Kilmer v. U.S. Customs & Border Prot., No. 17-1566, 2023 WL 7695754 (D.D.C. Nov. 15, 2023) (Kollar-Kotelly, J.)

Kilmer v. U.S. Customs & Border Prot., No. 17-1566, 2023 WL 7695754 (D.D.C. Nov. 15, 2023) (Kollar-Kotelly, J.)

Re:  Request for records concerning interactions with individuals seeking entry into United States to participate in demonstration known as the “Women’s March” in January 2017

Disposition:  Granting defendant’s renewed motion for summary judgment; denying plaintiff’s motion for in camera ex parte inspection and limited discovery

• Litigation Considerations:  The court relates that “‘Plaintiff’s Statement of Material Facts in Genuine Dispute’ fails to admit or deny any of the seven statements submitted by [United States Customs and Border Portion (“CBP”)] in its ‘Statement of Material Facts Not in Genuine Dispute.’”  “Instead, Plaintiff asserts that the ‘following matters remain in dispute’ and raises six issues for the Court to consider.”  “Additionally, Plaintiff fails to include any information relevant to its response, let alone specific citations (or even vague references) to the record.”  “As Plaintiff has failed to properly dispute CBP’s assertions, the Court must take CBP’s statements as undisputed.”  “Notwithstanding Plaintiff’s deficient Statement of Genuine Issues, the Court will proceed with its analysis.”

• Litigation Considerations, Standard of Review:  The court relates that “Plaintiff urges the Court to remove certain presumptions afforded to CBP and instead ‘proceed under strict scrutiny as to each and every representation made by [CBP] during the course of litigation.’”  “[T]he Court declines to find agency bad faith in the present case, nor will it remove the presumption of good faith afforded to CBP.”  “To begin, Plaintiff cites no authority for the proposition that ‘when an agency has the powers we entrust to CBP . . . that agency should be held to a higher standard [i.e., strict scrutiny] in responding to FOIA requests,’ . . . and the Court is unaware of such precedent.”  “Without something beyond Plaintiff’s mere representation, the Court is not inclined to change settled law.”  “Next, Plaintiff maintains that CBP engaged in ‘unlawful acts regarding denials of entry to the United States surrounding the Women’s March,’ which, according to Plaintiff, violated the First Amendment rights of certain individuals, including Plaintiff.”  “That may well be true, but Plaintiff has filed a FOIA case, not, for instance, a Bivens claim.”  “Once again, Plaintiff’s speculation regarding CBP’s alleged misconduct during the Women’s March is insufficiently specific to serve as ‘evidence that the agency’s search’ for records under FOIA ‘was not made in good faith.’”  “Similarly, the Court is not persuaded by Plaintiff’s repeated allegations of bad faith because CBP ‘denied, twice, that it had records responsive to [Plaintiff’s FOIA] Request.’”  “‘[A]n inquiry regarding the adequacy of an agency’s search requires a court to focus on the actual search or searches, not on the results of the same.’”  “Lastly, Plaintiff argues that CBP has ‘demonstrated a pattern and practice of being unresponsive to FOIA requests.’”  “To support this claim, Plaintiff references two other FOIA cases involving CBP.”  “The Court is not persuaded by Plaintiff’s argument for two reasons.”  “First, Plaintiff’s assertion regarding CBP’s ‘pattern and practice’ of misconduct lacks support in the record, as Plaintiff submits only certain documents from the two other FOIA cases, none of which demonstrate agency bad faith because the documents reflect the plaintiffs’ allegations of bad faith, not judicial determinations.”  “Second, as discussed above, the Court declines to find bad faith based on CBP’s inability to locate responsive records, which it later discovers and produces to FOIA requesters.”

