Kilmer v. U.S. Customs & Border Prot., No. 17-1566, 2021 WL 1946392 (D.D.C. May 14, 2021) (Kollar-Kotelly, J.)
Kilmer v. U.S. Customs & Border Prot., No. 17-1566, 2021 WL 1946392 (D.D.C. May 14, 2021) (Kollar-Kotelly, J.)
Re: Request for records concerning CBP's interactions with Canadian citizens seeking entry into United States to participate in January 21, 2017 Women's March
Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment
- Litigation Considerations, Adequacy of Search: The court holds that "CBP's search for records responsive to Plaintiff's FOIA request was adequate, with one narrow exception noted herein." "As described at length above, the detailed declaration provided by CBP's Chief of FOIA Appeals demonstrates the agency's fulsome response to each of Plaintiff's six categories of requests." "In response to those requests, CBP conducted multiple searches of its relevant electronic databases, which collect and store the agency's information related to individuals deemed inadmissible at the border." "CBP has explained the scope and contents of the databases searched, and may rely on such 'authoritative' agency databases as part of a reasonable search for responsive records." "Furthermore, CBP's database searches were both iterative and collaborative." "For example, to provide Plaintiff with complete, yet target-specific data, CBP generated a spreadsheet from its [Enterprise Management Information System-Enterprise Data Warehouse ("EMIS-EDW")] database 'that listed the calendar date, the field office name, the port name, the ground of inadmissibility, and the charge description of persons seeking entry from Canada who were deemed inadmissible during the time period in question.'" "CBP officials then worked with Plaintiff to refine the scope of those spreadsheet entries and conduct subsequent record searches based upon a narrowed subset of entries meeting Plaintiff's designated parameters." "In addition, CBP officials also conducted manual document reviews where appropriate . . . and employed targeted email searches within specific agency offices . . . ." "CBP has also specified its use of reasonable search terms to the Court." Additionally, the court finds that "[defendant] plausibly explains why CBP selected [the components that it searched] as likely sources of responsive records, based on both their geographic relevance . . . and subject-matter relevance . . . ." The court finds that "CBP's multi-faceted response to Plaintiff's FOIA request reflects the agency's 'good faith effort to conduct a search for the requested records, using methods which [could] be reasonably expected to produce the information requested.'"
Responding to plaintiff's objections, "the Court finds that Plaintiff's speculation about CBP's hypothetical misconduct regarding the Women's March is insufficiently specific to serve as 'evidence that the agency's search' for records about such misconduct under FOIA 'was not made in good faith.'" Additionally, "the Court declines to find bad faith or draw inferences against CBP here, based upon the agency's initial inability to locate responsive documents, which it later identified and produced to Plaintiff." Also, the court finds that "CBP has plausibly explained why the agent-specific 'follow-up' searches Plaintiff proposes were not reasonably likely to produce responsive documents." "First, 'it is not the agency's practice to maintain individual or personal records related to inadmissibility determinations in individual files of employees.'" "Moreover, because CBP's records of inadmissibility 'are completed electronically and stored in centralized databases . . . it is not reasonably likely that any individual CBP employee would maintain his or her own records regarding an inadmissibility determination for a particular traveler, nor is it the practice of CBP for individual employees to take individual notes not reflected in the centrally maintained records.'" "And with regards to the collection of personal messages and social media posts, CBP has explained that 'any emails sent over [government-issued and personal communication devices] would be captured in the Outlook mailbox of th[at] individual' and would, therefore, be subject to the email searches carried out by the agency." Additionally, "as CBP notes, executive agency employees 'may not create or send a record using a non-official electronic messaging account' unless the employee either copies an official account on the correspondence or subsequently forwards the message to an official agency account . . . ." "For these reasons, the Court is unpersuaded by Plaintiff's objection that CBP should have generally conducted follow-up searches with specific border agents and their personal communications." Also, the court finds that "Plaintiff cannot prove CBP's FOIA search inadequate simply by identifying certain types of omitted documents he expected his FOIA request to yield . . . ." The court also relates that "Plaintiff contends that CBP's search was inadequate because it did not review the search history on the browsers of its agents' computers and personal devices." "CBP, however, reasonably explained that relevant documentation produced by border agents regarding the admissibility of travelers at the border would have been collected on centralized databases, already searched by the agency."
However, the court takes note of a "declaration, submitted in support of Plaintiff's cross-motion" in which "[a Canadian citizen who attempted to enter the United States on January 19, 2021 to participate in the Women’s March] states that when he attempted to enter the United States at the Champlain–St. Bernard Lacolle Border Crossing, a CBP official initially denied him entry 'because of [his] desire to participate in the Women's March.'" Additionally, "[the Canadian citizen's] affidavit specifically identifies the CBP official . . . ." "Plaintiff requested that CBP question [the CBP official] and his colleagues at the Champlain–St. Bernard de Lacolle Border Crossing regarding the existence of any documents responsive to his FOIA request." "The Court agrees with Plaintiff's overarching argument on this point." "In explaining the contours and adequacy of its search, CBP has not specifically addressed [the Canadian citizen's] declaration, which is clearly relevant to Plaintiff's FOIA request." "Neither has CBP clearly addressed whether any of its searches would have targeted [the Canadian citizen], [the CBP official], or the Champlain port of entry." "Accordingly, the Court concludes that to complete its adequate search CBP should run targeted searches for records related to [the Canadian citizen], [the CBP official], and the Champlain border crossing." "Alternatively, CBP should, at a minimum, explain if and how its earlier searches (i.e., through the Buffalo Field Office) have already addressed these concerns, or why these specified searches are not otherwise feasible."
- Litigation Considerations, Vaughn Index/Declaration: The court holds that "CBP's categorical justifications for its FOIA withholdings fail to facilitate a 'meaningful review' of its claimed FOIA exemptions." "Because CBP provides only broad categorical explanations for its claimed FOIA exemptions, the Court is unable to clearly discern which of the agency's justifications apply to any of the various redactions made." "This approach is contrary to the agency's obligation to '"provide[ ] a relatively detailed justification, specifically identif[y] the reasons why a particular exemption is relevant, and correlat[e] those claims with the particular part of a withheld document to which they apply."'"
- Litigation Considerations, "Reasonably Segregable" Requirements: "Because the Court will order CBP to first supplement its Vaughn Index to clarify its claimed FOIA exemptions, the Court finds that it would be premature to render a final determination on segregability at this time."
- Litigation Considerations, Discovery: The court notes that "disputes in this case remain regarding CBP's FOIA exemptions, which the agency will address in its revised Vaughn Index." "Considering the pendency of these issues, the Court, at this juncture, will deny without prejudice both parties' respective cross-motions regarding Plaintiff's request for limited discovery."