Borowski v. Customs and Border Protection

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

MATTHEW BOROWSKI,

Plaintiff, DECISION AND ORDER

v.

1:23-CV-00257 EAW

U.S. CUSTOMS AND BORDER

PROTECTION,

Defendant.

____________________________________

INTRODUCTION

Plaintiff Matthew Borowski (“Plaintiff”) brings this action against defendant U.S.

Customs and Border Protection (“CBP,” “Defendant,” or “the agency”), asserting claims

pursuant to the Administrative Procedure Act (the “APA”), 5 U.S.C. § 706(2)(A), the

Federal Tort Claims Act (“FTCA”), the First, Fourth, Fifth, and Fourteenth Amendments

of the Constitution (“the constitutional claims”), and the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552. (Dkt. 9).1 Defendant has moved for summary judgment on the

FOIA claim. (Dkt. 19). For the reasons discussed below, Defendant’s summary judgment

motion on the FOIA claim is denied without prejudice.

1 As noted below, on February 21, 2024, the Court issued a Decision and Order

dismissing Plaintiff’s FTCA and constitutional claims without prejudice. (Dkt. 29).

FACTUAL BACKGROUND

The following facts are taken from Defendant’s “Statement of Material Facts as to

which there is No Genuine Issue to be Tried” (“statement of undisputed material facts”)

(Dkt. 19-1) and Defendant’s exhibits.2

The NEXUS program is jointly administered by the United States and Canada and

allows pre-approved, low-risk travelers expedited processing when traveling between the

two countries. (Id. at ¶ 1). Defendant and the Canada Border Services Agency must both

approve applicants for the program. (Id. at ¶ 2). Defendant reviews an individual’s

application and checks it against various government databases, and applicants who meet

the eligibility criteria can schedule an interview at a CBP Enrollment Center. (Id. at ¶¶ 3-

4). Approval for NEXUS membership is contingent on Defendant’s vetting of the

application, fingerprint submission, and the interview results. (Id. at ¶ 5). NEXUS

membership is valid for five years, after which a member must apply for renewal, which

includes checks of government databases, vetting, and may require an interview. (Id. at

2 Pursuant to Local Rule of Civil Procedure 56(a)(1), Defendant filed a statement of

undisputed material facts in support of its summary judgment motion. (See Dkt. 19-1).

Although Plaintiff filed a response, he failed to respond to each numbered paragraph in

Defendant’s statement as required by Local Rule 56(a)(2). (See Dkt. 23). Plaintiff, in his

unsworn response, contests three facts that Defendant included in support of its summary

judgment motion, but he does not argue that the alleged “inaccuracies” are material and

fails to offer any evidentiary proof in opposition to the pending motion as required by Local

Rule 56(a)(2). (See id. at 5). The Court therefore treats the facts set forth in Defendant’s

statement of undisputed material facts “admitted for purposes of” the instant motion where

supported by admissible evidence in the record. Loc. R. Civ. P. 56(a)(2); see N.Y. State

Teamsters Conf. Pension & Ret. Fund v. Express Servs. Inc., 426 F.3d 640, 648 (2d Cir.

2005).

¶¶ 6-7).3 Defendant also vets program members on a recurring basis by checking law

enforcement databases and may revoke an individual’s enrollment before the membership

period has concluded. (Id. at ¶ 8).

Plaintiff applied for NEXUS program membership on or about November 13, 2011,

and Defendant approved his application. (Id. at ¶¶ 9-10). Defendant revoked Plaintiff’s

membership in the program on December 16, 2013, after an inspection. (Id. at ¶ 11).4 At

Plaintiff’s request, Defendant’s Ombudsman reviewed the revocation and granted

“discretionary consideration,” and Plaintiff’s membership was restored on or about April

25, 2014. (Id. at ¶ 12).5 Plaintiff applied to renew his membership on or about August 25,

2017, and his application was approved, effective on or about September 17, 2017. (Id. at

¶ 13). Plaintiff again applied to renew his membership on or about May 26, 2022, and on

or about December 20, 2022, Defendant provided him with two letters, one of which

3 In arguing that Defendant’s statement of undisputed material facts is inaccurate as

to this point, Plaintiff states that he “believes that a NESUS [sic] member can, and is

encouraged to, apply for a renewal prior to the expiration of their membership.” (Dkt. 23

at 5). Plaintiff, by his own admission, is merely stating a belief. Moreover, Plaintiff makes

no argument as to why this issue is a material fact as it relates to his FOIA claim.

4 Plaintiff argues that his membership was not revoked after an inspection because he

was leaving the United States to enter Canada, and therefore, CBP did not inspect him.

(Dkt. 23 at 5). He further contends that his and his wife’s NEXUS cards were revoked

after CBP officers stopped Plaintiff’s family’s vehicle and a CBP officer “brutally attacked”

his wife. (Id.). Plaintiff makes no argument as to why this issue is a material fact as it

relates to his FOIA claim.

5 In responding to this fact, Plaintiff states that his and his wife’s NEXUS

memberships were reinstated once his wife was acquitted of an offense for which

Defendant “falsely” charged her after a CBP officer “brutally attacked” her. (Dkt. 23 at 5).

Again, Plaintiff makes no argument as to why this issue is a material fact as it relates to his

FOIA claim.

revoked his NEXUS membership and the other of which denied his renewal request. (Id.

at ¶¶ 14-15). According to the letters, Plaintiff did “not meet program eligibility

requirements based on the vetting, which included review of information in CBP’s law

enforcement databases.” (Id. at ¶ 15). Defendant’s Ombudsman sustained the denial on

April 12, 2023, and Plaintiff was notified by letter. (Id. at ¶¶ 16-17).

On December 22, 2022, Defendant received Plaintiff’s FOIA request, in which he

sought the following information:

All documents, records, information, database entries, or any other

electronically stored information (ESI), papers, notes, documents pertaining

to the trusted Traveler Program application(s), renewals, revocations,

denials, for MATTHEW BOROWSKI with NEXUS Program Membership

#982419666, relating to the denial/revocation dated December 20, 2022

including reason(s) for denial. I also request any and all notes, document,

derogatory information, information about any purported violations, and/or

entries in CBP Databases that were consulted or used as a basis for the denial.

(Id. at ¶ 18). Defendant provided its FOIA response to Plaintiff on May 25, 2023. (Id. at

¶ 19).

Defendant is a law enforcement agency within DHS and employs armed law

enforcement officers engaged in the agency’s border security mission. (Id. at ¶ 31).

