CLEAR v. U.S. Customs & Border Prot., No. 19-7079, 2022 WL 16636686 (E.D.N.Y. Nov. 2, 2022) (Reyes, Jr., Mag. J.)

CLEAR v. U.S. Customs & Border Prot., No. 19-7079, 2022 WL 16636686 (E.D.N.Y. Nov. 2, 2022) (Reyes, Jr., Mag. J.)

Re:  Request for records concerning Tactical Terrorism Response Teams

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiffs’ cross-motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  The court holds that “[n]either the categorical descriptions nor the boilerplate justifications in CBP’s declaration and Vaughn index provide the reasonable specificity that the Court needs to engage in effective review.”  Regarding the declaration, the court finds that “CBP’s categorical descriptions fail to engage with any of the specific records or withholdings.”  “[The declaration] does not link any of the . . . categories to the specific records that CBP withheld.”  “Meanwhile, the Vaughn index does not refer to the . . . categories at all, and instead ‘merely repeats the language of the exemption and uses a string of generic words to describe a document.’”  “CBP’s Vaughn index and declaration likewise resort to categorical and boilerplate justifications for withholding information, falling short of the specificity required to explain how asserted exemptions apply to specific withholdings.”  “Notably absent from CBP’s Vaughn index is any description of the records that were withheld in part, leaving Plaintiffs and the Court to guess the nature of the redacted content through context clues.”  “Accordingly, CBP is ordered to amend or supplement its declaration and Vaughn index to adequately describe and justify the information it withheld.”  “Given the current record, the Court reserves judgment on whether withholdings were proper under Exemptions 3 and 7(E) with respect to the documents that were not reviewed in camera but makes individual findings for those documents it had the opportunity to inspect.”
   
• Exemption 3:  The court relates that “CBP claimed Exemption 3 by invoking Section 102A(i)(1) of the National Security Act (as amended by the Intelligence Reform and Terrorism Prevention Act of 2004), 50 U.S.C. § 3024(i) . . . to withhold part of one document, ‘Watchlisting Reference Guide.’”  “Plaintiffs raise three challenges to CBP’s Exemption 3 claim, but the Court need only consider one:  whether the withheld information satisfies the criteria of the exemption statute.”  “CBP has not sufficiently justified how the redacted information relates to intelligence sources and methods as protected by Section 3024(i).”  “CBP justified its redaction by noting that the document included ‘information and/or equities’ from the Office of the DNI . . . and by explaining that the redacted information pertains to two counterterrorism tools, Terrorist Screening Database and the Terrorist Identities Datamart Environment, which are used by intelligence agencies . . . .”  The court finds that “[t]he mere fact of originating with or being used by an intelligence agency is not enough to establish that the content relates to an intelligence source or method.”  “CBP has not provided the necessary detail to describe the type of information withheld or how these tools, which are also discussed in unredacted portions of the same document, constitute a source or method.”  “CBP must provide additional explanation to meet its burden.”
   
• Exemption 7, Threshold & Exemption 7(E):  “Based on in camera review, the Court finds that the records in the representative sample were compiled for law enforcement purposes.”  “Because they appear to have been created to train and support [Tactical Terrorism Response Teams] officers in carrying out law enforcement duties . . . , provide guidance for counterterrorism-related inspections at ports of entry . . . , and share information about CBP’s law enforcement and counterterrorism efforts . . . , these documents meet the rational nexus standard and satisfy the threshold requirement for Exemption 7(E).”  “Further, . . . each of the challenged records that the Court reviewed in camera contains information that, if disclosed, would reveal techniques and procedures for law enforcement investigations.”  “However, most of these records also contain non-exempt information that CBP must segregate and release[,]” such as “administrative and operational processes,” “factual information about religions and associated cultural practices,” benefits, duties, and responsibilities of Tactical Terrorism Response Teams, “legal authorities” and “legal standards,” and “data and statistics.” 
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  “Based on in camera review of the sample records, alongside CBP’s Vaughn index and . . . declaration, the Court finds that CBP has not met its burden with respect to segregability.”  “Although CBP attests that its ‘personnel and attorneys reviewed each release of records page by page’ and confirmed that ‘[a]ll reasonably segregable portions of the relevant records have been released to the Plaintiffs,’ . . . the spare facts and boilerplate explanations in the Vaughn index do little to support these claims.”  “Moreover, as detailed above, the incorrect and inconsistent withholdings in the ten documents reviewed in camera raise serious concerns about CBP’s segregability review and point to the likelihood of additional inaccurate withholdings across remaining records.”  “Rather than accept CBP’s invitation to engage in further in camera or ex parte reviews, . . . the Court reserves judgment on segregability and directs CBP to release all non-exempt and segregable information that has not yet been disclosed and produce a detailed justification for the decision that any non-exempt information is not segregable.”