# Moradi v. Morgan

> District Court, D. Massachusetts · March 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10199354

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** March 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10199354

## How later opinions describe it (automated extraction)

- noting that “affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA” in the absence of countervailing evidence or inconsistency of proof
- noting that to prevail on summary judgment, “the agency must show beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents”
- noting that the “fact/opinion distinction ‘offers a quick, clear, and predictable rule of decision,’ for most cases”
- noting Exemption 6 was “intended to cover detailed Government records on an individual which can be identified as applying to that individual”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
MOHAMMAD MORADI, )
)
Plaintiff, )
)
v. )
)
)
MARK A. MORGAN, Acting Commissioner, )
U.S. Customs and Border Protection; CHAD )
WOLF, Acting Homeland Security Secretary ) Civil Action No. 20-cv-10204
MICHAEL S. DENNING, Director, Field )
Operations, Boston Field Office, U.S. Customs )
and Border Protection; LINDA K. BROWN, )
Port Director, Boston Area, U.S. Customs )
and Border Protection, )
)
Defendants. )
)
__________________________________________)

MEMORANDUM AND ORDER

CASPER, J. March 22, 2021

I. Introduction

Plaintiff Mohammad Moradi (“Moradi”) has filed this lawsuit against Defendants Mark A.
Morgan, Acting Commissioner of U.S. Customs and Border Protection (“CBP”) (“Morgan”);
Chad Wolf, Acting Homeland Security Secretary (“Wolf”); Michael S. Denning, Director of Field
Operations, Boston Field Office, CBP (“Denning”); and Linda K. Brown, Port Director at CBP,
Boston Area (“Brown”) (collectively, “Defendants”), alleging violations of the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. D. 1. Moradi requests the Court compel Defendants
to disclose records in CBP’s custody relating to Moradi’s three admissions into the United States
in 2019 and his expedited removal order, issued on October 6, 2019. D. 1 at 1. Defendants have
moved for summary judgment, D. 28, and Moradi has filed a cross-motion for summary judgment,
D. 33. Moradi has also moved to strike a supplemental declaration filed by Defendants after the
summary judgment filings were complete. D. 45. For the reasons stated below, the Court DENIES
Moradi’s motion to strike, D. 45, ALLOWS in part and DENIES in part Defendants’ motion for
summary judgment without prejudice, D. 28, and DENIES Moradi’s cross-motion for summary

judgment without prejudice, D. 33.
II. Standard of Review
A. Motions for Summary Judgment

The Court grants summary judgment where there is no genuine dispute as to any material
fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). “A fact is material if it carries with it the potential to affect the
outcome of the suit under applicable law.” Santiago–Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000). The movant bears the burden of demonstrating the absence of a
genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex
v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may
not rest on the allegations or denials in its pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986), but must come forward with specific admissible facts showing that there is a
genuine issue for trial. Borges ex rel. S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 5 (1st Cir. 2010).
The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).
“FOIA cases are typically decided on motions for summary judgment.” Am. Civil
Liberties Union of Massachusetts, Inc. v. U.S. Immigration & Customs Enf’t, 448 F. Supp. 3d 27,
35 (D. Mass. 2020) (quoting Am. Civil Liberties Union Found., Inc. v. United States Dep’t of
Educ., 320 F. Supp. 3d 270, 276 (D. Mass. 2018)). Summary judgment is warranted for a
defendant in a FOIA case “when the agency proves that it has fully discharged its obligations under
the FOIA after the underlying facts and the inferences to be drawn from them are construed in the
light most favorable to the FOIA requester.” Crooker v. Tax Div. of U.S. Dep’t of Justice, No.
94-CV-30129-MAP, 1995 WL 783236, at *7 (D. Mass. Nov. 17, 1995) (internal quotations
omitted) (quoting Gordon v. Thornberg, 790 F. Supp. 374, 378 (D.R.I. 1992)). An agency

discharges its burden when it “proves that each document that falls within the class requested either
has been produced, is unidentifiable, or is wholly exempt from the FOIA’s inspection
requirements.” Id. (internal quotation marks omitted) (quoting Gillen v. IRS, 980 F.2d 819, 821
(1st Cir. 1992)). Summary judgment in FOIA cases “may be granted solely on the basis of agency
affidavits.” Id. at *10 (citing Gardels v. Central Intelligence Agency, 689 F.2d 1100, 1104-5 (D.C.
Cir. 1982)); Hemenway v. Hughes, 601 F. Supp. 1002, 1004 (D.D.C. 1985)).
III. Factual Background

The following facts are undisputed unless indicated otherwise.1 CBP, an agency of the
U.S. Department of Homeland Security (“DHS”), detects and prevents unlawful entry into the
United States. D. 29 ¶¶ 1-2; D. 35 ¶¶ 1-2. The Office of Field Operations (“OFO”) is the
component of CBP responsible for enforcing federal statutes and regulations, including those
related to customs and immigration, at U.S. ports of entry. D. 29 ¶ 3; D. 35 ¶ 3. On October 6,
2019, Moradi arrived at Logan International Airport in Boston, Massachusetts and applied for
entry into the United States. D. 29 ¶ 4; D. 35 ¶ 4. Following an interview with Moradi, CBP

