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

Filing 56

OPINION AND ORDER re: 46 MOTION for Reconsideration re; 41 Order Motion for Partial Reconsideration. MOTION for Reconsideration re; 41 Order Motion for Partial Reconsideration filed by United States Immigration and Customs Enforc ement, United States Customs and Border Protection, United States Department of Homeland Security. It appears that defendants have produced as few documents as they could possibly produce to plaintiffs without serious consequences. Even more troublin g, they have admitted to the existence of as few documents as they could possibly get away with. Defendants approach frustrates plaintiffs, frustrates the Court, and frustrates the purpose of the Freedom of Information Act. Defendants are ordered to produce additional documents consistent with this Order by October 7, 2011. Any documents over which defendants assert exemptions must be produced in redacted form with the relevant FOIA exemptions indicated with specificity by that date. A conferenc e is scheduled for 4 p.m. on Wednesday, October 5, 2011 to discuss the briefing schedules for the parties' summary judgment motions on the adequacy of the search and for the parties' summary judgment motions on FOIA exemptions over any and all documents that were not addressed in the last round of briefing on that issue. The Clerk of the Court is directed to close this motion [Docket No. 46]. (Signed by Judge Shira A. Scheindlin on 9/30/2011) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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

OPINION AND ORDER

Plaintiffs,

10 Civ. 2705 (SAS)

- against­
U.S. CUSTOMS AND BORDER
PROTECTION, U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT, and U.S.
DEPARTMENT OF HOMELAND
SECURITY,
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"), filed 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 represented that their searches yielded certain “hits” that
they nonetheless deemed unresponsive to plaintiffs’ FOIA request.3 Plaintiffs
conceded that many of those documents were nonresponsive, while contesting
defendants’ assertion of nonresponsiveness as to others.4 On August 15, 2011,
after considering both parties’ letter submissions, I ordered the production of those
documents that I determined, based on defendants’ description of the documents,
were responsive to plaintiffs’ FOIA request.5 On August 29, 2011, defendants
moved for partial reconsideration of that Order. Plaintiffs have opposed
defendants’ motion. For the reasons below, defendants’ request is granted in part
and denied in part.
II.

PROCEDURAL HISTORY

2

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

3

See 8/10/11 Letter from Assistant United States Attorney David
Bober, Defendants’ Counsel, to the Court (“8/10/11 Def. Letter”), Ex. E to
Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Partial
Reconsideration of the Court’s August 15, 2011 Order (“Opp. Mem.”).
4

See 8/11/11 Letter from Nancy Morawetz, Esq., Plaintiffs’ Counsel, to
the Court (“8/11/11 Pl. Letter”), Ex. F to Opp. Mem.
5

8/15/11 Order [Docket No. 41].
2

The background and procedural history of this case was described in
detail in this Court’s previous decision of June 16, 2011.6 I describe here only the
procedural history relevant to deciding the instant motion for reconsideration.
Over the course of this litigation, defendants have insisted that many
of the requested documents do not exist.7 Skeptical of that representation,
plaintiffs have sought to conduct discovery. Recognizing that discovery in FOIA
cases is the exception rather than the rule,8 however, I instead urged defendants to
conduct further searches that might be more productive.9 Defendants did indeed
conduct further searches, but plaintiffs maintain that such searches were still
inadequate.10 In addition, defendants have asserted that certain of the documents
yielded by their searches were personal rather than agency records, while plaintiffs
maintain that whether a document is an agency record is for the Court to

6

6/16/11 Opinion & Order [Docket No. 35].

7

See Opp. Mem. at 1.

8

See Carney v. U.S. Department of Justice, 19 F.3d 807, 812 (2d Cir.
1994) (“Affidavits submitted by an agency are ‘accorded a presumption of good
faith,’ Safecard Servs., Inc. v. United States Sec. and Exch. Comm’n, 926 F.2d
1197, 1200 (D.C. Cir. 1991); accordingly, discovery relating to the agency’s search
and the exemptions it claims for withholding records generally is unnecessary if
the agency’s submissions are adequate on their face.”).
9

See Opp. Mem. at 1-2.

