BARNARD v. DEPARTMENT OF HOMELAND SECURITY

Filing 52

MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on February 9, 2009. (lcckk1)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NEAL D. BARNARD, M.D., Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, Defendant. Civil Action No. 06-1393 (CKK)

MEMORANDUM OPINION (February 9, 2009) This is a Freedom of Information Act ("FOIA") and Privacy Act case brought by Neal D. Barnard against the Department of Homeland Security, seeking to obtain records related to him that could explain why he has been detained, questioned, and/or searched in airports during and after his international trips beginning in January 2003. This is the second time the Court has been called on to resolve this case. On January 29, 2008, the Court granted summary judgment in favor of Defendant, finding that it had properly withheld seven pages of records identified as responsive to Plaintiff's FOIA/Privacy Act requests. Just five days after issuing that decision the parties notified the Court that Defendant had located additional responsive records. At the request of the parties, the Court entered a stay to allow Defendant to process the additional records and ordered the parties to file a Status Report indicating whether, in light of the Court's Memorandum Opinion, there remained any disputes concerning the additional records. The parties subsequently notified the Court that they were able to narrow but not eliminate their disputes. Accordingly, the Court entered another briefing schedule for dispositive motions, which incorporated at Plaintiff's request a reconsideration motion based on "newly discovered

evidence." After thoroughly considering the parties' submissions, including Defendant's two in camera declarations, and all applicable case law, statutory authority, and the entire record of the case as a whole, the Court shall GRANT Defendant's [39] Motion for Summary Judgment and DENY Plaintiff's [40] consolidated Cross-Motion for Summary Judgment and Motion for Reconsideration, for the reasons that follow. I. BACKGROUND As previously described in the Court's first Memorandum Opinion, Plaintiff claims to have been detained, questioned, and/or searched at various airports before or after international trips on approximately 17 occasions between January 2003 and January 2007. See Mem. Op. at 2 (Jan. 29, 2008), Docket No. [27]. Seeking to discover the records underlying his traveling difficulties, Plaintiff began filing FOIA/Privacy Act requests. Id. Plaintiff initially sent a FOIA/Privacy Act request to United States Customs and Border Protection ("CBP") requesting "all records about me that are in IBIS or any other system used by [CBP] at any and all ports of entry to the United States."1 Def.'s Stmt. ¶ 1. CBP erroneously processed Plaintiff's request as a "traveler redress complaint," and incorrectly advised him to

As a preliminary matter, Court strictly adheres to the text of Local Civil Rule 7(h)(1) and "assumes that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 7(h)(1). Accordingly, the Court shall either refer to Plaintiff's Statement of Material Facts ("Pl.'s Stmt.") or Defendant's Statement of Material Facts ("Def.'s Stmt."), unless a party disputes a proffered fact and cites to contrary evidence in the record. The Court shall also cite to evidence in the record, where appropriate, to provide information not covered by the parties' statements of material facts. The Court finds that there is no genuine dispute over the factual issues that are material to resolution of this case. 2

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seek the requested records from Immigration and Customs Enforcement ("ICE").2 Id. ¶ 2. For purposes of clarity, the Court shall separately discuss the facts pertaining to ICE and CBP. A. ICE

Plaintiff submitted a FOIA/Privacy Act request to ICE by letter dated March 21, 2006, requesting "any records created from January 1, 2002[,] to the present that were prepared, received, transmitted, collected and/or maintained by [ICE] relating to [fifteen specifically enumerated areas.]" Def.'s Stmt. ¶ 3. After failing to receive a timely response, Plaintiff filed an administrative appeal on May 16, 2006. Barnard Decl. ¶ 27. On August 5, 2006, ICE advised Plaintiff that it did not locate any responsive records. Def.'s Stmt. ¶ 4. Plaintiff filed a Complaint in this case on August 7, 2006.3 By letter dated November 16, 2006, ICE informed Plaintiff that it located six pages of records responsive to his request but that they were exempt from disclosure, in their entirety, based on FOIA Exemptions 2, 7(A), 7(C), and 7(E).4 Id. ¶ 6. The parties both moved for summary judgment on the dispositive issue of

Neither party disputes that ICE and CBP are components of the Department of Homeland Security, the named Defendant in this case. Plaintiff filed an Amended Complaint on October 10, 2006, a Second Amended Complaint on January 9, 2007, and a Third Amended Complaint (the operative complaint) on June 9, 2008. Defendant has subsequently explained that ICE did not initially disclose the existence of these records to Plaintiff based on the (c)(1) exclusion of FOIA, which authorizes an agency to exclude records from disclosure when "[an] investigation or proceeding involves a possible violation of criminal law and there is reason to believe that the subject of the investigation or proceeding is unaware of its pendency, and disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(c)(1) (internal punctuation omitted); See also Def.'s Mot., Ex. 5 ¶ 10 (Second Decl. of R. McGinnis) (explaining ICE's decision to invoke Section 552(c)(1)). Although Plaintiff expresses frustration with ICE's initial response, see Pl.'s Mot. at 8 (referring to it as a lie), Plaintiff does not allege that ICE improperly invoked this exclusion and, in any event, it is immaterial to resolution of the 3
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whether ICE properly withheld the records in their entirety. Defendant argued that the records were properly withheld, and relied on the declaration of Marshall Fields, Chief of the FOIA/Privacy Act Section, Information Disclosure Unit, at ICE. See Def.'s [14] Mot., Ex. A (hereinafter "Fields Decl."). Mr. Fields explained that Plaintiff "is the subject of an open and pending criminal investigation" and that "[r]elease of any information pertaining to this investigation could reasonably be expected to interfere with this open and pending criminal investigation." Id. ¶ 22. Plaintiff conceded that Defendant could "properly withhold portions of the records if they pertain to an ongoing investigation." Mem. Op. at 8 (Jan. 29, 2008). Plaintiff nevertheless argued that Defendant failed to meet its burden of showing that there was an ongoing investigation of Plaintiff because Mr. Fields's declaration was not based on his personal knowledge. See Pl.'s [16] Mot. at 8-13. Plaintiff also argued that Defendant had not met its burden of demonstrating that it could not segregate any non-exempt information in the records. Id. at 13-14. The Court rejected Plaintiff's first argument concerning Mr. Fields's personal knowledge because his statements were made "based upon [his] personal knowledge, review of documents kept in the course of business, and information conveyed to [him] in the course of [his] official duties." Fields Decl. ¶ 4. Because he was "familiar with the processes used to search for the records at issue, and because he [] reviewed the records himself," the Court found that he was "competent to testify as to the information contained in those records." Mem. Op. at 11 (Jan. 29, 2008). With respect to Plaintiff's second argument concerning the segregation of non-exempt