1 Moradi cross-moved for summary judgment, D. 33, but did not submit a statement of material facts. D. 37 at 2; see
Bonbon v. Elite Guardian Sols., LLC, No. 17-cv-10275-ADB, 2019 WL 3290993, at *1 (D. Mass. July 22, 2019)
(denying cross-motion for summary judgment where party failed to submit a statement of material facts upon which
the Court could adjudicate summary judgment). The Court, however, considers the undisputed facts as asserted in
CBP’s statement of material facts, D. 29 at 3-8, and Moradi’s response to CBP’s statement of material facts, D. 35.
officers determined Moradi was inadmissible and issued Moradi an expedited removal order
pursuant to the Immigration and Nationality Act (“INA”). Id.
On November 5, 2019, Moradi submitted a request to vacate the expedited removal order.
D. 29 ¶ 5; D. 35 ¶ 5. On December 17, 2019, the Director, Field Operations, Boston Field Office
upheld the expedited removal order and removed reference to the INA § 212(a)(6)(C)(i) charge

that had been included therein. D. 29 ¶ 6; D. 35 ¶ 6. On November 8, 2019, Moradi filed a FOIA
request, using CBP’s online FOIA portal, requesting:
1. all records relating to his entries into the United States on or about April 28, 2019; August
17, 2019; and September 17, 2019;
2. all records—whether written, electronic, or digitally recorded via audio or videotape—
relating to the October 6, 2019 questioning and expedited removal of him at CBP Logan
Airport;
3. any and all records relating to the investigation of him; including, but not limited to,
materials relied upon in determination to revoke his visa and order expedited removal.

D. 29 ¶ 7; D. 35 ¶ 7; see D. 30 ¶ 13.
On November 21, 2019, CBP acknowledged receipt of the FOIA request and informed
Moradi that the average time to process a request related to “travel/border incidents” was three to
six months. D. 29 ¶ 9; D. 35 ¶ 9. Moradi filed suit in this Court on February 3, 2020. D. 1. On
March 24, 2020, CBP produced thirty pages of responsive records. D. 29 ¶ 10; D. 35 ¶ 10. Two
days later, on March 26, 2020, Moradi submitted a supplemental FOIA request. D. 29 ¶ 11; D. 35
¶ 11. Moradi’s second request sought “all” “records,” but did not contain a definition section or
define the term “record.” D. 29 ¶ 12; D. 35 ¶ 12. On May 8, 2020, CBP released thirty-nine pages
of records to Moradi in response to his second FOIA request. D. 29 ¶ 13; D. 35 ¶ 13.
On December 2, 2020, a week prior to the summary judgment hearing, CBP sent Moradi
184 pages of email communications, as well as documents Moradi had submitted to CBP. D. 39
at 1-2; D. 39-1 at 3. With this third production, CBP included a letter describing the scope of the
email search. D. 39 at 2; D. 39-1. The letter explained that CBP’s Office of Information
Technology “conducted four different email searches related to the events referenced” in the

request, with date ranges spanning two days before and two days after each entry for the first three
searches, D. 39-1 at 2, and spanning from two days before Moradi’s arrival in the U.S. to two days
after issuance of the decision to uphold the order for the fourth search. Id. CBP emailed Moradi
a second Vaughn index with the third release of documents. D. 39-2.
IV. Procedural History

Moradi instituted this action on February 3, 2020. D. 1. Defendants now have moved for
summary judgment. D. 28. Moradi filed a cross-motion for summary judgment on October 19,
2020. D. 33. The Court heard the parties on the pending motions and took these matters under
advisement. D. 43. After the hearing, the Defendants filed a supplemental declaration, D. 44, that
Moradi now moves to strike. D. 45.
V. Discussion

A. Motion to Strike

CBP’s motion for summary judgment relies upon a government affidavit from Patrick
Howard (“Howard”), Branch Chief within the FOIA Division (the “Division”) at CBP. D. 30 (the
“Howard Affidavit.”). Howard “oversee[s] a staff of Government Information Specialists, the
processing of requests for records submitted to CBP pursuant to FOIA . . . and other activities
conducted pursuant to applicable records access provisions.” Id. ¶ 1. On January 8, 2021,
Defendants filed a supplemental affidavit from Howard, naming two databases searched by CBP
when fulfilling Moradi’s FOIA request—the Analytical Framework for Intelligence (“AFI”) and
E3 Next Gen system—and explaining how the databases function. D. 44 (the “Supplemental
Howard Affidavit”). Defendants’ original affidavit did not include the names of any databases.
See D. 30. Moradi argues Defendants’ latest filing has “effectively conceded that [Defendants]
were required to state more about their searches . . .” D. 45 at 2 n. 2. He furthers that the filing

