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Families for Freedom v. U.S. Customs and Border Protection

June 16, 2011


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



Families for Freedom, a non-profit advocacy organization, along with Jane Doe, Mary Doe, and John Doe, three individuals in deportation proceedings (collectively, "Plaintiffs"), bring suit against U.S. Customs and Border Protection ("CBP"), U.S. Immigration and Customs Enforcement ("ICE"), and the U.S. Department of Homeland Security ("DHS") (collectively, "Defendants"), seeking release of certain government records pursuant to the Freedom of Information Act ("FOIA").*fn1 The requested records pertain primarily to the scope and practices of CBP operations on inter-city buses and trains within the geographic area designated as the "Buffalo Sector."*fn2 Defendants now move for partial summary judgment on their invocation of FOIA exemptions to withhold, in whole or in part, certain responsive documents.*fn3 Plaintiffs oppose defendants' motion and request that the Court order production of four groups of documents that they allege were improperly redacted or withheld entirely.*fn4 For the reasons stated below, defendants' motion for summary judgment is granted in part and denied in part, and defendants are ordered to produce a number of the withheld documents.


On February 26, 2009, plaintiffs submitted an initial FOIA request to CBP.*fn5 On April 2, 2010, plaintiffs submitted a second FOIA request to CBP, and submitted similar FOIA requests to ICE and DHS.*fn6 Through their requests, plaintiffs sought information primarily concerning the activities of the Buffalo Sector of the United States Border Patrol, a subdivision of CBP, as well as the related activities of ICE.*fn7 Buffalo Sector is one of twenty Border Patrol sectors and covers 450 miles of border between the United States and Canada.*fn8 The Buffalo Sector's responsibilities encompass Pennsylvania, Maryland, Virginia, West Virginia and most of New York State.*fn9

Plaintiffs assert that "Border Patrol officers improperly engage in interior enforcement of immigration laws by questioning bus and train travelers about their immigration status on inter-city conveyances that never cross the border."*fn10 Alleging that these activities exceed the Border Patrol's "statutory and regulatory authority and violate the Fourth Amendment," plaintiffs state that the requested records are necessary to inform the public about the activities of its government and are relevant to various pending deportation proceedings, including those of Jane Doe, Mary Doe, and John Doe.*fn11

A. February 26, 2009 FOIA Request to CBP

The February 26, 2009 FOIA request to CBP sought: (1) I-213 arrest forms for persons apprehended on Amtrak trains by Border Patrol agents from the Rochester Border Patrol Station for the years 2003-2008; (2) arrest statistics relating to those apprehensions, broken down by the length of time the immigrant was in the United States; (3) total arrest statistics for the Rochester Station for the years 2003-2008; (4) explanations and listings of the various codes that are used on the Form I-213s; (5) arrest quotas, goals, targets or expectations for Border Patrol agents from the Buffalo Sector and the Rochester Station for the years 2003-2008; (6) performance review standards for Border Patrol agents from the Buffalo Sector and the Rochester Station for the years 2003-2008; (7) training materials on racial profiling; (8) training materials on Amtrak enforcement operations; (9) reports concerning Amtrak arrests for the years 2003-2008; (10) agreements between CBP and Amtrak; and (11) standards of conduct for CBP officers at the border and in the interior.*fn12

In response to this initial FOIA request, CBP indicated that it had identified eighty-one pages of responsive documents, fifty of which were withheld in their entirety pursuant to Exemptions 2 -- including "Low 2" and "High 2"*fn13 -- 5, 6, 7(C), and 7(E).*fn14 Fifteen pages were released with redactions made pursuant to Exemptions "Low 2," "High 2," 6, 7(C), and 7(E).*fn15 The Department of Justice ("DOJ") and DHS also produced several documents that had been identified by CBP and referred to those agencies as the original authors for review and release.*fn16

On August 17, 2009, plaintiffs appealed by letter the agency's response, challenging the adequacy of the search and the propriety of the claimed exemptions.*fn17 From September through November 2009, plaintiffs communicated on several occasions with CBP about their appeal, but the agency produced no further documents.*fn18 Deeming their administrative remedies exhausted, plaintiffs filed suit against CBP on March 26, 2010, alleging that the agency had violated FOIA by failing to release records, and seeking declaratory and injunctive relief.*fn19

B. April 2, 2010 FOIA Requests to CBP, ICE, and DHS

On April 2, 2010, plaintiffs served a second FOIA request on CBP and initial FOIA requests on ICE and DHS.*fn20 The second request to CBP sought information similar to that sought in the first request, but added several categories of information and updated the request to include 2009 data.*fn21 The request to ICE sought information similar to that in the CBP request of the same date, but also requested records concerning performance standards, arrest quotas, targets, or goals for ICE officers.*fn22 The April 2, 2010 request to DHS sought: (1) agreements, understandings, or communications between CBP, Border Patrol, DHS and/or ICE regarding transportation checks; (2) performance standards or arrest quotas, targets or goals for Border Patrol officers in effect during the previous six years, preferably broken down by Sector and Station; (3) performance standards, arrest quotas, targets, or goals for ICE officers, including those that can be satisfied by Border Patrol arrestees that are transferred to ICE custody; and (4) reports containing information about arrests on inter-city trains and buses during the previous six years.*fn23
The agencies acknowledged receipt of plaintiffs' April 2, 2010 FOIA requests, but did not produce any responsive documents.*fn24 Plaintiffs amended their Complaint on May 21, 2010, adding ICE and DHS as defendants, and again claiming that the failure to release records and the failure to make a determination regarding plaintiffs' requests for expedited processing violated FOIA.*fn25

