Abdelfattah v. U.S. Department of Homeland Security

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

5-30-2007

Abdelfattah v. Dept Homeland

Precedential or Non-Precedential: Precedential

Docket No. 06-4106

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 06-4106

OSAMA ABDELFATTAH

v.

U.S. DEPARTMENT OF HOMELAND SECURITY;

MICHAEL CHERTOFF, in his official capacity as

Secretary of the Department of Homeland Security;

MAGDA S. ORIZ, Director of FOIA/PA Branch;

U.S. CITIZENSHIP AND IMMIGRATION SERVICE;

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;

FEDERAL BUREAU OF INVESTIGATION

(District of New Jersey Civil No. 05-cv-05212)

OSAMA ABDELFATTAH

v.

U.S. DEPARTMENT OF HOMELAND SECURITY

(District of New Jersey Civil No. 06-cv-00774)

OSAMA ABDELFATTAH

v.

U.S. DEPARTMENT OF HOMELAND SECURITY;

U.S. CITIZENSHIP AND IMMIGRATION SERVICE;

U.S. IMMIGRATION AND CUSTOM ENFORCEMENT;

FEDERAL BUREAU OF INVESTIGATION

(District of New Jersey Civil No. 06-cv-00775)

OSAMA ABDELFATTAH

v.

U.S. CUSTOMS AND BORDER PROTECTION;

U.S. IMMIGRATION AND CUSTOM ENFORCEMENT

(District of New Jersey Civil No. 06-cv-02203)

Osama Abdelfattah,

Appellant

2

On Appeal from the United States District Court

for the District of New Jersey

D.C. Civil Action Nos. 05-cv-05212,

06-cv-00774, 06-cv-00775 & 06-cv-02203

(Honorable Joseph A. Greenaway, Jr.)

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 27, 2007

Before: SCIRICA, Chief Judge, FUENTES and SMITH,

Circuit Judges.

(Filed: May 30, 2007)

Osama Abdelfattah

Appellant, Pro Se

James B. Clark, III, Esquire

Office of United States Attorney

970 Broad Street, Room 700

Newark, New Jersey 07102

Attorney for Appellees

OPINION OF THE COURT

3

PER CURIAM.

Osama Abdelfattah appeals pro se from an order of the

United States District Court for the District of New Jersey

granting the defendants’ motion for summary judgment in this

action brought under the Freedom of Information Act (“FOIA”),

5 U.S.C. § 552, and the Privacy Act (“PA”), 5 U.S.C. § 552a.

We will affirm in part, vacate in part, and remand to the District

Court for further proceedings. In doing so, we clarify the test,

announced in Davin v. United States Department of Justice, 60

F.3d 1043, 1056 (3d Cir. 1995), for evaluating whether material

withheld pursuant to FOIA Exemption 7 qualifies as “records or

information compiled for law enforcement purposes.”

I.

In an effort to obtain records pertaining to himself,

Abdelfattah submitted FOIA/PA requests to the United States

Citizenship and Immigration Services (“CIS”), the Bureau of

United States Customs and Border Protection (“CBP”), the

Bureau of United States Immigration and Customs Enforcement

(“ICE”), and the Federal Bureau of Investigation (“FBI”). The

CIS conducted a search using Abdelfattah’s name and located

420 pages of responsive documents. Ultimately, the CIS

referred 57 pages to the ICE, released 344 pages in full, released

one page with redactions, and withheld 18 pages in full. Of the

57 pages referred to the ICE, 51 were released in full, four were

withheld in part, and two were withheld in their entirety. When

Abdelfattah filed his complaint against the ICE, that agency had

4

not yet responded to the request submitted directly to it. In

response to Abdelfattah’s request to the CBP, two pages were

determined to be non-responsive and one document was

released with certain redactions. The FBI informed Abdelfattah

that a search of its automated indices yielded no responsive

records at its headquarters.

Beginning in October 2005, Abdelfattah filed a series of

complaints in the District Court alleging that his FOIA requests

were not timely processed, that the searches were inadequate,

and that certain information in the responsive documents was

improperly withheld. These actions were eventually

consolidated and the parties filed cross motions for summary

judgment. The District Court granted the defendants’ motion.1

1

The District Court did, however, deny that portion of the

defendants’ motion for summary judgment which requested that

the proceedings be stayed pursuant to Open America v.

Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir.

1976), to permit the ICE to complete its processing of

Abdelfattah’s pending FOIA request. The District Court

concluded that the ICE’s backlog of pending requests did not

amount to “exceptional circumstances,” and ordered the ICE to

respond to the FOIA/PA request within 20 days. 5 U.S.C. §

552(a)(6)(C)(i)-(iii) (permitting a stay if it can be shown that

“exceptional circumstances exist and that the agency is

exercising due diligence in responding to the request.”). The

ICE has complied with this order, and there is no indication that

Abdelfattah challenged the response.

5

Abdelfattah appeals.

II.

We employ a two-tiered test in reviewing an order of a

District Court granting summary judgment in proceedings

seeking disclosure under the FOIA. We must “first decide

whether the district court had an adequate factual basis for its

determination.” McDonnell v. United States, 4 F.3d 1227, 1242

(3d Cir. 1993) (citations omitted). If it did, we “must then

decide whether that determination was clearly erroneous.” Id.

(citations omitted). Under this standard, we will reverse only “if

the findings are unsupported by substantial evidence, lack

adequate evidentiary support in the record, are against the clear

weight of the evidence or where the district court has

misapprehended the weight of the evidence.” Id. (quoting Lame

v. U.S. Dep’t of Justice, 767 F.2d 66, 70 (3d Cir. 1985)).

III.

On appeal, Abdelfattah challenges the adequacy of the

searches and the sufficiency of the justifications for withholding

material pursuant to FOIA Exemptions 5 and 7. See 5 U.S.C.

§ 552(b)(5) & (b)(7). He also challenges the degree of

compliance with the FOIA’s requirement that “[a]ny reasonably

segregable portion of a record shall be provided . . . after

deletion of the portions which are exempt . . . .” 5 U.S.C. §

552(b).

A.

6

Under the FOIA, an agency has a duty to conduct a

reasonable search for responsive records. See Oglesby v. U.S.

Department of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The

relevant inquiry is not “whether there might exist any other

documents possibly responsive to the request, but rather whether

the search for those documents was adequate.” Weisberg v.

U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). To

demonstrate the adequacy of its search, the agency should

provide 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 . . . were searched.”

Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.

Cir. 1999) (quoting Oglesby, 920 F.2d at 68).

Abdelfattah alleges the CIS’s search was inadequate

because it failed to produce records pertaining to his

applications for relief (e.g., application for adjustment of status,

application for a travel document, application for employment

authorization, etc.). The District Court concluded that the

detailed affidavits in this case establish that the CIS’s search

was adequate and “reasonably calculated to uncover all relevant

documents.” Oglesby, 920 F.2d at 68. We agree. In particular,

the affidavit of a paralegal specialist in the CIS FOIA/PA Unit

at the National Records Center described Abdelfattah’s

numerous requests (including the specific file numbers assigned

to the relief applications he sought), explained the search terms

that were employed, and described the various files that were

searched. Among those files was the “Computer Linked

Application Information Management System,” which is “used

7

to track applications or petitions for benefits filed under the

Immigration and Nationality Act.”

Abdelfattah further complains the FBI failed to

demonstrate the adequacy of its search.2 In October 2005,

Abdelfattah submitted a FOIA/PA request to the FBI. The FBI

informed him that a search of its automated indices to its central

records system files at its headquarters located no responsive

records. After exhausting his administrative remedies,

Abdelfattah filed a complaint challenging the adequacy of the

FBI’s search, asserting that records must exist because he had

been interviewed by FBI agents in July 2004. The FBI did not

submit an affidavit describing its search. See Valencia-Lucena,

180 F.3d at 326 (describing information necessary to

demonstrate adequacy of search). The District Court thus had

no factual basis for its determination that the “FBI has satisfied

its FOIA obligations to Plaintiff.” See McDonnell, 4 F.3d at

1242. Accordingly, we will remand for further proceedings on

this issue. Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1185-

87 (D.C. Cir. 1996) (remanding where agencies failed to justify

the adequacy of their searches).

B.

Abdelfattah further contends the declarations and Vaughn

2

To the extent that Abdelfattah contends that the FBI is

withholding six documents that were referred to it by the CIS,

the District Court correctly concluded that no such referral was

made.