was made nearly a month after the summary judgment hearing conducted on December 10, 2020,
thereby rendering the filing untimely, id. ¶ 5, and that the naming of these two databases
“contravenes Defendants’ persistent argumentation . . . that they had no obligation to disclose
anything about the searched databases beyond labeling them ‘appropriate,’” id. ¶ 6. Defendants
counter that during the December 10, 2020 hearing, this Court noted for “the government’s
consideration” the existence of cases in which CBP databases were identified in FOIA affidavits.
D. 46 at 2. Defendants also note that Moradi’s counsel, during the December hearing, mentioned
that she had received CBP FOIA responses with named databases and that “[t]here’s definitely
somewhere in the middle or close to my position that CBP could accommodate.” Id. at 3.

Defendants contend that their counsel conferred with Defendants post-hearing and that Defendants
then agreed to release the identities of the databases that CBP searched in Howard’s supplemental
declaration. Id.
Moradi is correct that Defendants filed this supplemental affidavit on January 8, 2021, D.
44, after both Moradi’s reply brief and the summary judgment hearing. Although Defendants did
not seek leave for this filing, it was responsive to issues that were raised (in part, by the Court) at
the summary judgment hearing. Moreover, filing of the supplemental affidavit does not prejudice
Moradi, as it provides additional information as to the adequacy of Defendants’ search and the
Court has considered arguments raised by Moradi in the motion in considering and reviewing the
affidavit in connection with Defendants’ motion for summary judgment. Accordingly, the Court
DENIES the motion to strike. McMahon v. Digital Equip. Corp., 162 F.3d 28, 34 n. 6 (1st Cir.
1998) (citing E.E.O.C. v. Green, 76 F.3d 19, 24 (1st Cir. 1996)) (noting that a district court’s
decision not to strike a supplemental affidavit is a matter of discretion).
B. Adequacy of the Search

Moradi contends CBP did not conduct an adequate search for responsive documents. See
generally, D. 1. The adequacy of an agency’s search for documents under FOIA “is judged by a
standard of reasonableness and depends upon the facts of each case.” Maynard v. C.I.A., 986 F.2d
547, 559 (1st Cir. 1993). “The crucial issue is not whether relevant documents might exist, but
whether the agency’s search was ‘reasonably calculated to discover the requested documents.’”
Id. (quoting Safecard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991)). “A satisfactory
agency affidavit should, at a minimum, describe in reasonable detail the scope and method by
which the search was conducted,” id., and should additionally “describe at least generally the
structure of the agency’s file system which makes further search difficult,” id. (internal quotation

marks omitted) (quoting Church of Scientology of Cal. v. I.R.S., 792 F.2d 146, 151 (D.C. Cir.
1986)). “A reasonably detailed affidavit, setting forth the search terms and the type of search
performed, and averring that all files likely to contain responsive materials (if such records exist)
were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy
of the search and to allow the district court to determine if the search was adequate in order to
grant summary judgment.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
Once an agency has produced a sufficient affidavit, a court must afford the government a
presumption of good faith, and “the burden shifts to the requester to ‘provide countervailing
evidence as to the adequacy of the agency’s search.’”
Oleskey ex rel. Boumediene v. U.S. Dep’t of Def., 658 F. Supp. 2d 288, 294-95 (D. Mass. 2009)
(quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003)). If the
requester introduces evidence that “raises substantial doubt, particularly in view of well defined
requests and positive indications of overlooked materials, summary judgment is inappropriate.”
Id. (internal quotation marks omitted) (quoting Iturralde, 315 F.3d at 314).

CBP relies upon the government affidavit from Howard in its motion for summary
judgment, D. 30, which has since been complemented by a supplemental Howard affidavit, D. 44.
The original affidavit, D. 30, explains the FOIA Division’s processes, stating that the Division
determines which CBP offices and databases are likely to contain responsive records based on “a
review of the content of the request, the nature of the records sought, the FOIA Division’s
familiarity with the types and locations of the records at issue, and discussions with knowledgeable
Agency personnel.” Id. ¶ 22. The affidavit further states that the Division then searched CBP
databases and/or requested relevant CBP offices “to gather any/all potentially responsive records,”
after which the Division “review[ed] all gathered records for responsiveness, redact[ed] the

documents as appropriate, review[ed] redaction marks, and obtain[ed] final authorization for
release prior to production.” Id. Pursuant to this process, the affidavit explains that after receiving
Moradi’s November 2019 request, the Division “searched and retrieved responsive records from
the appropriate CBP databases” and “referred the request to the Boston Field Office to conduct a
search for potentially responsive records related to the October 6, 2019 questioning and expedited
removal . . .” Id. ¶ 24. The affidavit notes that the Division did not request CBP’s Office conduct
an email search, as the FOIA request “did not contain a definition section or define the term
‘record’ to include email or electronic communications, nor did it include specific search terms to
indicate that a search of email or electronic communications was necessary to respond to the
request.” Id. ¶ 25. The affidavit asserts that requesters “usually specify as such clearly in the
request.” Id. When Moradi submitted a supplemental request on March 26, 2020, the Division
again referred the request to the Boston Field Office with no request made for emails. Id. ¶ 26.
The supplemental affidavit, as noted above, provides the names of two of the databases searched
by CBP. D. 44 at 1.

