American Civil Liberties Union Foundation v. Department Of Homeland Security et al
OPINION re: 33 MOTION for Summary Judgment filed by U.S. Customs and Border Protection, 38 MOTION for Partial Summary Judgment filed by American Civil Liberties Union Foundation. The CBP motion for summary judgment w ith respect to Exemption 7(E) is denied and with respect to Exemptions 6, 7(C), 7(F) is granted. The ACLUF motion for summary judgment with respect to Exemption 7(E) is granted and denied with respect to Form 93, and the ORR and ICE production. (Signed by Judge Robert W. Sweet on 3/22/2017) (ras)
UN IT ED STATES DISTRICT COURT
SOU THERN DISTRICT OF NEW YORK
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AMERICAN CIVIL LIBERTIES UN I ON
Pla i nt iff,
15 Civ . 9020
- against -
DEPARTMENT OF HOMELAND SECURITY ,
U. S. CUSTOMS AND BORDER PROTECTION,
U. S. IMMIGRATION AND CUSTOMS ENFORC EMENT ,
U.S. CIT IZENSH IP AND I MMIGRAT I ON SERV I CES ,
DEPARTMENT OF HEALT H AND HUMAN SERVICES ,
OF FI CE OF REFUGEE RESE TTLEMENT,
A P P E A R A N C E S:
Attorneys for Plaintiff
ACLU FOUNDATION IMMIGRANTS' RIGHTS PROJECT
390 Drumm Street
San Francisco, CA 94111
Ceci ll ia Derphine Wang , Esq.
AMER I CAN CIVI L LIBERTIES UNION , WOMEN' S RIGHT S PROJECT
125 Bro ad Street
New York , NY 1 0004
Omar C. Jadwat , Esq .
CARDOZO IMMIGRATION JUSTIC E CLINIC
55 Fifth Avenue
New York , NY 1 0003
By : Lindsay Cotten Nash , Esq.
Attorneys for Defendants
JOON H. KIM
Acting U.S. Attorney for the Southern District of N.Y
86 Chambers Street, Third Floor
New York, NY 10007
Elizabeth Tulis, Esq.
Caleb Hayes-Deats, Esq.
Defendant United States Customs and Border Protection
("CBP" or the "Government") has moved for partial summary
judgment pursuant to Rule 56 F. R. Civ . P.
(Exemptions 6, 7 (C) ,
7(E) , and 7(F) of the Freedom of Information Act ("FOIA" ) , 5
552(b) (6) ,
(F)) upholding CBP's decision
to withhold certain questions and answers put to alien minors
suspected of smuggling. The plaintiff American Civil Libertie s
Union Foundation ("ACLUF" or the "Plaintiff") has cross - moved
pursuant to Rule 56 , F. R. Civ . P. to compe l release of
documents redacted by CBP and to compel U.S. Immigrations and
Customs Enforcement ("ICE") and the Office of Refugee
("ORR") to respond to the ACLUF's FOIA requests.
Based upon the facts and conclus ions set forth below,
the CBP motion is denied in part and granted in part and the
ACLUF motion is granted in part and denied in part with leave
granted to renew.
On November 25, 2014, the ACLUF filed an FOIA request
seeking "[a]ll records relating to the Juvenile Referral Program
('JRP') ."The JRP was pilot program implemented by CBP to deal
with the exploitation of juveniles by criminal organizations
along the border between the United States and Mexico. The CBP
determined that criminal organizations used unaccompanied alien
children ("UACs" ) from Mexico to smuggle aliens and narcotics,
expecting that authorities in the United States would not
prosecute the juveniles and would instead allow them to
voluntarily return to Mexico. Under the JRP, CBP stopped
permitting Mexican UACs who were suspected of smuggling to
v o luntarily return to Mexico, and instead referred them to the
ORR. The procedures applied by the JRP parallel CBP's procedures
for UACs from non-contiguous countries. The JRP differed from
CBP's procedures for UACs from non-contiguous countries to the
extent that, because CBP by definition suspected the minors in
the JRP of having committed a crime, its referrals to ORR
generally requested secure placement. CBP terminated the JRP in
On July 22, 2015, CBP produced 113 pages of records in
response to the ACLUF's request. On July 30, 2015, Plaintiff
administratively appealed the July 22, 2015, response, arguing
that the response had not included existing documents that fell
within the scope of the request.
On November 17, 2015, Plaintiff filed the instant
suit. Three days later, the ACLUF filed a second FOIA request
that updated its November 25, 2014 , request by seeking all
documents relating to the JRP from between November 26 , 2014,
and November 20 , 2015. The ACLUF subsequently amended its
complaint to incorporate the November 20 , 2015, request into
During the course of this lawsuit, CBP has produced
over 1,000 pages of documents concerning the JRP. These
documents include internal memoranda describing the JRP,
retrospective analyses of the JRP's effectiveness, presentations
explaining the JRP to CBP offic ials, forms associated with the
JRP, standard operating procedures, correspondence with legal
service and advocacy organizations concerning the JRP, internal
emails about individual aliens processed through the JRP (with
identifying information redacted), and the memorandum announcing
the termination of the JRP. CBP has also provided spreadsheets
that contain limited information about every alien minor
processed through the JRP, including his or her country of
birth, age, gender, date of arrest, processing disposition,
incidents of recidivism, time in CBP custody, and type of
placement with ORR.