• Litigation Considerations, Adequacy of Search & Exemption 7(C), The “Glomar” Response:  “[T]he Court concludes that CBP’s searches were adequate.”  “In its prior opinion, the Court addressed the adequacy of CBP’s search and granted summary judgment in favor of CBP with regard to the adequacy of the search, with one exception.”  “As CBP did not address [certain search issues], . . . CBP [was directed to] run targeted searches for [certain] records . . . [a]lternatively, the Court directed CBP to explain if and how its earlier searches have already addressed [the Court’s] concerns.”  “CBP’s Renewed Motion for Summary Judgment now provides additional information, including a second supplemental declaration . . . .”  “With this additional information, the Court can now address the outstanding issues regarding the adequacy of CBP’s search.”  “First, CBP asserted a Glomar response, declining to confirm or deny ‘the existence or nonexistence of any records relating to [a Canadian citizen].”  “In doing so, CBP also filed a motion for leave to submit [a] second supplemental declaration under seal and ex parte.”  “The Court granted CBP’s motion and conducted an in camera review of the unredacted declaration.”  “Here, [defendant] explains in the unredacted declaration the justifications for invoking a Glomar response.”  “Upon review of the declaration, the Court is satisfied with [defendant’s] explanations.”  “Moreover, Plaintiff does not oppose CBP’s Glomar response in his opposition.”  “The Court finds that CBP’s Glomar response was justified, and, upon review of the unredacted declaration, the Court concludes that CBP adequately performed its FOIA search with respect to [the Canadian citizen].”  “Next, with respect to [a CBP officer], CBP explains that it is not standard practice for individual officers or employees to maintain a ‘separate set of records related to specific inadmissibility determinations at ports of entry.’”  “Instead, CBP employs ‘a standardized approach to record the screening process and any inadmissibility determination in a manner that allows the records to be readily accessible from a centralized database.’”  “CBP therefore did not contact individual officers involved in the processing of travelers as part of its FOIA search – including [the CBP officer] – because the agency ‘had no reason to believe’ that a particular officer would store separate records on ‘any particular traveler independent of information entered into the law enforcement database or that might have been recorded in an email.’”  “Lastly, with respect to the Champlain port of entry, CBP explains that its FOIA search at the Buffalo Field Office would have encompassed the Champlain border crossing, including any records created by officers at that location that would have been responsive to Plaintiff’s FOIA request.”

• Exemption 5, Deliberative Process Privilege:  “[T]he Court finds that CBP’s withholding of material pursuant to FOIA Exemption 5 was proper.”  “CBP withheld four types of information that it ‘reasonably foresees would disclose the deliberative process protected under [Exemption 5] and discourage employees from providing their candid opinions and recommendations to decisionmakers without fear of public disclosure[.]’”  “First, CBP withheld information regarding ‘internal deliberations about enforcement action statistics before final numbers were decided.’”  “[Defendant] avers that this information ‘would reveal CBP employees’ deliberative thought processes, including revealing the process of gathering information and numbers to draft proposed statements for enforcement statistics.’”  “She then explains that the disclosure of this process ‘would be reasonably foreseen to chill internal deliberations about enforcement numbers, impacting agency operations and discouraging candid discussion regarding how and what information it releases to the public as employees could fear their deliberative thoughts being made available for public consumption.’”  “The Vaughn Index reveals, however, that CBP deliberated over statistics, and consequently withheld portions of an email chain ‘regarding internal deliberations about enforcement statistics’ because they were made by CBP employees ‘in deciding what statistics to publish.’”  “Such information is plainly predecisional and deliberative as they express thoughts on information that the agency should make publicly available.”  “The Court further agrees with CBP that revealing information regarding statistics that were not finalized ‘would confuse the public as to the actual numbers of specific enforcement actions taken as multiple conflicting numbers would be available and the incorrect numbers would be confused as the true totals.’”  “The Court finds that this withholding was proper under Exemption 5.”
  
  “Second, CBP withheld information regarding ‘internal deliberations on an anticipated question from Congress that was ultimately not asked.’”  “[Defendant] explains that the disclosure of this anticipated question, as well as the agency’s proposed responses, ‘would be reasonably foreseen to chill internal deliberations, impacting agency operations and discouraging candid discussion about brainstorming regarding potential avenues of Congressional inquiry and how to present information to Congress as employees could fear their exchange of ideas, feedback, and debate would be made available for public consumption.’”  “And ‘release may cause confusion and mislead the public because such information was ultimately not conveyed to Congress.’”  “The Court concludes that CBP has satisfactorily shown that this information was predecisional in that it was created before CBP provided its responses to Congress, and deliberative as the information expresses the thoughts and impressions of a CBP employee prior to formulating the agency’s responses to Congress.”
  