Once an agency has produced a sufficient affidavit, Oleskey, 658 F. Supp. 2d at 294-95,
the government is accorded a presumption of good faith that “cannot be rebutted by ‘purely
speculative claims about the existence and discoverability of other documents.’” Maynard, 986
F.2d at 560 (citing SafeCard Servs., Inc., 926 F.2d at 1200); see Weisberg v. U.S. Dep’t of Justice,
705 F.2d 1344, 1351 (D.C. Cir. 1983) (noting that to prevail on summary judgment, “the agency
must show beyond material doubt . . . that it has conducted a search reasonably calculated to
uncover all relevant documents”). Here, the Howard affidavit describes the steps taken by the
Division to process Moradi’s FOIA request, having searched its own databases for responsive
records and referred the request to the Boston Field Office for other responsive records related to

the October 6, 2019 questioning and expedited removal. D. 30 ¶¶ 22-24. The supplemental
affidavit specifies the two databases CBP searched—AFI and E3 NextGen— and the types of
information obtained from each. D. 44 1-2. The supplemental affidavit states that the AFI system
“consolidates and enhances information from CBP transaction based systems,” while the E3
NextGen system “collects and transmits biographic, encounter, and biometric data for the
identification and verification of individuals encountered at the border and checkpoints . . .” Id. at
1-2.
A defendant agency must establish that it has “made a good faith effort to conduct a search
for the requested records, using methods which can be reasonably expected to produce the
information requested.” Oleskey, 658 F. Supp. 2d at 294 (quoting Oglesby, 920 F.2d at 68). The
Howard affidavits adequately delineate which databases were searched and by whom, D. 30; D.
44, but fails to answer the question of how these searches were conducted to ensure all responsive
documents were pulled, i.e., which search terms were used when conducting the database searches.
See Weisberg, 705 F. 2d at 1348 (noting that agency affidavits that “do not denote which files

were searched or by whom, do not reflect any systematic approach to document location, and do
not provide information specific enough to enable [the FOIA requester] to challenge the
procedures utilized” are insufficient to support summary judgment (quoting Weisberg v. U.S.
Dep’t of Just., 627 F.2d 365, 371 (D.C. Cir. 1980))). Although the CBP’s December 2, 2020 letter
provided such details for their subsequent searches for emails, the Howard affidavits did not
provide such details as to those searches or those of the earlier database searches. Compare D. 39-
1 at 2 with D. 30 at 6-8. “A reasonably detailed affidavit, setting forth the search terms and the
type of search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched, is necessary to afford a FOIA requester an opportunity to challenge

the adequacy of the search and to allow the district court to determine if the search was adequate
in order to grant summary judgment.” Oglesby, 920 F.2d at 68; Perry v. Block, 684 F.2d 121, 127
(D.C. Cir. 1982) (noting that “affidavits that explain in reasonable detail the scope and method of
the search conducted by the agency will suffice to demonstrate compliance with the obligations
imposed by the FOIA” in the absence of countervailing evidence or inconsistency of proof).
Accordingly, although the Howard affidavits sufficiently indicate what was searched and by
whom, additional details regarding which search terms were utilized to conduct the searches and
define the scope of the search are necessary for Defendants to meet their burden. Oglesby, 920
F.2d at 68. In this regard, Defendants have until April 22, 2021 to supplement with an affidavit
to address this issue.
C. Application of the FOIA Exemptions

“Within FOIA, ‘Congress provided a number of exemptions that permit an agency to
withhold certain documents from release.’” Johnson v. Cent. Intelligence Agency, 330 F. Supp.
3d 628, 644 (D. Mass. 2018) (quoting Stalcup, 768 F.3d at 69). “To fulfill the broad purposes of
FOIA, [the Court] construe[s] these exemptions narrowly.” Id. The exemptions asserted by CBP
as grounds for non-disclosure of portions of the documents being challenged by Moradi are FOIA
Exemptions 5, 6, 7(C) and 7(E), which are codified at 5 U.S.C. §§ 552 (b)(5), (b)(6), (b)(7)(C),
and (b)(7)(E). D. 30 ¶ 28. CBP asserts FOIA Exemption 5 to protect against the disclosure of its
deliberative process, 5 U.S.C. § 552(b)(5), Exemptions 6 and 7(C) to protect against unwarranted
invasions of privacy, 5 U.S.C. § 552(b)(6) and 5 U.S.C. § 552(b)(7)(C), and Exemption 7(E) to
protect against the disclosure of investigative techniques and procedures, 5 U.S.C. § 552(b)(7)(E).
CBP bears the burden of proving that any claimed exemption applies. Johnson, 330 F. Supp. 3d

at 644. This burden is “a light one,” as “an agency’s justification for invoking a FOIA exemption
is sufficient if it appears logical or plausible.” Katsiaficas v. CIA, No. 13-cv-11058-ADB, 2017
WL 2172437, at *5 (D. Mass. May 17, 2017) (internal quotation marks omitted) (quoting N.Y.
Times Co. v. U.S. Dep’t of Just., No. 14-CV-03776 (AT)(SN), 2016 WL 5946711, at *5 (S.D.N.Y.
Aug. 18, 2016)).
1. Exemption 5