Certain documents produced by CBP contain a list of
questions that CBP poses to minors suspected of smuggling,
together with the minors' answers to those questions. These
questions and answers appear in different types of documents,
including forms entitled "Unaccompanied Alien Child (UAC) - JRP
Secure Placement Referral Form," and emails sent by CBP
The material redacted consists of twenty-five to
thirty questions that CBP routinely asks in order to elicit
information about smuggling and other criminal activity in which
the minor and others may have engaged. CBP has also redacted the
minors' answers to those questions.
After CBP redacted the interview questions and the
accompanying answers from the documents it produced, ACLU
challenged those redactions. Despite negotiating in good faith
over the appropriateness of the redactions, the parties failed
to reach agreement.
The instant motion and cross -moti on were heard and
marked fully submitted on October 27 , 2016.
The facts are set forth in the July 22 , 2016
declarations of Shari Suzuki ("Suzuki") , the September 19, 2016
Declaration of Fernando Pineiro ("Pineiro") and the Supplemental
Declaration of Shari Suzuki ("Suzuki Supp."), the September 16,
2016 Declaration of Kimberly N. Epstein ("Epstein") submitted on
behalf of CBP and the Plaintiff's Statement pursuant to Local
Civil Rule 56.1.
The Declarations submitted by CBP include the
The examples of documents submitted by CBP demon strate
that CBP has not redacted all indications of the types of
information it attempts to obtain from minors suspected of
smuggling and reflect that CBP records the minors' names,
aliases, apprehension date, tattoos, and affiliation with any
criminal organization, behavioral issues, and prior criminal
history. The redactions challenged by the ACLU consist of
twenty-five to thirty questions that CBP routinely asked as part
of the JRP in order to elicit information about smuggling and
other criminal activity in which the minor and others may have
engaged. ACLUF has also challenged CPB's redaction of the
minors' answers to those questions.
The questions in the JRP forms, which CBP routinely
poses to minors it suspects of smuggling, themselves constitute
a technique CBP uses to investigate smuggling and crimes related
to the exploitation of minors. This technique was devised in
order to elicit information regarding the affiliations between
the suspected juvenile smugglers and each other, criminal
organizations, and gangs, as well as information about their
modus operandi. Exemption (b) (7) (E) has been applied by CBP to
protect the law enforcement techniques used in questioning
suspected juvenile smugglers of humans or illegal drugs and
deciding how to respond and ask follow-up questions based on the
answer elicited. Some of the information withheld presents
situational responses, instructing the questioner that, "if a
reply is received, then the b follow-up may be required because
of x, y, and z considerations." Even though CBP has terminated
the JRP, it continues to use these interview questions, as well
as other similar questions that explore related topics, in
carrying out its law enforcement responsibilities.
Although the public is aware that suspects are
questioned or interrogated following detention or arrest, the
Government asserts that the specific questions and the actual
questioning techniques are not generally known to the public.
Release of this information could facilitate circumvention of
the techniques and procedures related to the interrogation of
juvenile smugglers who have been apprehended or detained while
smuggling people or drugs into the United States. Criminal
organizations exploiting juveniles could coach them on how to
respond to CBP's questions and how to avoid providing
information that might prove useful to CBP.
The specific questions and follow-ups in the JRP
forms, which CBP routinely poses to minors it suspects of
smuggling, might constitute a technique and procedure that CBP
uses to investigate smuggling and crimes related to the
exploitation of minors. The Government asserts that these
questions and follow ups were devised in order to elicit
information regarding the affiliations between and among the
suspected juvenile smugglers, criminal organizations, and gangs,
as well as information about their modus operandi. Some of the
information withheld presents situational responses, instructing
the questioner that, "if a reply is received, then the b followup may be required because of x, y, and z considerations."
Although CBP has terminated the JRP, it continues to use these
interview questions, as well as other similar questions that
explore related topics, in carrying out its law enforcement
responsibilities. The specific set of questions and follow-ups
used in the JRP is not generally known to the public.
In challenging CBP's invocation of Exemption
(b) (7) (E), the ACLU cites clips from the television series
"Border Wars." However, the Government asserts that none of the
clips cited depicts the specific set of questions and follow-ups
utilized by CBP in the JRP.
Release of the information could facilitate
circumvention of the techniques and procedures related to the
interrogation of juvenile smugglers who have been apprehended or
detained while smuggling people or drugs into the United States.