  “Third, CBP withheld information regarding ‘draft press releases.’”  “The Vaughn Index reveals that information was withheld for a draft that ‘was not in final form for publication, and its content was still being deliberated.’”  “[Defendant] explains that the disclosure of this information ‘would be reasonably foreseen to suppress what employees would be willing to provide and propose regarding the successes of operations and details of what is occurring on the ground in real-time that can help to ensure the accuracy and context of public releases.’”  “Plaintiff, on the other hand, argues that the draft press releases ‘contain factual material’ that ‘would be discoverable in litigation.’”  “The Court finds that the drafts at issue are ‘deliberative’ in that CBP employees were discussing what to include in public statements, thereby reflecting ‘the give-and-take’ of the decisionmaking process.”  “Fourth and finally, CBP withheld information regarding ‘admissibility deliberations and discussion on what aspects of the inspection process and admissibility may be highlighted by the agency in public statements.’”  “[Defendant] states that the disclosure of ‘such back-and-forth dialogue between agency employees on what aspects of the inspection process can be publicly shared would be reasonably foreseen to cause employees to not communicate freely in making decisions as to how to present the operations of the agency to the public as their opinions could be made available to the public, preventing those with insight into specific enforcement actions from providing candid contextual information.’”  “The Court agrees that the disclosure of this information ‘would cause employees to not communicate freely in making decisions as to how to present the operations of the agency to the public as their opinions would be made public.’”  “The Court finds that this satisfies the deliberative process privilege and therefore the redactions were proper under Exemption 5.”
   
• Exemption 6; Exemption 7, Threshold; Exemption 7(C):  “The Court finds that CBP’s withholdings under Exemptions 6 and 7(C) [are] proper.”  The court relates that “CBP invoked both Exemption 6 and Exemption 7(C) to redact ‘personally identifiable information’ regarding government employees, third-party travelers, and journalists.”  “As an initial matter, the Court finds that the information withheld by CBP satisfies the threshold requirement for Exemption 6.”  “‘The threshold is fairly minimal, such that all information which applies to a particular individual is covered by Exemption 6, regardless of the type of file in which it is contained.’”  “Here, CBP redacted information involving specific government employees and third parties.”  “Similarly, the threshold requirement for Exemption 7(C) is satisfied.”  “CBP writes that it ‘performs a law enforcement function in connection with its activities along the United States border, including at ports of entry.’”  “As CBP is ‘entitled to deference in its determination that the records were compiled for a law enforcement purpose,’ . . . the information withheld was in fact ‘compiled for law enforcement purposes’ . . . .”
  
  “With respect to government employees, redactions were applied to names, phone numbers, email addresses, and identifying position titles.”  “It is well settled that law enforcement personnel and government employees have a substantial interest in anonymity.”  “Plaintiff only challenges CBP’s decision to disclose information involving Senior Executive Service (‘SES’) employees, but not other CBP employees.”  “CBP explains this distinction, stating that it released the ‘names of SES-level employees because it determined they have a diminished privacy interest given their high-level position and the greater public visibility associated with their position as compared to lower-level employees, which also gives rise to a public interest that is absent with lower level personnel.’”  “The Court is satisfied with CBP’s reasoning, concluding that the records logically fall within the claimed exemption.”  “Accordingly, the Court finds that no public interest outweighs the privacy interests of the government employees in the redacted records, and therefore CBP’s application of Exemption 7(C) in this regard was justified.”
  
  “CBP also withheld ‘personally identifiable information’ of third-party travelers, including names, dates of birth, country of birth, age, gender, certain physical characteristics, photographs, fingerprints, criminal records, travel plans, and addresses.”  “Plaintiff objects to these redactions, arguing that revealing the ‘age, sex, and citizenship of those denied entry will not disclose the identity of any specific individual.’”  “The public interest identified by Plaintiff is ‘whether CBP may have targeted certain groups (e.g. Canadian males under the age of 30) for disparate treatment that may amount to unlawful targeting without just cause.’”  “Similarly, citizenship information ‘will also help disclose how many U.S. citizens were effectively denied entry to their own country because a Canadian citizen was their “ride” to the Women’s March.’”  “However, CBP explains that while thousands of travelers may have been screened during the relevant time period, the criteria that Plaintiff asked CBP to use to narrow Item 2 of his FOIA request resulted in the processing of records for a small subset of people (less than 20).”  “Moreover, Plaintiff included in the Complaint news articles written about individuals claiming that they were denied entry due to an expressed interest in attending the Women’s March.”  “Accordingly, as [defendant] explains, ‘it is possible that the public may try to connect certain dots and make assumptions as to whether individuals in the news reports were the same people as those in the records released by CBP.’”  “There is a significant privacy interest in nondisclosure of this information.”  “On the other side of the balancing equation, Plaintiff avers that this information would support findings of illegal activity (i.e., improperly denying entry to the United States).”  “However, because ‘[a]llegations of government misconduct are easy to allege and hard to disprove, . . . courts must insist on a meaningful evidentiary showing’ before weighing the competing interests.’”  “Plaintiff has not met this burden here.”  “While Plaintiff does allege misconduct, his ‘bare and undeveloped allegations would not warrant a belief by a reasonable person that impropriety might have occurred.’”  “In sum, the Court concludes that the scale tilts in favor of privacy and that CBP properly withheld the information under Exemption 7(C).”
  