10

Briefing on the adequacy of defendants’ searches is forthcoming.
3

determine.11
At a conference on February 1, 2011, I indicated that I would be
willing to review the documents that defendants deemed nonresponsive in camera,
or to review descriptions of the documents to determine whether or not they were
responsive.12 Instead, defendants wrote a letter to the Court on July 13, 2011,
containing a very general description of why CBP had deemed the documents
nonresponsive. Defendants wrote, “the vast majority of the documents were ‘false
positives’ – i.e., they contain words that matched the search terms but, when they
were reviewed, it was apparent that they were not documents that Plaintiffs had
requested.”13 Plaintiffs argued, appropriately, that defendants’ response was
inadequate, as the Court had asked for a description of the particular documents,
not the conclusory paragraph defendants submitted.14
At a conference on July 20, 2011, the Court again gave defendants the
option of submitting the documents for in camera review or providing more
detailed descriptions of the documents.15 On July 21, 2011, plaintiffs sent the
11

See Opp. Mem. at 2.

12

See id. at 3 (citing 2/1/11 Transcript of Proceedings at 22-23).

13

Id. (quoting 7/13/11 Letter from AUSA Bober to the Court).

14

See id.

15

See id. at 3-4.
4

Court a letter providing a description of what they believed would make a
document responsive.16 Defendants opted to provide descriptions of the documents
by letter dated August 10, 2011.17 Plaintiffs responded on August 11, 2011,
conceding the nonresponsiveness of certain documents while stating their
objections and their bases for believing that other documents were responsive.18
Defendants did not reply to plaintiffs’ letter.19 On August 15, 2011, I issued an
Order requiring the release of certain documents by August 29, 2011. Instead, on
that date, defendants filed the instant motion for reconsideration.
On August 30, 2011, I asked defendants to submit the contested
documents for in camera review, along with “additional information regarding the
Microsoft Word document containing a Border Patrol employee’s meeting notes,”
specifically, “information regarding how the notes were kept and whether they
were ever distributed, circulated, or sent in any fashion to any other agency
employee.”20 Defendants finally submitted the documents for in camera review,
16

See id. at 4 (citing 7/21/11 Letter from Morawetz to the Court, Ex. C
to Opp. Mem.).
17

See id. (citing 8/10/11 Def. Letter).

18

See id. (citing 8/11/11 Pl. Letter).

19

See id. (quoting 8/30/11 Email from the Court to AUSA Bober,
copied to Morawetz (“8/30/11 Ct. Email”)).
20

Id. (quoting 8/30/11 Ct. Email).
5

and subsequently submitted a letter from counsel providing the information
requested by the Court.21
III.

APPLICABLE LAW
A.

Standard for Reconsideration
Motions for reconsideration are governed by Rule 6.3 of the Local

Rules of the United States District Courts (“Local Civil Rule 6.3”) and are
committed “‘to the sound discretion of the district court.’”22 A motion for
reconsideration is appropriate where “‘the moving party can point to controlling
decisions or data that the court overlooked – matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court.’”23 A motion
for reconsideration may also be granted to “‘correct a clear error or prevent
manifest injustice.’”24 The purpose of Local Civil Rule 6.3 is to “‘ensure the
finality of decisions and to prevent the practice of a losing party examining a

21

See id.

22

Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009) (quoting Nemaizer v.
Baker, 793 F.2d 58, 61-62 (2d Cir. 1986)).
23

In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003) (quoting
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
24

RST (2005) Inc. v. Research in Motion Ltd., No. 07 Civ. 3737, 2009
WL 274467, at *1 (S.D.N.Y. Feb. 4, 2009) (quoting Virgin Atl. Airways, Ltd. v.
National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
6

decision and then plugging the gaps of a lost motion with additional matters.’”25
Local Civil Rule 6.3 must be “narrowly construed and strictly applied so as to
avoid repetitive arguments on issues that have been considered fully by the
Court.”26 Courts have repeatedly warned parties that motions for reconsideration
should not be made reflexively in order to reargue “‘those issues already
considered when a party does not like the way the original motion was
resolved.’”27 A motion for reconsideration is not an “opportunity for making new
arguments that could have been previously advanced,”28 nor is it “‘a substitute for

