Malik v. DHS, No. 22-698, 2025 WL 763642 (D.D.C. Mar. 11, 2025) (Cooper, J.)

Malik v. DHS, No. 22-698, 2025 WL 763642 (D.D.C. Mar. 11, 2025) (Cooper, J.)

Re: Requests for records concerning plaintiff

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Litigation Considerations, Evidentiary Showing, Adequacy of Search:  Regarding CBP, the court finds that “CBP is entitled to summary judgment because it conducted an adequate search for [plaintiff’s] requested documents.”  “[Defendant’s] declaration sufficiently describes the mechanics of CBP’s search, including which platforms were searched, the way they were searched, and the results of the searches.”  “And searching for [plaintiff’s] name and birthdate was sufficient.”  “[Plaintiff] does not challenge [defendant’s] declaration or the adequacy of the search it describes.”  “Rather, he argues that the fault lies in the search’s results – specifically, CBP’s failure to produce any video of his interaction with CBP on January 3, 2021, and documents he allegedly received from CBP during discovery in a separate lawsuit arising from the same incident.”  “But [plaintiff] cannot rebut the CBP’s affidavit with ‘purely speculative claims about the existence and discoverability of other documents.’”
  
  Regarding USCIS, “[a]gain, [plaintiff] does not argue USCIS’s affidavit lacks necessary detail or that the search itself was inadequate.” “Instead, he reiterates that the results of the search evince agency bad faith.”  “Specifically, he points to discrepancies between the A-File produced in response to this request and one provided in response to a FOIA request over a decade ago, the absence of documents explaining why his security investigation was never completed, and missing records from NARA, which he opines USCIS must still possess.”  “These arguments fail because, as noted above, ‘[t]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.’”  “Given that USCIS’s declaration is nonconclusory, sufficiently detailed, and submitted in good faith, [plaintiff’s] speculation about missing documents does not create a genuine issue of fact regarding the adequacy of USCIS’s search.”
  
  Regarding ICE, “[plaintiff] repeats a familiar refrain, criticizing the agency for absent documents – such as ‘substantial portions’ of his personnel file, his employment records at ICE, his background investigation and results, and a counterintelligence report – instead of challenging the sufficiency of its search methodology.”  “The Court’s response is the same:  The adequacy of a FOIA search is determined by the reasonableness of the search itself, not whether it uncovers every document a requester expects.”  “ICE’s declaration is facially adequate, detailing the offices searched, the search terms used, and the individuals who conducted the searches.”  “And [plaintiff’s] speculation about missing documents does not rebut the presumption of good faith afforded to this declaration.”  “Accordingly, because ICE’s affidavit establish that it conducted a reasonable search and [plaintiff] offers no evidence of bad faith, summary judgment in ICE’s favor is warranted."
  
  Regarding the FBI, “[t]he Court is persuaded the FBI conducted an adequate search.”  “[Defendant] declaration describes the specific systems and departments searched for responsive documents and the search terms used.”  “Once more, [plaintiff] attempts to cast doubt on the FBI’s good faith based on records he claims should have been produced but were not.” “But the FBI explained that [plaintiff’s] applicant records would no longer exist because of their age.” “[Plaintiff] questions this account because part of the FBI’s production included a letter from December 2005.”  “The FBI’s retention of some old records, however, does not prove that the agency has never destroyed anything.”
  
  Regarding NARA, “[plaintiff] insists NARA’s search was deficient because his eOPF did not include ‘crucial items such as:  annual evaluations, awards, records of courses taken, EOD (Entry on Duty) letters, retirement plans and statements, accident reports, final determination of Plaintiff’s security and background investigation and various other pertinent documents.’”  “This argument is no more persuasive the fifth time.”  “NARA’s affidavit sufficiently details the agency’s search, and [plaintiff] has not provided any tangible evidence of bad faith.”  “As NARA’s affidavit describes a proper search and [plaintiff] has not shown bad faith, summary judgment in NARA’s favor is appropriate.”
   
