Families for Freedom et al v. United States Customs and Border Protection et al

Filing 35

OPINION AND ORDER granting in part and denying in part re: 25 MOTION for Summary Judgment, filed by United States Immigration and Customs Enforcement, United States Customs and Border Protection, United States Department of Homeland Security. ( Conference set for 7/22/2011 at 05:00 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 6/16/11) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------)(
FAMILIES FOR FREEDOM, JANE DOE
MARY DOE, and JOHN DOE,
Plaintiffs,
- against-

OPINION AND ORDER

U.S. CUSTO~IS AND BORDER
PROTECTION, U.S. IMMIGRATION AND

CUSTOMS ENFORCEMENT, and U.S.

DEPARTMENT OF HOMELAND

SECURITY,

10 Civ. 2705 (SAS)

Defendants.

------------------------------------------------------------ )(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Families for Freedom, a non-profit advocacy organization, along with

Jane Doe, Mary Doe, and John Doe, three individuals in deportation proceedings
(collectively, "Plaintiffs"), bring suit against U.S. Customs and Border Protection
("CBP"), U.S. Immigration and Customs Enforcement ("ICE"), and the U.S.
Department of Homeland Security ("DHS") (collectively, "Defendants"), seeking
release of certain government records pursuant to the Freedom of Information Act
("FOIA"). I The requested records pertain primarily to the scope and practices of

5 U.S.C. § 552 et seq.

1

CBP operations on inter-city buses and trains within the geographic area
designated as the “Buffalo Sector.”2 Defendants now move for partial summary
judgment on their invocation of FOIA exemptions to withhold, in whole or in part,
certain responsive documents.3 Plaintiffs oppose defendants’ motion and request
that the Court order production of four groups of documents that they allege were
improperly redacted or withheld entirely.4 For the reasons stated below,
defendants’ motion for summary judgment is granted in part and denied in part,
and defendants are ordered to produce a number of the withheld documents.

II.

BACKGROUND
On February 26, 2009, plaintiffs submitted an initial FOIA request to

CBP.5 On April 2, 2010, plaintiffs submitted a second FOIA request to CBP, and
submitted similar FOIA requests to ICE and DHS.6 Through their requests,
plaintiffs sought information primarily concerning the activities of the Buffalo

2

See First Amended Complaint (“Compl.”) [Docket No. 9] ¶ 2.

3

See Defendants’ Memorandum of Law in Support of Defendants’
Motion for Summary Judgment on Exemptions (“Def. Mem.”) at 1, 25.
4

See Plaintiff’s Memorandum of Law in Opposition to Defendants’
Motion for Summary Judgment on Exemptions (“Opp. Mem.”) at 2.
5

See Def. Mem. at 1.

6

See id.
2

Sector of the United States Border Patrol, a subdivision of CBP, as well as the
related activities of ICE.7 Buffalo Sector is one of twenty Border Patrol sectors
and covers 450 miles of border between the United States and Canada.8 The
Buffalo Sector’s responsibilities encompass Pennsylvania, Maryland, Virginia,
West Virginia and most of New York State.9
Plaintiffs assert that “Border Patrol officers improperly engage in
interior enforcement of immigration laws by questioning bus and train travelers
about their immigration status on inter-city conveyances that never cross the
border.”10 Alleging that these activities exceed the Border Patrol’s “statutory and
regulatory authority and violate the Fourth Amendment,” plaintiffs state that the
requested records are necessary to inform the public about the activities of its
government and are relevant to various pending deportation proceedings, including
those of Jane Doe, Mary Doe, and John Doe.11
A.

February 26, 2009 FOIA Request to CBP

7

See id.; Compl. ¶ 17. DHS is the umbrella agency under which both
ICE and CBP are subsumed.
8

See Def. Mem. at 1.

9

See id. (citing 10/22/10 Declaration of Edward X. Castillo, Border
Patrol Agent).
10

Compl. ¶ 2.

11

Id. ¶ 4.
3

The February 26, 2009 FOIA request to CBP sought: (1) I-213 arrest
forms for persons apprehended on Amtrak trains by Border Patrol agents from the
Rochester Border Patrol Station for the years 2003-2008; (2) arrest statistics
relating to those apprehensions, broken down by the length of time the immigrant
was in the United States; (3) total arrest statistics for the Rochester Station for the
years 2003-2008; (4) explanations and listings of the various codes that are used on
the Form I-213s; (5) arrest quotas, goals, targets or expectations for Border Patrol
agents from the Buffalo Sector and the Rochester Station for the years 2003-2008;
(6) performance review standards for Border Patrol agents from the Buffalo Sector
and the Rochester Station for the years 2003-2008; (7) training materials on racial
profiling; (8) training materials on Amtrak enforcement operations; (9) reports
concerning Amtrak arrests for the years 2003-2008; (10) agreements between CBP
and Amtrak; and (11) standards of conduct for CBP officers at the border and in
the interior.12
In response to this initial FOIA request, CBP indicated that it had
identified eighty-one pages of responsive documents, fifty of which were withheld
in their entirety pursuant to Exemptions 2 – including “Low 2” and “High 2”13 – 5,
12

See id. ¶ 29.

13

The terms “Low 2” and “High 2” were used for many years to
describe two different categories of information withheld pursuant to 5 U.S.C. §
4

6, 7(C), and 7(E).14 Fifteen pages were released with redactions made pursuant to
Exemptions “Low 2,” “High 2,” 6, 7(C), and 7(E).15 The Department of Justice
(“DOJ”) and DHS also produced several documents that had been identified by
CBP and referred to those agencies as the original authors for review and release.16
On August 17, 2009, plaintiffs appealed by letter the agency’s
response, challenging the adequacy of the search and the propriety of the claimed
exemptions.17 From September through November 2009, plaintiffs communicated
on several occasions with CBP about their appeal, but the agency produced no
further documents.18 Deeming their administrative remedies exhausted, plaintiffs
filed suit against CBP on March 26, 2010, alleging that the agency had violated

552(b)(2), under the reasoning of Crooker v. Bureau of Alcohol, Tobacco, and
Firearms, 670 F.2d 1051 (D.C. Cir. 1981). The Supreme Court recently overruled
Crooker in its decision in Milner v. Department of the Navy, 131 S.Ct. 1259
(2011). The Milner decision was issued after the parties completed briefing the
instant motion, but both parties have submitted supplemental letters addressing
Milner. A fuller discussion of Milner and its application to this case follows
below.
14

See Compl. ¶ 40.

15

See id.

16

See id. ¶ 42.

17

See id. ¶ 41.

18

See id. ¶¶ 43-51.
5

FOIA by failing to release records, and seeking declaratory and injunctive relief.19
B.

April 2, 2010 FOIA Requests to CBP, ICE, and DHS
On April 2, 2010, plaintiffs served a second FOIA request on CBP

and initial FOIA requests on ICE and DHS.20 The second request to CBP sought
information similar to that sought in the first request, but added several categories
of information and updated the request to include 2009 data.21 The request to ICE

19

See Def. Mem. at 3; Original Complaint [Docket No. 1].

