“[U]nauthorized or illegal investigative tactics may not be shielded 28 from the public by use of FOIA exemptions.”
How later courts described this case
- “[U]nauthorized or illegal investigative tactics may not be shielded 28 from the public by use of FOIA exemptions.”
- “We have now overruled this FOIA-specific summary 9 judgment standard, and instead apply our usual summary judgment standard.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
7
AT SEATTLE
8
9 COUNCIL ON AMERICAN-ISLAMIC Case No. C20-217RSM
RELATIONS-WASHINGTON,
10
ORDER RE: MOTIONS FOR SUMMARY
11 Plaintiff, JUDGMENT
12 v.
13
UNITED STATES CUSTOMS AND
14 BORDER PROTECTION, UNITED
STATES DEPARTMENT OF HOMELAND
15 SECURITY,
16
Defendants.
17
I. INTRODUCTION
18
19 This Freedom of Information Act (“FOIA”) matter comes before the Court on cross-
20 motions for summary judgment by Defendant United States Customs and Border Protection
21
(“CBP”) and Plaintiff Council on American-Islamic Relations Washington (“CAIR”). Dkts.
22
#20 and #23. The Court has determined that oral argument is unnecessary. For the following
23
reasons, the Court DENIES Defendant’s Motion and GRANTS IN PART Plaintiff’s Motion.
24
25 II. BACKGROUND
26 In early January 2020, CBP’s Tactical Analytical Unit Seattle Field Office issued a
27
“high alert” stating “Iranian Supreme Leaders Vows Forceful Revenge after US Kills Maj.
28
General Qassim Suleimani” and directing that “all persons (males and females) born after 1961
1
2 and born before 2001 with links (POB, travel, Citizenship)” to Palestine, Lebanon, or Iran were
3 to be vetted with extra questioning on their entry to the United States from British Columbia,
4
Canada. See Dkt. 16-7. Reporting has indicated that On January 4 and 5, U.S. citizens and
5
lawful permanent residents (“LPRs”) of Iranian background were detained, questioned and held
6
for hours—including with their small children or throughout most of the night—at the Port of
7
8 Entry in Blaine, Washington. Dkt. #24 (“Maltese Decl.”), Ex A (CBP FOIA production) at 84
9 (detailing vetting to conduct of “Iranian National[s]”); id. Exs. B-H (news articles). These facts
10
are not in dispute.
11
On or about January 8, 2020, Plaintiff submitted to CBP the following FOIA request:
12
Please provide records of all directives, orders, guidance, briefings,
13
instructions, musters, e-mail, other electronic communications or
14 any other communications, whether issued verbally or in writing,
issued by the Seattle Field Office Director or any other
15 Department of Homeland Security (DHS) or Customs and Border
16 Protection (CBP) official, officer, or employee to any CBP officer,
port director, or CBP Seattle Field Officer or Blaine Sector or
17 Blaine Port of Entry employee regarding the screening of
individuals of Iranian heritage or any other changes in screening or
18
secondary inspection procedures between January 1, 2020, and
19 January 8, 2020, including, but not limited to, any changes based
on the ‘current threat environment,’ or the need for ‘enhanced
20 vigilance,’ ‘additional caution,’ or an ‘enhanced posture.’
21
In addition, please provide records of any directives, orders,
22 guidance, briefings, instructions, e-mails, other electronic
communications or any other communications, whether issued
23 verbally or in writing, sent by DHS or CBP headquarters to the
Seattle Field Office or the Blaine Sector of CBP in response to the
24
reports of secondary screenings, vetting, detention, or denial of
25 entry or exit of individuals of Iranian heritage at the Blaine Port of
entry, issued between January 3, 2020 and January 8, 2020.
26
Finally, please also provide records of any statements provided to
27
any press or media outlet regarding the secondary inspection and
28
enhanced vetting of individuals of Iranian heritage at the Blaine
1
Port of Entry on January 3 and 4 from the Relevant Time Period….