According to a declaration from Patrick A. Howard (“the Howard declaration”), a branch

chief within FOIA Division at CBP, Defendant has procedures for responding to FOIA

requests, starting with a search for potentially responsive records. (Id. at ¶¶ 25, 33). Once

potentially responsive records are located, Defendant reviews them to ensure

responsiveness and then to excise and withhold information that falls within one of the nine

statutory exemptions from disclosure set forth at 5 U.S.C. § 552(b). (Id. at ¶ 34). When

reviewing records to identify information exempt from disclosure, Defendant’s FOIA

processors must (1) meticulously examine, line-by-line, each responsive page to identify

potential redactions, (2) apply redactions, if necessary, and (3) individually label each

redaction with the applicable exemption(s). (Id. at ¶ 35).

Once the agency received Plaintiff’s FOIA request, Defendant determined where

responsive information would likely be contained. (Id. at ¶ 37). Defendant searched for

responsive records in two of its systems, the Global Enrollment System (GES) and the

Analytical Framework for Intelligence (AFI) system. (Id. at ¶ 38). GES was searched

based on Plaintiff’s NEXUS membership number, and AFI was searched based on

Plaintiff’s first and last name. (Id.). Defendant identified 251 pages of records that were

responsive to Plaintiff’s request, of which 61 pages were fully released to Plaintiff and 190

pages were released in part with certain information redacted. (Id. at ¶¶ 42, 45). The

responsive records contained information relating to Plaintiff’s encounters with CBP

personnel at ports of entry and his participation in the NEXUS program. (Id. at ¶ 43).

Defendant reviewed each record page-by-page and line-by-line in an attempt to confirm

that only exempt information was withheld and to determine if non-exempt information

could be segregated and released. (Id. at ¶ 46). Defendant allegedly did not withhold non-

exempt information. (Id.). Defendant withheld information based on four FOIA statutory

exemptions. (Id. at ¶ 47).

Under the first exemption, 5 U.S.C. § 552(b)(5) (“Exemption 5”), Defendant

withheld five full pages of records on the basis that they consisted of intra-agency emails

constituting internal, predecisional deliberations and CBP employees’ recommendations

regarding Plaintiff’s NEXUS eligibility. (Id. at ¶¶ 50-51). In addition to Exemption 5,

Defendant also withheld the five pages of emails on the basis that they also contain

information that is further exempt from disclosure under the other three statutory

exemptions that the agency claimed. (Id. at ¶ 51).

Under the second exemption, 5 U.S.C. § 552(b)(7)(E) (“Exemption 7(E)”),

Defendant withheld material on the basis that it was compiled for law enforcement

purposes relating to techniques, procedures, and guidelines for law enforcement

investigations or prosecutions. (See id. at ¶ 54). Among the information that Defendant

withheld were descriptions of the specific methods that CBP officers used to inspect

Plaintiff during encounters at ports of entry, the reasons that Plaintiff was referred for

secondary inspections on several occasions, how CBP personnel used law enforcement

systems and databases based on its encounters with Plaintiff and in assessing his NEXUS

eligibility, and information relating to CBP systems and databases. (Id. at ¶¶ 57-58, 63-

64).

Under the third exemption, 5 U.S.C. § 552(b)(6) (“Exemption 6”), and under the

fourth exemption, 5 U.S.C. § 552(b)(7)(C) (“Exemption 7(C)”), Defendant withheld

material on the basis that it contained personally identifiable information about CBP law

enforcement personnel and other CBP employees, as well as information about non-

employee third parties. (Id. at ¶¶ 66-69, 73). The agency applied the two exemptions in

tandem because information in those records protected by one exemption is purportedly

also protected by the other. (Id. at ¶ 68). For example, Defendant withheld the names of

CBP officers and supervisors who inspected Plaintiff at points of entry, as well as the

unique hash identification numbers used in CBP computer systems that identify agency

personnel involved in inspecting and processing Plaintiff. (Id. at ¶¶ 70-71). Among the

withheld details about third parties were names and license plate numbers. (Id. at ¶ 73).

PROCEDURAL BACKGROUND

Plaintiff filed his initial complaint on March 22, 2023, asserting claims under the

APA for Defendant’s revocation of his NEXUS membership, and under FOIA to compel

Defendant to produce documents in response to Plaintiff’s FOIA request. (Dkt. 1; Dkt. 19-

1 at ¶ 20). Defendant filed a motion to dismiss the complaint on May 26, 2023, arguing

that the FOIA claim was moot because Defendant had processed the FOIA request. (Dkt.

7; Dkt. 19-1 at ¶ 21).

On June 20, 2023, Plaintiff filed an amended complaint, which includes a claim

under FOIA for improperly withholding requested records because Defendant provided an

incomplete response to his FOIA request and wrongfully redacted information. (Dkt. 9 at

¶¶ 80-83 ; Dkt. 19-1 at ¶ 22). Defendant filed a motion to dismiss all claims except for the

FOIA claim, and the Court extended Defendant’s time to answer or to move for summary

judgment as to the FOIA claim. (Dkt. 13; Dkt. 14; Dkt. 19-1 at ¶¶ 23-24).

On October 16, 2023, Defendant filed the instant motion for summary judgment on

the FOIA claim. (Dkt. 19). Plaintiff filed a response in opposition to the summary

judgment motion. (Dkt. 23). Defendant completed briefing by filing a reply in further

support of its motion for summary judgment on the FOIA claim. (Dkt. 28). The Court

denied Defendant’s motion to dismiss the APA claim and granted the motion with respect

to the FTCA and constitutional claims on February 21, 2024. (Dkt. 29).

