Ctr. for Biological Diversity v. U.S. Army Corps of Engineers, No. 17-1037, 2019 WL 4737069 (D.D.C. Sept. 27, 2019) (Sullivan, J.)

Ctr. for Biological Diversity v. U.S. Army Corps of Engineers, No. 17-1037, 2019 WL 4737069 (D.D.C. Sept. 27, 2019) (Sullivan, J.)

Re:  Request for records concerning how defendants advised Presidential Transition Team on border wall

Disposition:  Granting defendants' motion for summary judgment; denying plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court finds that the defendants have met the statutory requirement to perform a reasonable search."  "The Army Corps' declaration sufficiently explains the type of searches conducted, the search terms used, and explains that all files likely to contain responsive materials were located and searched."  Additionally, the court notes that "[t]he declaration provided the search terms that were used by each office to locate documents in electronic files."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that the "Army Corps has established that the withheld documents were a part of a deliberative process."  "Army Corps meets the inter- or intra-agency document prerequisite; the declaration avers that it withheld 'communications between Department of Defense [ ] personnel . . . .'"  "As to the Center's argument that the information withheld is factual and therefore cannot be protected, '[i]n some circumstances, even material that could be characterized as "factual" would so expose the deliberative process that it must be covered by the privilege.'"  "The Vaughn index provides detailed explanations regarding how the documents were created prior to the adoption of an agency policy, and how disclosure would discourage discussion within the agencies."  "Similarly, [the court finds that] CBP has established that the withheld documents were a part of a deliberative process."  "First, CBP meets the inter- or intra-agency document prerequisite; the declaration avers that it withheld 'information concerning the agency's approach to implement law enforcement measures along the U.S.-Mexico border . . . , as well as the agency's potential plans for construction of new tactical border infrastructure as directed by President Trump.'"  "Second, CBP has shown that the information was predecisional and deliberative; CBP's declaration avers that '[t]he redacted information includes the qualitative and quantitative metrics across which USBP identified law enforcement capability gaps, the results of tests and analyses of alternatives for potential law enforcement strategies, and recommendations to CBP leadership to inform acquisition and other decisions concerning the deployment of law enforcement strategies.'"  "CBP's declaration further states how production would discourage discussions:  '[d]isclosure of such information could reasonably be expected to affect the agency’s decision-making process in effecting presidential policy.'"
   
• Exemption 5, Attorney-Client Privilege:  "Having reviewed the CBP's declaration and the Vaughn indices, the Court finds that CBP has fulfilled its obligations with respect to this issue."  The court notes that "[t]he Center does not contest the applicability of the withholdings of information subject to the attorney-client privilege."
   
• Exemption 6:  "[T]he Court concludes that defendants properly invoked Exemption 6 as to the names of the lower-level federal employees included in the documents in dispute."  First, the court finds that "defendants have demonstrated that the privacy interest in the names of the lower level CBP employees in this case is more than de minimis."  Second, "[t]he Court finds that the Center has identified an appropriate public interest."  "The level of expertise of the individuals providing information to the government related to environmental effects of the construction of the wall clearly falls under the ambit of information that 'let[s] citizens know what their government is up to.'"  "Defendants, however, have provided to plaintiffs the names of 'higher ranking CBP officials . . . as the information bears more closely to the agency's actions.'"  "In light of the fact that the Center has the names of higher-ranking officials who provided information to the Transition team, the Center's claimed public interest in disclosure of the names of lower-level employees is diminished."  "The Court finds that, on balance, the lower-level employees' interest in avoiding harassment outweighs the interest of public disclosure which is moderated by the release of names of higher-ranking agency personnel."
   
• Exemption 7(E):  First, "[t]he Court finds that Army Corp has properly withheld the material pursuant to Exemption 7(E)."  The court finds that "Army Corps' declaration explains that it redacted specific information related to security an infrastructure and that disclosing the information would reveal CBP's assessments of vulnerabilities along the U.S.-Mexico Border."  "Army Corps seeks to withhold information pertaining to the number of border stations and border patrol agents among the U.S.-Mexico Border, the location and length of border patrol fencing, and proposed border patrol fencing."  Second, the court finds that "CBP's declaration sufficiently explains how information that would result in disclosure of law enforcement vulnerabilities is information related to law enforcement techniques, procedures, or guidelines."  "Additionally, CBP's second declaration asserts that 'the information withheld relates to existing and proposed tactical infrastructure in specific USBP sectors used to prevent or detect the illegal entry of people and illicit items into the U.S.'"  The court finds that "[i]nformation relating to infrastructure used to prevent or detect illegal entry of items and people is information related to law enforcement techniques, procedures, or guidelines."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he Court is satisfied that the government only withheld information that is exempt from disclosure and material 'inextricably intertwined with exempt portions.'"  "Both declarations 'show with "reasonable specificity" why the documents cannot be further segregated.'"  The court relates that "Army Corp’s declaration avers that '[a]ll documents were processed to achieve maximum disclosure consistent with the provisions of FOIA [and] every effort was made to provide the Plaintiff will all releasable material and to reasonably segregate exempt information from releasable information.'"  "CBP's declaration avers that '[a]ll information withheld is exempt from disclosure pursuant to a FOIA exemption or is not reasonably segregable because it is so intertwined with protected material that segregation is not possible, or its release would have revealed the underlying protected material.'"