2
Dkt. #21-1 (emphasis in original). The CBP FOIA Division received CAIR’s FOIA
3
request and assigned the request a tracking number on or about the same day. Dkt. #21 (“Search
4
5 Decl.”), ¶ 19.
6 After Defendants failed to respond to the request within the statutory timeframe, CAIR
7
filed the instant action on February 12, 2020. Dkt. #1.
8
On April 14, 2020, CBP released four documents in part and withheld 124 pages
9
pursuant to FOIA Exemptions 6, 7(A), 7(C) and 7(E). Dkt. #22 (“Exemption Decl.”), ¶ 7. CBP
10
11 later produced in part 5 of 19 pages, withholding the remaining pages pursuant to Exemptions 6,
12 7(C), and 7(E). Id. at ¶ 9. CBP initially applied Exemption 7(A) to withhold certain documents
13
due to an ongoing investigation; however, this investigation ended. Accordingly, on June 18,
14
2020, CBP produced 147 pages with exemptions applied and duplicate documents redacted. Id.
15
16 at ¶¶ 11-12. Portions of the pages were withheld pursuant to Exemptions 5, 6, 7(C), and 7(E).
17 Id. at ¶ 15. These exemptions are discussed in further detail below.
18
Having produced these documents, Defendants move to dismiss this action. Dkt. #20-1.
19
Plaintiff CAIR moves the Court to order Defendants to:
20
…conduct an adequate search, including by searching the emails of
21
at least (1) Adele Fasano, (2) the Seattle Field Office Assistant
22 Director, (3) Randy Howe, and (4) the Senior Official Performing
the Duties of the Commissioner of Customs and Border Protection,
23 Mark A. Morgan. Defendants must also eliminate the redactions of
names and emails in the responsive materials for Assistant
24
Directors and Port Directors within the Seattle Field Office [and]
25 ….provide unredacted copies of the responsive documents to
Plaintiff, and specifically, any related directive or instructions that
26 Plaintiff has requested, along with any responsive documents from
DHS or CBP Headquarters relating to that directive or instructions.
27
28 Dkt. #23-1.
III. DISCUSSION
1
2 A. Legal Standard
3 In FOIA cases, the usual summary judgment standards apply and “if there are genuine
4
issues of material fact in a FOIA case, the district court should proceed to a bench trial or
5
adversary hearing” and issue findings of fact and conclusions of law. Animal Legal Def. Fund,
6
836 F.3d at 990 (citing Fed. R. Civ. P. 52(a)(1)); see also Cameranesi v. United States DOD,
7
8 856 F.3d 626, 636 (9th Cir. 2017) (“We have now overruled this FOIA-specific summary
9 judgment standard, and instead apply our usual summary judgment standard.”).
10
Accordingly, summary judgment is appropriate where “the movant shows that there is
11
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
12
law.” Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
13
14 Material facts are those which might affect the outcome of the suit under governing law.
15 Anderson, 477 U.S. at 248. In ruling on summary judgment, a court does not weigh evidence to
16
determine the truth of the matter, but “only determine[s] whether there is a genuine issue for
17
trial.” Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins.
18
19 Corp. v. O’Melveny & Meyers, 969 F.2d 744, 747 (9th Cir. 1992)).
20 On a motion for summary judgment, the court views the evidence and draws inferences
21
in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. U.S.
22
Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable
23
inferences in favor of the non-moving party. See O’Melveny & Meyers, 969 F.2d at 747, rev’d
24
25 on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a “sufficient
26 showing on an essential element of her case with respect to which she has the burden of proof”
27
to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
28
FOIA establishes “a judicially enforceable right to secure [government] information
1
2 from possibly unwilling official hands.” Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.