C. Productions in Response to Litigation

In response to the instant suit, and pursuant to an agreement negotiated with plaintiffs, CBP performed additional searches and produced additional documents.*fn26 In total, CBP produced sixty pages of responsive documents in their entirety and six hundred and twenty-four pages with redactions, while withholding seven hundred and eight pages in their entirety based on certain exemptions.*fn27 In response to the instant suit, ICE identified one hundred and twenty-six pages of responsive documents, producing eighty-three pages in their entirety and forty-three pages with redactions based on certain exemptions.*fn28 ICE did not withhold any documents in their entirety.*fn29

Defendants now move for summary judgment as to whether defendants have properly withheld records, in whole or in part, based on the asserted exemptions.*fn30 Plaintiffs, in opposing defendants' motion, ask the Court to order the production of four sets of documents, which they allege defendants have improperly redacted or withheld in their entirety. Those documents are described by plaintiffs as follows: first, the Buffalo Sector Daily Reports and related commentary, identified by CBP in US000811-US000816 and US000867-US001518; second, sample Form I-213s, identified by CBP as US00119-US000735; third, training memoranda on agency policies regarding racial profiling and conduct of agents during transportation checks, identified by CBPas US000817-US000866; and fourth, the authors and recipients of a memorandum identified by ICE as US000112 and an email identified by ICE as US000114.*fn31


A. FOIA and Summary Judgment

FOIA cases are generally and most appropriately resolved on motions for summary judgment.*fn32 Summary judgment in the FOIA context, as in any other, is appropriate if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn33

"An issue of fact is genuine if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' A fact is material if it 'might affect the outcome of the suit under the governing law.'"*fn34 "In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party."*fn35

However, unique to the FOIA context, "[a]ffidavits submitted by an agency are accorded a presumption of good faith," and so long as such affidavits "supply[] facts indicating that the agency has conducted a thorough search and giv[e] reasonably detailed explanations why any withheld documents fall within an exemption," they will sustain the agency's burden and summary judgment may be awarded without discovery being conducted.*fn36 Nonetheless, "[t]he agency's decision that the information is exempt from disclosure receives no deference."*fn37

Accordingly, a court is required to conduct a de novo review of the record, deciding "'whether the agency has sustained its burden of demonstrating that the documents requested are not agency records or are exempt from disclosure under the FOIA.'"*fn38

In addition to affidavits, agencies generally submit Vaughn indexes to sustain their burden. A Vaughn index is an itemized listing of the non-disclosed records, describing each record and portion withheld, and providing a detailed justification for the agency's withholding, specifying the FOIA exemption that it has applied.*fn39 The purpose of a Vaughn index is to "(a) [] permit [the opposing party] to contest the affidavit in [an] adversarial fashion," and to "(b) [] permit a reviewing court to engage in effective de novo review of the [government's] redactions."*fn40
At the heart of FOIA is "a policy strongly favoring public disclosure of information in the possession of federal agencies."*fn41 However, FOIA provides nine categories of information that are exempt from disclosure.*fn42 Four of those exemptions are relevant to the instant matter -- Exemptions 2, 5,6, and 7. Under Exemption 7, defendants cite both subsection (C) and subsection (E), which I address separately below.

1. FOIA Exemptions 2 and 7(E)

Exemption 7(E) protects "records or information compiled for law enforcement purposes," that, if disclosed, "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."*fn43 Exemption 2 protects from disclosure information that is "related solely to the internal personnel rules and practices of an agency."*fn44 For many years, following the D.C. Circuit's ruling in Crooker v. Bureau of Alcohol, Tobacco, and Firearms,*fn45 courts held that Exemption 2 protected two categories of information: (1) materials concerning human resources and employee relations (known as "Low 2"),*fn46 and (2) "predominantly internal" information that, if disclosed, would "significantly risk[] circumvention of agency regulations or statutes"*fn47 (known as "High 2").

In its recent decision in Milner v. Department of the Navy, the Supreme Court explicitly overruled Crookerand its progeny. In Milner, the Court, after considering the statutory language and the legislative history of FOIA, held that "Exemption 2, consistent with the plain meaning of the term 'personnel rules and practices,' encompasses only records relating to issues of employee relations and human resources."*fn48 As a result, after Milner, High 2 has ceased to exist; and "Low 2 is all of 2."*fn49 In its reasoning, the Court gave significant weight to Congress's amendment of Exemption 7(E) in 1986, noting that "the Crooker construction of Exemption 2 renders Exemption (b)(7)(E) superfluous and so deprives that amendment of any effect."*fn50 The Court added, "[w]e cannot think of any document eligible for withholding under Exemption 7(E) that ...

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