• Exemption 3:  The court relates that “[h]ere, CBP invoked Exemption 3 on behalf of the Transportation Security Administration (“TSA”) to withhold Sensitive Security Information (“SSI”) in the Risk Assessment Worksheet prepared for [plaintiff’s] initial application under the Homeland Security Act, 49 U.S.C. § 114(r).”  “Section 114(r) requires TSA to implement regulations prohibiting disclosure of information that would ‘(A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or financial information; or (C) be detrimental to the security of transportation.’”  “Courts have recognized that § 114(r) meets Exemption 3’s requirements.”  “And the withheld information – law-enforcement database queries by CBP’s Trusted Traveler Vetting Center, the results of those queries, and a CBP officer’s comments and analysis on program eligibility – falls within the definition of SSI:  A regulation interpreting the statute classifies as SSI such security screening procedures, ‘including selection criteria,’ ‘comments,’ ‘instructions,’ and ‘[i]nformation and sources of information used by . . . screening program[s].’”  “Thus, CBP properly applied Exemption 3.”
   
• Exemption 5, Deliberative Process Privilege:  The court relates that “CBP also redacted part of the Risk Assessment Worksheet prepared for [plaintiff’s] renewal application under Exemption 5 . . . .” “CBP properly asserted Exemption 5 to withhold a CBP Risk Assessor’s recommendation on [plaintiff’s] Global Entry renewal application under the deliberative-process privilege.”  “Such recommendations are ‘predecisional and deliberative’ documents . . . as they inform but do not necessarily determine final decisions.”  “CBP further explained that disclosing this information would pose a ‘foreseeable harm’ by exposing how CBP conducts investigations and processes status recommendations.”  “It would reveal ‘draft decisions and opinions that CBP may or may not have adopted,’ potentially enabling applicants to ‘manipulate’ future applications.” “Moreover, the Risk Assessment Worksheet documents how recommendations evolve ‘through [the] chain of command,’ and its release could compromise the integrity of the application process by ‘reveal[ing] how recommendations are revised,’ ‘approved,’ or ‘rejected.’” “Accordingly, the agency provided a plausible explanation (which [plaintiff] does not contest) of how full disclosure of this document could chill internal discussions, discourage candid assessments and recommendations, and undermine the effectiveness of CBP’s decision-making.”
   
• Exemption 6; Exemption 7, Threshold; Exemption 7(C):  The court finds that “CBP properly applied Exemptions 6 and 7(c) to redact the personally identifiable information of CBP personnel and third parties from all three documents.”  “Specifically, CBP relied on these exemptions to withhold the names, telephone numbers, position identifiers, and unique alpha-numeric codes of CBP personnel and the names, dates of birth, identification numbers, photographs, and citizenship information of third parties.”  “Here, the withheld information qualifies as ‘similar’ files because it consists of personally identifying details of specifical individuals.” “CBP personnel have a recognized privacy interest in their identities because, as [defendant] posits, disclosure of law-enforcement personnel’s information may ‘create[ ] a safety threat and risk[ ] unwarranted attribution and attention’ to them beyond their official duties.”  “Likewise, third parties have a privacy interest in controlling their personal information (including their names) and preventing its unrestricted disclosure.” “[Defendant] does not identify any countervailing public interest or specify which personally identifiable information he seeks.”  “Without any such countervailing interest, Exemption 6 justifies withholding this information.”
  
  “Exemption 7(c) provides an additional, independent basis for withholding this information.”  “CBP is a law-enforcement agency . . . and [defendant’s] declaration connects its law-enforcement activities to the withheld information.”  “[It] explains that [these records concern] screening applicants for the Trusted Travelers Programs, which facilitate expedited entry for ‘pre-approved,’ ‘low-risk travelers.’”  “The . . . document and Risk Assessment Worksheets contain information and analysis about [plaintiff’s] eligibility for one of these programs, including the results of background investigations.”  “For the reasons discussed above, disclosing the information would constitute an unwarranted invasion of privacy, and [plaintiff] has identified no public interest that would justify disclosure.”  “Exemption 7(c) therefore properly applies.”
   