3 Ct. 1592, 48 L. Ed. 2d 11 (1976) (citing S. Rep. No. 813, 89th Cong. (1st Sess. 1965)); see also
4
Lahr v. NTSB, 569 F.3d 964, 973 (9th Cir. 2009). The aim of these disclosure requirements is
5
to “ensure an informed citizenry, vital to the functioning of democratic society, needed to check
6
against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins
7
8 Tire & Rubber Co., 437 U.S. 214, 242, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978); see also
9 Hamdan v. United States DOJ, 797 F.3d 759, 770 (9th Cir. 2015); Shannahan v. I.R.S., 672
10
F.3d 1142, 1148 (9th Cir. 2012).
11
Federal agencies have a duty to construe FOIA requests liberally. Yagman v. Pompeo,
12
868 F.3d 1075, 1080 (9th Cir. 2017). Upon receipt of a FOIA request, a federal agency “shall
13
14 make the records promptly available,” 5 U.S.C. § 552(a)(3)(A), and “shall make reasonable
15 efforts to search for the records” responsive to a request. Id. § 552(a)(3)(C)–(D). Agencies
16
must respond to FOIA requests within twenty business days of receipt, id. § 552(a)(6)(A)(i),
17
and disclose responsive documents unless one or more of FOIA’s exemptions apply. These
18
19 exemptions are “narrowly construed.” Shannahan, 672 F.3d at 1149. An agency bears the
20 burden of establishing that an exemption applies. Lahr, 569 F.3d at 973. “Any reasonably
21
segregable portion of a record shall be provided” to the FOIA requester. 5 U.S.C. § 552(b).
22
B. Timeliness of FOIA Responses
23
CAIR asserts that CBP failed to respond to its request within 20 days as required by
24
25 FOIA. Dkt. #15 (“Am. Compl.”), ¶¶ 40-45. Defendants do not deny that CBP failed to meet
26 the 20-day deadline, but argue that “many federal courts have held that untimeliness is not an
27
automatic basis for violation of FOIA for purposes of summary or declaratory judgment,” Dkt.
28
#20 at 21 (citing cases), and that “CAIR has already received its relief or CBP’s delayed
1
2 response through this litigation,” id. at 22. CBP cites to Cmty. Ass’n for Restoration of the
3 Env’t. v. U.S. Env’t Prot. Agency, 36 F. Supp. 3d 1039, 1047-1054 (E.D. Wash. 2014), which
4
discussed the difference between late responses and “egregiously late” responses, itself citing to
5
Oregon Natural Desert Ass'n v. Gutierrez, 409 F. Supp. 2d 1237, 1248 (D. Or. 2006) where a
6
delay of eight months was found to itself be an actionable violation of FOIA, “regardless of the
7
8 final outcome of the request.”
9 The Court finds that the delay in this case is analogous to the cases cites by Defendants
10
and not as egregious as the delay in Oregon Natural Desert Association. In any event, it is not
11
clear what relief is being requested by CAIR other than what is requested for Defendants’ other
12
FOIA violations. The Court will therefore proceed to analyze the remainder of CAIR’s claims.
13
14 C. Adequacy of the Search
15 “FOIA requires an agency responding to a request to ‘demonstrate that it has conducted
16
a search reasonably calculated to uncover all relevant documents.’” Lahr, 569 F.3d at 986 (9th
17
Cir. 2009) (quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985)). This showing may
18
19 be made by “reasonably detailed, nonconclusory affidavits submitted in good faith.” Id.
20 Affidavits submitted by an agency to demonstrate the adequacy of its response are presumed to
21
be in good faith. Grand Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771, 224 U.S. App. D.C. 1
22
(D.C.C. 1981). However, FOIA places the burden “expressly . . . ‘on the agency to sustain its
23
action.’” U.S. Dep’t of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 755
24
25 (1989). In evaluating the adequacy of the search, the issue “is not whether there might exist any
26 other documents possibly responsive to the request, but rather whether the search for those
27
28
documents was adequate.” Lahr, 569 F.3d at 987. “[T]he failure to produce or identify a few
1
2 isolated documents cannot by itself prove the searches inadequate.” Id. at 988.