20

See Def. Mem. at 3.

21

See Compl. ¶ 53. The April 2, 2010 request to CBP sought the
following information: “(1) I-213 arrest forms for persons apprehended on intercity trains and buses by officers out of the Rochester Border Patrol Station from
2003 to 2009; (2) arrest statistics for the Buffalo Sector and the Rochester Station
from 2003 to 2009 for persons apprehended on inter-city trains and buses for
whom I-213s were issued, broken down by the length of time the immigrant was in
the United States, country of citizenship, complexion, and criminal record; (3) total
arrest statistics for the Buffalo Sector and the Rochester Station from 2003 to 2009
for people for whom I-213s were issued, broken down by length of time the
immigrant was in the United States, country of citizenship, complexion, and
criminal record; (4) total arrest statistics for the Buffalo Sector and the Rochester
Station from 2003 to 2009; (5) staffing levels for the Buffalo Sector and the
Rochester Station from 2003 to 2009; (6) explanations and listings of certain codes
on the arrest forms; (7) arrest quotas, targets or goals for Border Patrol officers
operating in the Buffalo Sector and at the Rochester Station for 2003 to 2009; (8)
performance review standards for Border Patrol officers operating in the Buffalo
Sector and at the Rochester Station for 2003 to 2009; (9) training materials on
racial profiling; (10) training materials on inter-city train and bus enforcement
operations; (11) reports concerning arrests on inter-city trains and buses from 2003
to 2009; (12) agreements, understandings, or communications between CBP or
Border Patrol and inter-city train or bus operators regarding transportation checks;
(13) agreements, understandings, or communications between CBP, Border Patrol,
6

sought information similar to that in the CBP request of the same date, but also
requested records concerning performance standards, arrest quotas, targets, or
goals for ICE officers.22 The April 2, 2010 request to DHS sought: (1) agreements,
understandings, or communications between CBP, Border Patrol, DHS and/or ICE
regarding transportation checks; (2) performance standards or arrest quotas, targets
or goals for Border Patrol officers in effect during the previous six years,
preferably broken down by Sector and Station; (3) performance standards, arrest
quotas, targets, or goals for ICE officers, including those that can be satisfied by
Border Patrol arrestees that are transferred to ICE custody; and (4) reports
containing information about arrests on inter-city trains and buses during the
previous six years.23
The agencies acknowledged receipt of plaintiffs’ April 2, 2010 FOIA
requests, but did not produce any responsive documents.24 Plaintiffs amended their
Complaint on May 21, 2010, adding ICE and DHS as defendants, and again
claiming that the failure to release records and the failure to make a determination

DHS, and/or ICE regarding transportation checks; and (14) standards of conduct
for CBP officers at the border and in the interior.” Id.
22

See id. ¶ 57.

23

See id. ¶ 60.

24

See id. ¶¶ 56, 59, 62.
7

regarding plaintiffs’ requests for expedited processing violated FOIA.25
C.

Productions in Response to Litigation
In response to the instant suit, and pursuant to an agreement

negotiated with plaintiffs, CBP performed additional searches and produced
additional documents.26 In total, CBP produced sixty pages of responsive
documents in their entirety and six hundred and twenty-four pages with redactions,
while withholding seven hundred and eight pages in their entirety based on certain
exemptions.27 In response to the instant suit, ICE identified one hundred and
twenty-six pages of responsive documents, producing eighty-three pages in their
entirety and forty-three pages with redactions based on certain exemptions.28 ICE
did not withhold any documents in their entirety.29
Defendants now move for summary judgment as to whether
defendants have properly withheld records, in whole or in part, based on the

25

See Def. Mem. at 3; Compl. ¶¶ 79-82.

26

See Def. Mem. at 3.

27

See id. at 6.

28

See id. at 7.

29

See id.
8

asserted exemptions.30 Plaintiffs, in opposing defendants’ motion, ask the Court to
order the production of four sets of documents, which they allege defendants have
improperly redacted or withheld in their entirety. Those documents are described
by plaintiffs as follows: first, the Buffalo Sector Daily Reports and related
commentary, identified by CBP in US000811-US000816 and US000867US001518; second, sample Form I-213s, identified by CBP as US00119US000735; third, training memoranda on agency policies regarding racial profiling
and conduct of agents during transportation checks, identified by CBP as
US000817-US000866; and fourth, the authors and recipients of a memorandum
identified by ICE as US000112 and an email identified by ICE as US000114.31
III.

APPLICABLE LAW
A.

FOIA and Summary Judgment

FOIA cases are generally and most appropriately resolved on motions
for summary judgment.32 Summary judgment in the FOIA context, as in any other,
is appropriate if the record “show[s] that there is no genuine issue as to any

30

On the Court’s instructions, the adequacy of the search was not
briefed. That issue will be addressed separately at a later date, if necessary.
31

See Opp. Mem. at 2.

32

See Bloomberg L.P. v. Board of Governors of the Fed. Reserve Sys.,
649 F. Supp. 2d 262, 271 (S.D.N.Y. 2009); Miscavige v. Internal Revenue Serv., 2
F.3d 366, 369 (11th Cir. 1993).
9

material fact and that the moving party is entitled to judgment as a matter of law.”33
“An issue of fact is genuine if ‘the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’ A fact is material if it ‘might affect the
outcome of the suit under the governing law.’”34 “In ruling on a motion for
summary judgment, a court must resolve all ambiguities and draw all factual
inferences in favor of the nonmoving party.”35
However, unique to the FOIA context, “[a]ffidavits submitted by an
agency are accorded a presumption of good faith,” and so long as such affidavits
“supply[] facts indicating that the agency has conducted a thorough search and
giv[e] reasonably detailed explanations why any withheld documents fall within an
exemption,” they will sustain the agency’s burden and summary judgment may be
awarded without discovery being conducted.36 Nonetheless, “[t]he agency's
decision that the information is exempt from disclosure receives no deference.”37
33

Fed. R. Civ. P. 56(c).

34

Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
35

McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (citing
Anderson, 477 U.S. at 242, 255).
36

Carney v. United States Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.
1994) (quotation marks and citations omitted).
37

Bloomberg, L.P. v. Board of Governors of the Fed. Reserve Sys., 601
F.3d 143, 147 (2d Cir. 2010).
10

Accordingly, a court is required to conduct a de novo review of the record,
deciding “‘whether the agency has sustained its burden of demonstrating that the
documents requested are not agency records or are exempt from disclosure under
the FOIA.’”38
In addition to affidavits, agencies generally submit Vaughn indexes to
sustain their burden. A Vaughn index is an itemized listing of the non-disclosed
records, describing each record and portion withheld, and providing a detailed
justification for the agency’s withholding, specifying the FOIA exemption that it
has applied.39 The purpose of a Vaughn index is to “(a) [] permit [the opposing
party] to contest the affidavit in [an] adversarial fashion,” and to “(b) [] permit a
reviewing court to engage in effective de novo review of the [government’s]
redactions.”40
At the heart of FOIA is “a policy strongly favoring public disclosure

38

In Def. of Animals v. National Inst. of Health, 543 F. Supp. 2d 83, 9293 (D.D.C. 2008) (quoting Assassination Archives and Research Ctr. v. Central
Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003)). See also 5 U.S.C. §
552(a)(4)(B); Carney, 19 F.3d at 812 (“In order to prevail on a motion for
summary judgment in a FOIA case, the defending agency has the burden of
showing that its search was adequate and that any withheld documents fall within
an exemption to the FOIA.”).
39

See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973).