25

Grand Crossing, L.P. v. United States Underwriters Ins. Co., No. 03
Civ. 5429, 2008 WL 4525400, at *3 (S.D.N.Y. Oct. 6, 2008) (quoting S.E.C. v.
Ashbury Capital Partners, No. 00 Civ. 7898, 2001 WL 604044, at *1 (S.D.N.Y.
May 31, 2001)). Accord Commerce Funding Corp. v. Comprehensive Habilitation
Servs., Inc., 233 F.R.D. 355, 361 (S.D.N.Y. 2005) (“[A] movant may not raise on a
motion for reconsideration any matter that it did not raise previously to the court
on the underlying motion sought to be reconsidered.”).
26

United States v. Treacy, No. 08 Cr. 0366, 2009 WL 47496, at *1
(S.D.N.Y. Jan. 8, 2009) (quotation marks omitted). Accord Shrader v. CSX
Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995) (holding that a court will deny the
motion when the movant “seeks solely to relitigate an issue already decided.”).
27

Makas v. Orlando, No. 06 Civ. 14305, 2008 WL 2139131, at *1
(S.D.N.Y. May 19, 2008) (quoting In re Houbigant, Inc., 914 F. Supp. 997, 1001
(S.D.N.Y. 1996)).
28

Associated Press v. United States Dep’t of Defense, 395 F. Supp. 2d
17, 19 (S.D.N.Y. 2005).
7

appeal.’”29
B.

FOIA
Under FOIA, “each agency, upon any request for records which (i)

reasonably describes such records and (ii) is made in accordance with published
rules . . . shall make the records promptly available to any person.”30 “In
responding . . . to a request for records, an agency shall make reasonable efforts to
search for the records in electronic form or format . . .”31 “[T]he term ‘search’
means to review, manually or by automated means, agency records for the purpose
of locating those records which are responsive to a request.”32
IV.

DISCUSSION
A.

Partial Reconsideration Is Appropriate
Plaintiffs urge, in the first instance, that the Court deny the motion on

the grounds that defendants have failed to meet the standard for reconsideration.33
Plaintiffs argue that defendants “offer no previously unavailable facts or evidence,

29

Grand Crossing, 2008 WL 4525400, at *4 (quoting Morales v.
Quintiles Transnational Corp., 25 F. Supp. 2d 369, 372 (S.D.N.Y. 1998)).
30

5 U.S.C. § 552(a)(3)(A).

31

Id. § 552(a)(3)(C).

32

Id. § 552(a)(3)(D).

33

See Opp. Mem. at 5-6.
8

and do not demonstrate that the Court has overlooked the arguments they presented
during litigation.”34 Plaintiffs posit further that the motion for reconsideration “is
merely a transparent attempt to pursue theories that Defendants failed to present
properly to the Court during litigation.”35
Defendants counter that
[t]he Court’s order to produce the documents in question
did not come after extensive briefing and argument, or even
anything that would suffice as an appellate record; rather
the sole record the Court had before it was one letter in
which the Government (pursuant to Court order) provided
descriptions of forty-one ‘hits’ and attachments falling into
eighteen different categories[.]36
Plaintiffs’ frustration is understandable. This litigation has dragged
on for far too long, and obtaining information from defendants has – to put it
charitably – not been easy. However, while defendants have had ample time to
present the arguments they now make, it is less clear that they have had the
opportunity to do so. Certainly, defendants have written letters to the Court in
which they have failed to make such arguments, and they have repeatedly ignored
the Court’s request for in camera review of the documents or for detailed

34

Id. at 6.

35

Id. at 7.

36

Reply Memorandum of Law in Support of Defendants’ Motion for
Partial Reconsideration of the Court’s August 15, 2011 Order (“Reply Mem”) at 1.
9

descriptions. Nonetheless, this is the first point at which the Court has ordered
formal briefing on the issue of responsiveness. Thus, in the interests of both
correcting material error and preventing clear injustice, it is appropriate to consider
defendants’ arguments, even if they were never fully presented prior to the motion
for reconsideration. I will now consider the responsiveness of each set of disputed
documents, based on my in camera review, as well as the arguments of counsel.
B.

