Gilman v. DHS, No. 09-0468, 2014 WL 984309 (D.D.C. Mar. 14, 2014) (Howell, J.)

Gilman v. DHS, No. 09-0468, 2014 WL 984309 (D.D.C. Mar. 14, 2014) (Howell, J.)

Re: Request for records concerning construction of fence on Texas–Mexico border

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 6:  The court "holds that the public interest in disclosing the names and addresses of landowners outweighs the implicated privacy interest and CBP's withholding of the information under Exemption 6 is improper."  The court explains that "the public interest in learning how CBP negotiated with private citizens regarding the planning and construction of the border wall is significant."  Additionally, "[t]his public interest outweighs the privacy interest in landowners' names and addresses in CBP emails."
   
• Exemption 7(E):  The court "finds that CBP has shown that the challenged withholdings detailing the operational need to determine fencing are appropriately withheld under FOIA exemption 7(E)."  First, the court finds that "CBP's declarations sufficiently demonstrate that the redacted information is related to the enforcement of federal laws, as the assessment of border vulnerabilities is directly related to the potential violation of federal immigration laws and the CBP's duty to deter illegal immigration and to apprehend illegal immigrants."  Second, the court finds that "while the emails in question do not reveal formal guidelines, CBP has demonstrated that the information contained in the emails could be used in the same manner as a 'technique, procedure, or guideline.'"  Third, the court finds that "release of this information would aid those attempting to cross the border as well as 'smugglers and criminal elements' in their determination of CBP's vulnerabilities along the border."
   
• Litigation Considerations, "Reasonably Segregable" Requirement:  The court "finds that CBP has satisfied its burden of demonstrating that the challenged records were examined and portions of the records were withheld only after considering whether CBP could disclose any 'reasonably segregable portion[s]' of the records pursuant to its obligation under 5 U.S.C. § 552(b)."  The court also explains that "even when a plaintiff does not challenge the segregability efforts of an agency, the Court has 'an affirmative duty to consider the segregability issue sua sponte.'"