Borowski v. CBP, No. 23-00257, 2025 WL 889716 (W.D.N.Y. Mar. 20, 2025) (Wolford, J.)

Borowski v. CBP, No. 23-00257, 2025 WL 889716 (W.D.N.Y. Mar. 20, 2025) (Wolford, J.)

Re: Request for records concerning revocation of plaintiff’s membership in expedited border processing program called NEXUS

Disposition:  Granting in part and denying in part defendant’s renewed motion for summary judgment

• Litigation Considerations, Adequacy of Search:      “With the additional information provided on its renewed motion, the Court agrees with Defendant that the agency conducted a reasonable search.”  “Defendant searched for records responsive to Plaintiff’s FOIA request in two of its system databases, the Global Enrollment System (‘GES’) and the Analytical Framework for Intelligence (‘AFI’) system.”  “In the May D&O, the Court held that Defendant did not sufficiently describe the structure of its file system in order for it to demonstrate that these were the only two databases likely to contain responsive records.”      “On the renewed motion, Defendant provides the missing context and thereby satisfies its burden of demonstrating a reasonable search.”  “Defendant submitted a supplemental declaration . . . in support of its renewed motion that provides additional insight to the agency’s file systems and databases.”  “The supplemental . . . declaration explains that Defendant framed Plaintiff’s FOIA request into two categories of requested information:      first, ‘information relating to the applications, renewals, denial and revocation of Plaintiff’s NEXUS membership’ and second, ‘records that were consulted as part of the decision to deny and revoke Plaintiff’s NEXUS membership.’”  “Records related to the first category were likely to be stored on the GES database, whereas the records related to the second category were likely to be contained in the AFI system.”      The court reviews the details of the systems and finds that “[t]he supplemental . . . affirmation provides ‘sufficiently detailed descriptions of the underlying facts[]’ . . . regarding Defendant’s database systems and the searches performed in response to Plaintiff’s FOIA request.”  “Equipped with this new information, the Court concludes that Defendant has met its burden of demonstrating that it conducted a search of its records reasonably calculated to uncover all relevant documents related to Plaintiff’s request.”
   
• Litigation Considerations, Evidentiary Showing, Vaughn Index:  The court finds that, “[c]ompared to its submission in support of the prior summary judgment motion, Defendant’s new Vaughn submission provides a greater level of specificity and detail regarding the documents withheld in response to Plaintiff’s FOIA request.”      “Defendant has now adjusted its Vaughn submission by adding ‘subcategories’ to the asserted exemptions.”  “Defendant’s Vaughn index once again has a column entitled ‘Basis for Withholding,’ which provides general explanations for each of the exemption subcategories and the potential harm that would result if the redacted material was released.”  “Defendant’s Vaughn index delineates 71 different groups of responsive records generally ranging from one to three pages.”  “Similar to the prior submission, the updated Vaughn index includes a column entitled ‘Document Name and Description,’ a column entitled ‘Exemptions,’ which lists the exemptions applied to record, and a column entitled ‘Bates Page(s),’ which provides the page range for each record.”
   
• Exemption 5, Deliberative Process Privilege:      The court relates that “Defendant initially identified five pages of intra-agency email communications that were completely redacted under Exemption 5.”  Previously, “the Court held that Defendant did not ‘me[et] its burden of establish[ing] that the emails in question were deliberative and predecisional, and that withholding them complies with the [FOIA Improvement Act (“FIA”)].’”  “Based on the new information provided by Defendant, the Court holds that the agency has met its burden on the email communications redacted pursuant to Exemption 5, but has not established that the redactions comply with the FIA.”  “Defendant provided enough information regarding the context of the email communications sufficient for the Court to analyze whether the agency has met its burden to justify the redactions under the exemption claimed.”  “The supplemental . . . declaration describes the email communications as ‘constitut[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.’”  “The information submitted by Defendant is sufficient for the Court to determine that the intra-agency email communications were properly redacted under [Exemption] 5 as predecisional and deliberative.”  Previously, “the Court identified several deficiencies in Defendant’s submissions related to its Exemption 5 redactions, including the failure to identify the authors of the emails, the positions or roles of the email authors, the dates the emails were sent, and whether the redacted information reflected the agency’s final determination on the decision discussed in the documents.”  “The Court also determined that Defendant did not ‘me[et] 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.’”  “Defendant’s new submissions address each of the deficiencies related to whether Exemption 5 was properly applied; however Defendant still has not demonstrated a reasonably foreseeable harm if the redacted material was released.”  “Defendant adds little regarding the potential harm that would result if these emails were disclosed to Plaintiff in its new submissions.”      “Once again, [defendant’s] assertions do not rise above the boilerplate language necessary to satisfy FIA’s standard.”  “The assertion in Defendant’s Vaughn index does not explain how the release of this information would ‘impede the open and candid expression of recommendations.’”  “Defendant’s memorandum of law in support of the renewed motion does not provide any additional insight on how the release of this material would create a chilling effect on internal agency deliberations.”  “Defendant further argues that the release of the email communications ‘could create public confusion,’ . . . , but also does not explain this conclusory harm.”
   