The Court first considers whether FOIA Exemption 5’s deliberative process privilege
applies to CBP’s referenced redactions. “Under 5 U.S.C. § 552(b)(5), ‘inter-agency or intra-
agency memorandums or letters that would not be available by law to a party other than an agency
in litigation with the agency’ are exempted from disclosure.” Am. Civil Liberties Union of
Massachusetts, Inc., 448 F. Supp. 3d at 37 (quoting 5 U.S.C. § 552(b)(5)). The First Circuit has
held that Exemption 5 “facilitates government decision making by: (1) assuring subordinates will
feel free to provide uninhibited opinions, (2) protecting against premature disclosure of proposed
government policies, and (3) preventing confusion among the public that may result from releasing

various rationales for agency action.” Id. (quoting New Hampshire Right to Life v. U.S. Dep’t of
Health & Human Servs., 778 F.3d 43, 52 (1st Cir. 2015)).
To claim the deliberative process privilege pursuant to Exemption 5, “[t]he government
carries the burden of establishing the applicability of the exemption and must show: (1) that the
withheld material is an inter- or intra- agency memorandum . . . (2) that the document is
deliberative; and (3) that it is predecisional.” Stalcup, 768 F.3d at 70 (citing Providence Journal
Co. v. U.S. Dep’t of Army, 981 F.2d 552, 557 (1st Cir. 1992). To satisfy the ‘deliberative’ element,
a document “must reflect ‘the give-and-take of the consultative process.’” Id. (quoting Petroleum
Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992). “A predecisional

document will qualify as ‘deliberative’ provided it (i) formed an essential link in a specified
consultative process, (ii) ‘reflect[s] the personal opinions of the writer rather than the policy of the
agency,’ and (iii) if released, would ‘inaccurately reflect or prematurely disclose the views of the
agency.’” Providence Journal, 981 F.2d at 559 (quoting Nat’l Wildlife Fed'n v. U.S. Forest Serv.,
861 F.2d 1114, 1118-19 (9th Cir. 1988)).
Turning first to CBP’s application of Exemption 5 in the first and second production, CBP
relies upon Exemption 5’s deliberative process privilege as the basis that the statements redacted
thereunder reflected internal agency deliberations pertaining to potential enforcement actions. D.
29 ¶ 19. The exemption was applied to portions of two pages of records released to Moradi, id.,
which CBP argues, if released, “could reasonably be expected to have a chilling effect on the open
and frank expression of ideas, recommendations and opinions that occurs when Agency officials
are discussing and crafting guidance on a time-sensitive issue.” D. 30 ¶ 31. CBP has proffered no
explanation, however, that any of these statements were deliberative. To the extent CBP has
explained its basis for invoking Exemption 5 to redact these documents, the agency has merely

relied upon conclusory statements averring that exemption “has been applied to recommendations
reflecting internal agency deliberations pertaining to potential enforcement actions.” D. 30-1 at
10. CBP has not demonstrated that the redacted portions “form[ed] an essential link in a specified
consultative process,” Providence Journal Co., 981 F.2d at 559, as there is no evidence that the
redacted text played any part in a deliberative function entrusted to the agency. Although
Exemption 5 disputes “can often be resolved by the simple test that factual material must be
disclosed but advice and recommendations may be withheld,” Reilly v. U.S. E.P.A., 429 F. Supp.
2d 335, 345 (D. Mass. 2006) (noting that the “fact/opinion distinction ‘offers a quick, clear, and
predictable rule of decision,’ for most cases”), there is nothing in the record—aside from

conclusory statements in CBP’s Vaughn Index and affidavit—that shows the redacted portions
contain the personal opinions of the “SCBPO” writer who drafted the document. D. 30-1. The
Court is unable to discern any indication of advice or recommendation based on the context
surrounding these redacted portions. See, e.g., D. 36-12 (redacting sentence starting “[r]egarding
the request to vacate the expedited removal order of [Moradi] entered October 6, 2019. . . .”).
CBP additionally failed to meet its burden to demonstrate that the redacted portions, if
released, would inaccurately reflect or prematurely disclose the views of the agency. While CBP
asserts the redacted portions meet Exemption 5 requirements, without more, CBP has not met its
burden of proving the applicability of Exemption 5 to the redacted portions of the document. D.
36-12 at 2-3. See Am. Civil Liberties Union of Massachusetts, Inc., 448 F. Supp. 3d at 37
(concluding agency was “unable to meet its burden to demonstrate that Exemption 5 shields the
release of any of the [documents] because it has not provided any evidence, as it must, that those
documents are ‘deliberative’”); Johnson, 330 F. Supp. 3d at 633 (noting that the court “must reject
the Agency’s withholdings if ‘the declarations do not demonstrate careful analysis of each