  “Lastly, Plaintiff takes issue with CBP’s decision to apply redactions to emails received from and sent to persons outside the agency, including journalists.”  “However, Plaintiff offers no reason to conclude that the identity of third-party journalists would advance any public interest.”  “Accordingly, the Court finds that their private interests control under Exemption 7(C).”
   
• Exemption 7(E):  “The Court incorporates its analysis regarding the threshold for any Exemption 7 withholding, finding that the materials at issue were compiled for law enforcement purposes.”  “CBP invoked Exemption 7(E) to redact information related to the ‘processing of individuals at the border (i.e., records related to individuals who were inspected and determined to be inadmissible to the United States), which included the following types of information:  database names, internal codes, incident report numbers, record identification numbers, results of law enforcement database queries, and descriptions of law enforcement techniques and procedures regarding database queries and CBP’s processing of travelers at the border.’”  “The Vaughn Index reveals that the redacted information ‘includes the kind of information CBP considered in evaluating admissibility as well as remarks based on that information,’ and that the disclosure of this information ‘would reveal CBP techniques and procedures related to inspection and potentially allow individuals to evade detection’ as the information ‘includes details regarding specific information CBP considers and questions that are asked to determine admissibility.’”  “Moreover, the release of this information, including agency codes, ‘would enable an individual knowledgeable in computer mainframes and systems to improperly access the system, facilitate navigation or movement through the system, allow manipulation or deletion of data and interfere with enforcement proceedings.’”  “The Court concludes that CBP demonstrated logically how disclosing this type of information could reasonably be expected to create a risk of circumvention by revealing how CBP’s databases and records work, and rendering them more vulnerable to manipulation, which suffices to justify invocation of Exemption 7(E).”
   
• Litigation Considerations, Reasonably Segregable Requirements:  “The Court is satisfied that CBP has appropriately segregated non-exempt material, which has been produced to Plaintiff.”  “CBP did not withhold any responsive records in full.”  “[Defendant] avers that she previously ‘reviewed the documents determined to be responsive, line-by-line, to identify information exempt from disclosure or for which a discretionary waiver of exemption could apply[.]’”  “And, in preparing the Vaughn Index, CBP conducted another review of the responsive records, this time page-by-page.”  “During that review, CBP identified additional non-exempt information that could be segregated from exempt information, and subsequently removed the redactions as appropriate and reproduced those pages to Plaintiff on September 10, 2021.”  “[Defendant] avers that further non-exempt information cannot be reasonably segregated ‘because it is so intertwined with protected material that segregation is not possible or its release would reveal the underlying protected material.’”  “FOIA requires nothing more of CBP.”

• Litigation Considerations, In Camera Inspection & Discovery:  The court relates that “Plaintiff requests that the Court conduct an in camera review of 59 specific pages that were produced to Plaintiff by CBP.”  “As discussed above, the Court finds that CBP has established that the responsive records logically and plausibly fall within the claimed exemptions.”  “It would not be proper for the Court to conduct further review ‘in order to second guess [the agency’s] determinations.’” 
  
  “Similarly, the Court is not persuaded by Plaintiff’s arguments in favor of limited discovery.”  “Plaintiff’s request for limited discovery is predicated on his belief that CBP has ‘acted in bad faith’ and engages in a ‘pattern and practice of being unresponsive to FOIA requests.’”  “For the reasons discussed above, . . . the Court is not persuaded by Plaintiff’s allegations of bad faith.”  “Given [defendant’s] declarations and CBP’s extensive Vaughn Index, the Court concludes that CBP’s submissions were detailed enough and submitted in good faith.”  “Accordingly, Plaintiff's request for discovery fails.”