Phillips v. DHS, No. 19-0928, 2024 WL 1239704 (D.D.C. Mar. 22, 2024) (Nichols, J.)

Phillips v. DHS, No. 19-0928, 2024 WL 1239704 (D.D.C. Mar. 22, 2024) (Nichols, J.)

Re:  Request for records concerning treatment of alien minors in government detention facilities

Disposition:  Granting defendant’s motion for summary judgment

• Procedural Requirements, “Reasonably Segregable” Obligation:  The court relates that “[t]he only remaining issue in this FOIA case is whether the government is properly withholding videos of two interviews of alien detainees as part of the government’s investigation into allegations of sexual abuse of detainees in CBP detention facilities.”  “Plaintiff concedes that portions of the withheld videos are subject to Exemptions 6 and 7(C).”  “The only question, then, is whether the non-exempt portions can be segregated from the exempt.”  “The Court agrees with the government that they cannot.”  Specifically, “Plaintiff argues that CBP could similarly redact the two interview videos to leave what Plaintiff calls ‘non-lexical’ information – such as video showing the movements of the detainees and interviewers, their reactions, and general emotional states.”  “Plaintiff alternatively argues that the videos could be released with voice modulation (to mask the participants’ voices) and the deletion of any statements that might identify the participants.”  “CBP responds that Plaintiffs’ proposed steps would be severely burdensome and would result in videos that convey no useful information.”  “According to CBP, it would take 75 to 150 hours to create the ‘non-lexical’ version suggested by Plaintiff, and the result would be videos showing only ‘images of people seated, which is not responsive to the FOIA request.’”  “As for voice modulation, CBP argues doing so would constitute the ‘creation’ of a new record, which it is not required to do, and since one of the interviews was conducted in Spanish, CBP would have to translate the video into English to know which audio portions to delete and which to keep.”  “These steps, the Court concludes, would go well beyond reasonable efforts to segregate exempt portions of the videos from the non-exempt.”  “Even if Plaintiff were correct that a video that blurred the individuals’ faces and muted the audio might still convey the detainees’ emotional state, it is unclear that that information would be responsive to the FOIA request – and in any event, that marginal information would be substantially outweighed by the excessive costs of redaction.”  “As for the voice modulation alternative proposed by Plaintiff, that would require creating an essentially new record at substantial effort and expense.”  “These significant costs must also be considered in light of the fact that CBP has produced redacted Reports of Investigation that describe in detail the most relevant parts of the investigations that Plaintiff and the public would have a reasonable interest in learning.”