Borowski v. CBP, No. 23-00257, 2024 WL 2099268 (W.D.N.Y. May 10, 2024) (Wolford, C.J.)

Borowski v. CBP, No. 23-00257, 2024 WL 2099268 (W.D.N.Y. May 10, 2024) (Wolford, C.J.)

Re:  Request for records concerning plaintiff’s application for NEXUS program, which is administered by United States and Canada and allows pre-approved, low-risk travelers expedited processing when traveling between the two countries

Disposition:  Denying defendant’s motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court concludes that defendant’s declarations “cannot allow the Court to find that Defendant has met its burden in establishing the reasonableness of its search for responsive records.”  “Here, Defendant avers that it searched for responsive records in two of its systems, [the Global Enrollment System (“GES”)] and [the Analytical Framework for Intelligence (“AFI”) system].”  “However, Defendant has not generally explained the structure of its file system and why these two systems are the only locations where relevant information is likely to be contained within the agency.”  “Nor has Defendant explained why it chose to search GES using Plaintiff’s NEXUS membership number and AFI using Plaintiff’s first and last name, or why these search terms were comprehensive enough to locate responsive records.”  “In addition, Defendant has not specified whether its search of the AFI system using Plaintiff's first and last name included searches of his first and last name together as well as by last name only.”

• Litigation Considerations, Vaughn Index/Declaration:  The court holds that “Defendant’s Vaughn submission is insufficient because it fails to ‘describe the justifications for nondisclosure with reasonably specific detail’ and ‘demonstrate that the information withheld logically falls within the claimed exemption.’”  “It further lacks sufficient information to permit the Court to determine that the [FOIA Improvement Act’s] standard has been met.”  “Defendant’s Vaughn submission with respect to Exemptions 6, 7(C), and 7(E) is fundamentally flawed because it lacks the requisite ‘reasonably specific detail’ throughout to allow the Court to evaluate the appropriateness of each exemption applied.”  “This lack of detail prevents the Court from analyzing specific documents or groups of documents under the relevant legal standard for each exemption cited, except for documents withheld pursuant to Exemption 5 . . . .”  “The Vaughn index divides the 251 responsive documents into seven groups, each of which range from one to 167 pages in length, and documents were withheld in six of the seven groups.”  “Defendant cites multiple FOIA exemptions for each group of documents but makes little to no effort to delineate which exemptions were applied to which pages or sections of pages.”  “Furthermore, the Vaughn submission is ‘devoid of fact-specific justifications.’”  “The Vaughn index contains a column titled ‘Basis for Withholding,’ in which general explanations are offered for each exemption cited for each group of documents.”  “Finally, Defendant fails to provide enough context to describe each group of documents for the Court to understand the fundamental nature of the information contained within them.”  “In other words, it is not clear if a specific document is a report, an email, a database entry, or some other type of document.”  “The flaws described above also prevent the Court from assessing whether the [FOIA Improvement Act] has been satisfied.”  “Lacking meaningful information about the substance of the records, the Court cannot determine whether disclosure would reasonably be expected to harm the interests identified by Defendant.”  “Defendant’s Vaughn submission is insufficient because it fails to ‘describe the justifications for nondisclosure with reasonably specific detail’ and ‘demonstrate that the information withheld logically falls within the claimed exemption.’” 
   
• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  The court holds that “while Defendant has provided more detailed justification about its withholding of information under Exemption 5 relative to the other three exemptions it has asserted, it still has not met its burden to establish that the emails in question were deliberative and predecisional, and that withholding them complies with the [FOIA Improvement Act].”  The court relates that “Defendant has identified five pages of email communications among CBP personnel that were withheld under Exemption 5.”  “[Defendant’s] declaration further describes the documents as ‘constitut[ing] internal, predecisional deliberations and recommendations of CBP employees pertaining to Plaintiff's NEXUS eligibility, and they predate CBP’s decision regarding Plaintiff’s NEXUS eligibility.’”  “In this circumstance, Defendant has provided enough information for the Court to analyze whether the agency has met its burden to justify its withholding under the exemption claimed.”  However, the court finds that “[t]he information that Defendant has submitted is insufficient to allow the Court to determine that the five full pages of internal emails that it withheld pursuant to Exemption 5 were predecisional and deliberative.”  “The evidence in [defendant’s] declaration . . . is the extent of the detail that Defendant offers to justify withholding records pursuant to Exemption 5.”  “Defendant does not identify the positions or roles of the CBP employees involved in the deliberations or who made recommendations, the date on which the emails were sent, or otherwise establish that the authors ‘prepared the document for the purpose of assisting the agency official charged with making the agency decision.’”  “Moreover, there is an insufficient basis to allow the Court to conclude that the records were deliberative.”  “Defendant has not sufficiently explained the role of these emails in the agency’s consideration of Plaintiff’s eligibility for the NEXUS program when it merely states that the documents contained CBP employees’ deliberations and recommendations about Plaintiff’s NEXUS eligibility.”  “Finally, Defendant has not met its burden under the [FOIA Improvement Act] to demonstrate that it reasonably foresees that disclosure of information withheld pursuant to Exemption 5 would harm an interest protected by this exemption.”  “According to Defendant, release of the five pages of emails ‘could reasonably be expected to have a chilling effect on the open and frank expression of ideas, recommendations, and opinions that occur when CBP officials engage in decision-making processes,’ causing these officials ‘to be more circumspect in what they put in writing, thereby impeding candid discussions of the issues surrounding a decision.’”  “As other courts have found, this boilerplate language is insufficient to satisfy the [FOIA Improvement Act’s] standard.”
   
• ​​​​​​​Litigation Considerations, In Camera Inspection:  The court holds that “Plaintiff requests that the Court conduct an in camera review of the information that Defendant has withheld based on the vague, boilerplate nature of the Vaughn submission.”  “Plaintiff further asserts that in camera review is necessary because Defendant ‘has shown itself to be a bad actor.’”  The court finds that “Plaintiff has submitted no actual evidence that Defendant has acted in bad faith in responding to his FOIA request.”  The court also finds that “while the Court has the discretion to order an in camera review while conducting its de novo review of the FOIA exemptions that the agency has claimed, it declines to do so at this time, despite Defendant’s plainly insufficient Vaughn submission.”  “Mindful of the Second Circuit’s guidance that in camera review ‘should not be resorted to lightly,’ . . . and the fact that ‘courts routinely direct agencies to revise their Vaughn index when they prove inadequate,’ . . . the Court directs Defendant to amend its Vaughn submission to address the deficiencies identified herein if it files a renewed motion for summary judgment.”