DISCUSSION

I. Legal Standard for Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes “that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The Court should grant summary judgment if, after considering the evidence in

the light most favorable to the nonmoving party, the Court finds that no rational jury could

find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

“The moving party bears the burden of showing the absence of a genuine dispute as

to any material fact . . . .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486

(2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the

party moving for summary judgment may meet its burden by showing the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to carry the

non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103

(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the

moving party has met its burden, the opposing party “must do more than simply show that

there is some metaphysical doubt as to the material facts, and may not rely on conclusory

allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc.,

781 F.3d 42, 44 (2d Cir. 2015) (internal quotation marks and citation omitted). Specifically,

the non-moving party “must come forward with specific evidence demonstrating the

existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347,

358 (2d Cir. 2011). Indeed, “the mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for summary judgment;

the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

II. Plaintiff’s Opposition to the Partial Summary Judgment Motion is Inadequate

Plaintiff’s response to the instant motion for partial summary judgment is

fundamentally inadequate.6 As previously discussed above, see n.2, Plaintiff failed to

comply with this District’s Local Rules in his response, and he did not submit any

evidentiary proof in support of his arguments. Plaintiff’s “Preliminary Statement” in his

response (Dkt. 23 at 1-5) contains a series of unsworn and conclusory allegations, and the

purported “inaccuracies” that he highlights in Defendant’s statement of undisputed material

facts are not countered with evidence to show that there is a genuine dispute as to any

material fact. See Fed. R. Civ. P. 56(a); Robinson, 781 F.3d at 44. “An affidavit or

declaration used to support or oppose a motion must be made on personal knowledge, set

out facts that would be admissible in evidence, and show that the affiant or declarant is

competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Plaintiff has not

6 Plaintiff, an attorney admitted to practice before this Court, signed his response to

the instant motion “Pro Se,” seemingly to argue that he should be treated as a pro se litigant.

(See Dkt. 23 at 19). To the extent that Plaintiff is making this argument, the Court rejects

it, for the reasons set forth in the Court’s Decision and Order dated February 21, 2024.

(Dkt. 29 at 2-3 n.2); see Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010). Accordingly,

Plaintiff will be held to the same standards and expected to comply with the same

requirements applicable to all attorneys appearing before the Court.

submitted an affidavit or declaration based on his personal knowledge, nor has he otherwise

set out facts that would be admissible at trial.

However, the flaws in Plaintiff’s briefing papers do not relieve the Court of its

obligation under Rule 56 to assess whether a party moving for summary judgment is

entitled to judgment as a matter of law. Indeed, even had Plaintiff failed to oppose the

motion for summary judgment at all, the Court would have an independent duty to

determine whether Defendant has satisfied its legal burden. See, e.g., Vermont Teddy Bear

Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 242 (2d Cir. 2004) (“Even when a motion

for summary judgment is unopposed, the district court is not relieved of its duty to decide

whether the movant is entitled to judgment as a matter of law.”). Accordingly, the Court

turns to the merits of Defendant’s motion.

III. Defendant is Not Entitled to Summary Judgment on the FOIA Claim

Defendant argues that it is entitled to summary judgment because it conducted a

reasonable search for documents that were responsive to Plaintiff’s FOIA request, properly

withheld information from those documents based on specific FOIA exemptions, and

segregated non-exempt information to release. (See Dkt. 19-3 at 10-31).

“FOIA was enacted ‘to facilitate public access to Government documents,’ and was

designed ‘to pierce the veil of administrative secrecy and to open agency action to the light

of public scrutiny.’” Associated Press v. U.S. Dep’t of Def., 554 F.3d 274, 283 (2d Cir.

2009) (internal citations omitted). “Consistent with FOIA’s purpose and design, ‘the

strong presumption in favor of disclosure places the burden on the agency to justify the

withholding of any requested documents.’” Id. (quoting U.S. Dep’t of State v. Ray, 502

U.S. 164, 173 (1991); see CLEAR v. U.S. Customs & Border Prot., No. 19-CV-7079

(RER), 2022 WL 16636686, at *3 (E.D.N.Y. Nov. 2, 2022) (“The FOIA requires

government agencies to disclose agency records unless those records fall under an

enumerated exemption.”) (citing Brennan Ctr. for Just. at N.Y. Univ. Sch. of L. v. U.S.

Dep’t of Just., 697 F.3d 184, 194 (2d Cir. 2012)). A district court reviews an agency’s

withholding of records based on a FOIA exemption de novo. See, e.g., Osen LLC v. U.S.

Dep’t of State, 360 F. Supp. 3d 258, 263 (S.D.N.Y. 2019); Seife v. U.S. Dep’t of State, 298

F. Supp. 3d 592, 606 (S.D.N.Y. 2018); see also 5 U.S.C. § 552(a)(4)(B).

“Summary judgment is the procedural vehicle by which most FOIA actions are

resolved.” Seife, 298 F. Supp. 3d at 604 (quoting N.Y. Times Co. v. U.S. Dep’t of Def., 499

F. Supp. 2d 501, 509 (S.D.N.Y. 2007)). “A federal agency responding to a FOIA request

must (1) conduct an adequate search using reasonable efforts, (2) provide the information

requested, unless it falls within a FOIA Exemption, and (3) provide any information that

can be reasonably segregated from the exempt information.” N.Y. Times Co. v. U.S. Dep’t

of Just., 390 F. Supp. 3d 499, 511 (S.D.N.Y. 2019) (quotation omitted); see also 5 U.S.C.

§§ 552(a)(3) and (b). In addition, pursuant to the FOIA Improvement Act (the “FIA”) of

2016, “it is not enough for the Government to show that an exemption applies. Rather, the

Government must also demonstrate that ‘(i) the agency reasonably foresees that disclosure

would harm an interest protected by an exemption described in subsection (b); or (ii)

disclosure is prohibited by law.’” N.Y. Times Co. v. Dep’t of Health & Hum. Servs., 513

F. Supp. 3d 337, 346 (S.D.N.Y. 2021) (quoting 5 U.S.C. § 552(a)(8)(A)), aff’d sub nom.

N.Y. Times Co. v. U.S. Dep’t of Health & Hum. Servs., 15 F.4th 216 (2d Cir. 2021). “Stated

differently, pursuant to the FOIA Improvement Act, an agency must release a record—

even if it falls within a FOIA exemption—if releasing the record would not reasonably harm

an exemption-protected interest and if its disclosure is not prohibited by law.” Nat’l Day

Laborer Org. Network v. U.S. Immigr. & Customs Enf’t, 486 F. Supp. 3d 669, 691

(S.D.N.Y. 2020) (quoting Rosenberg v. U.S. Dep’t of Def., 342 F. Supp. 3d 62, 73 (D.D.C.

2018) and emphasis in original).

“A district court in a FOIA case may grant summary judgment in favor of an agency

on the basis of agency affidavits if they contain reasonable specificity of detail rather than

merely conclusory statements, and if they are not called into question by contradictory

evidence in the record or by evidence of agency bad faith.” Grand Cent. P’ship, Inc. v.

Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (quotation omitted and emphasis in original); see

N.Y. Times Co., 390 F. Supp. 3d at 512 (“[A]n agency is entitled to summary judgment

when it has thoroughly searched for responsive records and has articulated reasonably

detailed explanations why any withheld documents fall within an exemption.”) (quotation

omitted). The Second Circuit “accord[s] a presumption of good faith to an agency’s

affidavits or declarations, such that when an agency provides reasonably detailed

explanations to support its decision to withhold a document, its justification is sufficient if

it appears logical and plausible.” Behar v. U.S. Dep’t of Homeland Sec., 39 F.4th 81, 88

(2d Cir. 2022) (quotations omitted).