40

Halpern v. Federal Bureau of Investigation, 181 F.3d 279, 293 (2d

Cir. 1999).
11

of information in the possession of federal agencies.”41 However, FOIA provides
nine categories of information that are exempt from disclosure.42 Four of those
exemptions are relevant to the instant matter – Exemptions 2, 5,6, and 7. Under
Exemption 7, defendants cite both subsection (C) and subsection (E), which I
address separately below.
1.

FOIA Exemptions 2 and 7(E)

Exemption 7(E) protects “records or information compiled for law
enforcement purposes,” that, if disclosed, “would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the law.”43 Exemption 2
protects from disclosure information that is “related solely to the internal personnel
rules and practices of an agency.”44 For many years, following the D.C. Circuit’s
ruling in Crooker v. Bureau of Alcohol, Tobacco, and Firearms,45 courts held that
Exemption 2 protected two categories of information: (1) materials concerning
41

Id. at 286.

42

See id. at 287.

43

5 U.S.C. § 552(b)(7)(E).

44

Id. § 552(b)(2).

45

670 F.2d 1051.
12

human resources and employee relations (known as “Low 2”),46 and (2)
“predominantly internal” information that, if disclosed, would “significantly risk[]
circumvention of agency regulations or statutes”47 (known as “High 2”).
In its recent decision in Milner v. Department of the Navy, the
Supreme Court explicitly overruled Crooker and its progeny. In Milner, the Court,
after considering the statutory language and the legislative history of FOIA, held
that “Exemption 2, consistent with the plain meaning of the term ‘personnel rules
and practices,’ encompasses only records relating to issues of employee relations
and human resources.”48 As a result, after Milner, High 2 has ceased to exist; and
“Low 2 is all of 2.”49 In its reasoning, the Court gave significant weight to
Congress’s amendment of Exemption 7(E) in 1986, noting that “the Crooker
construction of Exemption 2 renders Exemption (b)(7)(E) superfluous and so
deprives that amendment of any effect.”50 The Court added, “[w]e cannot think of
any document eligible for withholding under Exemption 7(E) that the High 2

46

Milner, 131 S.Ct. at 1262-63 (discussing the development of the
Crooker doctrine).
47

Crooker, 670 F.2d at 1074.

48

Milner, 131 S.Ct. at 1271.

49

Id. at 1265.

50

Id. at 1268.
13

reading does not capture.”51 In fact, prior to Milner, agencies frequently cited
Exemption 2 in conjunction with Exemption 7(E), due to the conceptual overlap
between the two under the Crooker doctrine.
2.

FOIA Exemption 5

Exemption 5 protects “inter-agency or intra-agency memorandums
[sic] or letters which would not be available by law to a party other than an agency
in litigation with the agency.”52 The exemption incorporates “all normal civil
discovery privileges,”53 including the attorney-client privilege and the attorney
work-product doctrine.54 “The test under Exemption 5 is whether the documents
would be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance.”55
“Whether its immunity from discovery is absolute or qualified, a [privileged]
document cannot be said to be subject to ‘routine’ disclosure,” and thus, is

51

Id.

52

5 U.S.C. § 552(b)(5).

53

Hopkins v. United States Dep’t of Housing and Urban Dev., 929 F.2d
81, 84 (2d Cir. 1991).
54

See National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S.
132, 149-55 (1975); Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 481 (2d Cir.
1999).
55

Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 26 (1983)
(quoting Sears, Roebuck , 421 U.S. at 148-49).
14

protected under Exemption 5.56
“The attorney-client privilege protects confidential communications
from clients to their attorneys made for the purpose of securing legal advice or
services.”57 Advice from an attorney to his or her client is also protected by the
privilege.58 “In the governmental context, the client may be the agency and the
attorney may be an agency lawyer.”59 The attorney-client privilege under
Exemption 5 “is narrowly construed and is limited to those situations in which its
purpose will be served.”60 “The agency bears the burden of showing that the
information exchanged was confidential. That is, the agency must show that it
supplied information to its lawyers ‘with the expectation of secrecy and was not
known by or disclosed to any third party.’”61

56

Id. at 27.

57

Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 618 (D.C. Cir.
1997) (“Tax Analysts I”).
58

See In re Six Grand Jury Witnesses, 979 F.2d 939, 943-44 (2d Cir.

1992).
59

Tax Analysts I, 117 F.3d at 618.

60

Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862
(D.C. Cir. 1980).
61

Judicial Watch, Inc. v. United States Postal Serv., 297 F. Supp. 2d
252, 267 (D.D.C. 2004) (quoting Mead Data Cent., Inc. v. Department of the Air
Force, 566 F.2d 242, 254 (D.C. Cir. 1977)).
15

The attorney work product doctrine applies “to memoranda prepared
by an attorney in contemplation of litigation which sets forth the attorney’s theory
of the case and [her] litigation strategy.”62 “The attorney work product privilege
protects ‘the files and the mental impressions of an attorney . . . reflected, of
course, in interviews, statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other tangible and intangible ways’
prepared in anticipation of litigation.”63
The doctrine is “limited in scope and does not protect every written
document generated by an attorney.”64 “[A]n attorney’s mental impressions do not
become protected work product simply because they were expressed concurrently
with some form of litigation.”65 Additionally, “‘[d]ocuments that are prepared in
the ordinary course of business or that would have been created in essentially
similar form irrespective of the litigation’ are not protected as attorney work

62

Sears, Roebuck, 421 U.S. at 154.

63

A. Michael’s Piano, Inc. v. F.T.C., 18 F.3d 138, 146 (2d Cir. 1994)
(quoting Hickman v. Taylor, 329 U.S. 495, 510-11(1947)).
64

New York Times Co. v. United States Dep’t of Def., 499 F. Supp. 2d
501, 517 (S.D.N.Y. 2007).
65

FPL Grp., Inc. v. Internal Revenue Serv., 698 F. Supp. 2d 66, 85-86
(D.D.C. 2010).
16

product.”66
3.

FOIA Exemptions 6 and 7(C)

Exemption 6 protects “personnel and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy.”67 The purpose of Exemption 6 is to “‘protect individuals from
the injury and embarrassment that can result from the unnecessary disclosure of
personal information.’”68 The Supreme Court has interpreted Exemption 6 broadly
to encompass any “information which applies to a particular individual.”69 If
disclosure would compromise “substantial privacy interests,” it need not be
disclosed.70 If no substantial privacy interest is established, however, the court
must weigh the “potential harm to privacy interests” against “the public interest in
disclosure of the requested information.”71 The “only relevant public interest to be
66

New York Times Co., 499 F. Supp. 2d at 517 (quoting United States v.
Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998)).
67

5 U.S.C. § 552(b)(6).

68

Wood v. Federal Bureau of Investigation, 432 F.3d 78, 86 (2d Cir.
2005) (quoting United States Dep’t of State v. Washington Post Co., 456 U.S. 595,
599 (1982)).
69

Washington Post Co., 456 U.S. at 602.