remaining disputes between the parties. 4

information, the Court agreed with Plaintiff that Defendant had provided an inadequate explanation as to why non-exempt information could not be segregated. Because there were a limited number of pages at issue, and because Defendant argued that a more fulsome segregability explanation would divulge information properly withheld based on the exemptions Defendant had invoked, the Court ordered Defendant to produce the records for an in camera review. Id. at 13. Defendant submitted the records to the Court on January 23, 2008, which included seven (not the previously identified six) pages. Defendant also submitted a declaration from Gloria Marshall, the Unit Chief of the Information Disclosure Unit, at ICE. See Def.'s [25] Notice, Ex. 1 (hereinafter "First Marshall Decl."). Ms. Marshall explained that Mr. Fields was no longer employed at ICE, and that she reviewed the relevant files to locate the six pages of records to submit to the Court. Id. ¶ 6. In the course of her review, she discovered a seventh page that was not previously identified in Mr. Fields's declaration. Id. Accordingly, Ms. Marshall undertook an independent review of the seven pages and "determined that all records are exempt from disclosure . . . for the reasons explained in the Fields Declaration. Id. Following the Court's in camera review of the records, the Court agreed with Defendant that there existed no reasonably segregable non-exempt information and, on January 29, 2008, the Court granted Defendant's Motion for Summary Judgment and denied Plaintiff's Cross-Motion for Summary Judgment. On February 4, 2008, Defendant filed a Notice and Motion to Stay explaining that it had discovered additional records responsive to Plaintiff's FOIA/Privacy Act requests. See Def.'s [29] Mot. for a Stay at 1. Defendant explained that it reviewed its files to submit the ICE records in response to the Court's order for in camera review and "discovered that it might not have

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properly processed Plaintiff's July 20, 2005 [FOIA] request." Id. at 1. Defendant further explained that CBP had erroneously treated Plaintiff's FOIA/Privacy Act request as a "traveler's complaint," and did not process the request under its FOIA/Privacy Act procedures. Id. at 2. Defendant notified Plaintiff of this development prior to the Court's January 29, 2008 decision, but neither party brought it to the attention of the Court.5 Defendant also submitted a second declaration from Gloria Marshall. Id., Ex. A (hereinafter "Second Marshall Decl."). Ms. Marshall explained that "[P]laintiff is no longer the subject of the open and pending criminal investigation originally cited in the Fields declaration," a fact that she did not learn until February 1, 2008 (after the Court had issued its decision). Id. ¶ 7. Nevertheless, Ms. Marshall asserted that the seven pages of records were still properly withheld by ICE pursuant to FOIA Exemption 7(A) because disclosure of the records would negatively affect other ongoing investigations: FOIA [Exemption 7(A)] is no longer applicable with respect to the investigation noted in the Fields Declaration [concerning Plaintiff], however, I have been informed that disclosure of information related to [P]laintiff could have a negative impact on other ongoing investigations. Accordingly, FOIA [Exemption 7(A)] is still applicable to the seven pages of ICE records . . . . Id. The Court granted a stay on February 6, 2008. See 2/6/08 Min. Order. The Court ordered Defendant to process the additional responsive records and either release them to Plaintiff or prepare a Vaughn Index regarding the same. Id. During the pendency of the stay, ICE obtained twenty-five additional pages of responsive records from the ICE Special Agent in Charge office.

Rather than join Defendant's Motion for a Stay, Plaintiff decided to file his own Motion for a Stay (for the same reasons identified in Defendant's motion), which he submitted on February 5, 2008. See Pl.'s [30] Mot. for a Stay at 1-3. 6

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Def.'s Stmt. ¶ 14. Fourteen of the pages belonged to CBP and were forwarded to that component for review.6 Id. ¶ 16. With respect to the other eleven pages, ICE released seven of them to Plaintiff and withheld the remaining four. Id. ICE invoked FOIA Exemptions 2, 7(A), 7(C), and 7(E) to withhold the four pages of records in their entirety. B. CBP

As discussed above, CBP incorrectly processed Plaintiff's initial July 20, 2005 FOIA/Privacy Act request. Once CBP discovered its mistake, CBP searched the Treasury Enforcement Communications System ("TECS") on January 17, 2008, and discovered 82 pages of responsive records. Id. ¶ 17. CBP used the search terms "Neal," "Barnard," "Bernard," and "07/10/53." Id. CBP processed the records and released 80 of them with redactions on February 5, 2008. Id. ¶ 18. CBP withheld one page in full and released one page in full. Id. CBP then discovered one additional TECS record and released that document to Plaintiff with redactions on April 1, 2008. Id. ¶ 19. In addition to TECS, CBP searched the Automated Targeting System - Passenger ("ATSP"), as well as records maintained at CBP Headquarters, and the Ports of Entry for Toronto and Washington-Dulles. Id. ¶ 20. The ATS-P system was searched on January 29, 2008, and again on April 8, 2008, "to ensure that the search was comprehensive." Id. ¶ 21. CBP used the search terms "Neal," "Barnard," "Bernard," and "07/10/53." Id. The port of Washington-Dulles records were searched on February 15, 2008, and the port of Toronto records were searched on April 1, 2008. Id. ¶ 22. CBP did not locate any responsive records at Washington-Dulles, and discovered 5 responsive records at the Toronto port of entry. Id. As a result of these searches,

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These records shall be discussed below in the context of CBP. 7

CBP located a total of 229 pages of responsive records (not including the previous 82 pages that had been processed on February 5, 2008). Id. ¶ 23. CBP processed the 229 pages of records on April 17, 2008. Id. ¶ 24. 82 pages were released with redactions, 11 pages were released in full, and 136 pages were withheld in full. Id. On April 23, 2008, CBP provided Plaintiff with two Vaughn indices identifying FOIA exemptions 6, 7(A), 7(C), and 7(E), as the basis for withholding information. Id. ¶ 25. CBP later dropped its assertion of FOIA Exemption 7(A), but no additional documents were released because they were all subject to other exemptions. Id. ¶ 26. CBP thereafter provided Plaintiff with two revised indices reflecting this change. Id. As explained above, ICE referred an additional 14 pages of records to CBP for review on June 6, 2008. Id. ¶ 27. On June 16, 2008, CBP released 13 pages of records to Plaintiff with redactions, and found the remaining page to be unresponsive to Plaintiff's FOIA/Privacy Act requests. Id. On June 20, 2008, CBP provided Plaintiff with two final Vaughn indices accounting for all documents processed by CBP. Id. ¶ 28; Pl.'s Resp. Stmt. ¶ 28 (clarifying that the Vaughn indices did not include a description of the four pages of withheld ICE records). On April 29, 2008, the parties conferred and "explored ways to resolve this case informally without further litigation." [34] Status Report at 2 (May 1, 2008). Although the parties were able to narrow their disputes, they were unable to eliminate them. Id. Accordingly, the parties reported that their remaining disputes concerned the following exemptions invoked by Defendant to withhold the following information: ! Exemption 6: Names and positions of federal employees within Plaintiff's presence, and names of third parties within Plaintiff's presence Exemption 7(A): Law enforcement techniques and procedures to the 8