3 Lahr makes clear that a search is not inadequate for failure to turn up a single document,
4
see id. at 987 (citing Iturralde v. Comptroller of Currency, 315 F.3d 311, 315, 354 U.S. App.
5
D.C. 230 (D.C. Cir. 2003)). However, “it may be the case that ‘if a review of the record raises
6
substantial doubt, particularly in view of well-defined requests and positive indications of
7
8 overlooked materials, summary judgment is inappropriate.” Hamdan v. United States DOJ, 797
9 F.3d 759, 771, 2015 (quoting Iturralde, 315 F.3d at 314).
10
Here, CAIR argues that CBP’s search was inadequate because they searched only the
11
Office of Field Operations and not other component offices, and because “CBP decided to
12
search only the emails of “[t]hree [Seattle Field Office (SFO)] managers in the Border Security
13
14 Division.” Dkt. #23 at 11 (citing Dkt. #21 at ¶ 24). The Court notes that a very similar
15 approach to searching was found to be unreasonable as a matter of law by this Court in Davis
16
Wright Tremaine LLP v. U.S. CBP, No. C19-334 RSM, 2020 WL 3258001 (W.D. Wash. June
17
16, 2020)).
18
19 CAIR points to Defendants’ failure to search the emails of individuals “above the
20 manager level.” Id. CAIR then argues that an agency “cannot ignore ‘clear leads . . . [that] may
21
indicate . . . other offices that should have been searched.” Id. at 10 (citing Anguiano v. U.S.
22
Immigration & Customs Enf’t, No. 18-CV-01782-JSC, 2018 WL 5923451, at *5 (N.D. Cal.
23
Nov. 13, 2018) (alterations in original) (emphasis omitted) (quoting Rollins v. U.S. Dep’t of
24
25 State, 70 F. Supp. 3d 546, 550 (D.D.C. 2014)). CAIR points to three “obvious additional leads”
26 from the turned-over records. Id. at 11–13. First, CAIR points to records indicating that the
27
SFO Director at the time, Adele Fasano, “was likely the most critical player in implementing
28
SFO’s response” and would have responsive documents in her email records if they were
1
2 searched. Id. at 12. Second, CAIR argues that the SFO Assistant Director’s emails should
3 similarly be searched. Third, CAIR argues that “high-level CBP and DHS officers played a role
4
in crafting CBP’s response to a U.S. air strike targeting Iranian general Soleimani and in
5
addressing SFO’s implementation of that response” but that Defendants have not searched the
6
emails of any national level officials. Id. CAIR further singles out records from Randy Howe,
7
8 who was the Executive Director of the Office of Field Operations at the time. CAIR maintains
9 that “references [in the produced records] to the Assistant Director and Howe, and other
10
communications from national officials are ‘clear leads . . . [that] may indicate . . . other offices
11
[or emails] that should have been searched.’” Id. at 13 (citing Anguiano, 2018 WL 5923451, at
12
*5; Davis Wright Tremaine LLP, 2020 WL 3258001 at *6).
13
14 In Response, Defendants argue in a conclusory fashion that they followed their own
15 judgment in selecting search custodians and that those custodians followed proper search
16
procedures. Dkt. #25 at 3–5. Defendants do not adequately explain in briefing why they did
17
not consider to pursue the “leads” listed by CAIR, or adequately explain why it would not be
18
19 reasonable to search the email of Adele Fasano, the SFO Assistant Director, or to identify
20 proper emails to search at CBP Headquarters. Indeed, Defendants have now agreed to search
21
the emails of Adele Fasano, the SFO Assistant Director, and Randy Howe. See Dkt. #26 at ¶ 3.
22
Given all of the above, the Court denies summary judgment for the Defendants on this issue and
23
grants it for CAIR. Defendants’ search was inadequate as a matter of law.
24
25 D. FOIA Exemptions
26 1. Exemption 5
27
28
CBP partially withheld information on five documents under 5 USC § 552(b)(5) subject
1
2 to the deliberative process privilege. These documents appear to discuss press inquiries about
3 the January 4 and 5 incident. See Maltese Decl. Ex. A at 129-47.