A. Reasonableness of Search for Responsive Records

Defendant argues that it conducted a search reasonably designed to locate

documents responsive to Plaintiff’s FOIA request by determining where responsive

information would likely be contained and then searching in two of its systems for the

information.7 (Dkt. 19-3 at 12).

“The agency bears the burden to demonstrate ‘beyond material doubt that it has

conducted a search reasonably calculated to uncover all relevant documents.’” Knight First

Amend. Inst. at Columbia Univ. v. Centers for Disease Control & Prevention, 560 F. Supp.

3d 810, 820 (S.D.N.Y. 2021) (quoting Nat’l Day Laborer Org. Network v. U.S. Immigr. &

Customs Enf’t Agency, 877 F. Supp. 2d 87, 95 (S.D.N.Y. 2012)); see Carney v. U.S. Dep’t

of Just., 19 F.3d 807, 812 (2d Cir. 1994) (“In order to prevail on a motion for summary

judgment in a FOIA case, the defending agency has the burden of showing that its search

was adequate . . . .”). “[A]n agency’s search need not be perfect, but rather need only be

reasonable.” Grand Cent. P’Ship, 166 F.3d at 489 (citation omitted).

To demonstrate the reasonableness of its search, “an agency must search all

locations likely to contain responsive records[.]” NAACP Legal Def. & Educ. Fund, Inc.

v. Dep’t of Just., 463 F. Supp. 3d 474, 484 (S.D.N.Y. 2020) (quotation omitted). “[C]ourts

consider, among other things, ‘the search terms and type of search performed’ and the

‘nature of the records system or database searched.’” Id. (citation omitted); see Knight

First Amend. Inst., 560 F. Supp. 3d at 820 (same). The agency “must identify the searched

files and describe at least generally the structure of the agency’s file system which renders

any further search unlikely to disclose additional relevant information.” Nat’l Day Laborer

Org. Network, 877 F. Supp. 2d at 96 (quotations omitted); see Vietnam Veterans of Am.

7 Plaintiff makes no argument that Defendant failed to conduct an adequate search

using reasonable efforts. (See generally Dkt. 23 at 10-19).

Conn. Greater Hartford Chapter 120 v. Dep’t of Homeland Sec., 8 F. Supp. 3d 188, 206

(D. Conn. 2014) (“An agency need not describe all of its file systems, but instead an

adequate description need only provide reasonable detail about the parameters and

execution of an agency’s search and aver that all files likely to contain responsive material

were searched.”) (quotation omitted). Agency affidavits can establish the adequacy of a

search when the affidavits are “relatively detailed and nonconclusory, and submitted in

good faith.” Seife, 298 F. Supp. 3d at 607 (quoting Grand Cent. P’ship, 166 F.3d at 489);

see also Adamowicz v. Internal Revenue Serv., 402 F. App’x 648, 650 (2d Cir. 2010) (“the

law demands only a relatively detailed and nonconclusory affidavit or declaration” to

establish the adequacy of a search) (quotation omitted).

Here, Defendant avers that it searched for responsive records in two of its systems,

GES and AFI. (Dkt. 19-1 at ¶ 38). 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. See The Few, the Proud, the

Forgotten v. U.S. Dep’t of Veterans Affs., 254 F. Supp. 3d 341, 359 (D. Conn. 2017) (noting

that agency official “does not describe these offices or the structure of [their] file systems

with the reasonable specificity required at the summary judgment stage”) (quotations

omitted); Vietnam Veterans of Am., 8 F. Supp. 3d at 207 (citing failure of declarations to

describe the agency’s filing system and address why certain files were selected to be

searched and not others). 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. See

Immigrant Def. Project v. U.S. Immigr. & Customs Enf’t, 208 F. Supp. 3d 520, 527

(S.D.N.Y. 2016) (An agency can show “a good faith effort to design a comprehensive

search” when it “has provided logical explanations for each of the decisions it made as to

search terms to be used and how to conduct the searches.”) (quotation omitted). 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.

See Knight First Amend. Inst., 560 F. Supp. 3d at 824-25 (noting that agency did not

establish that search terms were “reasonably calculated to uncover responsive documents”

when it failed to specify how Boolean searches were used or if terms were searched for

only in conjunction, or separately).

Defendant describes its AFI program as follows:

The AFI system consolidates and enhances information from existing

operational systems by using different analytical capabilities and tools that

provide link analysis between data elements as well as the ability to detect

trends, patterns, and emerging threats. The AFI system includes advanced

search capabilities into existing data sources and allows users to search

several databases simultaneously.

(Dkt. 19-1 at ¶ 40). This vague language reads like the kind of “bureaucratic double-talk”

that the Second Circuit has rejected as inadequate. See Halpern v. Fed. Bureau of

Investigation, 181 F.3d 279, 293 (2d Cir. 1999). The Court cannot ascertain how the AFI

system interacts with other CBP systems or databases or how its search capabilities into

“existing data sources” would locate responsive records without overlooking records that

would not have been found through a search of the GES system by Plaintiff’s NEXUS

membership number. See NAACP Legal Def., 463 F. Supp. 3d at 484 (“[A]n agency must

search all locations likely to contain responsive records; not simply where the records are

‘most likely’ to be found.”) (quotation omitted).

Regarding its GES system, Defendant avers that it “is a centralized information

system that CBP uses to facilitate enrollment of and vetting processes for trusted traveler

programs, including the NEXUS program,” but offers no additional details. (See Dkt. 19-

1 at ¶ 39). According to the Howard declaration, based on “Howard’s experience in the

FOIA Division, this search for records was reasonably designed to identify and locate

records responsive to Plaintiff’s request.” (Dkt. 19-1 at ¶ 41). This statement, when

combined with the limited information that Defendant has provided about the AFI and GES

systems and its choice of search terms, cannot allow the Court to find that Defendant has

met its burden in establishing the reasonableness of its search for responsive records. See

Brennan Ctr. for Just. at N.Y. Univ. Sch. of L. v. U.S. Immigr. & Customs Enf’t, 571 F.