• Exemption 6; Exemption 7, Threshold; Exemption 7(C):      The court relates that “[it] held [previously] that Defendant’s Vaughn submission regarding Exemptions 6 and 7(C) ‘lack[ed] the requisite “reasonably specific detail” throughout to allow the Court to evaluate the appropriateness of each exemption applied.’”  “On the renewed motion, Defendant’s Vaughn submission provides sufficient information and context for the Court to determine whether the Exemption 6 and 7(C) were appropriately applied.”  “Defendant delineated three subcategories of redacted material made under Exemption 6 and 7(C).”  “Subcategory (b)(6), (b)(7)(C)-1 withheld information that included the ‘names of CPB personnel within CBP’s Trusted Traveler Program and those personnel involved in assessing and determining Plaintiff’s NEXUS eligibility’ as well as ‘the names of CBP officers involved in the border inspection process.’”  “Subcategory (b)(6), (b)(7)(C)-2 withheld ‘personally identifying information of CBP personnel,’ including ‘the user identification codes of CBP employees within CBP’s Trusted Traveler Program’ and ‘the computer workspace identification numbers assigned to individual CBP employees involved in the border inspection process.’”  “Subcategory (b)(6), (b)(7)(C)-3 was applied to ‘withhold the names of non-employee third parties, as well as information by which those individuals could be identified.’”  “‘[B]ecause Exemption 7(C) is more protective of privacy than Exemption 6 (and thus presents a “lower bar” for withholding materials), the Court “need only consider whether [the Government] properly invoked Exemption 7(C).”’”
  
  “First, Defendant has satisfied the threshold issue for Exemption 7 redactions by showing that the documents were compiled for law enforcement purposes.”  “Defendant argues that this threshold issue is satisfied because all of ‘the responsive records were compiled for law enforcement purposes in that they were created and used by CBP in its law enforcement mission to secure the international borders of the United States.’”
  
  “Next, the Court agrees with Defendant that the CBP employees and other third-parties have a ‘protectable privacy interest in the nondisclosure of their identity or other identifying information.’”  “‘It is well established that identifying information such as names, addresses, and other personal information falls within the ambit of privacy concerns under FOIA.’”  “Furthermore, the balancing weighs in favor of redacting this personally identifying information.”  “The individual identifying information in this case is not a strong public interest as it does not contribute to the public understanding of government operations.”
  
  “Finally, Defendant has satisfied its burden under the FIA.”  “The supplemental . . . declaration outlines the potential harm that may flow from the release of any personally identifying information:  ‘Because CBP employees occupy sensitive, law enforcement positions, they face an increased risk of becoming the targets of harassment or attack.’” “‘Withholding this information protects CBP employees from harassment in their private lives due to the conduct of their official duties, which could result from public disclosure of their identity.’”  “The supplemental . . . declaration provides a similar argument regarding the release of third-party personally identifying information.”  “The Court agrees that this is a reasonably foreseeable harm that satisfies the FIA.”
   
• Exemption 7(E): The court “find[s] that Defendant’s arguments for the Exemption 7(E) withholdings suffer from the same fatal flaw as the prior summary judgment motion.”  The court previously “held that Defendant’s submissions did not provide a sufficient level of specificity necessary for the Court to evaluate whether withholdings made pursuant to Exemption 7(E) were appropriately applied.” “Although Defendant has further delineated the document names and descriptions of the responsive records and added exemption subcategories in its Vaughn submission, the Court is still unable to ascertain whether Defendant properly applied Exemption 7(E) to the redacted material.”  “The supplemental . . . declaration provides additional specificity of the material included in each subcategory, but the Vaughn submission does not provide any additional insight into how the subcategories were applied.”  “Defendant provides no information about [which type of information] is included in [each] group of documents [sufficient] for the Court to determine if this exemption was appropriately applied.”
   
• Litigation Considerations, In Camera Inspection:  The court relates that “Plaintiff once again 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.”  “Despite Defendant’s insufficient Vaughn submission, the Court denies Plaintiff’s request for an in camera review.”  “Since in camera review should not be used as a substitute for the agency’s burden, the Court concludes that in camera review is not warranted at this time.”  “Here, Defendant has had two opportunities to come forward with the information necessary for the Court to review whether it appropriately applied the withholdings under Exemption 7(E) and has failed to meet this threshold burden both times.”  “Defendant also failed to demonstrate a reasonably foreseeable harm that would result from the disclosure of the content redacted pursuant to Exemption 5.”