4
Under Exemption 5, an agency does not need to release “inter-agency or intra-agency
5
memorandums or letters which would not be available by law to a party other than an agency in
6
litigation with the agency.” 5 U.S.C. § 552(b)(5). Exemption 5 “shields ‘those documents, and
7
8 only those documents, normally privileged in the civil discovery context.’” Carter v. U.S.
9 Dep’t of Commerce, 307 F.3d 1084, 1088 (9th Cir. 2002) (quoting NLRB v. Sears, Roebuck &
10
Co., 421 U.S. 132, 149 (1975)). Here, Defendants invoke the deliberative process privilege of
11
Exemption 5. Dkt. #20 at 13. “To qualify for exemption 5 under the ‘deliberative process’
12
privilege, a document must be both (1) ‘predecisional’ or ‘antecedent to the adoption of agency
13
14 policy’ and (2) ‘deliberative,” meaning ‘it must actually be related to the process by which
15 policies are formulated.’” Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d 1114, 1117 (9th
16
Cir. 1988) (quoting Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978)). In
17
short, the process protects “frank discussion of legal or policy matters” among agency
18
19 employees. Sears, Roebuck & Co., 421 U.S. at 150 (citation omitted).
20 CAIR argues that courts have repeatedly refused to allow agencies to cite Exemption 5
21
to shield from disclosure discussions regarding a public-facing statement where that statement
22
“does [not] appear to have been prepared in order to assist in the making of any decision.” Dkt.
23
#23 at 15 (citing First Resort, Inc. v. Herrera, No. CV 11-5534 SBA (KAW), 2014 WL
24
25 988773, at *4 (N.D. Cal. Mar. 10, 2014); Mayer, Brown, Rowe & Maw LLP v. IRS, 537 F.
26 Supp. 2d 128, 139 (D.D.C. 2008); Chattler v. United States, No. C–07–4040 MMC (EMC),
27
2009 WL 1313227, at * 2 (N.D. Cal. May 12, 2009)).
28
The Court finds that Defendants have failed to meet their burden to demonstrate
1
2 Exemption 5 applies to these documents, which do not appear to have been prepared in order to
3 assist in the making of a decision, and instead relate to the release of a public-facing statement
4
describing events after a decision was made. Accordingly, all documents and portions of
5
documents withheld on the basis of this exemption must be turned over to CAIR.
6
2. Exemption 6
7
8 Exemption 6 serves to protect personal privacy, permitting an agency to withhold
9 “personnel and medical files and similar files the disclosure of which would clearly constitute
10
an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The term “similar files” is
11
to be interpreted broadly, covering all “Government records on an individual which can be
12
identified as applying to that individual.” U.S. Dep’t of State v. Washington Post Co., 456 U.S.
13
14 595, 595, 602 (1982). “Disclosures that would subject individuals to possible embarrassment,
15 harassment, or the risk of mistreatment constitute nontrivial intrusions into privacy under
16
Exemption 6.” Cameranesi v. United States Dep't of Def., 856 F.3d 626, 638 (9th Cir. 2017).
17
Defendants asserted Exemption 6 to redact the names, signatures, phone numbers, email
18
19 addresses, and personally identifiable information of government employees and other third-
20 party individuals. Exemption Decl., ¶ 21. However, Defendants released the names of what
21
they determined to be high-ranking officials. Id.
22
The Court has examined the records at issue and find that Defendants have redacted the
23
names of government officials in records not relating to those individuals. These are not
24
25 personnel records or similar files. Defendants make a valid argument that the release of the
26 names of lower-level individuals could subject them to embarrassment or harassment, however
27
CAIR has also demonstrated that the public interest lies in the release of the names of Assistant
28
Directors and Port Directors playing a key role in the implementation of the policy at issue,
1
2 which touches on the civil rights of U.S. Citizens and legal permanent residents. Accordingly,
3 this exemption does not apply to the names of those individuals. Other forms of personal
4
information, including email addresses, are properly redacted.
