Kruglov v. CBP, No. 22-260, 2024 WL 4345853 (D.D.C. Sept. 30, 2024) (Moss, J.)

Kruglov v. CBP, No. 22-260, 2024 WL 4345853 (D.D.C. Sept. 30, 2024) (Moss, J.)

Re: Request for records concerning plaintiff

Disposition:  Granting defendant’s motion for summary judgment

• Litigation Considerations, Evidentiary Showing, Adequacy of Search:  “[T]he Court is persuaded that the agency . . . conducted an adequate search for potentially responsive records.”  The court relates that, “[h]ere, although far from clear, Plaintiff seems to argue that the agency’s search was inadequate because it failed to locate the ‘fingerprint records,’ which he claims were created when he crossed the border.”  The court finds that “the adequacy of a search is not determined based on the ‘fruits’ of the search but by the thoroughness of the methodology employed.”  “Moreover, here, [defendant’s] declaration explains that ‘CBP fingerprint records of travelers processed at ports of entry are generally stored and processed’ using the [Automated Biometric Identification System (“IDENT”)] system, which, in turn, is a DHS system – and not a CPB system.”  “Finally, he explains that – after conducting a diligent search, Plaintiff’s fingerprint records were not found in any CBP system.”  “To the extent Plaintiff remains interested in seeking his fingerprint records, his remedy is to file a FOIA request with [DHS].”
   
• Exemption 6; Exemption 7, Threshold; Exemption 7(C):  “The Court . . . concludes that the CBP’s withholdings pursuant to Exemptions 7(C) and 6 were proper.”  First, the court finds that “[i]t is evident that the records that CBP released to (or withheld from) Plaintiff are ‘law enforcement’ records.”  “[Defendant] attests that the records contain information ‘created and used by CBP in its law enforcement mission to secure the border of the United States,’ a claim that [plaintiff] does not dispute.”  Next, the court finds that “[it] will evaluate the CBP’s decision to withhold portions of records compiled for law enforcement purposes only under Exemption 7(C), because ‘it provides broader privacy protection than Exemption 6.’”  The court then finds that “[t]he D.C. Circuit has recognized that law enforcement officials ‘have a legitimate interest in preserving the secrecy of matters that conceivably could subject them to annoyance or harassment in either their official or private lives,’ . . . and it has ‘adopted a categorical rule permitting an agency to withhold information identifying private citizens mentioned in law enforcement records, unless disclosure is “necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity[]”’ . . . .”  “Under this precedent, the ‘names’ of law enforcement employees that were redacted fall squarely within Exemption 7(C).”  “Application of Exemption 6, moreover, would lead to the same result.”  “[Defendant’s] declaration indicates that disclosure of the ‘names, signatures, and other identifiers, such as identifying numbers’ of the governmental personnel and third parties at issue ‘would constitute a clearly unwarranted invasion of privacy.’” “‘The release of this information could,’ for example, expose ‘government employees to unwarranted harassment and publicity, which could limit their effectiveness in handling their respective functions and duties,’ and it ‘could also subject third parties to unwarranted contact, annoyance, or harassment.’”  “And, on the other side of the balance, disclosure would ‘not shed light on the actions of CBP,’ nor would it further any other cognizable public interest.”
   
• Exemption 7(E):  “The Court . . . concludes that CPB’s Exemption 7(E) withholdings were proper.” “[Defendant] explains that the redacted information includes ‘reasons for which [Plaintiff] was referred for secondary inspection[;] . . . law enforcement characterizations made by CBP officials[;] . . . and codes, identifiers, and system notations used to refer to specific law enforcement techniques and information.’” “[Defendant] explains that the agency also redacted ‘the methods used by CBP to obtain and parse information[;] . . . what information observed during an inspection CBP deems to be operationally relevant; and whether and how that information . . . is stored and organized.’” “Disclosure of this information could reveal ‘techniques utilized to identify violators . . . and the scope of CBP’s technical capabilities.’”  “Plaintiff responds that the redacted information does not fall within the scope of Exemption 7(E) because some of the redacted sections are entitled ‘Referral Reason,’ ‘Referral Comment,’ ‘Referral Status,’ and ‘Source.’”  “According to [plaintiff], ‘Reason,’ ‘Comment,’ ‘Status,’ and ‘Source’ ‘can hardly be categorized as “procedures.”’”  “But that crabbed reading of Exemption 7(E) is inconsistent with precedent in this Circuit interpreting ‘techniques and procedures’ broadly.”  “The reasons why Plaintiff was referred for secondary inspection and the specifics of that inspection, moreover, also fall well within the ambit of Exemption 7(E).”  “Here, [defendant’s] Declaration provides sufficient basis to conclude that disclosure of information ‘such as the reasons for which [Plaintiff] was referred for secondary inspection by CBP’ and the ‘law enforcement characterizations made by CBP officials during those inspections of Plaintiff at the border,’ would risk circumvention of CBP’s investigatory techniques and could assist others in developing ‘countermeasures.’”  “Where an agency ‘specializes in law enforcement, its decision to invoke Exemption 7 is entitled to deference.’”  “This is such a case, and the agency has adequately and persuasively justified its invocation of that exemption.”