• Exemption 7(E):  Regarding CBP, the court relates that “CBP properly applied Exemption 7(e) to withhold two categories of information from the relevant records:  (1) the factors and priorities CBP considers when evaluating applicants for Trusted Traveler Programs and (2) coded designators CBP uses to perform background checks, as well as the results of those reviews.”  “CBP compiled these records as part of its law-enforcement function, satisfying the threshold requirement for Exemption 7.” “Moreover, the redacted information consists of law enforcement techniques, and disclosing it could facilitate circumvention of the law.”  “First, the factors CBP considers when evaluating applicants for Trusted Traveler Programs are deliberately kept confidential to prevent ineligible individuals from manipulating the process to gain membership.”  “Public disclosure could enable bad actors to tailor their applications or conceal derogatory information to appear low risk.”  “Second, CBP’s coded designators and background check results may reveal internal shorthand used to identify individuals.” “Disclosure of these codes could undermine CBP’s enforcement and security priorities by allowing individuals to decipher how CBP evaluates risk or even manipulate database records.”
   
• Exemption 5; Exemption 7, Threshold:  The court relates that “[a]ccording to USCIS’s Vaughn index, this six-page draft memorandum was prepared by USCIS’s Office of Security and Integrity about [plaintiff’s] employment application.”  “USCIS withheld portions of it under Exemptions 5, 7(c), and 7(e) . . . .”  “USCIS has adequately justified its Exemption 5 withholdings of the ‘pre-decisional’ and ‘deliberative’ ‘opinions and recommendations’ expressed in the memo by explaining that their disclosure would ‘hinder the free flow of communication between employees . . . if they believed everything they stated was to be publicly released.’”  “While this explanation is somewhat boilerplate, [plaintiff] has not responded to it, so the Court determines it sufficient.”  “USCIS has not, however, met the threshold requirement for invoking Exemption 7 – that the document was compiled for a law-enforcement purpose.”  “As a ‘mixed-function agency’ that ‘primarily engage[s] in civil administration’ rather than law enforcement, USCIS is not entitled to deference on its decision to invoke Exemption 7.”  “USCIS must show that the withheld information ‘relate[s] to . . . an enforcement proceeding.’”  “[Defendant’s] declaration asserts that, because ‘USCIS has responsibility to enforce federal immigration law . . . through its adjudications of applications and petitions submitted to USCIS by individuals seeking immigration benefits from the United States government,’ the produced records ‘were compiled for law enforcement purposes.’”  “But neither his declaration nor the Vaughn index establishes a nexus between law-enforcement functions USCIS may perform and the information withheld in this particular memo, which concerns an employment application.”  “Rather, the memo appears to relate to USCIS’s internal human resources activities, not its immigration adjudications.”  “[T]he Court will order the agency to submit a supplemental affidavit or Vaughn index clarifying how the withholdings of the ‘Memo for the Record’ relate to law-enforcement functions and/or to the agency’s independent Exemption 5 withholdings.”
   
• Exemption 6:  The court relates that “USCIS invoked Exemptions 6 and 7(c) to redact parts of this report, which is described as containing ‘information . . . used to vet individuals and applicants with regard to eligibility for immigration benefits.’”  “The Court need not determine whether this description establishes that this record was prepared for law-enforcement purposes under Exemption 7 because Exemption 6 independently justifies the redactions.”  “The Vaughn index explains that the report contained third-party information.”  “Because [plaintiff] did not provide the third party’s consent or identify a public interest that would outweigh the privacy interest at stake, USCIS properly withheld the information under Exemption 6.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The court finds that “[defendant] does not address either the agencies’ arguments that they adequately segregated all reasonably segregable information or the FBI’s Glomar response, so those issues are also treated as conceded.”