5
3. Exemption 7
6
Exemption 7 protects from disclosure records or information compiled for law
7
8 enforcement purposes, but only to the extent that the production of such records or information
9 would result in one of six specified harms. 5 U.S.C. § 522(b)(7). Defendants invoke two of
10
these harms: (1) an unwanted invasion of personal privacy under 7(C); and (2) disclosure of
11
law-enforcement techniques and procedures under 7(E). Exemption 7(C) allows agencies to
12
withhold information compiled for law enforcement purposes that “could reasonably be
13
14 expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
15 Under Exemption 7(E), agencies may withhold information “which would disclose techniques
16
and procedures for law enforcement investigation or prosecutions . . . if such disclosure could
17
reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). The
18
19 government must show that the technique or procedure at issue is not well known to the public,
20 see Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995), and must describe the
21
general nature of the technique or procedure at issue, although it need not provide specific
22
details, see Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 337 F. Supp. 2d 146, 181 (D.D.C.
23
2004).
24
25 i. Exemption 7(C)
26 The Court has already ruled that the public interest lies in the release of the names of
27
Assistant Directors and Port Directors playing a key role in the implementation of the policy at
28
issue, which touches on the civil rights of U.S. Citizens and legal permanent residents.
1
2 Accordingly, exemption 7(C) does not apply to the names of those individuals.
3 ii. Exemption 7(E)
4
Defendants’ application of exemption 7(E) is the most hotly disputed issue in this case.
5
Defendants argue that they invoked Exemption 7(E) to withhold non-public information
6
including law enforcement terminology, techniques, and procedures used to determine
7
8 admissibility and other similar information that directly relates to CBP’s law enforcement
9 mission to protect the border, Exemption Decl. ¶¶ 28-29, Ex. 4, Vaughn Index, and that
10
disclosure would allow persons seeking to enter the United States to alter their patterns of
11
conduct to avoid detection, see Dkt. #20 at 20.
12
CAIR maintains that the Vaughn index provided by Defendants, where they provide a
13
14 rationale for each redaction, is inadequate because:
15 Defendants provide highly similar rationale each time they claim
16 the exemption. In some instances, Defendants claim generally that
the redacted information “reveals law enforcement techniques and
17 procedures used during an enhanced security posture situation” or
during a “possible high threat alert situation.” See, e.g., Dkt. 22-4
18
at 7-8, 10-11, 12-13, 15-16, 23. For other exemptions, the agency
19 provides slightly more detail, explaining that the information might
allow an individual to learn how CBP assesses “a person’s
20 admissibility” or how CBP decides when to make a “referral to
secondary inspection.” See, e.g., id. at 4-5, 11-12. But the agency
21
offers nothing more. Such “‘boilerplate’ explanations for why
22 whole categories of documents should be exempt” mean “that
neither the adversary process nor the Court can perform its
23 function.” ACLU of Washington v. U.S. Dep’t of Justice, No. C09-
0642RSL, 2011 WL 887731, at *2 (W.D. Wash. Mar. 10, 2011)…
24
25 Dkt. #23 at 19–20. CAIR requests the Court to order Defendants to supplement the Vaughn
26 index with greater detail.
27
28
The Court agrees that Defendants have not “describe[d] the general nature of the
1
2 technique or procedure at issue” and that more detail is clearly required under applicable case
3 law. The Court will order Defendants to revisit their Vaughn index to describe in each instance
4
the general nature of the technique or procedure at issue and to avoid boilerplate language.
5
FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to
6
any person requesting such record after deletion of the portions which are exempt under this
7
8 subsection.” 5 U.S.C. § 552(b). Defendants argue they have met this standard. CAIR argues
9 that Defendants have cited 7(E) in redacting publicly known information and information to
10
shield illegal activity from public disclosure. Dkt. #23 at 21.