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extent that the exemption is invoked in connection with a criminal investigation into Plaintiff's activities ! ! Id. The parties then proceeded to brief a second round of dispositive motions. The parties filed Cross-Motions for Summary Judgment, Oppositions, and Replies. The parties' briefing incorporated a Motion for Reconsideration brought by Plaintiff in response to the revelation that he was not the subject of an investigation at the time of the Court's initial decision on January 29, 2008. Defendant also filed, in the context of these motions, two separate Motions for Leave to file in camera declarations in support of its Motion for Summary Judgment. Plaintiff filed a consolidated Opposition to these motions, and Defendant filed a consolidated Reply. The Court granted Defendant's Motions for Leave on January 22, 2009, and Defendant timely delivered the declarations to Chambers on January 23, 2009. Accordingly, the parties' Cross-Motions for Summary Judgment are fully briefed and ripe for decision. II. LEGAL STANDARD A. FOIA Exemption 7(C): Names of federal employees within Plaintiff's presence Exemption 7(E): Inspection procedures witnessed by Plaintiff

In reviewing a motion for summary judgment under FOIA, the Court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). In the FOIA context, "de novo review requires the Court to `ascertain whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure under [] FOIA.'" Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) 9

(quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)). Summary judgment is proper when "the pleadings, the discovery [if any] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only when there is sufficient evidence such that a reasonable juror could find for the party opposing the motion. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251-52 (1986). Under FOIA, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; as such, only after an agency seeking summary judgment proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F. Supp 32, 35 (D.D.C. 1996) (citing Weisberg v. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). In opposing a motion for summary judgment, a party must offer more than conclusory statements. See Broaddrick v. Exec. Office of President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (citing Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987)). Indeed, a plaintiff pursuing an action under FOIA must establish that the agency has improperly claimed an exemption as a matter of law or that the agency has failed to segregate and disclose all nonexempt information in the requested documents. See Perry-Torres v. Dep't of State, 404 F. Supp. 2d 140, 142 (D.D.C. 2005). Congress enacted FOIA for the purpose of introducing transparency to government activities. See Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive, however, to the need to achieve balance between this objective and the vulnerability of "legitimate governmental and private interests [that] could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n,

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975 F.2d 871, 872 (D.C. Cir. 1992); see also Summers v. Dep't of Justice, 140 F.3d 1077, 1079 (D.C. Cir. 1998). Accordingly, FOIA provides nine exemptions pursuant to which an agency may withhold requested information. See 5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9). The agency must demonstrate the validity of any exemption that it asserts. See id.; Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) ("[c]onsistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents"). In addition, summary judgment may be granted on the basis of the agency's accompanying affidavits or declarations if they describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991). An agency also has the burden of detailing what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document. Mead Data Cent. Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any non-exempt information that is reasonably segregable from the requested records must be disclosed. Ogelsby v. U.S. Dep't of Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). In addition, district courts are required to consider segregability issues sua sponte even when the parties have not specifically raised such claims. Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).

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B.

Privacy Act

The Privacy Act of 1974 regulates the collection, maintenance, use, and dissemination of an individual's personal information by agencies within the federal government. See 5 U.S.C. § 552a(e). The Act provides that any agency that retains a system of records "shall maintain . . . only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or executive order of the President." 5 U.S.C. § 552a(e)(1). To provide for openness and accountability, the Act ensures that "upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system," the agency shall provide the individual with access to review such records. 5 U.S.C. § 552a(d)(1). Finally, subject to certain exceptions, the Privacy Act states that disclosure of records shall be limited. 5 U.S.C. § 552a(b) ("[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains"). One of these exceptions, however, is that an agency shall disclose such records that would be required to be disclosed pursuant to FOIA. 5 U.S.C. § 552a(b)(2). In actions seeking documents under both FOIA and the Privacy Act, a defendant agency must show that the information is properly subject to both FOIA and Privacy Act exemptions. See Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987). III. DISCUSSION In considering the parties' Cross-Motions for Summary Judgment, the Court shall address the adequacy of Defendant's search for records, the exemptions invoked by Defendant that

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remain in dispute, and Defendant's segregability analysis. The Court shall then address Plaintiff's Motion for Reconsideration based on newly discovered evidence. Ultimately, the Court concludes that Defendant has met its burden of showing that it properly complied with its obligations under FOIA and the Privacy Act, and that Plaintiff has not met its burden of showing how newly discovered evidence warrants reconsideration of the Court's January 29, 2008 decision. A. Defendant Has Demonstrated That It Conducted An Adequate Search for Records

In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Ogelsby v. Army, 920 F.2d 57, 68 (D.C. Cir. 1990). To obtain summary judgment on the issue of the adequacy of the records search, an agency must show "viewing the facts in the light most favorable to the requester, that . . . [it] has conducted a `search reasonably calculated to uncover relevant documents.'" Steinberg, 23 F.3d at 551 (quoting Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To meet its burden, the agency may submit affidavits or declarations that explain both in reasonable detail and in a non-conclusory fashion the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. An agency must show that it made a "good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Ogelsby, 920 F.2d at 68; see also Campbell v. Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). An agency's search need not be exhaustive, merely reasonable. See W. Ctr. for Journalism v. Internal Revenue Serv., 116 F. Supp. 2d 1, 8 (D.D.C. 2000) (citing Shaw v. State Dep't, 559 F. Supp. 1053, 1057 (D.D.C.