70

Aguirre v. Securities and Exch. Comm’n, 551 F. Supp. 2d 33, 53
(D.D.C. 2008).
71

Id.
17

weighed in this balance is the extent to which disclosure would serve the core
purpose of FOIA, which is contribut[ing] significantly to public understanding of
the operations or activities of the government.”72 “The requesting party bears the
burden of establishing that disclosure of personal information would serve a public
interest cognizable under FOIA.”73 However, information that “merely identifies
the names of government officials who authored documents and received
documents” does not generally fall within Exemption 6.74
Exemption 7(C) protects from disclosure “records or information
compiled for law enforcement purposes” if disclosure “could reasonably be
expected to constitute an unwarranted invasion of personal privacy.”75 Exemption
7(C) requires balancing of privacy interests and the public interest as well.76
However, the privacy interests of Exemption 7(C) have been construed more
broadly than those of Exemption 6. “First, whereas Exemption 6 requires that the
72

United States Dep’t of Def. v. Federal Labor Relations Auth., 510
U.S. 487, 495 (1994).
73

Associated Press v. United States Dep’t of Justice, 549 F.3d 62, 66
(2d Cir. 2008) (citing National Archives and Records Admin. v. Favish, 541 U.S.
157, 172 (2004)).
74

Aguirre, 551 F. Supp. 2d at 53.

75

5 U.S.C. § 552(b)(7)(C).

76

See McCutchen v. United States Dep’t of Health and Human Servs.,
30 F.3d 183, 185 (D.C. Cir. 1994).
18

invasion of privacy be ‘clearly unwarranted,’ the adverb ‘clearly’ is omitted from
Exemption 7(C) . . . Second, whereas Exemption 6 refers to disclosures that ‘would
constitute’ an invasion of privacy, Exemption 7(C) encompasses any disclosure
that ‘could reasonably be expected to constitute’ such an invasion.”77
IV.

DISCUSSION
Plaintiffs contest defendants’ withholding of documents that fall into

four categories, but do not contest numerous other exemptions invoked by
defendants. Thus, I grant defendants’ motion for summary judgment as to the
following categories of documents, which plaintiffs do not dispute:
(1)

redactions of certain ICE internal codes and databases;78

(2)

phone numbers for the National Law Enforcement Communications
Center and the Buffalo Sector duty agent;79

(3)

documents that contain descriptions of a law enforcement technique

77

United States Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 756 (1989) (quoting 5 U.S.C. §§ 552(b)(6), (b)(7)(C)).
78

US000082, US000100, US000113, US000790. See Def. Mem. at 1011; Table of Defendants’ Redactions and Withholdings (“Table”), Ex. C to Opp.
Mem., at 1-3; Reply Memorandum of Law in Support of Defendants’ Motion for
Summary Judgment on Exemptions (“Reply Mem.”) at 1.
79

US000805. See Def. Mem. at 11; Table at 3; Reply Mem. at 1-2.
19

known as a “cold convoy;”80
(4)

names of ICE course instructors;81

(5)

name and phone number of the deputy assistant director of the
Compliance Enforcement Division;82

(6)

name and phone number of the National Fugitives Operations Plan
acting unit chief;83

(7)

phone numbers of Border Patrol agents;84

(8)

names and other personal identifying information of aliens whose
information appears in ICE classroom training materials;85

(9)

other sample training materials from Glynco County Jail;86

80

US000805, US000810. See Def. Mem. at 12; Table at 3; Reply Mem.

81

US000073. See Def. Mem. at 22; Table at 1; Reply Mem. at 2.

82

US000099. See Def. Mem. at 23; Table at 1; Reply Mem. at 2.

83

US000107. See Def. Mem. at 23; Table at 2; Reply Mem. at 2.

84

US000807-808. See Def. Mem. at 23; Table at 4; Reply Mem. at 2.

at 2.

85

US000745-749, 754,759,764, 770, 774. See Def. Mem. at 23; Table
at 3; Reply Mem. at 2.
86

US000755-758, 760-763, 765-769, 771-773, 775-776. See Def. Mem.
at 23; Table at 3; Reply Mem. at 2.
20

(10)

those redactions on the sample I-213s that have not been challenged.87
I now turn to the categories of documents for which plaintiffs contest

defendants’ asserted exemptions.
A.

Buffalo Sector Daily Reports
Defendants withheld in their entirety the six Buffalo Sector Daily

Reports that contain annual apprehension statistics for 2004 through 2009 for the
six Border Patrol stations within Buffalo Sector,88 and the comments pages from
five hundred and eighty-four Buffalo Sector Daily Reports that provide detailed
information on arrests made by Border Patrol agents.89 Plaintiffs argue that those
documents are responsive to their demands and that defendants have improperly
applied FOIA exemptions to withhold the documents.
Specifically, plaintiffs sought information about the percentage of
Rochester Station and Buffalo Sector arrests that were attributable to CBP’s
transportation raids.90 CBP has disclosed the total number of transportation raid
arrests made by the Rochester Station for the years 2006-2009, and the total

87

US000119-735. See Table at 3; Reply Mem. at 1 n.2.

88

US000811-816. See Opp. Mem. at 6.

89

US000867-001518. See Opp. Mem. at 6.; Def. Mem. at 12.

90

See Opp. Mem. at 5.
21

number of all arrests made by the Buffalo Sector for the years 2003-2009.
However, the agency has withheld documents that would reveal the total number
of all arrests made by the Rochester Station for each year, and the total number of
transportation raid arrests by the Buffalo Sector.91 This partial withholding has
prevented plaintiffs from calculating the percentage of arrests attributable to
transportation raids, as was their aim in requesting this information. The missing
data is contained in the six Buffalo Sector Daily Reports that have been withheld in
their entirety.92
Plaintiffs also sought “[a]ny documents that contain any information
regarding arrest quotas, targets, goals and expectations.”93 Defendants identified
US000867-001518 as the comments pages of five hundred and forty-eight separate
Buffalo Sector Daily Reports, which include “details of apprehensions,” and which
have been withheld.94 On the theory that such commentary “will likely convey the
agency’s own reflections on what kinds of arrests are appropriate and expected of
officers,” plaintiffs suggest that those portions of the Buffalo Sector Daily Reports

91

See id.

92

See id.

93

Id. at 6 n.3 (quoting Compl., Tab A, #9; Tab O, #13; Tab P, #11; Tab

R, #2, 3).
94

Id. at 6.
22

would be responsive to their demand.95
To justify their withholding of the specified pages from the Buffalo
Sector Daily Reports, defendants have cited to Exemptions High 2 and 7(E).96 The
briefing in this case was completed just prior to the decision in Milner; as a result,
the parties’ briefs include detailed arguments about the applicability of the now
non-existent High 2 Exemption. However, as the parties suggested in their postMilner letters to the Court, my analysis is little altered, as defendants claimed
Exemptions 7(E) and High 2 concurrently as to those documents.97 In view of
Milner, I address only the applicability of Exemption 7(E) to the contested
documents.
Defendants have withheld the Buffalo Sector Daily Reports under
Exemption 7(E) on the grounds that (1) release of the contested documents risks
enabling circumvention of the law;98 (2) courts have routinely upheld the
invocation of the exemption when matters of national security are at issue, which

95

Id.

