ACLU Found. of New Hampshire v. U.S. Customs & Border Prot., No. 19-977, 2022 WL 526163 (D.N.H. Feb. 22, 2022) (McCafferty, J.)

ACLU Found. of New Hampshire v. U.S. Customs & Border Prot., No. 19-977, 2022 WL 526163 (D.N.H. Feb. 22, 2022) (McCafferty, J.)

Re:  Request for records concerning defendant's immigration patrol operations in New Hampshire

Disposition:  Granting in part and denying in part plaintiff's motion to compel defendant to produce adequate Vaughn index

• Litigation Considerations, Vaughn Index/Declarations:  "First, [plaintiff] argues that the indexes are deficient because they do not explain why CBP has withheld everything but the first page for 94 of the I-213s [records detailing arrest of a noncitizen]."  "In response, CBP argues that the 94 I-213s are not responsive to [plaintiff's] requests, and thus are not required to be included in the Vaughn indexes at all."  "CBP contends that [plaintiff's] argument goes to the adequacy of CBP's search for responsive documents, rather than to the sufficiency of the Vaughn indexes, and thus is best addressed at summary judgment."  "[Plaintiff] argues that the issue is ripe, and thus the court should address it now in the interest of judicial economy."  "The court agrees with [plaintiff] and addresses the dispute on the merits."  Defendant declarant "stat[ed] that CBP initially disclosed the first pages of these documents, but 'after additional review,' CBP determined they were non-responsive because 'they did not pertain to roving patrol operations conducted in New Hampshire.'"  "[Plaintiff] calls into question CBP's determination that the documents are not responsive because (1) CBP initially produced the I-213s and then appeared to change its mind about whether they were responsive, and (2) [defendant's] declaration evinces an unduly narrow interpretation of [plaintiff's] request."  The court finds that "[h]ere, the fact that CBP initially produced the 94 I-213s and then changed its mind about whether they were responsive does not—in isolation—call into question CBP's ultimate determination that the documents are not responsive."  As to plaintiff's argument that CBP interpreted the request too narrowly, "[plaintiff] contends that [defendant's] reference to 'roving patrol' is too narrow an interpretation of its request for 'non-checkpoint patrol.'"  "Here, the court finds that [plaintiff] has raised a reasonable concern about whether the 94 I-213s are responsive to its request."  "Although the fact that the documents were initially produced does not alone call into question the adequacy of the search, that issue coupled with the language of [defendant's] declaration raise[s] a reasonable concern."  The court further finds that "the contested items here are a discrete list of documents that are already before the court, and thus it should be of minimal burden to CBP to file a supplemental affidavit detailing its process and reasoning" and "thus orders CBP to file a supplemental declaration regarding these 94 I-213s."
  
  "Next, [plaintiff] argues that for the 14 remaining I-213s, the indexes do not explain whether and how CBP made efforts to segregate purportedly exempt from non-exempt information."  "In its opposition, CBP cited [defendant's] declaration which detailed how CBP performs the segregability analysis."  "[Defendant] stated that a CBP FOIA processor '(1) meticulously examine[s], line-by-line, each responsive page to identify potential redactions, (2) appl[ies] redactions (if necessary), and (3) individually label[s] each redaction (which could be a name, email address or phone number, a single word or phrase, or substantial portions of a document), with the applicable exemption or exemptions.'"  The court finds that "the combination of the Vaughn index and the agency affidavit provides a sufficiently 'detailed justification' specifying why the claimed exemptions are relevant and correlating those claims with particular parts of the documents."  "[Defendant's] declaration explains CBP's process for examining documents line-by-line to determine what information is segregable."  "Moreover, the indexes themselves describe why the redacted information purportedly falls into the claimed exemptions."  "The court thus finds that the Vaughn index is 'sufficiently detailed to permit the trial court and requester to obtain a "clear explanation of why each document or portion of a document withheld is putatively exempt from disclosure."'"  "Whether CBP's determinations of exempted material are overbroad is another matter, but one which is reserved for summary judgment."
  
  "Finally, [plaintiff] argues that the indexes do not explain whether and how CBP made efforts to segregate information on the eight Operation Order Reports that it has withheld in full."  "[Plaintiff] attaches to its motion a sample Operation Order Report dated 2006 that was produced by CBP in [a plaintiff] affiliate's FOIA lawsuit; in that sample, CBP disclosed a substantial amount of information, whereas here the Operation Order Reports were withheld in full."  "In response, CBP . . . stat[es] that each page of the Operation Order Reports was 'meticulously examined,' and that CBP has determined that they must be withheld in full."  "As to the Operation Order Reports disclosed in an unrelated case, CBP argues that its disclosure of a redacted Operations Order Report from Arizona more than a decade ago in a factually distinguishable case, is irrelevant to the Operations Order Reports at issue here."  "[T]he court finds that the Vaughn index, combined with [defendant's] declaration, adequately fulfills CBP's segregability obligations with respect to the Operations Order Reports."  "Further, the court agrees with the government that the fact that CBP disclosed an Operations Order Report in an unrelated case in a different jurisdiction more than a decade ago does not alone cast doubt on the adequacy of CBP's segregability determinations in this case."