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1983)). Plaintiff's Motion for Summary Judgment includes a perfunctory, two-paragraph argument concerning the adequacy of Defendant's search for responsive records. See Pl.'s Mot. at 37. In addition to some boilerplate language about failing to identify specific files that were searched or identifying the particular persons who performed the searches, Plaintiff argues that Defendant "has demonstrated the inadequacy of its searches by consistently supplementing the administrative record . . . with the results of subsequent searches for responsive records." Id. The Court is unpersuaded.7 Defendant submitted sufficient and non-conclusory declarations from Reba McGinnis, the Unit Chief of the Information Disclosure Unit at ICE, and Shari Suzuki, the Chief of FOIA Appeals at CBP, describing the reasonableness of Defendant's searches. See Def.'s Mot., Ex. 3 (hereinafter "McGinnis Decl."); id., Ex. 8 (hereinafter "Suzuki Decl."). For example, Ms. McGinnis described the search performed at the local ICE Special Agent in Charge office where ICE believed it was likely that responsive records would be maintained, and two electronic searched using TECS and the IRS. See McGinnis Decl. ¶ 19; Def.'s Opp'n, Ex. 3 ¶ 6 (hereinafter "Second McGinnis Decl."). Ms. Suzuki described the searches that were performed in the TECS and ATS-P databases, see Suzuki Decl. ¶¶ 7-11, and at the ports of entry at Toronto and

Plaintiff's Third Amended Complaint did not contain a claim concerning the adequacy of Defendant's search for responsive records, but Plaintiff's Cross-Motion nevertheless asserts one. A plaintiff may not ordinarily move for summary judgment on a claim he or she never raised. See, e.g., Sharp v. Rosa Mexicano, D.C., LLC, 496 F. Supp. 2d 93, 97 n.3 (D.D.C. 2000) ("[the] plaintiff may not, through summary judgment briefs, raise the new claims . . . because [the] plaintiff did not raise them in his complaint, and did not file an amended complaint"). The Court shall nevertheless address Plaintiff's claim, in its discretion, because it has been fully briefed by the parties and it does not require an examination of any evidence outside the scope of the present record. 14

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Washington-Dulles, id. ¶ 12. Ms. Suzuki also identified the search terms used to search these electronic databases, including "Neal," "Barnard," "Bernard," and "07/10/53." Id. ¶¶ 6, 10. Both declarants identified how many pages of records were found at each location, and the number and portions of documents released to Plaintiff after processing. McGinnis Decl. ¶19; Suzuki Decl. ¶¶ 5-16. Plaintiff raises no specific objections to the foregoing searches or search terms beyond the argument that Defendant's failure to locate all of the responsive documents in its initial search is somehow evidence that its searches were unreasonable. The Court rejects that illogical argument because, as Defendant emphasizes, "the fact that Defendant supplemented its production of documents is a testament to Defendant's appreciation of its obligation under the FOIA to produce documents." Def.'s Opp'n at 26. Plaintiff fails to cite a single case where a court found that an agency conducted an inadequate search simply because it undertook multiple searches to find responsive records. To the contrary, an inquiry regarding the adequacy of an agency's search requires a court to focus on the actual search or searches, not on the results of the same. See Weisberg v. Dep't of Justice, 705 F.2d 1344, 151-52 (D.C. Cir. 1983). For this reason, courts routinely uphold the sufficiency of any agency's search even when additional records are located after multiple searches. See, e.g., James v. CBP, 549 F. Supp. 2d 1, 5, 7-8 (D.D.C. 2008). Here, Plaintiff is unable to raise any infirmity with Defendant's declarations, which indicate that Defendant made a "good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Perry v. Block, 684 F.2d at 127. Accordingly, the Court shall grant Defendant's Motion for Summary Judgment and deny Plaintiff's Cross-Motion for Summary Judgment with respect to the adequacy of

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Defendant's search for responsive records. B. Defendant Has Demonstrated That It Properly Invoked FOIA and Privacy Act Exemptions To Withhold Information Responsive to Plaintiff's FOIA/Privacy Act Requests

As explained above, the parties' remaining disputes on summary judgment concern the following exemptions invoked by Defendant to withhold the following information: ! Exemption 6: Names and positions of federal employees within Plaintiff's presence, and names of third parties within Plaintiff's presence Exemption 7(A): Law enforcement techniques and procedures to the extent that the exemption is invoked in connection with a criminal investigation into Plaintiff's activities Exemption 7(C): Names of federal employees within Plaintiff's presence Exemption 7(E): Inspection procedures witnessed by Plaintiff

!

! !

[34] Status Report at 2 (May 1, 2008).8 As reflected in their submissions to the Court, the parties also dispute Defendant's reliance on Privacy Act Exemptions (j)(2) and (k)(2). The Court shall address each of the foregoing identified exemptions, in turn. 1. FOIA Exemption 6

FOIA Exemption 6 permits an agency to withhold information contained within "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). See also Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004); Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773-74 (1989). The term "similar files" is broadly

The Court notes that Defendant invoked other exemptions that Plaintiff does not dispute. The Court has limited its analysis in this Memorandum Opinion to only those areas that remain in dispute between the parties. 16

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interpreted, such that Exemption 6 protects from disclosure all information that "applies to a particular individual" in the absence of a public interest in disclosure. State Dep't v. Washington Post Co., 456 U.S. 595, 602 (1982) ("In sum, we do not think that Congress meant to limit Exemption 6 to a narrow class of files containing only a discrete kind of personal information. Rather, the exemption was intended to cover detailed Government records on an individual which can be identified as applying to that individual.") (internal quotation and citation omitted). Accordingly, it is not the nature of the files in which the information is contained, but rather the balance of public and private interests that determines the exemption's scope. Washington Post, 456 U.S. at 599-600. Exemption 6 "tilt[s] the balance (of disclosure interests against privacy interests) in favor of disclosure," and creates a "heavy burden" for an agency invoking Exemption 6. Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1128 (D.C. Cir. 2007). Thus, in considering whether Exemption 6 applies, the Court must "first determine whether disclosure of the [information at issue] `would compromise a substantial, as opposed to de minimis, privacy interest.'" Multi Ag Media LLC v. Dep't of Agriculture, 515 F.3d 1224, 1230 (D.C. Cir. 2008) (quoting Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)). For this purpose, "[a] substantial privacy interest is anything greater than a de minimis privacy interest." Id. at 1230-31. In addition, for purposes of balancing, it is significant that "[t]he public's interest in disclosure of personnel files derives from the purpose of the [FOIA] ­ the preservation of `the citizens' right to be informed about what their government is up to.'" Beck v. Dep't of Justice, 997 F.2d 1489, 1492-93 (D.C. Cir. 1993) (quoting Reporters Comm., 489 U.S. at 773 (internal quotation marks omitted)). While FOIA's purpose "is furthered by disclosure of official