document by the government; the court has not been assisted in its duty of ruling on the
applicability of an exemption; and the adversary system has not been visibly strengthened’”)
(internal quotation marks and citation omitted.
Turning to CBP’s use of Exemption 5 in its third production, D. 39, CBP similarly fails to
demonstrate how these documents are deliberative. In the second Vaughn index, Defendants state
that the two documents withheld from the production, both titled “Document withheld in full from
5/8/2020 production,” “contain[ ] guidance and instructions related to potential Agency action,”
D. 39-2 at 39-40; id. at 41, and therefore, “do not constitute a final Agency policy or decision and
are protected from disclosure . . . as part of the deliberative process.” D. 39-2 at 39-40; id. at 41

(solely noting withheld document does “not constitute a final Agency decision”). These
explanations do not demonstrate a “careful analysis of each document by the government,”
Johnson, 330 F. Supp. 3d at 633, or show “an essential link in a specified consultative process,”
Providence Journal Co., 981 F. 2d at 559.
Where, as here, a court finds that a Vaughn index or agency affidavit inadequately
describes records redacted or withheld under the deliberative process privilege, it may deny
summary judgment as to those records and “direct the government to revise its submissions with
respect to [the] specific records.” Church of Scientology Int’l., 30 F.3d at 239; Spirko v. U.S.
Postal Serv., 147 F.3d 992, 997 (D.C. Cir. 1998) (citations omitted) (explaining that “[i]f the
agency fails to provide a sufficiently detailed explanation to enable the district court to make a de
novo determination of the agency’s claims of exemption,” the district court then may request
further affidavits). Accordingly, as with the adequacy of the search, the Court gives the
government until April 22, 2021 to supplement its Vaughn index as to the documents redacted or
withheld solely on the basis of deliberative process under Exemption 5, D. 30-1 at 10 (listing

“Memo to DFO from SCBPO_Redacted” as withheld under Exemption 5); D. 36-12, or produce
these documents.
2. Exemptions 6 and 7(C)

Exemptions 6 and 7(C) seek to protect the privacy of individuals identified in certain
agency records. Under Exemption 6, “personnel and medical files and similar files” may be
withheld if disclosure “would constitute a clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). Whether names and other identifying information are appropriately withheld
under Exemption 6 is a two-part analysis. Johnson, 330 F. Supp. 3d at 647 (quoting Families for
Freedom v. U.S. Customs & Border Protection, 837 F. Supp. 2d 287, 301 (S.D.N.Y. 2011)). “First,
[the Court] must determine whether the personal information is contained in a file similar to a
medical or personnel file.” Id. Then, the Court must “balance the public’s need for the information
against the individual’s privacy interest to determine whether the disclosure of the names would
constitute a clearly unwarranted invasion of personal privacy.” Id. (quoting Wood v. FBI, 432
F.3d 78, 86 (2d Cir. 2005)). “[T]he Government’s burden in establishing the requisite invasion of
privacy to support an Exemption 6 claim is heavier than the standard applicable to Exemption
7(C).” U.S. Dep’t of State v. Ray, 502 U.S. 164, 172 (1991). Exemption 7(C) “permits an agency
to withhold records or information compiled for law enforcement purposes, ‘but only to the extent
that the production of such [materials] . . . could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” Carpenter v. U.S. Dep’t of Justice, 470 F.3d 434, 438
(1st Cir. 2006) (quoting 5 U.S.C. § 552 (b)(7)(C)). “The application of Exemption 7(C) requires
the court to balance the privacy interest at stake in revealing the materials with the public interest
in their release.” Id. Given that Exemption 7(C) “protects similar interests and shields a broader
range of information,” than Exemption 6, “all information that would fall within the scope of