8

index3 submitted by the defendants in support of their motion for

summary judgment were inadequate. Specifically, he claims

that those submissions (1) failed to adequately justify the ICE’s

withholding of a draft incident report pursuant to Exemption 5;

(2) did not demonstrate that records located by the CIS and the

CBP met the threshold for Exemption 7 that was established by

this Court in Davin;4 and (3) omitted any indication that the CIS

had disclosed all reasonably segregable information.

3

A Vaughn index is designed to “transform a potentially

ineffective, inquisitorial proceeding against an agency that

controls information into a meaningful adversarial process” by

identifying each document withheld, the statutory exemption

claimed, and a particularized description of how each document

withheld falls within a statutory exemption. Coastal States Gas

Corp. v. Dep’t of Energy, 644 F.2d 969, 984 (3d Cir. 1981); see

also Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The

justification for withholding provided by the agency in a

Vaughn index may take any form as long as the agency offers a

“reasonable basis to evaluate [it]s claim of privilege.” Gallant

v. NLRB, 26 F.3d 168, 172-73 (D.C. Cir. 1994) (quoting

Delaney, Migdall & Young, Chartered v. IRS, 826 F.2d 124,

128 (D.C. Cir. 1987)).

4

Because the CBP has indicated that the page from which it

redacted material is “substantially similar” to a page withheld by

the CIS, we will not separately examine the CBP’s response to

Abdelfattah’s FOIA/PA request.

9

1.

After reviewing the record in its entirety, including the

ICE’s affidavit, we conclude that the District Court possessed a

sufficient factual basis for its determination that the ICE

properly used Exemption 5 to withhold a draft incident report.

Exemption 5 protects from disclosure “inter-agency or

intra-agency memorandums or letters which would not be

available by law to a party . . . in litigation with the agency.” 5

U.S.C. § 552(b)(5). The Exemption encompasses the traditional

discovery privileges, including the deliberative process

privilege, which “protects agency documents that are both

predecisional and deliberative.” Judicial Watch, Inc. v. FDA,

449 F.3d 141, 151 (D.C. Cir. 2006); see also Klamath Water

Users Protective Ass’n, 532 U.S. 1, 8 (2001). The ICE indicated

that the draft report involved discussions “between [the

agency’s] subordinates and seniors” and noted that the report

“may have been modified to ensure accurate reporting and

clarify misleading statements.” Moreover, there is no indication

in the record that the draft report was expressly adopted as, or

incorporated by reference into, the ICE’s final decision. See

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161 (1975)

(holding that “if an agency chooses expressly to adopt or

incorporate by reference an intra-agency memorandum

previously covered by Exemption 5 in what would otherwise be

a final opinion, that memorandum may be withheld only on the

ground that it falls within the coverage of some exemption other

than Exemption 5.”).

10

2.

Abdelfattah also contends the CIS failed to sufficiently

justify its use of Exemption 7. Under the present version of

Exemption 7, which was enacted in 1986, agencies may

withhold “records or information compiled for law enforcement

purposes” to the extent that disclosure threatens (to varying

degrees of certainty) one of six enumerated harms. See 5 U.S.C.

§ 552(b)(7). With respect to the first part of this analysis –

whether the record or information was compiled for law

enforcement purposes – this Court has stated that a criminal law

enforcement agency must first “identify a particular individual

or incident as the object of the investigation and specify the

connection of the individual or incident to a potential violation

of law or security risk.” Then the agency must “demonstrate

that this relationship is based upon information sufficient to

support at least a ‘colorable claim’ of its rationality.” Davin, 60

F.3d at 1056 (internal quotation omitted).

This test is “an adaptation of the two-prong ‘rational

nexus’ test articulated by the Court of Appeals for the District

of Columbia Circuit” in Pratt v. Webster, 673 F.2d 408 (D.C.