96

See id. at 12.

97

See 3/9/11 Letter from Plaintiffs to the Court (“Pl. Letter”); 3/18/11
Letter from Defendants to the Court (“Def. Letter”).
98

See Def. Mem. at 12-14.
23

includes securing of the borders;99 and (3) the fact that the agency has chosen to
disclose a certain subset of apprehension statistics does not signify that it has
waived its right to assert an exemption as to other such statistics.100 For the reasons
explained below, I find that defendants are entitled to withhold some of the
documents, or portions of some of the documents, sought by plaintiffs.
First, I find that defendants must release the portions of the six
Buffalo Sector Daily Reports that indicate the total number of all arrests made by
the Rochester Station for each year, and the total number of transportation raid
arrests within the Buffalo Sector. Such statistics are neither “techniques or
procedures” nor “guidelines,” such that they could be properly exempt under
7(E).101 As a result, I need not reach whether disclosure of such information risks
circumvention of the law.
However, were I to reach the latter issue, I would find that release of
this information does not pose that risk. Plaintiffs are not requesting arrest

99

See id. at 14-15.

100

See id. at 16-18.

101

See Allard K. Lowenstein Int’l Human Rights Project v. Department
of Homeland Sec., 626 F.3d 678, 682 (2d Cir. 2010) (relying on Webster’s
Dictionary to define “guidelines” as “an indication or outline of future policy or
conduct,” “techniques” as “a technical method of accomplishing a desired aim”
and “procedures” as “a particular way of doing or going about the accomplishment
of something”).
24

statistics for each station within the Buffalo sector, which could theoretically aid
circumvention of the law by publicizing the relative activity or success of Border
Patrol agents in effecting apprehensions at each station, as defendants fear.102
Rather, plaintiffs seek information only about the Buffalo Sector as a whole and
Rochester Station in particular. This information will aid plaintiffs in calculating
the percentages that they argue are important to enable the public to understand the
role and significance of transportation-based arrests, but it will not reveal the
comparative strengths and weaknesses of the various stations within the Buffalo
Sector. To the extent that the Daily Reports include arrest data broken down by
station, defendants may redact the information so that only the Rochester Station
arrest data and Buffalo Sector arrest totals are disclosed.
I note also that CBP is not required to create a spreadsheet with this
information, even if it has done so for similar information in the past.103 Rather, it
must simply disclose the documents that contain this information. On the other
hand, if the agency finds it simpler to compile such information into a spreadsheet
rather than to conduct extensive redactions, it may produce such a spreadsheet to
plaintiffs in lieu of the heavily redacted Reports.

102

See Def. Mem. at 14, 17.

103

See id. at 17.
25

Second, I find that defendants must re-evaluate the comments sections
of the five hundred and forty-eight Buffalo Sector Daily Reports and produce those
portions that are responsive and not exempt. Defendants argue that the Reports
contain “a trove of information on Border Patrol’s law enforcement efforts
throughout Buffalo Sector,” and proceed to list a half dozen types of information
that, if disclosed, would risk circumvention of the law.104 As a result, they have
withheld the comments pages of the Reports in their entirety. However, they
should have – and are now ordered to – analyze whether the pages in question
contain non-exempt information that is segregable from exempt information.
For example, plaintiffs have already conceded that certain information
is or may be properly exempt, such as names and identifying information of
arrestees, and “commentary related to surveillance, the use of informants, or the

104

“Names and other identifying personal information of the individuals
arrested; the locations of their arrests, including the train routes, train stations, bus
routes and stations, and other locations around which Border Patrol agents focus
their law enforcement efforts; the names of databases that Border Patrol agents
query to run immigration and criminal history checks on individuals they detain;
the stations in which Border Patrol agents focus their transportation check efforts;
the specific times of day in which Border Patrol agents conduct transportation
checks at certain locations; details on coordination efforts between Border Patrol
agents and other federal and state law enforcement agencies; Border Patrol sources
of information; Border Patrol methods for locating contraband; and other sensitive
law enforcement methods and techniques.” Id. at 12-13 (citing Declaration of
Robert Lewandowski, U.S. Border Patrol Chief of Staff (“Lewandowski Decl.”),
submitted with Defendants’ Motion for Summary Judgment, ¶ 27).
26

identities of arrested individuals and arresting officers.”105 There may be
additional information that is properly exempt, such as Border Patrol methods for
locating contraband, which clearly constitute “techniques and procedures.”106 On
the other hand, certain information has already been disclosed in response to this
FOIA request, thereby waiving defendants’ right to claim exemptions for that
information – in particular, the names of certain databases in which Border Patrol
agents run queries.107
Plaintiffs have made clear the type of information that they seek –
“performance expectations for arrest rates, agency communications with
transportation operators, and inter-agency communications regarding
transportation raids.”108 While the sorts of information that defendants describe as
constituting “sensitive law enforcement methods and techniques”109 may appear in
105

Opp. Mem. at 10.

106

Plaintiffs concede this possibility, stating “[i]f CBP has a particular
non-public technique or method that it wishes to redact, it should so note[.]” Id. at
10. See also id. at 11-12.
107

See id. at 10. Cf. Coastal Delivery Corp. v. United States Customs
Serv., 272 F. Supp. 2d 958, 965-66 (C.D. Cal. 2003) (finding that waiver of right to
argue exemptions exists only if agency “disclosed the exact information at issue”
and that there was no waiver since “merely the same category of information, not
the exact information” had been previously disclosed) (emphasis added).
108

Opp. Mem. at 6.

109

Def. Mem. at 13.
27

the communications between the agencies, and between the agencies and
transportation operators (e.g., Amtrak), that is information that could be redacted
without withholding the documents in their entirety. To the extent that
“performance expectations” are articulated in a prospective manner, they arguably
constitute “guidelines,” and would be exempt if their disclosure would risk
circumvention of the law. However, given the nature of the Buffalo Sector Daily
Reports, I would expect the vast majority of information contained therein to be
retrospective, and therefore not to constitute “guidelines” under FOIA.110
Defendants are ordered to re-assess their assertions of Exemption 7(E)
over the comments pages of each of the five hundred and forty-eight Buffalo
Sector Daily Reports, using this Opinion as guidance, and to disclose all
responsive non-exempt materials that can reasonably be segregated from exempt
materials. Additionally, defendants are required to release the names of the authors
and recipients of the Reports, to the extent that they are agency heads or high-level
subordinates. Such information “does not generally fall within Exemption 6”111
110

See Opp. Mem. at 13.

