and practices that affect the internal workings of an agency[,]" and, therefore, would be of no genuine public interest. Crooker v. Bureau of Alcohol, Tobacco & Firearms, 216 App. D.C. 232, 670 F.2d 1051, 1056 (D.C. Cir. 1981) (en banc). Striking a reasonable balance between the seemingly contradictory language of Exemption 2, the District of Columbia Circuit has framed the internality inquiry as whether the matters claimed exempt relate "predominantly" to internal agency rules and practices. The Court commented:

 The qualifier 'predominant' arose out of a recognition that if the word 'solely' (in the phrase 'related solely') were interpreted literally and absolutely, exemption 2 would cover nothing at all. As Judge Leventhal wrote in a separate concurrence in Vaughn v. Rosen, 173 App. D.C. 187, 523 F.2d 1136, 1150-51 (D.C. Cir. 1975), 'there are few events . . . that occur without so much as a tiny ripple effect outside their area of prime impact.' On the other hand, to disregard 'solely' would make the exemption all encompassing.

 Schwaner v. Department of Air Force, 283 App. D.C. 196, 898 F.2d 793, 795 (D.C. Cir. 1990). Additionally, information need not constitute "rules and practices" in the traditional sense to fall within the coverage of Exemption 2, but need only be related to them such that they ". . . bear upon, or cast light upon . . ...


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