Emails with the Subject Heading “Faxing of I-213s” Are Not
Responsive to Plaintiffs’ FOIA Requests
As described by defendants, these documents consist of “[t]wo email

chains with the subject heading ‘faxing of I-213[s]’. . . . inform[ing] various
employees in Buffalo Sector that they were no longer required to fax I-213s on a
daily basis.”37 Plaintiffs argue that the documents are responsive insofar as “[t]hey
are related to the ongoing monitoring of arrest report information and therefore
relate to the FOIA request for information on performance and expectations
(4/2010 CBP, ¶[¶] 13, 14).”38 Defendants fail to directly respond to plaintiffs’
argument, and instead argue that the documents are not responsive to other

37

Opp. Mem. at 10 (quoting 8/10/11 Letter from Defendants to the

Court).
38

Id. (quoting 8/11/11 Letter from Plaintiffs to the Court).
10

components of plaintiffs’ FOIA request.39 Having now had the opportunity to view
the documents in camera, I no longer believe that they are responsive to plaintiffs’
FOIA request.
Plaintiffs argue that the documents are responsive to two components
of their FOIA request:
(13) Any documents that contain any information regarding
arrest quotas, targets, goals and expectations that BP
officers operating in the Rochester BP Station and the
Buffalo BP Sector were required to meet for the years
2003, 2004, 2005, 2006, 2007, 2008, and 2009.
(14) Performance review standards for BP officers
operating in the Rochester BP Station and the Buffalo BP
Sector for the years 2003, 2004, 2005, 2006, 2007, 2008
and 2009.40
Plaintiffs now argue that “documents that monitor arrest information are related to
expectations about arrests.”41 Leaving aside the confusing grammatical
formulation of “documents that monitor . . . information,” I do not agree that
documents that address purely administrative details of conveying information
regarding arrests – as is now clear to me after reviewing the documents – are
encompassed in plaintiffs’ request for “any information regarding arrest . . .

39

See Memorandum of Law in Support of Defendants’ Motion for
Partial Reconsideration of the Court’s August 15, 2011 Order (“Def. Mem.”) at 2.
40

4/2/10 FOIA Request, Ex. O to Compl. at 2 (emphasis added).

41

Opp. Mem. at 11.
11

expectations.” If plaintiffs did mean to include such documents, I do not find that
their request “reasonably describe[s]” the records they sought, and I decline to find
that defendants should have somehow divined plaintiffs’ intent.42 I therefore
withdraw that portion of the August 15, 2011 Order that directed defendants to
release the two email strings with the subject heading “Faxing of 213s.”
C.

Emails with the Subject Heading “Fiscal Year 2010 Cash Award
Targets” Are Not Responsive to Plaintiffs’ FOIA Requests
Defendants have described these documents as “giv[ing] information

to the stations within Buffalo Sector about how much money each will be allocated
to give cash awards to employees who demonstrate excellent performance in their
job duties.”43 Plaintiffs argue that the documents directly relate to their request for
“documents related to performance standards and expectations.”44 They add that
the “document finally brings to light the existence of a cash reward program that
creates incentives based on standards of performance for CBP officers.”45
Plaintiffs may be correct that these documents are evidence that “there
was a program for evaluating performance that necessarily conveys expectations

42

5 U.S.C. § 552(a)(3)(A).

43

Opp. Mem. at 12 (quoting 8/10/11 Def. Letter).

44

Id. (quoting 8/11/11 Pl. Letter).