Supp. 3d 237, 246-47 (S.D.N.Y. 2021) (“The adequacy of the affidavits concerns whether

they provide sufficiently detailed descriptions of the underlying facts—a separate question

from this Court’s legal determination as to whether the search was ‘reasonably calculated

to uncover all relevant documents’ in response to the FOIA request.”) (citation omitted in

original).

B. Documents Withheld Under the Exemptions

Defendant argues that it properly withheld responsive records that fell within four

defined exemptions under the FOIA statute, specifically Exemption 5, Exemption 6,

Exemption 7(C), and Exemption 7(E). (See Dkt. 19-3 at 13, 15-31). Plaintiff argues that

Defendant’s justifications of its withholdings are vague, inadequately supported, and made

in bad faith given the history between the parties. (See Dkt. 23 at 10-19).

“An agency that has withheld responsive documents pursuant to a FOIA exemption

can carry its burden to prove the applicability of the claimed exemption by affidavit[.]”

Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009); see also 5 U.S.C.

§ 552(a)(4)(B). “Summary judgment is warranted . . . when the affidavits describe the

justifications for nondisclosure with reasonably specific detail, demonstrate that the

information withheld logically falls within the claimed exemption, and are not controverted

by either contrary evidence in the record nor by evidence of agency bad faith.” Spadaro v.

U.S. Customs & Border Prot., 978 F.3d 34, 42 (2d Cir. 2020) (quoting N.Y. Times v. Cent.

Intel. Agency, 965 F.3d 109, 114 (2d Cir. 2020)). The agency “should describe the

documents with as much information as possible without thwarting the exemption’s

purpose” and “specifically identif[y] the reasons why a particular exemption is relevant

and correlat[e] those claims with the particular part of a withheld document to which they

apply.” Cox v. Dep’t of Just., 504 F. Supp. 3d 119, 128 (E.D.N.Y. 2020) (quotation omitted);

see N.Y. Times Co. v. U.S. Food & Drug Admin., 529 F. Supp. 3d 260, 279 (S.D.N.Y. 2021)

(agency affidavits “characterized by conclusory statements and devoid of fact-specific

justifications” are insufficient).

It is well-established that an agency can prepare a submission pursuant to Vaughn

v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), listing the titles and descriptions of records “to

identify responsive documents and discharge its obligation to assert any claimed FOIA

exemptions to the various documents withheld.” N.Y. Times Co. v. U.S. Dep’t of Just., 758

F.3d 436, 438-39 (2d Cir. 2014) (collecting cases), supplemented, 762 F.3d 233 (2d Cir.

2014); see Seife, 298 F. Supp. 3d at 606 (“[W]hen invoking a FOIA exemption, agencies

submit a ‘Vaughn index’—a list of withheld documents and claimed exemptions—and a

‘Vaughn affidavit,’ describing the documents and the agency's rationale for withholding

them.”). The Vaughn submission has three functions:

[1] it forces the government to analyze carefully any material withheld, [2] it

enables the trial court to fulfill its duty of ruling on the applicability of the

exemption, [3] and it enables the adversary system to operate by giving the

requester as much information as possible, on the basis of which he can

present his case to the trial court.

Halpern, 181 F.3d at 291 (quotation omitted). Nevertheless, the Second Circuit has

“eschewed rigid adherence to any particular indexing format under the Vaughn standard,

opting instead for a functional approach.” Id.

As explained above, demonstrating that a document falls within an exemption does

not end the analysis. The FIA requires an agency to release even information that falls

within a FOIA exemption if it cannot show that it “reasonably foresees that disclosure

would harm an interest protected by an exemption” or that “disclosure is prohibited by

law.” See Dep’t of Health & Hum. Servs., 513 F. Supp. 3d at 346. The Second Circuit has

held that the FIA “imposes an additional, independent burden on the agency” before it may

withhold a record under one of FOIA’s exemptions. Seife v. U.S. Food & Drug Admin.,

43 F.4th 231, 235 (2d Cir. 2022); see Nat’l Day Laborer Org. Network, 486 F. Supp. 3d at

698 & n.8 (noting that the FIA “imposes an independent and meaningful requirement on

agencies”) (quotation omitted). To ascertain whether an agency has shown that it

reasonably foresees that disclosure would harm an interest protected by a FOIA exemption,

the court “must first discern the interests protected by” the exemption invoked. See Seife,

43 F.4th at 234. While Defendant has not expressly cited to the FIA, its Vaughn index

includes under the column titled “Basis for Withholding” an identification of the harms it

anticipates would flow from disclosure. (See Dkt. 19-2 at 11-18).

1. Exemption 6, Exemption 7(C), and Exemption 7(E)

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. See Spadaro,

978 F.3d at 42. 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, which are discussed further below.

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. (See Dkt. 19-2 at 11-19).8 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. For instance, in the group of documents

labeled “Inspection records from the Analytical Framework for Intelligence system,”

which contained 167 pages (Bates numbers 000033-000199), Defendant withheld

information under Exemptions 6, 7(C), and 7(E). (Dkt. 19-2 at 17-18). The Vaughn

8 In the seventh group, Defendant released a 52-page spreadsheet (Bates numbers

000200-000251) depicting Plaintiff’s border crossings with no redactions. (See Dkt. 19-2

at 19).

submission does not specify which exemptions applied to which page or sections of pages

within those 167 pages, which falls far short of the requisite level of specificity required

for the Court to ensure that each exemption was properly applied. See Cox, 504 F. Supp.

3d at 128. The same issue is also notably apparent in the group of documents titled “Global

Enrollment System records,” numbering 27 pages in length (Bates numbers 000001-

000027). (See Dkt. 19-2 at 11-12).9 Aside from identifying the five pages of email

communications among CBP personnel pertaining to Plaintiff’s NEXUS eligibility that

were withheld under Exemption 5, Defendant makes no effort to delineate which

exemptions were applied to which documents or sections of documents. (See Dkt. 19-1 at

¶ 51, Dkt. 19-2 at 11-12).