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information that `sheds light on an agency's performance of its statutory duties,'" "[i]nformation that "reveals little or nothing about an agency's own conduct' does not further the statutory purpose; thus the public has no cognizable interest in the release of such information." Id. at 1493 (quoting Reporters Comm., 489 U.S. at 773). In this case, CBP invoked Exemption 6 to withhold the names and positions of all federal employees that have been in Plaintiff's presence and the names of any third parties that have been in Plaintiff's presence. Def.'s Mot. at 13. Ms. Suzuki explained in her declaration that these individuals have a privacy interest in avoiding "unnecessary, unofficial questioning, harassment and stigmatization." Suzuki Decl. ¶ 26. In terms of a public interest, Ms. Suzuki explained that disclosing this information "does not shed light on how CBP performs its statutory duties." Id. Plaintiff initially takes issue with Ms. Suzuki's analysis of the privacy interests at stake. Although Plaintiff does not dispute that individuals generally have a privacy interest that encompasses their names and addresses, see Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 876 (D.C. Cir. 1989), Plaintiff contends that the federal employees who have been in Plaintiff's presence no longer have any privacy interest because they "regularly hold themselves out within the public ambit by interacting with millions of airport travelers as part of their employment, all the while wearing badges or other forms of identification indicating their names and titles." Pl.'s Mot. at 27. Plaintiff emphasizes that he is already aware of "more than two dozen individuals employed by Defendant already . . . ." Id. Consequently, Plaintiff believes that "Defendant simply cannot argue that federal officials who are seen daily by thousands of travelers have a privacy interest, essential to their occupation, in the secrecy of their

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identities." Pl.'s Opp'n at 10. Plaintiff's argument is foreclosed by a long line of cases recognizing that individuals maintain an interest in their privacy even where some information is known about them publicly. See Kimberlin v. Dep't of Justice, 139 F.3d 944, 949 (D.C. Cir. )) ("although government officials, as we have stated before, may have a `somewhat diminished' privacy interest, they `do not surrender all rights to personal privacy when they accept a public appointment'") (quoting Quinon v. FBI, 86 F.3d 1222, 1230 (D.C. Cir. 1996)). See also Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 170-171 (2004) (explaining that FOIA recognizes a surviving family members' right to personal privacy with respect to their close relative's death, including highprofile deaths such as the assassinations of President John F. Kennedy and Martin Luther King, Jr.); Consumers' Checkbook v. U.S. Dep't of Health & Human Servs., 2009 U.S. App. LEXIS 1642 at * 21 (D.C. Cir. Jan. 30, 2009) (holding that privacy interests outweighed public interests even though "the public is already familiar" with certain aspects of the requested data). Applying this principle, courts in this district have consistently rejected the argument that Plaintiff now advances. See, e.g., Taylor v. Dep't of Justice, 268 F. Supp. 2d 34, 38 (D.D.C. 2003) ("the fact that the requestor might be able to figure out some or all of the individuals' identities through other means, or the fact that their identities have already been disclosed, does not diminish their privacy interests in not having the documents disclosed"). Plaintiff's arguments concerning the privacy interests of third parties is even more cursory and unpersuasive. Plaintiff argues that "Congress enacted the (b)(6) exemption, in particular, to protect `intimate details' of a `highly personal' nature . . . The names of third parties, such as [Plaintiff's] travel companions, in [Plaintiff's] presence do not fall into this

19

category. Pl.'s Mot. at 27. Plaintiff also argues that "Defendant can point to no such similar file from which information about the bare names and positions of federal employees or the names of third parties might be disclosed that would invade the realm of protected information." Pl.'s Opp'n at 9. Plaintiff's arguments fail because there is no question that Exemption 6 is designed to protect the names of individuals, regardless of the particular file in which they may be found. See Washington Post Co., 456 U.S. at 602 ("In sum, we do not think that Congress meant to limit Exemption 6 to a narrow class of files containing only a discrete kind of personal information. Rather, the exemption was intended to cover detailed Government records on an individual which can be identified as applying to that individual.") (internal quotation and citation omitted); Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006) (explaining that Exemption 6 protects "not just files, but also bits of personal information, such as names and addresses, the release of which would `create a palpable threat to privacy'") (quoting Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987)). Accordingly, the Court finds that the privacy interests of the individuals referenced in the withheld documents are not insubstantial and have not been eliminated because they may be known in some capacity to Plaintiff. The Court must now review whether these privacy interests are outweighed by the public interest in the information associated with them. As set forth above, Ms. Suzuki asserted that the requested information "does not shed light on how CBP performs its statutory duties," Suzuki Decl. ¶ 26, which is the only relevant public interest at issue. See Reporters Comm. for Freedom of the Press, 489 U.S. at 775 (holding that the only relevant public interest in disclosure "is the extent to which disclosure would serve

20

the `core purpose of the FOIA,' which is `contribut[ing] significantly to public understanding of the operations or activities of the government."). Plaintiff argues that "the release of the responsive documents would shed light on Defendant's activities related to airport security, as well as how and to what extent Defendant has allowed the privatization of government functions." Pl.'s Reply at 16. The Court disagrees. Plaintiffs' asserted public interests bear no relationship to the information Plaintiff has requested, and Plaintiff offers no plausible nexus between the names of federal employees and third-parties who have been in Plaintiff's presence and how the public would learn about CBP's security functions and privatization efforts. Where, as here, the nexus between the information sought and the asserted public interest is lacking, the asserted public interests will not outweigh legitimate privacy interests. See Painting & Drywall Work Preserv. Fund, Inc. v. HUD, 936 F.2d 1300, 1303 (D.C. Cir. 1991) ("attenuated public interest in disclosure" does not outweigh significant privacy interests); Schwaner v. Dep't of Air Force, 898 F.2d 793, 800 (D.C. Cir. 1990) ("the public interest is grounded in a nexus between the information sought and the central purposes of FOIA").9 Moreover, "information about private citizens . . . that reveals little or nothing about an agency's own conduct" does not serve a relevant public interest under FOIA. Reporters Comm. for Freedom of Press, 489 U.S. at 773. Although Plaintiff fails to distinguish the controlling case law set forth above, he relies on the inapposite 1971 decision of Getman v. NLRB, 450 F.2d 670, 675 (D.C. Cir. 1971). See Pl.'s

The Court notes that Plaintiff previously represented that he did not seek this information for public purposes, but rather, "to put an end to these inconvenient and embarrassing interruptions to my travel schedule. . . ." See Pl.'s Mot., Ex. 1 ¶ 25 (Affid. of N. Barnard). 21