45

Id. at 13.
12

about performance.”46 However, having reviewed the documents in camera, I
conclude that these are not the program documents that convey expectations about
performance in a manner that would be responsive to plaintiffs’ FOIA request.
These documents are, as defendants have maintained, administrative and fiscal.
They do not convey any substantive information about “arrest . . . expectations”47
or “performance . . . standards.”48 They merely set out deadlines, procedures, and
figures. Furthermore, the documents suggest that the cash awards may have been
available to reward the superior work of any CBP employee, including those
whose job tasks have nothing to do with making arrests, such as a secretary or
janitor. I therefore withdraw that portion of the August 15, 2011 Order that
directed defendants to release the emails with the subject heading “Fiscal Year
2010 Cash Award Targets.”
Plaintiffs may well be right that the existence of these documents
strongly suggests that there are other “documents about this program that would
have been responsive to Plaintiffs’ request about expectations,”49 as it is very

46

Id.

47

4/2/10 FOIA Request ¶ 13.

48

Id. ¶ 14.

49

Opp. Mem. at 13 (emphasis added).
13

difficult to believe that these documents are “the only one[s] that exist[] with
respect to the cash reward program.”50 Plaintiffs may wish to make this argument
when they brief the adequacy of defendants’ search.
D.

Emails with Subject Heading “RFI Tasking” Are Responsive to
Plaintiffs’ FOIA Request
This email chain consists of an “original email . . . request[ing]

official definitions of ‘transportation check’ and ‘transit nodes,’ and also
request[ing] certain transportation check apprehension statistics,” followed by
emails containing “followup questions, requests for clarification, and similar workrelated internal communications.”51 Defendants have produced to plaintiffs
redacted copies of the email attachments, which contain statistics, but argue that
the emails themselves are not responsive because they contain “no arrest statistics,
staffing levels, information regarding arrest quotas, performance standards, or the
like.”52
Plaintiffs argue that the email chains are directly responsive because
they are “from the CBP Deputy Chief of Staff and directly address apprehension

50

Id.

51

Def. Mem. at 4.

52

Id.
14

statistics related to transportation checks.”53 Further, “[t]hey are directly relevant
to our request for statistical information since they explain the categorization of the
statistics. (4/2010 request to CBP ¶[¶] 2, 3). They are also directly relevant to our
request for information on expectations, since they show particular attention to
transportation arrests. (4/2010 request to CBP, ¶[¶] 13, 14).”54
I find that defendants have inappropriately separated “parent-child”
pairs by withholding the ostensibly nonresponsive “parent” while producing the
responsive “child.” In so doing, defendants have created an artificial distinction
between the attachments, which contain the statistics, and the emails, which solicit,
provide, define, categorize, and otherwise discuss those same statistics. Context
matters. The attachments can only be fully understood and evaluated when read in
the context of the emails to which they are attached. That is the way they were
sent and the way they were received. It is also the way in which they should be
produced. Accordingly, I find that the emails are responsive to plaintiffs’ FOIA
request for statistical information. I therefore reaffirm that portion of the August
15, 2011 Order that directed defendants to produce the email chains with the
subject heading “RFI Tasking” to plaintiffs.

53

Opp. Mem. at 14 (quoting 8/11/11 Pl. Letter).

54

Id.
15

Furthermore, plaintiffs correctly note that the existence of these
documents belies defendants’ earlier, always dubious claim that statistics are not
collected and kept at the national level.55 Plaintiffs may wish to raise this issue in
their motion on the adequacy of the search.
E.

DOJ Memorandum Is Responsive to Plaintiffs’ FOIA Request
This document is a “memorandum from December 2009 authored by

an Assistant United States Attorney in the Western District of New York to the
chief of the office’s civil division, opining on the scope of potential liability of
Border Patrol agents performing searches aboard Amtrak trains.”56 Plaintiffs argue
that the letter is “responsive to our request for documents related to standards
governing the conduct of CBP officers during transportation arrests.”57 In their
motion to reconsider, defendants have once again disregarded plaintiffs’ basis for
claiming responsiveness, arguing that “it is difficult to see how it could possibly
qualify as an agreement, understanding, or communication between Border Patrol
and Amtrak.”58

55

See id. at 15.

56

Id. (quoting 8/10/11 Def. Letter).

57

Id. (quoting 8/11/11 Pl. Letter).