Furthermore, the Vaughn submission is “devoid of fact-specific justifications.” See

U.S. Food & Drug Admin, 529 F. Supp. 3d at 279. The Vaughn index contains a column

titled “Basis for Withholding,” in which general explanations are offered for each

9 Defendant cites to Paco v. U.S. Customs & Border Prot., No. 14-5017 (MLC), 2016

WL 344522 (D.N.J. Jan. 27, 2016), in support of its argument that it properly withheld

information in GES records under Exemption 7(E). (See Dkt. 19-3 at 24). That case is

distinguishable because CBP provided more information in its Vaughn submission than it

did in the current action. See Paco, 2016 WL 344522, at *6 (“CBP has withheld the

following under Exemption 7(E): (1) the lower left-hand corner of all pages of the

biographic summary, request list, comment list, and risk assessment worksheet; (2) a

portion of the comment list under ‘Comment’; and (3) portions of the Risk Assessment

Worksheet that included ‘Query Results,’ ‘Findings,’ and ‘Supporting Information.’”). No

such detail is present in Defendant’s Vaughn submission. Furthermore, this case appears

to predate and makes no reference to the FIA, so the court did not conduct the “foreseeable

harm” analysis for each exemption claim. See New York Times Co. v. Dep’t of Health &

Hum. Servs., 513 F. Supp. 3d 337, 346 (S.D.N.Y. 2021); Nat’l Day Laborer Org. Network

v. U.S. Immigr. & Customs Enf’t, 486 F. Supp. 3d 669, 698 & n.8 (S.D.N.Y. 2020).

exemption cited for each group of documents. For example, in the document titled

“Narrative from Analytical Framework for Intelligence system, one (1) page in length,

relating to March 19, 2013, border crossing of Matthew Borowski” (Bates number

000028), information was withheld under Exemptions 6, 7(C), and 7(E). (Dkt. 19-2 at 13).

The index offers the following justification for withholding material in this document

pursuant to Exemption 7(E):

Exemption (b)(7)(E) has been applied, which includes information

pertaining to law enforcement techniques and procedures. Such information

is not generally known or publicly disclosed. Disclosure of law enforcement

techniques and procedures would be debilitating and detrimental to both CBP

and the law enforcement community, and it would enable individuals to alter

their patterns of conduct, adopt new methods of operation, and effectuate

other countermeasures, thereby corrupting the integrity of ongoing border

inspections and investigations.

(Id.). Separately, the Howard declaration indicates—without reference to any specific

document or group of documents—that Exemption 7(E) was applied, among other

circumstances, to “numerous documents describing specific methods used by CBP officers

to inspect Plaintiff during encounters at ports of entry.” (Dkt. 19-1 at ¶ 57). The same

exemption was also applied to unspecified records “describing the reasons that Plaintiff

was referred, on several occasions, for a secondary inspection[.]” (Id. at ¶ 58). The Court

cannot ascertain whether Defendant withheld information in the document relating to

Plaintiff’s March 19, 2013 border crossing under Exemption 7(E) because the information

described the specific methods used to inspect Plaintiff at a port of entry, the reason

Plaintiff was referred to secondary inspection, or for another reason under this exemption.

Without this information, the Court cannot conduct a meaningful review “to fulfill its duty

of ruling on the applicability of the exemption” to a specific withholding. See Halpern,

181 F.3d at 291. This is but one example of this global shortcoming throughout the Vaughn

submission.

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 Vaughn index contains a column titled

“Document Name and Description,” and each group of documents is described in a handful

of words encompassing the document’s name. For instance, based on the document named

“Narrative from Analytical Framework for Intelligence system, two (2) pages in length,

relating December 14, 2013 border crossing of Matthew Borowski,” the Court can only

conclude that the document somehow pertains to Plaintiff’s border crossing on that date.

(See Dkt. 19-2 at 16). Defendant’s vague description of the AFI system in the Howard

declaration does little to contextualize this record or any record contained in the AFI

system. (See Dkt. 19-1 at ¶ 40). Among the information withheld from these two pages

pursuant to Exemptions 6 and 7(C) was “a license plate number of unknown registration

. . . [that] may be registered to a third party[]” and the “names and/or identifying

information of CBP officers and personnel[.]” (Dkt. 19-2 at 16). The Court is left to

speculate as to the context of these pieces of information, such as whether the third-party

license plate was located near Plaintiff when he crossed the border, so that the license plate

number was recorded in a government record, and the role and rank of the CBP law

enforcement officers whose identities Defendant seeks to shield. These details are

important to the Court’s analysis. See Long v. Off. of Pers. Mgmt., 692 F.3d 185, 191 (2d

Cir. 2012) (In evaluating information withheld under Exemption 6, “[t]he analysis is

context specific. Names and other identifying information do not always present a

significant threat to an individual's privacy interest.”) (quotation omitted and emphasis in

original). In another instance, the Vaughn index describes a group of documents merely as

“Inspection records from the Analytical Framework for Intelligence system, one hundred

and sixty-seven (167) pages in length,” withheld pursuant to Exemptions 6, 7(C), and 7(E).

(Dkt. 19-2 at 17). This document name conveys almost no information about the general

substance of these records and how they relate to Plaintiff’s FOIA request. Defendant may

well have appropriately withheld material from documents under the exemptions it has

claimed, but the Court cannot reach that conclusion unless the agency’s Vaughn submission

provides basic context and background about the nature of the documents at issue. See

Flores v. U.S. Dep’t of Just., 391 F. Supp. 3d 353, 364-65 (S.D.N.Y. 2019) (“A Vaughn

index ‘must adequately describe each withheld document . . .’” (quoting Johnson v. Exec.

Office for U.S. Attorneys, 310 F.3d 771, 774 (D.C. Cir. 2002)); see also Nat’l Day Laborer

Org. Network, 877 F. Supp. 2d at 96 (“Summary judgment is inappropriate . . . ‘where the

agency’s response is patently incomplete, or where the agency’s response is for some other

reason unsatisfactory.’”) (citation omitted).

The flaws described above also prevent the Court from assessing whether the FIA

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. Again, it may well be the case that the FIA’s standard

has been met, but Defendant has not made that showing on the record before the Court.

In sum, 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.” See Spadaro, 978

F.3d at 42. It further lacks sufficient information to permit the Court to determine that the

FIA’s standard has been met. The flaws identified above in specific documents or groups

of documents are examples of global deficiencies in the Vaughn submission, and any

supplemental submission must provide “reasonably specific detail[s]” for all documents

and information withheld, not just those identified herein.

2. Exemption 5

Defendant has identified five pages of email communications among CBP personnel

that were withheld under Exemption 5. (Dkt. 19-2 at 11). The Howard declaration further

describes the documents as “constitute[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.” (Dkt. 19-1 at ¶ 51).

Defendant argues that these documents fall under the “deliberative process privilege”

contained within Exemption 5. (Dkt. 19-3 at 15). 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.

Exemption 5 allows “intra-agency memorandums or letters that would not be

available by law to a party other than an agency in litigation with the agency” to be

withheld. 5 U.S.C. § 552(b)(5). This “exemption has been interpreted to encompass

traditional common law privileges against disclosure, including the . . . deliberative-process

privilege[].” Brennan Ctr. for Just. at N.Y. Univ. Sch. of L., 697 F.3d at 189 (citing Nat’l

Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005)); see Grand Cent.