111

Aguirre, 551 F. Supp. 2d at 53. Cf. Hertzberg v. Veneman,
273 F. Supp. 2d 67, 86 (D.D.C. 2003) (“The release of names and addresses in
government files is not inherently and always a significant threat to privacy, but
rather the privacy threat depends on the individual characteristics that the
disclosure reveals and the consequences that are likely to ensue.”) (quotation marks
and citations omitted).
28

and defendants have provided no evidence to suggest any particular privacy threat
posed by the revelation of these federal employees’ names. The public, on the
other hand, has an interest in knowing whether the Reports reflect the views of the
agency, rather than of particular agency employees.112
My ruling as to this set of documents is not based on waiver by
defendants. While the agency has chosen to release certain information in the past,
that does not mean that it must release other similar information. However, the
fact that the requested information pertains to law enforcement activities along our
nation’s borders, which arguably falls under the broad topic of national security, is
not a sufficient reason to uphold the claimed exemption. The cases cited by
defendants are inapposite insofar as they address the withholding of specific
guidelines, techniques, and procedures, information of a different nature from what
is sought here.113
112

I discuss the applicability of Exemption 6 and 7(C) to the names of
document author and recipients below. That reasoning applies equally to the
authors and recipients of the comments pages of the Buffalo Sector Daily Reports.
113

See Def. Mem. at 15 (citing, inter alia, Center for Nat’l Sec. Studies v.
Immigration and Naturalization Serv., No. 87-2068, 1990 WL 236133, at *5-6
(D.C. Cir. Dec. 19, 1990) (upholding non-disclosure of INS plans in event of
attack on U.S.); Hammes v. United States Customs Serv., No. 94 Civ. 4868, 1994
WL 693717 (S.D.N.Y. Dec. 9, 2004) (upholding non-disclosure of Customs
criteria for stopping passengers); James v. United States Customs and Border
Patrol, 549 F. Supp. 2d 1, 10 (D.D.C. 2008) (upholding non-disclosure of “type of
search” conducted on plaintiff in airport)).
29

B.

Sample Form I-213s114
Defendants have redacted “internal codes or databases” throughout

their production, citing Exemptions High 2 and 7(E), and explaining that “the
release of internal agency case codes used in agency databases could permit
individuals seeking to violate immigration and customs laws to circumvent the law
by fraudulently accessing secure databases and modifying or deleting sensitive
agency records.”115 In their FOIA requests to CBP, plaintiffs sought I-213 arrest
forms, in part “to ascertain whether transportation raids in the interior of the U.S.
further border enforcement goals; whether transportation raids further terrorrelated enforcement goals; and whether CBP officers carrying out transportation
raids arrest persons who are deemed lawfully present by United States Citizenship

114

Plaintiffs claim that defendants asserted Exemption 2 without
concurrent assertion of Exemption 7(E) over this category of documents – the
charge codes contained in Sample Form I-213s (US000119-000735). See Pl.
Letter at 3. However, defendants contend that they did assert Exemption 7(E) over
these documents, by means of citation in their reply brief to a case in which
withholding of “the same charge codes” was upheld under Exemption 7(E),
Unidad Latina en Acción v. United States Dep’t of Homeland Sec., 253 F.R.D. 44
(D. Conn. 2008), and by means of the Lewandowski Declaration. See Def. Letter
at 2. While defendants’ assertion of Exemption 7(E) should have been clearer in
their motion, the Court will consider the exemption to have been asserted,
particularly in light of Milner.
115

Def. Mem. at 10-11.
30

and Immigration Service (‘USCIS’).”116 Defendants have produced a sample set of
I-213 forms, but have redacted certain information, including field 45, which
contains “charge codes.” Charge codes are “used by the agency to indicate the
legal reason an individual was arrested for violation of immigration laws.”117
Plaintiffs argue that disclosure of charge codes cited in the sample I-213s would
help to answer the above questions, which they assert are of significant public
import.118
I find that the charge codes may not be withheld under Exemption
7(E) because, while the I-213 forms constitute “records or information compiled
for law enforcement purposes,” the release of the charge codes contained therein
would not “disclose techniques or procedures for law enforcement investigations
or prosecutions, or . . . guidelines for law enforcement investigations or
prosecutions . . . .”119 Furthermore, as plaintiffs point out, defendants have already
released the catalogue of available charge codes.120 Given that defendants have
116

Opp. Mem. at 15.

117

Id.

118

See id. Plaintiffs do not contest the other redactions made to the
Sample I-213s. See id. at 16 n.8.
119

5 U.S.C. § 552(b)(7)(E).

120

See Opp. Mem. at 16 (citing US000736-743, “Appendix A: Initial and
Final Charge Codes,” (“App’x A”) released by CBP on December 16, 2010, Ex. G
31

already released that general information, it is difficult to imagine how the release
of the codes cited on particular sample I-213 forms will compromise the security of
agency databases or otherwise risk circumvention of the law.
Defendants assert that courts have previously upheld the exact
redactions at issue here. However, the cases that defendants cite are easily
distinguishable in that they reference different sorts of codes,121 or uphold the
exemptions under Exemption High 2, which is no longer effective.122 Defendants
are thus ordered to reproduce the sample I-213 forms without redacting the charge
codes that appear in field 45.

to Opp. Mem.; US000082, “ICE Academy Participant Workbook: I-213
Preparation,” Ex. F to Opp. Mem.).
121

Defendants cite to one case in which the court held that “[a]ny
computer coding or website information on [I-213s] is covered by both
Exemptions (b)(2) High and (b)(7)(E), since the information is internal to DHS and
would disclose information that might significantly risk circumvention of the law.”
Unidad Latina, 253 F.R.D. at 50 (emphasis added). See Reply Mem. at 8.
However, the charge codes sought by plaintiffs in the instant matter are not
“computer coding or website information.” Rather, it is apparent from looking at
the charge code catalogue that the codes correspond to the sections of the
Immigration and Naturalization Act from which the authority to deem an
individual inadmissible arises. See App’x A (indicating, e.g., code I2A2 arises
from INA § 212(a)(1)(A)(ii); code I2B arises from INA § 212(a)(2)(B), etc.).
122

See Def. Mem. at 8 (citing Unidad Latina, 253 F.R.D. at 50; Buffalo
Evening News, Inc. v. United States Border Patrol, 791 F. Supp. 386 (W.D.N.Y.
1992) (upholding redaction of “code words used by the [Border Patrol] to identify
deportability charges,” under High 2, not under 7(E)).
32

C.

Training Memorandum
Defendants have withheld two documents that they have described as

training memoranda.123 The documents were created by attorneys in CBP’s Office
of Assistant Chief Counsel and contain legal analysis and guidance to Border
Patrol agents regarding the use of race or ethnicity in executing their duties, and
analysis of case law concerning racial profiling in law enforcement.124 Defendants
assert Exemption 5 in withholding these documents, claiming that they are
properly protected under the attorney-client privilege and the attorney work
product doctrine.
Plaintiffs make four arguments as to why the memoranda have been
improperly withheld. First, plaintiffs hypothesize that the memoranda describe
“how CBP officers are trained to use, or avoid using, racial profiling while
identifying persons for questioning and arrest.”125 In view of the agency’s public
disavowal of racial profiling, plaintiffs argue that the memoranda are of great
public interest insofar as their disclosure will help to confirm whether or not the

123

US000817-000826, US000827-000866. See Def. Mem. at 19.