58

Id. at 16 (quoting Def. Mem. at 5).
16

I find that this document is responsive to plaintiffs’ request for “[a]ny
materials concerning the standards that apply to the conduct of CBP officers at the
border as well as in the interior of the United States.”59 I therefore reaffirm the
portion of the August 15, 2011 Order that directed defendants to produce the DOJ
memorandum. I am certain – as plaintiffs have suggested – that defendants will
assert one or more FOIA exemptions over this memorandum. Any such assertion
must be made by October 7, 2011.
F.

Meeting Notes Are Agency Records And Are Responsive to
Plaintiffs’ FOIA Request
This document is “[a] Microsoft Word document containing notes

from a meeting that took place between Border Patrol and Amtrak Police personnel
in March 2008.”60 Plaintiffs argue that it is “directly responsive to our request for
communications . . . . [I]f there was an in person meeting, there were
communications and those communications were memorialized in this set of notes.
The notes may also include agreements or understandings.”61 Defendants argue
first, that the document is not an agency record, because it is “merely the notes of a

59

4/2/10 FOIA Request ¶ 20.

60

Opp. Mem. at 16 (quoting 8/10/11 Def. Letter).

61

Id. (quoting 8/11/11 Pl. Letter).
17

meeting made by one employee.”62 Second, defendants argue that “even if the
notes were an agency record, they are not an understanding, agreement, or
communication between Border Patrol and Amtrak.”63
Defendants are wrong on both scores. First, I find that the notes are
an agency record under the totality of the circumstances standard that the Second
Circuit adopted in Grand Central Partnership v. Cuomo.64 The relevant factors in
that test are:
(i) the circumstances that led to the creation (or
“generation”) of the document; (ii) the purpose for which
the document was created; (iii) the document’s actual use,
including “the extent to which the creator of the document
and other employees acting within the scope of their
employment relied upon the document to carry out the
business of the agency;” and (iv) the maintenance of the
document would be considered to determine whether a
document is an “agency record” and not an employee’s
personal record.65
I find that the circumstances that led to the creation of the document in
question are clear: the notes were taken by an Assistant Chief Border Patrol Agent

62

Def. Mem. at 5.

63

Id.

64

166 F.3d 473, 479 (2d Cir. 1999) (citing Bureau of National Affairs v.
United States Department of Justice, 742 F.2d 1484 (D.C. Cir. 1984)).
65

Grand Cent. P’ship, 166 F.3d at 479 (quoting Bureau of Nat’l Affairs,
742 F.2d at 1492-93).
18

during a meeting between CBP and Amtrak at a time when CBP’s statistics reveal
that nearly two-thirds of all CBP arrests in Rochester Station occurred on trains
and buses.66 The purpose for which the document was created is also clear: to
memorialize the discussion and outcomes of the meeting. The document takes the
form of meeting minutes, of the sort that are commonly produced following
business meetings.
The document’s actual use is less clear, although plaintiffs make a
compelling argument that “an agency supervisor’s notes of a meeting between the
agency and an organization it collaborated with to ‘routinely inspect’ trains . . .
almost certainly formed the basis for a number of directives (whether oral or
written) issued to his employees[.]”67 The Second Circuit has emphasized the
significance of this factor, noting “[t]he importance of a court’s evaluation of the
use to which such documents were and might be put by the agency and its staff
cannot be overestimated.” 68
My in camera review of the document persuades me that this
document was likely intended for some official agency use. The document is not

66

See Opp. Mem. at 18 (citing Declaration of Morawetz, Ex. G to Opp.

Mem., ¶ 3).
67

Id.