Cir. 1982).5 Davin, 60 F.3d at 1056. When Pratt was decided

5

The Pratt test asks (1) whether the agency’s investigatory

activities that give rise to the documents sought are related to the

enforcement of federal laws or to the maintenance of national

security; and (2) whether the nexus between the investigation

and one of the agency’s law enforcement duties is based on

11

in 1982, Exemption 7 protected “investigatory record[s]

compiled for law enforcement purposes.” But amendments to

the FOIA in 1986 modified the Exemption 7 threshold

requirement by deleting the word “investigatory” and inserting

the words “or information,” so that protection is now available

to all “records or information compiled for law enforcement

purposes.” Thus, while the 1986 FOIA amendments did not

affect that portion of the Pratt test which requires a “nexus”

between the agency activity giving rise to the records and its law

enforcement duties, see Davin, 60 F.3d at 1055, the amendments

did broaden the sweep of the exemption’s coverage. See Tax

Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002) (explaining

that 1986 FOIA amendments permitted wider application of

Exemption 7 by deleting “any requirement” that information be

investigatory); see also Keys v. U.S. Dep’t of Justice, 830 F.2d

337, 340 (D.C. Cir. 1987).

Thus, we are faced with a statute which protects all

“records or information compiled for law enforcement

purposes,” and a test set forth in Davin under that statute which

appears to impose on the government additional requirements

for withholding, namely, identification of a particular individual

or incident, an investigation, and a potential violation of law or

security risk. In the present case, Abdelfattah requested

information pertaining to himself that is maintained by the CIS,

an agency that is responsible for performing various

information sufficient to support at least a colorable claim of

rationality. Pratt, 673 F.2d at 420-21.

12

immigration adjudications (e.g., visa petitions and asylum

applications). See 6 U.S.C. § 271(b) (setting forth functions of

the CIS). Under Davin, any records maintained by the CIS

concerning Abdelfattah’s applications for immigration relief

arguably would not be covered by Exemption 7 because they do

not relate to an “investigation” or a “potential violation of law.”

Importantly, however, we interpret as dicta that portion

of the Davin test which refers to the identification of a particular

individual or incident as the object of an investigation into a

potential violation of law or security risk. In Davin, the

requester sought from the FBI records pertaining to a national

union for the unemployed and its one-time leader. With respect

to Exemption 7, the Davin Court was concerned primarily with

whether it should adopt a per se rule “under which all records

compiled by law enforcement agencies . . . qualify as ‘records

compiled for law enforcement purposes’” or whether it should

require the agency to establish a rational nexus between the

activities giving rise to the requested records and its law

enforcement duties. Davin, 60 F.3d at 1054-56. Adoption of a

per se rule in Davin would have resulted in a conclusion that the

records requested from the FBI, which is a law enforcement

agency, fell within Exemption 7’s threshold. Instead, however,

the Davin Court chose to apply the rational nexus test, thereby

requiring the FBI to articulate a connection between the

responsive documents and a legitimate law enforcement

concern. Id. at 1056-57. Therefore, rejection of the per se rule

and application of the rational nexus test dictated the result in

Davin. By contrast, the Davin Court was not presented with the

13

question whether the proper invocation of Exemption 7

depended on the presence of an investigation because it was

clear that an investigation had given rise to the responsive

documents. See Davin, 60 F.3d at 1056. Accordingly, because

the investigation requirement of the Davin test “could have been

deleted without seriously impairing the analytical foundations

of the holding,” the requirement is dicta. In re McDonald, 205

F.3d 606, 612 (3rd Cir. 2000) (quoting Sarnoff v. American

Home Prods. Corp., 798 F.2d 1075, 1084 (7th Cir. 1986)); Cf.

United States v. Luiz, 102 F.3d 466, 469 (11th Cir. 1996)

(holding that first requirement of three-part test was dicta

because, under the facts of the case announcing the test, the first

requirement had been met). While “[i]t is the tradition of this

court that the holding of a panel in a precedential opinion is

binding on subsequent panels,” Internal Operating Procedure

9.1, it is also well established that we are not bound by dictum

in an earlier opinion. See Mariana v. Fisher, 338 F.3d 189, 201

(3d Cir. 2003).

As noted, the 1986 FOIA amendments broadened the

applicability of Exemption 7 by expressly removing the

requirement that the records be “investigatory.” See Tax

Analysts, 294 F.3d at 79 (noting that “legislative history [of the

1986 FOIA amendments] makes it clear that Congress intended

the amended exemption to protect both investigatory and

non-investigatory materials”). Thus, under the plain language

of the statute, we conclude that an agency seeking to invoke

Exemption 7 does not have to identify a particular individual or

incident as the object of an investigation into a potential

14

violation of law or security risk. See Keys, 830 F.2d at 340

(stating that “Pratt requires simply that the nexus between the

agency’s activity (under the old scheme, an ‘investigation’) and

its law enforcement duties must be based on information

sufficient to support at least a colorable claim of its rationality”)

(internal quotation marks omitted); North v. Walsh, 881 F.2d

1088, 1098 n.14 (D.C. Cir. 1989) (stating that “Congress also

changed the threshold requirement for withholding information

under exemption 7: the exemption formerly covered

‘investigatory records compiled for law enforcement purposes’;

it now applies more broadly to ‘records or information compiled

for law enforcement purposes.’”). Our research has not

disclosed any contrary appellate decisions.