124

See Def. Mem. at 19.

125

Opp. Mem. at 19.
33

agency’s practice is in accord with its public stance.126 Plaintiffs harken to the oftrepeated principle in FOIA law that “‘an agency will not be permitted to develop a
body of secret law used by it in the discharge of its regulatory duties and in its
dealings with the public, but hidden behind a veil of privilege.’”127 Accordingly,
plaintiffs ask the Court to order disclosure of these memoranda, “[g]iven the
public’s interest in establishing that, in fact, racial profiling is not used [] in the
course of CBP’s transportation checks.”128
Second, plaintiffs invoke the Supreme Court’s holding that documents
are not protected from disclosure under Exemption 5 if the “documents would be
‘routinely’ or ‘normally’ disclosed [through civil discovery] upon a showing of
relevance.”129 Plaintiffs argue that “CBP’s past disclosure of racial profiling
policies would make it reasonable to expect that they would be ‘routinely’ or
‘normally’ disclosed,” citing CBP’s release of two such memoranda in response to
the initial FOIA request in this matter.130 Third, plaintiffs argue that the documents
126

See id. at 19-20.

127

Id. (quoting Tax Analysts v. Internal Revenue Serv., 391 F. Supp. 2d
122, 130 (D.D.C. 2005) (“Tax Analysts II”)).
128

Id. at 20.

129

Id. (quoting United States Dep’t of Justice v. Julian, 486 U.S. 1, 12

(1988)).
130

Id.
34

were not created in connection with or in contemplation of any particular litigation,
and therefore the attorney work product doctrine does not apply.131 Finally,
plaintiffs argue that the documents were created as part of the agency’s regular
course of business, which also precludes their protection as attorney work
product.132
Plaintiffs’ first and second arguments pertain to both the attorneyclient privilege and the attorney work product doctrine. First, plaintiffs’ guess that
the memoranda may describe how CBP officers should use racial profiling does
not come close to establishing the existence of a body of “secret law,” particularly
because plaintiffs also concede that the memoranda may describe how CBP
officers should avoid using racial profiling, which would be in accordance with the
agency’s public position.133 Furthermore, the secret law doctrine in FOIA cases
generally arises in contexts in which agencies are rendering decisions based on
non-public analyses.134 I am aware of no precedent for evaluating whether law

131

See id. at 21.

132

See id. at 21, 22.

133

See id. at 19.

134

See, e.g., Coastal States Gas Corp., 617 F.2d at 868 (“‘to prevent the
development of secret law within the Commission, we must require it to disclose
orders and interpretations which it actually applies in cases before it’”) (emphasis
added) (quoting Sterling Drug, Inc. v. Federal Trade Comm’n, 450 F.2d 698, 708
35

enforcement policies constitute secret law.
Second, contrary to plaintiffs’ argument, I decline to find that because
CBP has voluntarily disclosed certain memoranda on the same general topic in the
past in response to this very FOIA request, that it “routinely” or “normally”
discloses such information. Nor do I find that CBP has waived its right to assert
privilege over other such memoranda.135
However, I do not reach plaintiffs’ third and fourth arguments
pertaining to the attorney work product doctrine, because I find that the documents
have been properly withheld under the attorney-client privilege. Defendants aver
that the documents were “created by agency attorneys for the purpose of imparting
legal advice to employees of the agency,” and consist of legal analysis and
guidance.136 Thus, the documents fall squarely within the attorney-client privilege
and have been properly withheld under Exemption 5.
D.

Authors and Recipients of the Memorandum and the Email
Defendants have redacted the names, phone numbers and personal

(D.C. Cir. 1971)); Tax Analysts II, 391 F. Supp. 2d at 130 (citing Sears, Roebuck,
421 U.S. 132).
135

See Coastal Delivery Corp., 272 F. Supp. 2d at 965-66.

136

See Def. Mem. at 19. See also Tax Analysts I, 117 F.3d at 618 (“In
the governmental context, the ‘client’ may be the agency and the attorney may be
the agency lawyer.”).
36

identifying information of both arrestees and agency personnel throughout the
document production, citing the privacy concerns embodied in Exemptions 6 and
7(C).137 While not contesting the vast majority of such redactions, plaintiffs seek
disclosure of the names of authors and recipients of two documents produced by
ICE at US000112 and US000114.138 The first document is a memorandum entitled
“Performance Appraisal Element #2,” establishing required case levels for
“Element 2 – Institutional Removal Program and Alien Criminal Apprehension
Program.”139 The second document is an email with the subject line “FW:
Productivity,” listing a number of requirements and expectations, including that
employees “produce a minimum of 3 actual Charging Documents Issued (CDI)
daily.”140 Depicting the content of the two documents as “set[ting] out what
amounts to a quota system,” plaintiffs argue that “the identity and functional role
of these individuals in the agency will indicate to what extent the documents reflect
agency-wide policy.”141 They argue that the public interest at stake overrides the
privacy interests of the federal agency employees who wrote or received the
137

See Def. Mem. at 22.

138

See Opp. Mem. at 23.

139

US000112, Ex. H to Opp. Mem. See also Table, at 2.

140

US000114, Ex. H to Opp. Mem. See also Table, at 2-3.

141

Opp. Mem. at 23.
37

documents.142
1.

Exemption 7(C)

Before examining the balance of privacy and public interests, the
threshold issue is whether the documents in question constitute the types of records
that the exemptions are intended to protect. Specifically, Exemption 7 and its
subdivisions address “records or information compiled for law enforcement
purposes.”143 While ICE is unquestionably a federal law enforcement agency, not
every document produced by ICE personnel has been “compiled for law
enforcement purposes” under FOIA. Courts have generally interpreted Exemption
7 as applying to records that pertain to specific investigations conducted by
agencies, whether internal or external, and whether created or collected by the
agency – in other words, investigatory files.144

142

See id. at 24.

143

5 U.S.C. § 552 (b)(7)(C).

144

See, e.g., Ortiz v. United States Dep’t of Health and Human Servs., 70
F.3d 729, 732 (2d Cir. 1995) (finding letter that HHS’s Office of Inspector General
“used . . . to launch a criminal investigation” qualifies as a law enforcement record
under Exemption 7); Vento v. Internal Revenue Serv., 714 F. Supp. 2d 137, 148
(D.D.C. 2010) (finding documents “compiled in the course of an investigation into
plaintiff’s tax liability” qualify as law enforcement records under Exemption 7, and
compiling cases); Ligorner v. Reno, 2 F. Supp. 2d 400 (S.D.N.Y. 1998) (finding
complaint letter that contained the identity of an individual who accused another of
misconduct within the Department of Justice qualifies as a law enforcement record
under Exemption 7); Lurie v. Department of Army, 970 F. Supp. 19, 36 (D.D.C.
38

The two documents in question here, by contrast, are not investigatory
files. Rather, they are directives regarding the general execution of tasks by
agency personnel. While in a general sense, the tasks described in the two
documents pertain to law enforcement, the documents are not investigatory, and
thus, were not “compiled for law enforcement purposes.” Accordingly, I find that
the names of agency personnel who authored or received the two documents are
not exempt under 7(C) because the documents do not constitute “records or
information compiled for law enforcement purposes.”145
2.