68

Grand Cent. P’ship, 166 F.3d at 480 (emphasis in original).
19

the computerized equivalent of scribbled notes – unlabeled, unformatted, and
replete with abbreviations and incomplete sentences – which would suggest that
the notes were intended only for the author’s own use.69 On the contrary, the
document is labeled, the date is written out, the full names of the individuals in
attendance are listed along with their titles and affiliations, there are section
headings, every sentence is complete, and the document is formatted neatly. Every
indication is that this is a document that the author spent some time producing for
use by other agency personnel, strongly tipping the balance toward it being an
agency record.
As for maintenance of the document, defendants have represented that
the notes were “generated by one employee and maintained by him exclusively on
the [personal drive] of his desktop and were not filed as part of an official Agency
file or distributed through normal Agency channels.”70 Defendants have further
represented that “[t]he Agency has searched the emails and hard drives of the other
Border Patrol personnel who attended the meeting and there is no evidence that the
69

Cf. Sibille v. Federal Reserve Bank, 770 F. Supp. 134, 138 (S.D.N.Y.
1991) (finding handwritten notes that only partially reflected conversations, in
which employee made no effort to complete omissions, that were kept in a locked
drawer, and that had never been reviewed by anyone other than employee, were
created by employee “for his own personal convenience” and thus were not
“agency records” under FOIA).
70

9/9/11 Letter from AUSA Bober to the Court at 1.
20

notes were sent to them.”71
As plaintiffs point out, this information was presented in the form of a
letter from counsel rather than a sworn affidavit by the document’s author or other
agency representative. Defendants have indicated that they did not understand the
Court’s request to be for an affidavit, but they are willing to obtain one.72
Although defendants are correct that the Court only requested “additional
information,” and did not ask for an affidavit per se, defendants bear the burden “to
demonstrate . . . that the materials sought are not ‘agency records.’”73 It is not a
court’s responsibility to inform counsel of the agency’s legal burden. As long ago
as January 28, 2011, defendants were on notice that plaintiffs rejected their
argument that the documents in question were personal rather than agency
records.74 Defendants have had ample time in which to substantiate their argument
that these documents are not agency records. I am simply not willing to delay
decision in order to give defendants yet another opportunity to present arguments

71

Id.

72

Reply Mem. at 6.

73

United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3

(1989).
74

See 1/28/11 Letter from Morawetz to the Court (“1/28/11 Pl. Letter”),
Ex. A to Opp. Mem., at 5-6 (citing Bureau of National Affairs, 742 F.2d at 149294; Grand Cent. P’ship, 166 F.3d at 480-81; Sibille, 770 F. Supp. at 138).
21

or evidence that they could easily have presented months ago. Furthermore, even
if defendants were to submit an affidavit making the same representations that
appear in counsel’s letter, that would not tip the balance in the “totality of the
circumstances” analysis, given my findings as to the other factors. Therefore, I
find that this document is an agency record.
Second, I find that the document is clearly responsive to plaintiffs’
FOIA request. It memorializes oral understandings, agreements, and
communications. Once again, defendants have long been on notice that plaintiffs
intended their request for “agreements, understandings, or communications”75 to
include communications that were never reduced to written form.76 I have no
doubt that defendants will assert FOIA exemptions over this document, which
must be done with specificity by October 7, 2011.
V.

CONCLUSION
It appears that defendants have produced as few documents as they

could possibly produce to plaintiffs without serious consequences. Even more
troubling, they have admitted to the existence of as few documents as they could
possibly get away with. Defendants’ approach frustrates plaintiffs, frustrates the
75

4/2/10 FOIA Request ¶ 18.

76

See 1/28/11 Pl. Letter (citing 1/4/11 Transcript of Proceedings at 3-4;
1/3/11 Plaintiffs’ Letter at 8-9; 10/29/11 Plaintiffs’ Letter at 12).
22

Court, and frustrates the purpose of the Freedom of Information Act.
Defendants are ordered to produce additional documents consistent
with this Order by October 7, 2011. Any documents over which defendants assert
exemptions must be produced in redacted form with the relevant FOIA exemptions
indicated with specificity by that date. A conference is scheduled for 4 p.m. on
Wednesday, October 5,2011 to discuss the briefing schedules for the parties'
summary judgment motions on the adequacy of the search and for the parties'
summary judgment motions on FOIA exemptions over any and all documents that
were not addressed in the last round of briefing on that issue. The Clerk of the
Court is directed to close this motion [Docket No. 46].

SO ORDERED:

Dated:

New York, New York
September 30, 2011

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--~~-~

---~

--~--~

-AppearancesFor Plaintiffs:
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

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