Sabra v. CBP, No. 20-681, 2023 WL 1398473 (D.D.C. Jan. 31, 2023) (Kollar-Kotelly, J.)

Sabra v. CBP, No. 20-681, 2023 WL 1398473 (D.D.C. Jan. 31, 2023) (Kollar-Kotelly, J.)

Re:  Request for records concerning encounter with CBP agents at port of entry in California in September 2015 and CBP’s subsequent investigation thereof

Disposition:  Granting defendant’s renewed motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that “CBP has demonstrated that its FOIA search was comprehensive and multi-faceted in a manner that was ‘reasonably calculated’ to retrieve documents responsive to Plaintiff’s FOIA request.”  The court relates that “[it] denied CBP’s first Motion for Summary Judgment on the grounds that CBP’s supporting declarations failed to explain whether all files ‘likely to contain responsive materials’ were searched, as is required.”  The court finds that, “as the agency has provided – in the form of [a] declaration – a ‘reasonably detailed affidavit, setting forth the search terms and type of search performed, and averring that all files likely to contain responsive materials . . . were searched,’ . . . the Court finds that CBP has satisfactorily demonstrated that they conducted an adequate search for responsive records.”  Additionally, “[t]he Court is not persuaded by Plaintiff’s argument that CBP’s search was inadequate because they failed to search the emails of certain individuals.”  “CBP has provided information via affidavit regarding its search methods that the Court has found to be reasonable and appropriate.”  The court finds that “Plaintiff’s speculation that other responsive documents may exist that were not uncovered by Defendant’s allegedly inadequate search also does not make that search necessarily inadequate.”  Next, responding to plaintiff’s objection, “[t]he Court cannot say that CBP’s search terms were unreasonable.”  Finally, the court finds that “to the extent Plaintiff wants a search of emails within the Inspector General’s Office because the September 22 email was ‘forward[ed] to the Inspector General,’ . . . Plaintiff would need to submit a separate FOIA request to that Office, as CBP also does not have control over records belonging to that Office . . . .”
   
• Exemption 5, Attorney Work-Product:  “[T]he Court finds that the CBP’s withholding of material pursuant to FOIA Exemption 5 was proper.”  The court relates that, “[i]n this case, the CBP claims that three records, totaling eleven pages, related to Plaintiff’s Federal Tort Claims Act (‘FTCA’) claim were withheld because they are attorney work product.”  “CBP’s Vaughn Index states that the three withheld records were ‘a memorandum conveying Agency counsel’s legal advice and analysis to CBP’s Director of the National Finance Center, concerning Plaintiff’s FTCA claim against CBP,’ an ‘email communication between the Assistant U.S. Attorney and Agency counsel concerning the related FTCA litigation of Plaintiff’s claim,’ and ‘the litigation hold notice generated by the FTCA litigation of Plaintiff’s claim.’”  “In [its] declaration, [defendant] states that the memorandum included ‘assessments of the merits of Plaintiff’s FTCA claim against the Agency, incorporating both factual materials and legal analysis.’”  “Such records plainly fall within the attorney work product privilege . . . .”
   
• Exemption 6:  “The Court . . . finds CBP’s withholding of material pursuant to FOIA Exemption 6 to be proper.”  The court relates that “the exemption was applied to ‘(1) personally identifiable information of government employees, including information that could identify CBP personnel involved in law enforcement functions; (2) information regarding the subjects of records; and (3) information regarding individuals mentioned in records (e.g., co-travelers or other individuals identified or mentioned by the subject of a record).’”  “The Court finds that the redacted records fall within FOIA Exemption 6, and Plaintiff has failed to present any evidence raising doubt or contradiction.”  “Plaintiff makes only broad arguments including that ‘law enforcement officers . . . are not, ipso facto, entitled to secrecy’ and that there is ‘a strong public interest in determining what CBP is up to.’”  “This does not justify revealing private information of government employees and certainly not that of third party individuals.”
   
• Exemption 7, Threshold:  The court holds that “[t]he documents withheld under Exemption 7 qualify as ‘records or information compiled for law enforcement purposes.’”  “Here, CBP writes that it ‘is without a doubt a law-enforcement agency,’ . . . and contends that the documents withheld under Exemption 7 were ‘compiled for law enforcement purposes in that the information is created and used by CBP in its mission to secure the border of the United States’ . . . .”
   
• Exemption 7(C):  “[T]he Court finds that no public interest outweighs the privacy interests of the individuals in the redacted records, and therefore CBP’s reliance on FOIA Exemption 7(C) was justified.”  “Here, [defendant] states that Exemption 7(C) was ‘applied to protect the personal privacy interests of CBP personnel, travelers whom CBP personnel have encountered at ports of entry, and other members of the public.’”  “The Court finds that there are significant private interests at stake here.”  “As for the information of government employees, it is well settled that law enforcement personnel have a substantial interest in anonymity.”  “[A]s a general matter, the identification of a third party individual ‘in a law enforcement file will engender comment and speculation and carries a stigmatizing connotation.’”  “On the other side of the balancing equation, Plaintiff avers that ‘[t]he allegations in this case present a strong public interest in determining what CBP is up to.’”  “However, because ‘[a]llegations of government misconduct are easy to allege and hard to disprove, . . . courts must insist on a meaningful evidentiary showing’ before weighing the competing interests.”  “The Court finds that Plaintiff has not met this burden here, as Plaintiff does not produce any evidence, let alone compelling evidence; her argument rests solely on the allegations in her Complaint and a photograph included in recent briefing.”
   
• Exemption 7(E):  The court relates that “CBP invoked Exemption 7(E) to protect ‘four categories of information:  (1) information that would reveal the subjects of specific law enforcement interest; (2) information regarding specific law enforcement techniques and operational vulnerabilities; (3) information that, in the aggregate, reveals trends and/or specific law enforcement capabilities and techniques employed in particular operational locations, which can reveal the likelihood of CBP utilizing certain inspection techniques in specific operational locations; and (4) computer codes and other information that can expose CBP computer systems to a risk of unauthorized access or navigation.’”  “[Defendant] states that these records, if disclosed, ‘could reasonably be expected to risk circumvention of the law’ because, among numerous other reasons he describes, the information within them would ‘educat[e] [members of the public] as to the investigative techniques used and thereby assist[ ] them to devise methods to evade detection and apprehension’; ‘create[ ] a basis for comparison of the handling of different inspections,’ which ‘can be used to clarify or predict a CBP officer’s behavior in specific circumstances’; and ‘enable individuals to thwart efforts to secure the border and enforce immigration and customs laws.’”  “The Court finds that [defendant’s] statements logically explain how this information could help others circumvent the law, which suffices to justify invocation of Exemption 7(E).”
   
• Exemption 7(F):  The court finds that, “[h]ere, CBP withheld ‘information relating to claims of asylum’ under Exemption 7(F) after concluding that ‘[r]eleasing information about an asylum claim or asylum seeker . . . would put that individual . . . at risk.’”  “‘Because asylum seekers are, by definition, fleeing persecution, release of information relating to an asylum claim can be reasonably expected to endanger the life or physical safety of the individual making the asylum claim and others who may be impacted by the release of information related to the claim, including the fact that such a claim was made.’”  “The Court finds that CBP has sufficiently demonstrated that the information withheld could be reasonably expected to endanger the life or physical safety of specific asylum seekers, or others impacted by the release of such information, and therefore, CBP properly redacted information under FOIA Exemption 7(F).”