P’Ship, 166 F.3d at 481 (“The ‘deliberative process privilege,’ . . . is encompassed within

the executive privilege” under Exemption 5 of FOIA.). The Second Circuit’s “precedents

have established that the deliberative process privilege protects only those records that bear

on the formulation or exercise of policy-oriented judgment.” Nat. Res. Def. Council v. U.S.

Env’t Prot. Agency, 19 F.4th 177, 184-85 (2d Cir. 2021) (quotation omitted). “By contrast,

‘[t]he release of materials that do not embody agency judgments—for example, materials

relating to standard or routine computations or measurements over which the agency has

no significant discretion—is unlikely to diminish officials’ candor or otherwise injure the

quality of agency decisions.’” Id. at 185 (quoting Petroleum Info. Corp. v. U.S. Dep’t of

Interior, 976 F.2d 1429, 1436 (D.C. Cir. 1992)). “Accordingly, a document may be

withheld pursuant to this privilege if it is: ‘(1) predecisional, i.e., prepared in order to assist

an agency decisionmaker in arriving at his decision, and (2) deliberative, i.e., actually . . .

related to the process by which policies are formulated.’” Am. C.L. Union v. Nat’l Sec.

Agency, 925 F.3d 576, 592 (2d Cir. 2019) (quoting La Raza, 411 F.3d at 356 (internal

alterations omitted)); see Grand Cent. P’Ship, 166 F.3d at 482 (noting that “[t]he privilege

protects recommendations, draft documents, proposals, suggestions, and other subjective

documents which reflect the personal opinions of the writer rather than the policy of the

agency”) (quotation and internal quotation marks omitted).

“In assessing whether a document is predecisional, courts . . . consider whether the

government can:” (1) “pinpoint the specific agency decision to which the document

correlates[;]” (2) “establish that its author prepared the document for the purpose of

assisting the agency official charged with making the agency decision[;]” and (3) “verify

that the document precedes, in temporal sequence, the decision to which it relates.” New

York Times Co. v. Dep’t of Educ., 658 F. Supp. 3d 171, 185 (S.D.N.Y. 2023) (quotation

omitted); see Seife, 298 F. Supp. 3d at 614. In assessing whether a document is

deliberative, “[c]ourts have looked to factors such as whether the document”: (1) “formed

an essential link in a specified consultative process[;]” (2) “reflect[s] the personal opinions

of the writer rather than the policy of the agency[;]” and (3) “if released, would inaccurately

reflect or prematurely disclose the views of the agency.” Dep’t of Educ., 658 F. Supp. 3d

at 185 (quotation omitted). “As a general matter, the deliberative process ‘privilege

generally does not extend to purely factual material,’ and any non-privileged material that

is ‘reasonably segregable’ from the deliberative portions of records must be produced.” Id.

(internal citations omitted).

The 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 the Howard declaration—that the

“records constitute internal, pre-decisional deliberations and recommendations of CBP

employees pertaining to Plaintiff’s NEXUS eligibility, and they predate CBP’s decision

regarding Plaintiff’s NEXUS eligibility”—is the extent of the detail that Defendant offers

to justify withholding records pursuant to Exemption 5. (Dkt. 19-1 at ¶ 51).10 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.” See Dep’t of Educ., 658 F. Supp. 3d at

185. Defendant faults Plaintiff’s argument that the agency should provide the date(s) of

the emails because Plaintiff failed to cite a supporting legal authority, but Defendant’s

argument improperly shifts the burden to Plaintiff. (See Dkt. 28 at 10). Indeed, since

Defendant’s facts indicate that Plaintiff’s NEXUS program eligibility was adjudicated

multiple times—with varying outcomes—between 2011 and 2023 (see Dkt. 19-1 at ¶¶ 9-

17), Defendant would need to specify the timeframe in which the emails were sent and

which decision they preceded to establish that the records were predecisional. Currently,

the Court is left to guess whether the documents relate to a decision to grant, reinstate, or

revoke Plaintiff’s NEXUS membership, and this uncertainty means that Defendant has not

met its burden to establish the predecisional nature of the emails, and more generally, the

Second Circuit’s requirement that the agency provide “reasonably detailed explanations to

support its decision to withhold a document[.]” See Behar, 39 F.4th at 88 (emphasis added).

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

10 Defendant’s Vaughn index merely states that Exemption 5 “was applied to five (5)

pages of the document containing intra-agency email communications between CBP

personnel, subject to the deliberative process privilege, as the emails are both pre-

decisional and deliberative.” (Dkt. 19-2 at 11).

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. See Seife, 298 F. Supp. 3d at 618-

19 (“Despite the conclusory assertion that the emails reflect the State Department’s

deliberations, the emails’ roles in the deliberative process are not apparent from the State

Department’s submissions.”); Nat’l Day Laborer Org. Network v. U.S. Immigr. & Customs

Enf’t, 811 F. Supp. 2d 713, 749 (S.D.N.Y. 2011) (The agency “asserts that ‘[t]he comments

do not reflect any final agency policy or decision.’ However, that boilerplate assertion is

insufficient. Defendants must identify the role that the document played in the deliberative

process.”), amended on reconsideration (Aug. 8, 2011). “Whether a particular document

is exempt under (b)(5) depends not only on the intrinsic character of the document itself,

but also on the role it played in the administrative process.” Tigue v. U.S. Dep’t of Just.,

312 F.3d 70, 78 (2d Cir. 2002) (alteration in original). Defendant would also need to

establish that any withheld information did not reflect the agency’s final determination on

the decision discussed in the documents. See Brennan Ctr. for Just. at N.Y. Univ. Sch. of

L., 697 F.3d at 195 (“[A] document claimed to be exempt will be found outside Exemption

5 if it closely resembles that which FOIA affirmatively requires to be disclosed: ‘final

opinions . . . made in the adjudication of cases[.]’”) (citation omitted). The records in

question may meet this standard, but Defendant is not entitled to such a finding at this time

given the limited information it has submitted.