Exemption 6

I next consider the same threshold issue regarding whether the
documents qualify under Exemption 6, as files “similar” to medical or personnel
files. The Supreme Court has interpreted the term “similar files” broadly to
include any “detailed Government records on an individual which can be
identified as applying to that individual.”146 While the privacy right protected by
FOIA “was not intended to turn upon the label of the file which contains the

1997) (finding records pertaining to Army’s informal investigation of military
medical researcher’s representations qualify as law enforcement records under
Exemption 7).
145

5 U.S.C. § 552 (b)(7)(C).

146

Washington Post Co., 456 U.S. at 602 (emphasis added). Accord
Adamowicz v. Internal Revenue Serv., 672 F. Supp. 2d 454, 473 (S.D.N.Y. 2009).
39

damaging information,”147 nor is it the case that every slip of paper on which a
name is written warrants protection.148 The inquiry is “whether the records at issue
are likely to contain the type of personal information that would be in a medical or
personnel file.”149 Such information generally includes “‘place of birth, date of
birth, date of marriage, employment history,’” and other “identifying information,”
though not necessarily “intimate” information.150 Examples of records that would
fall into the “similar files” category include administrative investigatory files,
which could contain personal information about the subject of the investigation and
about third-party witnesses;151 “files [that] would contain . . . the information that

147

Washington Post Co., 456 U.S. at 601.

148

See id. at 602 n.4 (“This construction of Exemption 6 will not render
meaningless the threshold requirement that information be contained in personnel,
medical, and similar files by reducing it to a test which fails to screen out any
information that will not be screened out by the balancing of private against public
interests. As petitioners point out, there are undoubtedly many Government files
which contain information not personal to any particular individual, the disclosure
of which would nonetheless cause embarrassment to certain persons. Information
unrelated to any particular person presumably would not satisfy the threshold
test.”).
149

Wood v. Federal Bureau of Investigation, 432 F.3d at 86.

150

Id. (quoting Washington Post Co., 456 U.S. at 600-01).

151

See id. Obviously certain kinds of investigatory files might fall under
both Exemptions 6 and 7(C).
40

normally is required from a passport applicant;”152 or “[a]ttachments to an
individual’s asylum request consisting of personal history data and supporting
affidavits.”153
The two documents at issue here are nothing like a medical or
personnel file. They are not records “on an individual.”154 Neither document
contains any personal or identifying information apart from the names of the
authors, recipients, and persons identified as “the SCOs.”155 Therefore, the
documents cannot be withheld under Exemption 6, because they do not constitute
“similar files.”
3.

Public Interest Outweighs Privacy Interests

Even if I were to find that the two documents in question constituted
either “records or information compiled for law enforcement purposes” or “similar
files,” I would nonetheless conclude that the public interest in determining whether
the policies set out in those documents are agency-wide or the work of a single
agency employee outweighs the privacy interests of the federal employees in

152

Washington Post Co., 456 U.S. at 600.

153

Phillips v. Immigration and Customs Enforcement, 385 F. Supp. 2d
296, 304 (S.D.N.Y. 2005).
154

Washington Post Co., 456 U.S. at 602.

155

US000114.
41

withholding their names as the authors and recipients of the two documents.
The D.C. Circuit has held that “[FOIA] does not categorically exempt
individuals’ identities . . . because the privacy interest at stake may vary depending
on the context in which it is asserted.”156 While “[t]he privacy interests of U.S.
government officials might be ‘somewhat diminished’ due to the countervailing
interest of the public ‘to be informed about what their government is up to,’”157
federal employees nonetheless maintain “an identifiable privacy interest in
avoiding disclosures of information that could lead to annoyance or harassment.”158
There is, however, persuasive authority for the proposition that information that
“merely identifies the names of government officials who authored documents and
received documents does not generally fall within Exemption 6.”159
Therefore, under either the Exemption 6 standard of whether
disclosure “would constitute a clearly unwarranted invasion of personal privacy”
or the Exemption 7(C) standard of whether disclosure “could reasonably be

156

Judicial Watch, Inc. v. Food and Drug Admin., 449 F.3d 141, 153
(D.C. Cir. 2006).
157

Phillips, 385 F. Supp. 2d at 305.

158

Cawthon v. United States Dep’t of Justice, No. 05-0567, 2006 WL
581250, at *3 (D.D.C. Mar. 9, 2006).
159

Aguirre, 551 F. Supp. 2d at 53.
42

expected to constitute an unwarranted invasion of personal privacy,”160 I find that
the public interest in disclosure outweighs the privacy interest. There is a
substantial public interest in knowing whether the expectations and requirements
articulated in the memoranda reflect high-level agency policy. Significantly,
plaintiffs seek only names, not phone numbers or other more intrusive categories
of personal information. Disclosure of these names, in conjunction with the
already disclosed content of the memoranda, will help to inform the public as to
“what their government is up to,” as the Supreme Court has articulated as the
underlying purpose of FOIA.161 Therefore, defendants must disclose the names of
the authors and recipients of the two documents in question.

160

Reporters Comm., 489 U.S. at 756 (considering the statutory language
and legislative history of 6 and 7(C) to conclude that “the standard for evaluating a
threatened invasion of privacy interests resulting from the disclosure of records
compiled for law enforcement purposes is somewhat broader than the standard
applicable to personnel, medical, and similar files”).
161

Id. at 773. The cases cited by defendants are all easily distinguished
insofar as they uphold the withholding of phone numbers, email addresses,
information pertaining to third parties, and/or names of lower level federal
employees. See Def. Mem. at 23 (citing Budik v. Department of Army, 742 F.
Supp. 2d 20, 38 (D.D.C. 2010) (no public interest in disclosing government
employee’s e-mail address); Amnesty Int’l v. Central Intelligence Agency, No. 07
Civ. 5435, 2008 WL 2519908, at *15-16 (S.D.N.Y. June 19, 2008) (withholding
third party phone number); Phillips, 385 F. Supp. 2d at 308 (withholding telephone
number of government employee); Judicial Watch, Inc. v. United States, 84 Fed.
App’x 335, 338-39 (4th Cir. 2004) (withholding names of lower level federal
employees)).
43

V.

CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment

is granted in part and denied in part, and defendants are directed to make the
additional disclosures ordered by this Opinion by July 1, 2011. The Clerk is
directed to close this motion [Docket No. 25]. A conference is scheduled for July
22,2011 at 5 p.m.

Dated:

New York, New York
June 16,2011

44

-AppearancesFor Plaintiff:
Nancy Babette Morawetz, Esq.
Washington Square Legal Services, Inc.
245 Sullivan Street
New York, New York 10012
For Defendants:
David Bober
Assistant United States Attorney
United States Attorney’s Office
Southern District of New York
86 Chambers Street
New York, New York 10007

45