9

Mot. at 26-27. In that case, a group of law professors sought a list of employee names and addresses to complete a study on NLRB voting and wanted to use the list to "facilitate scheduling of interviews with employees before and after certain elections." 450 F.2d at 671. One of the purposes of the study was "to consider the feasibility of changing Board rules to eliminate unnecessary grounds for challenges to elections, so as to streamline the entire process." Id. at 675. The District of Columbia Circuit found that "[t]he public interest need for such an empirical investigation into the assumptions underlying the Board's regulation of campaign tactics has for some time been recognized by labor law scholars [and] [t]his particular study has been reviewed and supported by virtually every major scholar in the labor law field." Id. at 675. Getman does not support Plaintiff's claims in this case because Plaintiff is not conducting any sort of study that would shed light on Defendant's statutory duties. To the contrary, as the Court discussed above, Plaintiff is unable to identify any non-attenuated public interest that would overcome the privacy interests of the individuals who have been in Plaintiffs' presence and whose identities Plaintiff seeks to ascertain. As the D.C. Circuit has noted, in the absence of an identifiable public interest in the information, the court "need not linger over the balance; something . . . outweighs nothing every time." Beck, 997 F.2d at 1494 (quoting Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989)). Accordingly, the Court shall grant Defendant's Motion for Summary Judgment and deny Plaintiff's Cross-Motion for Summary Judgment with respect to FOIA Exemption 6. 2. FOIA Exemptions 7(A), 7(C), and 7(E)

Exemption 7 protects from disclosure "records or information compiled for law enforcement purposes," but only to the extent that disclosure of such records would cause an

22

enumerated harm. 5 U.S.C. § 552(b)(7). To properly assert Exemption 7, an agency must first establish the records at issue were compiled for law enforcement purposes. If this showing is made, an agency must then satisfy the requirements of one of the sub-parts of Exemption 7. See Ctr. for Nat'l Sec. Studies v. Dep't of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003). ICE invoked Exemptions 7(A), 7(C), and 7(E) to withhold four pages of records called "Significant Incident Reports." McGinnis Decl. ¶¶ 19, 24. CBP invoked Exemptions 7(C) and 7(E) to withhold names of federal employees within Plaintiff's presence and the inspection procedures witnessed by Plaintiff. Suzuki Decl. ¶¶ 27-31. i. Defendant has demonstrated that the records were compiled for law enforcement purposes

At the outset the Court notes that, where an agency "specializes in law enforcement, its decision to invoke exemption 7 is entitled to deference." Campbell v. Dep't of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998) (citing Pratt v. Webster, 673 F.2d 408, 419 (D.C. Cir. 1982)). Nevertheless, the "deferential" standard of review that the Court applies to this determination is not "vacuous." Id. Instead, the agency's declarations "must establish a rational `nexus between the investigation and one of the agency's law enforcement duties,' and a connection between an `individual or incident and possible security risk or violation of federal law.'" Id. (quoting Pratt, 673 F.2d at 420-21). As the D.C. Circuit explained in Campbell, "[t]he fact that information is stored in a [document] with an official-sounding label is insufficient standing alone to uphold nondisclosure;" "[a]t a minimum, the [agency] must demonstrate the relationship between a record and its label and between the label and a law enforcement purpose." Id. In this case, there is no question that ICE and CBP perform law enforcement activities. Ms. McGinnis explains that "ICE is the largest investigative arm of [the Department of 23

Homeland Security], and is responsible for identifying and eliminating vulnerabilities within the nation's borders . . . ." McGinnis Decl. ¶ 23. ICE is "tasked with preventing any activities that threaten national security and public safety by targeting the people, money and materials that support illegal enterprises." Id. Similarly, Ms. Suzuki explains that CBP "is a law enforcement agency with enforcement responsibilities for over 400 Federal statutes, on behalf of over 40 different federal agencies." Suzuki Decl. ¶ 28. CBP's "mission is to protect the borders of the United States against terrorists and the instruments of terror, enforce the customs and immigration laws of the United States, and foster our Nation's economy by facilitating lawful international trade and travel." Id. There is also no question that the records identified by Defendant could bear the appropriate nexus between ICE and CBP's law enforcement activities and a possible violation of federal law. For example, Ms. McGinnis explains that the information contained in the four pages at issue comprise one or more Significant Incident Reports wherein there is information "relevant to other ongoing investigations." McGinnis Decl. ¶ 24. See also Second McGinnis Decl. ¶ 13. As for the CBP records, Ms. Suzuki explains that the electronic systems that CBP searched for responsive records "maintain records directly related to law enforcement activities and are all used for law enforcement purposes." Id. Specifically, TECS is an overarching law enforcement information collection, risk assessment, and information sharing environment; ATS-P's purpose is to assist CBP personnel in making decisions about whether a passenger or crew member should receive additional screening prior to arrival in or departure from the United States because the traveler may pose a greater risk for violation of U.S. law. Id. Ms. Suzuki also indicates that the responsive records located at the port of Toronto "are used for law enforcement purposes." Id.

24

Plaintiff argues that the Defendant's threshold showing is insufficient because Defendant has failed to establish a link between "Plaintiff and a possible security risk or violation of law for any of the seventeen airport incidents . . . ." Pl.'s Mot. at 29. Although Plaintiff's argument lacks merit to the extent he is suggesting that he must be the target of the investigation in order for Defendant to rely on this exemption, Plaintiff is correct that Defendant has not sufficiently described the "ongoing investigations" necessary to justify reliance on Exemption 7. For example, Defendant provides no detail concerning the "size, scope, and direction of [the] investigation," see Boyd v. Criminal Div. of the United States Dep't of Justice, 475 F.3d 381, 386 (D.C. Cir. 2007) (quoting Alyeska Pipeline Serv. Co. v. U.S. Envtl. Prot. Agency, 856 F.2d 309, 312 (D.C. Cir. 1988)), which would allow a determination as to whether there is a nexus between its law enforcement duties and the investigations to which it refers. Although Defendant's reliance on Exemption 7 is certainly plausible given the description of their law enforcement activities and the types of records where the information responsive to Plaintiff's FOIA/Privacy Act requests was located, Exemption 7 requires more than labels and plausible conclusions. See Campbell, 164 F.3d at 32. Defendant's submissions to the Court appear to acknowledge this deficiency, as Defendant repeatedly emphasizes that "no further description [of the documents] can be placed on the public record without disclosing precisely the information that the application of the exemptions is intended to protect." Def.'s [41] Mot. for Leave at 2. See also Def.'s [42] Motion for Leave at 2 ("Defendant wishes to supplement [its] declarations by submitting . . . [an] in camera declaration [that] will provide the Court with additional factual context to further support the FOIA exemptions claimed by ICE and CBP. Neither Plaintiff nor the public has knowledge