Finally, Defendant has not met its burden under the FIA to demonstrate that it

reasonably foresees that disclosure of information withheld pursuant to Exemption 5 would

harm an interest protected by this exemption. “[A]n agency ‘must explain how a particular

Exemption 5 withholding would harm the agency’s deliberative process.’ An agency may

not ‘perfunctorily state that disclosure of all the withheld information—regardless of

category or substance—would jeopardize the free exchange of information’ among or

between government officials.” Nat’l Day Laborer Org. Network, 486 F. Supp. 3d at 691-

92 (citation omitted and emphasis added). 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.” (Dkt. 19-3 at 16). As other courts have found, this boilerplate language is

insufficient to satisfy the FIA’s standard. See, e.g., Nat. Res. Def. Council v. U.S. Env’t

Prot. Agency, No. 17-CV-5928 (JMF), 2019 WL 3338266, at *1 (S.D.N.Y. July 25, 2019)

(rejecting agency’s explanation that “[r]elease of the withheld information would

discourage open and frank discussion” and “have a chilling effect on the Agency’s

decision-making processes”); Judicial Watch, 375 F. Supp. 3d at 101 (rejecting

justification that “release of the redacted material would have the foreseeable harm of

discouraging a frank and open dialogue among interagency staff”).

In sum, 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 FIA.

Accordingly, Defendant is not entitled to summary judgment on documents withheld under

Exemption 5.

IV. In Camera Review is Not Warranted at this Time

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.

(Dkt. 23 at 1). In support of this request, Plaintiff argues that Defendant could be

withholding records that explain why his NEXUS membership was revoked in 2022,

despite Plaintiff allegedly “never violat[ing] any program rules.” (See id. at 4). Plaintiff

misunderstands the difference between the FOIA statute and discovery obligations under

the Federal Rules of Civil Procedure. “The primary purpose of the FOIA was not to benefit

private litigants or to serve as a substitute for civil discovery.” Baldrige v. Shapiro, 455

U.S. 345, 360 & n.14 (1982) (“Unlike the FOIA . . . the discovery provisions under the

Federal Rules focus upon the need for the information rather than a broad statutory grant

of disclosure.”); cf. Jabar v. U.S. Dep’t of Just., 62 F.4th 44, 51 (2d Cir. 2023) (“[T]he

discovery provisions of the Federal Rules of Criminal Procedure and the FOIA provide two

independent schemes for obtaining information through the judicial process.”) (quotation

omitted and emphasis in original). Plaintiff asserts a cause of action pursuant to the APA

based on Defendant’s revocation of his membership in the NEXUS program. (See Dkt. 9

at ¶¶ 78-79). Plaintiff’s request for records under the FOIA statute is a separate cause of

action, evaluated under a different legal standard, and derives from a different objective:

“a policy strongly favoring public disclosure of information in the possession of federal

agencies.” See Halpern, 181 F.3d at 286 (emphasis added). Plaintiff has a mechanism—

the discovery process—through which to obtain information in support of his claim under

the APA, and his litigation objectives there are irrelevant to the question of whether

Defendant has properly withheld records from public release pursuant to a FOIA

exemption. See Frankel v. Sec. & Exch. Comm’n, 460 F.2d 813, 818 (2d Cir. 1972) (finding

documents not releasable under FOIA while noting that “[i]n the discovery procedure a

district judge will be able to balance the need for the documents with the need for

confidentiality”).

Plaintiff further asserts that in camera review is necessary because Defendant “has

shown itself to be a bad actor.” (See Dkt. 23 at 10-11). Plaintiff asserts that the agency is

acting in bad faith based in part on its alleged actions stemming from interactions between

Plaintiff and his wife and CBP officials at the United States-Canada border crossing and

the revocation of Plaintiff’s NEXUS membership. (See id. at 1-3, 10-11). Plaintiff also

seemingly implies that Defendant acted in bad faith because his FOIA request “was ignored

until I sued CBP for the release of the records.” (See id. at 3). First, even if Defendant did

not respond to Plaintiff’s FOIA request in a timely manner, this circumstance alone does

not evidence bad faith. See Grand Cent. P’Ship, 166 F.3d at 489-90 (noting that agency’s

delayed production of over 1,000 pages of documents was not evidence of bad faith); see

also Smith v. U.S. Marshals Serv., No. 19-CV-3572-LTS, 2021 WL 1177692, at *5

(S.D.N.Y. Mar. 29, 2021) (despite a nearly three-year delay in responding to a FOIA

request, “without more, an agency’s delay does not render that agency’s response one that

should be treated as made in bad faith”) (citations omitted). Second, Plaintiff has submitted

no actual evidence that Defendant has acted in bad faith in responding to his FOIA request.

As the Court has already discussed, Plaintiff has merely offered unsworn allegations in his

opposition to the instant motion. Even if Plaintiff had presented the above allegations in

an affidavit or declaration based on his personal knowledge, the Court cannot see how this

information constitutes evidence of Defendant’s bad faith with respect to responding to

Plaintiff’s FOIA claim, which is the issue in the instant motion.

Nevertheless, 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.

See 5 U.S.C. § 552(a)(4)(B) (“[T]he court shall determine the matter de novo, and may

examine the contents of such agency records in camera to determine whether such records

or any part thereof shall be withheld under any of the exemptions set forth[.]”) (emphasis

added). “[T]he current FOIA regime does not incentivize agencies to file adequate

declarations in the first instance – because they will likely be given another opportunity to

seek summary judgment on the basis of revised declarations[.]” Radar Online LLC v. Fed.

Bureau of Investigation, No. 17 Civ. 3956 (PGG), ___ F. Supp. 3d ___, 2023 WL 6122691,

at *27 (S.D.N.Y. Sept. 19, 2023) (denying without prejudice the agency’s motion for

summary judgment as to documents for which the Vaughn submission was inadequate in

justifying FOIA exemptions claimed). Mindful of the Second Circuit’s guidance that in

camera review “should not be resorted to lightly,” see Halpern, 181 F.3d at 295, and the

fact that “courts routinely direct agencies to revise their Vaughn index when they prove

inadequate,” see CLEAR, 2022 WL 16636686, at *3 (collecting cases), the Court directs

Defendant to amend its Vaughn submission to address the deficiencies identified herein if

it files a renewed motion for summary judgment.

CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment (Dkt. 19) is

denied without prejudice. Defendant may file a renewed motion for summary judgment

within 60 days of the date of this Decision and Order. Any renewed motion for summary

judgment must be accompanied by submissions addressing the deficiencies set forth above

and adequately justifying the information it has withheld pursuant to specified FOIA

exemptions.

SO ORDERED. .

L: 2 IGA_»e

ELIZABETYA. WOLEORD

Ctheftudge

United States District Court

Dated: May 10, 2024

Rochester, New York

-33-