Exemption 6 would also be immune from disclosure under Exemption 7(C).” Moffat v. U.S. Dep’t
of Justice, 716 F.3d 244, 250 n. 4 (1st Cir. 2013) (citing Roth v. U.S. Dep’t of Justice, 642 F.3d
1161, 1173 (D.C. Cir. 2011)).
Turning to CBP’s first and second production, CBP applies Exemption 6, asserting that the
exemption has “been applied to the names, personally identifiable information and other
identifying details of government employees and third party individuals that, if released, would
identify those individuals.” D. 30-1 at 2-6, 8-14. Moradi does not object to CBP’s application of
Exemption 6 or 7(C) with respect to the officers’ names, but rather to the officers’ titles. D. 34 at
11. While CBP asserts that it did not apply these exemptions categorically, having “released names

of senior officials whose identities are widely known among the public,” D. 30 ¶ 35, Exemption 6
can only be invoked for documents similar to personnel or medical files, see Johnson, 330 F. Supp.
3d at 647; Families for Freedom, 837 F. Supp. 2d at 301. CBP applies the exemption to such
documents as Moradi’s ‘Record of Deportable/Inadmissible Alien,’ D. 36-1 at 2-7, D. 36-18,
Moradi’s 1025 and 1095 documents, D. 36-3 at 2-15, Moradi’s Person Query form, D. 36-5, D.
36-6, D. 36-7, D. 36-10, D. 36-15, Moradi’s Withdrawal of Application for Admission/Consular
Notification, D. 36-11; Notice to Detain, Remove or Present Alien, D. 36-14; Moradi’s Notice and
Order of Expedited Removal, D. 36-17, as well as other documents, D. 36-9, D. 36-12. As these
files are not personnel or medical files, their assessment would fall under the gambit of “similar
files,” which is “meant to ‘have a broad, rather than a narrow meaning.’” Johnson, 330 F. Supp.
3d at 647 (quoting U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 600-02 (1982)
(noting Exemption 6 was “intended to cover detailed Government records on an individual which
can be identified as applying to that individual”)). Applying a broad meaning, these files appear
“similar” to personnel or medical files, as other courts have held analogous documents to be,

Families for Freedom, 837 F. Supp. 2d at 301 & n. 83 (noting that “similar files” has been
construed to include “those containing investigations of alleged corruption, passport applications,
asylum requests or detainee abuse”). CBP applies Exemption 6 to redact who generated, signed
or modified these documents. See, e.g., D. 36-9 at 2, 3, 8. Given the government’s greater burden
under Exemption 6 to establish the requisite invasion of privacy of the disclosure of same, it is a
close call whether documents redacted in this manner solely under Exemption 6 would stand.
Here, however, the government invokes both Exemptions 6 and 7(C) for such redactions and, as
discussed below, the Court concludes that such redactions were appropriate under Exemption 7(C).
Turning to CBP’s application of Exemption 7(C), under which “all information that would

fall within the scope of Exemption 6 would also be immune from disclosure,” Moffat, 716 F.3d at
250, n. 4, CBP applies Exemption 7(C) to the same or similar information, “in tandem” with
Exemption 6, “such that information protected by one [exemption] is also protected by the other,”
D. 29 ¶ 20. “Although ‘the Government’s burden in establishing the requisite invasion of privacy
to support an Exemption 6 claim is heavier than the standard applicable to Exemption 7(C),’” the
public interest prong of both exemptions applies equally in both contexts. Maynard, 986 F.2d at
567 (quoting Ray, 502 U.S. at 172). Under Exemption 7(C), “‘records or information compiled
for law enforcement purposes’ may be withheld ‘to the extent that’ disclosure ‘could reasonably
be expected to constitute an unwarranted invasion of personal privacy.’” Abdul-Alim v. Wray,
277 F. Supp. 3d 199, 216 (D. Mass. 2017) (quoting Taylor v. U.S. Dep’t of Justice, 257 F. Supp.
2d 101, 113 (D.D.C. 2003)). “In determining whether a privacy interest exists in records related
to law-enforcement agencies, it is well established that the mention of an individual’s name in a
law enforcement file will engender comment and speculation and carries a stigmatizing
connotation.” Id. “[T]he public’s interest in disclosure is not furthered . . . by disclosure of

information about individuals that is accumulated in . . . governmental files but that reveals little
or nothing about an agency’s own conduct.” Id.
CBP argues “the identification of CBP officials in association with the performance of their
duties in an operational context risks unwarranted attribution and attention to the employee beyond
the confines of their job and into their personal life, and disclosing the identities of these specific
individuals would not meaningfully shed light on how the government performs its duties.” D. 30
¶ 36. While CBP does not reference its redaction of officials’ titles specifically, CBP reference its
redaction of personally identifiable information generally. Id. “Official information that sheds
light on an agency’s performance of its statutory duties falls squarely within the statutory purpose,”

of FOIA. Ray, 502 U.S. at 177-78. Here, however, Moradi has failed to indicate or point to how
this withheld information would reveal anything significant about CBP’s “performance of its
statutory duties,” or any other superior public interest. Maynard, 986 F.2d at 566 (concluding
officials names were properly withheld where plaintiffs failed to “suggest how the disclosure of
the names would reveal what the government is up to”).
Turning to CBP’s third production, CBP similarly applies Exemption 7(C) to redact
officers’ names and titles. D. 39-2. Moradi argues that the emails indicate the redacted names are
of low-level employees rather than supervisors or policymakers. D. 42 at 2 (citing email that states
“[e]xcellent work by our [redacted] Officers,” which Moradi argues “reflects that the author and
the recipient are senior”). Like its arguments for CBP’s first and second production, CBP contends
in the second Vaughn index that these portions, if unredacted, “would identify” these individuals
who “have a protectable privacy interest in their identities that would be threatened by disclosure.”
See generally, D. 39-2. Although CBP’s explanations are arguably broad, Moradi fails to explain
how it is in the public interest to reveal these officers’ identities. D. 42 at 2. Moradi argues