11
The Court agrees with Defendants that “CAIR only speculates that the information is
12
publicly known” and that CAIR “fails to cite to any specific redaction to show that the
13
14 information is publicly known,” instead relying “generalities.” Dkt. 25 at 9–10. CAIR
15 acknowledges it is speculating to a certain extent and requests in camera review. See Dkt. #23
16
at 24–25 (citing 5 U.S.C. § 552(a)(4)(B); Islamic Shura Council of S. California v. FBI, 635
17
F.3d 1160, 1165 (9th Cir. 2011)). Defendants do not object. Dkt. #25 at 11.
18
19 Defendants acknowledge but do not respond to CAIR’s argument that 7(E) should not
20 shield the disclosure records of illegal activity. See Dkt. #25 at 10. In its Cross-Motion, CAIR
21
cites to Wilkinson v. F.B.I., 633 F. Supp. 336, 349 (C.D. Cal. 1986) for the proposition that
22
“[b]ecause the policy behind [Exemption 7(E)] is to shield effective and little-known law
23
enforcement techniques from potential violators so that they may not be circumvented,
24
25 Exemption 7(E) may not be used to withhold information regarding investigative techniques
26 that are illegal or of questionable legality.” Dkt. #23 at 24. CAIR also cites Kuzma v. IRS, 775
27
F.2d 66, 69 (2d Cir. 1985) (“[U]nauthorized or illegal investigative tactics may not be shielded
28
from the public by use of FOIA exemptions.”). Id. On Reply, CAIR points out Defendants’
1
2 non-response and that “Defendants also do not contest that the agency engaged in unlawful
3 activity.” As a result, release of the directive that mandated the detention of individuals based
4
on national origin may be appropriate, along with the release of any communications
5
discussing, implementing, criticizing, or withdrawing that directive. In camera review, not
6
opposed by Defendants, will aid the Court in assessing whether these redacted documents are
7
8 properly disclosed under FOIA.
9 IV. CONCLUSION
10
Having reviewed the briefing of the parties, the attached declarations and exhibits, and
11
the pleading, the Court hereby FINDS and ORDERS:
12
1. Defendants’ Motion for Summary Judgment, Dkt. #20, is DENIED.
13
14 2. Plaintiff CAIR’s Motion for Summary Judgment, Dkt. #23, is GRANTED IN PART
15 as stated above.
16
3. Defendants are to conduct an adequate search. To extent they have not done so
17
already, they must search the emails of (1) Adele Fasano, (2) the Seattle Field Office
18
19 Assistant Director, (3) Randy Howe, and (4) the Senior Official Performing the
20 Duties of the Commissioner of Customs and Border Protection, Mark A. Morgan.
21
The parties are to meet and confer and to submit to the Court within the next seven
22
(7) days a Joint Status Report on the production of any additional materials.
23
4. All documents and portions of documents withheld on the basis of Exemption 5
24
25 must be turned over to CAIR or redactions removed, unless there is another valid
26 exemption for withholding or redacting.
27
28
5. Defendants must eliminate the redactions of the names of Assistant Directors and
1
2 Port Directors within the Seattle Field Office in the produced materials.
3 6. In all situations where Exemption 7(E) is cited, Defendants are to revisit their
4
Vaughn index to adequately describe in each instance the general nature of the
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technique or procedure at issue and to avoid boilerplate language.
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7. Changes to redactions are to be accomplished in the next 30 days. Any anticipated
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8 issues are to be included in the above Joint Status Report.
9 8. Defendants must, within the next seven (7) days, submit to the Court for in camera
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review all records withheld or redacted on the basis of Exemption 7(E). Portions of
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documents so redacted must be highlighted and labeled 7(E) for the Court’s
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attention. Defendants are to coordinate with the in-court deputy clerk assigned to
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14 this case as to the appropriate procedure for submitting these records. A further
15 order from the Court addressing these records will issue after the Court has had a
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chance to review.
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DATED this 5th day of October, 2020.
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RICARDO S. MARTINEZ
23 CHIEF UNITED STATES DISTRICT JUDGE
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