We emphasize, however, that Exemption 7 still requires

an agency to demonstrate that the relationship between its

authority to enforce a statute or regulation and the activity

giving rise to the requested documents is based upon

information sufficient to support at least a colorable claim of the

relationship’s rationality. See Davin, 60 F.3d at 1056.

“[S]imple recitation of statutes, orders and public laws is an

insufficient showing of a rational nexus to a legitimate law

enforcement concern.” Id. In this case, the CIS has not

identified any connection between its law enforcement authority

and the information contained in the withheld material. Indeed,

in describing the “Reason for Withholding,” the CIS’s Vaughn

index merely notes that the documents were “compiled for law

enforcement purposes” without providing any further detail or

explanation. While the descriptions of some of the withheld

15

documents arguably suggest that they were compiled for law

enforcement purposes, we will not extrapolate such a purpose

solely based on those brief summaries or on the CIS’s

description of the databases that it searched.6 See Church of

Scientology of California v. U.S. Dep’t of Army, 611 F.2d 738,

749 (9th Cir. 1979) (remanding where agency provided

insufficient evidence to justify use of Exemption 7).

3.

Notably, even if the CIS’s application of FOIA

exemptions was substantively correct, we would nevertheless

remand because the CIS failed to demonstrate that it has

released all reasonably segregable portions of each withheld

document. 5 U.S.C. § 552(b) (requiring that “[a]ny reasonably

6

According to the CIS, it searched “a computer system

designed to track the location of receipts and alien files within

designated offices,” “a computer system used to track

applications or petitions for benefits filed under the Immigration

and Nationality Act,” and a system that “provides automated

information regarding certain classes of aliens and identifies the

location of an alien’s hardcopy A-file.” The withheld

information consisted of seven “Facsimile Transmittal [or

Confirmation] Cover Sheets,” two “record check report[s],” two

memoranda (including one regarding an “investigation”), two

emails, one “record of IBIS query,” one “NAIL lookout

contact/comments ADD,” and a three-page “TECS II Person

Subject Display.”

16

segregable portion of a record shall be provided to any person

requesting such record after deletion of the portions which are

exempt”). An “agency cannot justify withholding an entire

document simply by showing that it contains some exempt

material.” Mead Data Central v. U.S. Dep’t of Air Force, 566

F.2d 242, 260 (D.C. Cir. 1977). Rather, the agency must

demonstrate that all reasonably segregable, nonexempt

information was released. See Davin, 60 F.3d at 1052 (“The

statements regarding segregability are wholly conclusory,

providing no information that would enable [plaintiff] to

evaluate the FBI’s decisions to withhold.”). The CIS’s

declarations and Vaughn index provided no basis for the District

Court to make a “reasonably segregable” finding. Indeed, there

is no description of the agency’s process for making such a

determination, no factual recitation of why certain materials are

not reasonably segregable, and no indication of “what

proportion of the information in a document is non-exempt and

how that material is dispersed throughout the document.” Mead

Data Central, 566 F.2d at 261. The absence of this information

necessitates a remand to the District Court to make a specific

segregability finding with respect to the CIS. See Kimberlin v.

Dep’t of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998) (remanding

because District Court did not make findings regarding

segregability).

IV.

For the foregoing reasons we will affirm in part, vacate

in part, and remand the matter to the District Court for further

17

proceedings consistent with this opinion. In particular, we will

vacate that portion of the District Court’s order which granted

summary judgment concerning the FBI’s search for responsive

documents, the applicability of Exemption 7 to records withheld

by the CIS, and the CIS’s satisfaction of its obligation to

demonstrate that all reasonably segregable information has been

disclosed. In all other respects, we will affirm the judgment of

the District Court.

18