25

[of] these facts."). The in camera declarations also provide additional details explaining why Defendant has not described these investigations in any greater detail in Defendant's public submissions. See, e.g., Decl. dated June 20, 2008 ¶ 9. Based in part on Defendant's failure to describe these ongoing investigations in sufficient detail, and Defendant's related explanation that it could provide no further details of the investigations on the public record without revealing the information it seeks to protect from disclosure, the Court granted Defendant leave to file two in camera declarations. See Arieff v. U.S. Dep't of the Navy, 712 F.2d 1462, 1469 (D.C. Cir. 1983) (explaining that in camera affidavits are, "when necessary, part of a trial judge's procedural arsenal"). See also Boyd v. Criminal Division of the United States Dep't of Justice, 475 F.3d 381, 382 (D.C. Cir. 2007) ("in camera review may be particularly appropriate if the agency affidavits do not describe the documents and justifications for withholding in sufficient detail to demonstrate that the claimed exemption applies . . ."). Although the Court is aware that in camera declarations should be avoided unless truly necessary, see, e.g., Phillippi v. Cent. Intelligence Agency, 546 F.2d 1009, 1013 (D.C. Cir. 1976), where, as here, an agency indicates that no additional information concerning an investigation may be publicly disclosed without revealing precisely the information that the agency seeks to withhold, the receipt of in camera declarations is appropriate. See, e.g., Billington v. U.S. Dep't of Justice, No. 92-0462, Mem. Op. & Order at 1-4 (July 24, 2003), aff'd 258 Fed. App'x 348, 349 (2007).10

In accordance with the D.C. Circuit's guidance to "make as much as possible of the in camera submission available to the opposing party" as is appropriate, the Court has also reviewed Defendant's two in camera submissions to determine whether any portions may be appropriately disclosed to Plaintiff and placed on the public docket. See Armstrong v. Executive Office of the President, 97 F.3d 575, 580 (D.C. Cir. 1996). The Court has determined that no 26

10

Having considered Defendant's two in camera declarations, the Court finds that Defendant has satisfied its burden with respect to the Exemption 7 threshold showing. Mr. Jacksta's in camera declaration contains a very detailed description of the documents withheld by Defendant and contains corresponding descriptions explaining why each of the documents or sets of documents cannot be further discussed on the public record without revealing information that Defendant seeks to withhold from public disclosure. See Jacksta Declaration ¶¶ 34-39. A second in camera declaration explains the nexus between Defendant, the documents at issue, and the past and ongoing investigations that have been referenced in Defendants' public submissions. See June 20, 2008 Decl. ¶¶ 6-12. Accordingly, based on the evidence in the record, which includes Defendant's public submissions and the two in camera declarations, the Court finds that Defendant has met the threshold burden for invoking Exemption 7 and shall proceed to examine whether Defendant has properly invoked sub-parts 7(A), 7(C), and 7(E).11 ii. FOIA Exemption 7(A)

Exemption 7(A) authorizes the withholding of "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings." 5

portion of the declarations may be disclosed without revealing the information Defendant seeks to protect. Plaintiff argues that "[b]aseless airport detentions are not the type of investigatory activities for which Congress sought to exempt records from disclosure under [Exemption 7]," Pl.'s Mot. at 29, and that Plaintiff has only been "generally monitor[ed] rather than the subject of an actual "agency investigation," Pl.'s Mot. at 30. These arguments are based on speculation about the nature of the investigations referenced in Defendants' public submissions. The Court finds that the investigations described in Defendant's in camera declarations are of the type that are appropriately subject to Exemption 7. 27
11

U.S.C. § 552(b)(7)(A). Exemption 7(A) is properly invoked where "disclosure (1) could reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending or reasonably anticipated." Mapother v. Dep't of Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993). To demonstrate that reliance on this exemption is proper, Defendant must make at least a minimum showing concerning "the impact of the disclosures" if the documents were disclosed. Sussman v. United States Marshals Serv., 494 F.3d 1106, 1114 (D.C. Cir. 2007). In this case, Ms. McGinnis explained that the four pages of Significant Incident Reports were properly withheld in their entirety because, "[a]lthough Plaintiff is no longer the subject of the open and pending criminal investigation originally cited in the Fields Declaration, the information related to Plaintiff in the four pages of the Significant Incident Reports contain information related to other on-going investigations." McGinnis Decl. at ¶ 24. She further explained that "[i]t has been conveyed to me that the release of such information could have a negative impact on the other ongoing investigations and, therefore, the release of such information could reasonably be expected to interfere with those investigations." Id. Plaintiff argues that Defendant has failed to establish the possibility of interference with a pending or anticipated investigation. See Pl.'s Mot. at 31. In particular, Plaintiff argues that (1) the Fields declaration that Defendant initially submitted for purposes of the parties' first round of summary judgment motions was "demonstrably false" and (2) that the second declaration submitted by Ms. Marshall, as well as the declaration submitted by Ms. McGinnis, contain inadmissible hearsay. See Pl.'s Opp'n at 5. The Court is not persuaded by either of these arguments. Although the relevance of Plaintiff's first argument is not apparent, the argument itself is

28

specious. As Defendant correctly observes, "Plaintiff ignores the reality that he was the subject of a criminal investigation in February 2007 [when the Fields declaration was submitted] but, due to the passage of time, in February 2008, he was no longer the subject of that investigation." Def.'s Opp'n at 5. Accordingly, the individuals who have submitted declarations in support of Defendant's present summary judgment submissions have all recognized that Plaintiff is no longer the subject of an investigation. See, e.g., McGinnis Decl. ¶ 24 (acknowledging that "Plaintiff [is] no longer the subject of the open and pending criminal investigation originally cited in the Fields Declaration" but explaining that there are "other ongoing investigation" that could be affected by the release of the information at issue). To the extent Plaintiff invites the Court to find evidence of bad faith due to these changed circumstances, the Court expressly declines Plaintiff's invitation.12 Plaintiff's second argument concerning inadmissible hearsay in Ms. Marshall's second declaration and Ms. McGinnis's declaration is based on the same argument that the Court rejected in its January 29, 2008 Memorandum Opinion. See Mem. Op. at 8-12. At that time, Plaintiff took issue with the Fields declaration submitted by Defendant in support of its summary judgment motion. Id. at 8. Mr. Fields stated in his declaration that Plaintiff "is the subject of an open and pending criminal investigation" and that "[r]elease of any information pertaining to this investigation could reasonably be expected to interfere with this open and pending criminal investigation." Fields Decl. ¶ 22. On summary judgment, Plaintiff argued that Defendant failed

Plaintiff also takes issue with the fact that the Fields declaration submitted by Defendant identified six pages of responsive records whereas, in fact, there were seven pages in Defendant's possession at the time. See Marshall Decl. ¶ 6. This discrepancy was discussed in the Court's January 29, 2008, see Mem. Op. at 14 n.9, and the Court finds this discrepancy to be immaterial to resolving the parties' present Cross-Motions for Summary Judgment. 29