generally that the public has a significant interest in being informed about actions taken by public
officials but provides no further basis. Id. Courts have consistently held that “where the plaintiff
has failed to demonstrate any superior public interest that would be served by disclosure, the
competing interest of avoiding an unwarranted invasion of personal privacy takes precedence, and
the information is exempt from disclosure under Exemption 7(C).” Crooker, 1995 WL 783236, at
*17. Accordingly, here, the officers’ rights to privacy and safety outweigh any public interest
given Moradi’s failure to demonstrate how the revelation of this kind of information would shed
light on the operations and activities of CBP. The Court concludes that the officials’ names and
identities were properly withheld under Exemption 7(C) and CBP’s motion for summary judgment

with respect to Exemption 7(C) is allowed.
3. Exemption 7(E)

Exemption 7(E) “shields law enforcement records that, if produced, ‘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.’” Abdul-Alim, 277 F. Supp. 3d at 215. To withhold
documents pursuant to Exemption 7(E), “the [agency] need only ‘establish a rational nexus
between the investigation and one of the agency’s law enforcement duties and a connection
between an individual or incident and a possible security risk or violation of federal law.’”
Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (quoting Campbell v. Dep’t of Justice, 164
F.3d 20, 32 (D.C. Cir. 1998)).
CBP invoked Exemption 7(E) to withhold: (1) internal codes, case tracking numbers and
names of databases and (2) law enforcement techniques, procedures and methods and information
compiled for law enforcement and investigative purposes. D. 30 ¶ 40; see D. 39-2. In the Howard

affidavit, Howard explains that CBP “is constrained in describing the techniques, procedures, and
guidelines by its Exemption (b)(7)(E) withholdings, so as to avoid revealing information CBP
seeks to protect, which is not generally known to the public.” D. 30 ¶ 38. He asserts that the
“records at issue were compiled for law enforcement purposes,” id. ¶ 39, and that the disclosure
of the internal codes and case tracking numbers therein would “enable an individual
knowledgeable in CBP databases to improperly access the system, facilitate navigation or
movement through the system, allow manipulation or deletion of data and/or interfere with
enforcement proceedings,” id. ¶ 40(i). He also purports that the disclosure of law enforcement
techniques, procedures and methods and information compiled for law enforcement and

investigation purposes would “be detrimental to both CBP and the law enforcement community,
and enable individuals to alter patterns of conduct, adopt new methods of operation, relocate,
change associations, and effectuate other countermeasures, thereby corrupting the integrity of
ongoing investigations.” Id. ¶ 40(ii). These justifications are reflected in the Vaughn indices, in
which a similar rationale is repeated throughout. See generally, D. 30-1; D. 39-2.
Based upon information in the Vaughn indices for withholding documents under
Exemption 7(E)--that this exemption “has been applied to internal codes, case tracking numbers,
and the names of databases which the Agency considers law enforcement sensitive” and
“information relating to law enforcement techniques, procedures and methods, and information
compiled for law enforcement and investigation purposes,” D. 30-1 (repeated throughout); D. 39-
2 (repeated throughout)—in conjunction with the explanations provided in the Howard affidavit
as to the exemption, the Court concludes that Defendants have provided sufficient details from
which the Court can find that “a rationale nexus” exists “between law enforcement
methods/investigations and potential [ ] security risks if the redacted information were disclosed.”

Abdul-Alim, 277 F. Supp. 3d at 215 (permitting FBI’s use of Exemption 7(E) despite agency’s
“conclusory allegations” given details provided in declaration “as a whole”). Accordingly, the
Court allows Defendant’s motion for summary judgment as to its application of Exemption 7(E).
VI. Conclusion

For the foregoing reasons, the Court DENIES Moradi’s motion to strike, D. 45, ALLOWS
in part and DENIES in part Defendants’ motion for summary judgment without prejudice, D. 28,
and DENIES Moradi’s cross-motion for summary judgment without prejudice, D. 33. Defendants
shall submit a supplemental affidavit as to adequacy of search, particularly addressing the search
terms utilized to conduct these searches and the scope of searches, by April 22, 2021. Also, by
April 22, 2021, Defendants shall supplement their Vaughn index as to the documents redacted or
withheld solely on the basis of deliberative process under Exemption 5, D. 30-1 at 10 (listing
“Memo to DFO from SCBPO_Redacted” as withheld under Exemption 5); D. 36-12, or produce
these documents by April 22, 2021, providing notice of same to the Court.
So Ordered.

/s/ Denise J. Casper
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10199354. Public record. Not legal advice.