12

to meet its burden of showing that there was an ongoing investigation of Plaintiff because Mr. Fields's declaration was not based on his personal knowledge. See Pl.'s [16] Mot. at 8-13. The Court rejected that argument because Mr. Fields's statements were made "based upon [his] personal knowledge, review of documents kept in the course of business, and information conveyed to [him] in the course of [his] official duties." Fields Decl. ¶ 4. Because he was "familiar with the processes used to search for the records at issue, and because he has reviewed the records himself," the Court found that he was "competent to testify as to the information contained in those records." Mem. Op. at 11. Similarly, Ms. Marshall's second declaration is "based on [her] personal knowledge and experience, review of documents kept in the course of business, and information conveyed to [her] in the course of [her] official duties." Second Marshall Decl. ¶ 4. Regarding the investigations at issue, she states that she "received official notification that plaintiff is not longer the subject of the open and pending criminal investigation originally cited in the Fields Declaration," but that she has "been informed that disclosure of information related to plaintiff could have a negative impact on other ongoing investigation." Id. ¶ 7. Ms. McGinnis made similar statements in her declaration. Her declaration is based on her "familiar[ity] with the facts of this case [and] personal knowledge and experience, review of documents kept in the course of business, and information conveyed to [her] in the course of [her] official duties." McGinnis Decl. ¶ 4. She further states that she has "been informed that there is information related to [P]laintiff contained in the `ICE Significant Incident Reports' that is also relevant to other ongoing investigations," and that "[i]t has been conveyed to [her] that the release of such information could have a negative impact on the other ongoing investigations and, therefore, the

30

release of such information could reasonably be expected to interfere with those investigations." Id. ¶ 24. As the Court previously explained, a declarant in a FOIA case satisfies the personal knowledge requirement in Rule 56(e) "`if in his declaration, [he] attests to his personal knowledge of the procedures used in handling [a FOIA] request and his familiarity with the documents in question.'" Madison Mech., Inc. v. Nat'l Aeronautics and Space Admin., No. 992854, 2003 U.S. Dist. LEXIS 4110 at *17 (D.D.C. Mar. 20, 2003) (quoting Spannus v. Dep't of Justice, 813 F.2d 1285, 1289 (4th Cir. 1987)). Because a declarant is deemed to have personal knowledge if he has a general familiarity with the responsive records and procedures used to identify those records, the declarant is not required to independently verify the information contained in each responsive record. See, e.g., Londrigan v. Fed. Bureau of Investigation, 670 F.2d 1164, 1174 (D.C. Cir. 1981) (explaining that an agent properly stated in his affidavit that "one of the sources whose identity was withheld by the FBI had specifically requested confidentiality" because that information was contained in a record the agent reviewed, even though the agent did not independently verify that the source had actually requested confidentiality). Plaintiff once again argues that the these declarations contain inadmissible hearsay, although Plaintiff now focuses on the fact that the declarants were told certain information rather than obtaining the information from a review of relevant documents. The Court finds this to be a distinction without a difference. FOIA declarants may include statements in their declarations based on information they have obtained in the course of their official duties. See, e.g., Thompson v. Exec. Office for United States Attorneys, 2008 U.S. Dist LEXIS 95515 at *12-*13

31

n.4 (D.D.C. Nov. 24, 2008) (finding a declaration admissible where it was based on the individual's "review of [the Defendant's] official files and records, [her] own personal knowledge, and the information [she] acquired in performing her official duties"); Hornes v. Exec. Office of United States Attorneys, 2007 U.S. Dist. LEXIS 33129 at *11 (D.D.C. May 4, 2007) ("[the declarant's] statements are based on his personal knowledge, his review of [agency] official files and records and information that he acquired in performing [his] official duties . . . Declarations provided by similarly situated officials have long been recognized as acceptable in FOIA cases") (internal citation and quotation marks omitted).13 The Court therefore rejects Plaintiff's argument that the declarations submitted by Defendant contain inadmissible hearsay. Despite this finding, the Court also finds that Defendant's submissions on the public record are insufficient to meet its burden of showing how the release of the withheld information could interfere with ongoing investigations. See 5 U.S.C. 552(b)(7)(A) (encompassing information that "could reasonably be expected to interfere with enforcement proceedings").14 Nevertheless, the Court granted Defendant leave to submit two in camera declarations for the reasons explained above. Having considered them, the Court finds that Defendant has met its burden of showing how the release of the withheld information could interfere with ongoing

Plaintiff asserts that, "[f]or all [Plaintiff] or this Court know[], [the] source [of the information set forth in these declarations] may have been a conversation overheard at the water cooler in Defendant's Office of Investigations." Pl.'s Opp'n at 7. Because both declarants explain that they received information while "performing [their] official duties," Plaintiff's concerns in this regard are misguided. Plaintiff argues that Defendant must establish that the withheld information "would" interfere with an investigation, see Pl.'s Opp'n at 12, but that argument is belied by the language of the statute and undermined by Plaintiff's inability to cite any legal authority in support of such a proposition. 32
14

13

investigations and enforcement proceedings. In particular, the in camera declaration dated June 20, 2008, explains how disclosure of the withheld information could interfere with, and jeopardize, the ongoing and future investigations. See June 20, 2008 Decl. ¶ 6. Based on the present record, which includes the second declaration of Ms. Marshall, the declaration of Ms. McGinnis, and the June 20, 2008 in camera declaration, the Court finds that Defendant has met its burden to show how the release of the information could reasonably be expected to interfere with ongoing investigations. Accordingly, the Court shall grant Defendant's Motion for Summary Judgment and deny Plaintiff's Motion for Summary Judgment with respect to Exemption 7(A). iii. FOIA Exemption 7(C)

Pursuant to FOIA Exemption 7(C), an agency may withhold information within documents "compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). To evaluate this exemption, the Court must balance the privacy interests involved against the public interest in disclosure. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1205 (D.C. Cir. 1991); United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762 (1989). In terms of public interests, "the only public interest relevant for purposes of Exemption 7(C) is one that focuses on `the citizens' right to be informed about what their government is up to.'" Davis v. Dept' of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (quoting Reporters Committee for Freedom of the Press, 489 U.S. at 773. This inquiry is similar to the inquiry performed for Exemption 6, but Exemption 7(C) applies only to documents that have been "compiled for law enforcement purposes." 5 U.S.C. § 552(b)(7).

33

In this case, ICE invoked Exemption 7(C) to protect the names of the Special Agents and third-parties appearing in the Significant Incident Reports. McGinnis Decl. ¶ 25. With respect to the Special Agents, Ms. McGinnis explained that "[t]hey were, and still are, in positions of access to information regarding official law enforcement investigations. If there identities are released, they could become targets of unwarranted harassment.