If the specific list of questions and follow-ups were made
public, criminal organizations exploiting juveniles could more
effectively coach them on how to respond to CBP's questions and
how to avoid providing information that might prove useful to
This set of questions and follow-ups -
particular terminology used, the order of questions, and the
directions for situational follow-ups - was carefully
calibrated, based on intelligence and prior experiences and
observations of smuggling activities at the border, to elicit
specific information from the juveniles interviewed as part of
the JRP. The particular information the questions and follow-ups
were designed to elicit includes both information that would
shed light on the smuggling operations and trafficking
operations, and information that would help CBP understand the
abuse and exploitation to which juvenile smugglers are often
The Office of Refugee Resettlement ("ORR")
is part of
the Administration for Children and Families ("ACF" ), which is
an operating division of HHS. ACF has jurisdiction over FOIA
requests seeking records originating within ACF .
The only withholding by ACF challenged in the ACLU's
pending motion is the redaction , pursuant to FOIA Exemption
(b) (5), of portions of the JRP Memorandum dated May 4, 2015,
which was originally produced to the ACLU on February 19, 2016.
The ACLU challenged the redaction of portions of the "Overview"
section of the JRP Memorandum. On September 16, 2016, via
counsel, ACF produced to the ACLU a reprocessed version of the
May 4, 2015, JRP Memorandum. In the reprocessed JRP Memorandum
only three sentences remain redacted in the "Overview" section.
The remaining redactions are found in the sections titled
"Issues" and "Recommendations."
ACF's searches, processing, and productions of ORR
records in response to the ACLU's FOIA request are not yet
Because ACF's searches, processing, and productions
are not yet complete, this declaration addresses only the ACLU's
challenge to ACF's withholding, pursuant to Exemption (b) (5), of
certain information in the JRP Memorandum dated May 4, 2015 (the
Exemption (b) ( 5) exempts from disclosure: "interagency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation
with the agency."
The JRP Memorandum sets forth recommendations from the
ACF Assistant Secretary to the HHS Acting Deputy Secretary
regarding potential policy decisions related to the JRP process.
The information redacted pursuant to Exemption (b) (5)
in the JRP
Memorandum, including the three sentences that remain redacted
in the "Overview" section, consists of opinion, analysis and
recommendations from the ACF Assistant Secretary to the HHS
Secretary regarding the JRP process, including staff opinions
and proposals about the JRP program. The content of the redacted
portions of the memorandum has not been adopted by any decision
The Plaintiff's Statement set forth the following
CBP is a component of the Department of Homeland
Security that conducts enforcement at the United States border
with Mexico. The ORR is a component of the Department of Health
and Human Services ("OHS") and is charged with the care and
custody of unaccompanied immigration minors who OHS prosecutes
in immigration court. ICE is a component of DHS which (among
other things) prosecutes removal cases in immigration court.
In May 2014 , CBP developed a program called the
Juvenile Referral Program ("JRP" ) .
CBP developed this program out of frustration with the
refusal of criminal prosecutors to prosecute Mexican children
for guiding migrants across the border.
The JRP implemented "a strict enforcement policy with
regard to juvenile involvement in smuggling crimes" that sought
to "ma x imi ze consequence delivery" to these children .
The standard operating procedures ("SOPs")
for the JRP
required agents to follow a procedure that differed from the
procedure followed for other ch il dren .
The SOPs directed agents to cease returning children
suspected of being guides or smugglers to Mexico, as was their
prior practice, directed agents to interview these children in a
way that elicits inculpatory statements, and directed agents to
add these children to law enforcement da tabases to track the
children as smugglers/guides.
The SOPs directed agents to ref er these children for
crimina l prosecution by federal or local prosecutors. Further,
the SOPs mandated that, when criminal prosecution was declined,
agents must initiate deportation proceedings and transfer these
children to ORR.
The SOPs mandated that, when transferring the child ,
agents must submit a "JRP Secure Placement Referral Form"
containing some or all of the interview questions and answers as
justification for secure placement.
The SOPs also directed agents to ensure that "ensure
that the juvenile fully understands that he/she has committed a
Children who were in the JRP reported that this latter
direction was effected by CBP agents making sure that the
children understood that they were being punished for serving as
foot guides. Some children in the JRP reported that CBP agents
were physically and verbally abus ive as well.
Detention for children in the JRP differs from the
process for non-JRP children. Unaccompanied children in ORR care
(who are not in the JRP)
spend, on average,
34 days in ORR care.
The majority of unaccompanied chi ldren in ORR care generally are
housed during that time at residential shelters, the "least
restrictive" form of ORR custody.
Ninety percent of unaccompanied children in ORR care
are released to a guardian or sponsor.
Unaccompanied children in the JRP are detained for
noticeably longer periods of time than unaccompanied children
not in the JRP. Children in the JRP were detained for an average
of three months. In a number of cases, children in the JRP were
detained for twelve to eighteen months.
The OHS is slow to file the charging documents that
trigger the commencement of immigration court proceedings in JRP
Children in the JRP were often detained in highsecuri ty facilities
(secure or staff-secure). Detention in high-
security facilities is highly restrictive and in some cases
similar to jail.
Some secure facilities simultaneously function
as juvenile jails.
There is no process through which children can
challenge CBP's allegations in the Secure Placement Request.
There is no meaningful mechanism through which children can
challenge CBP 's conclusion that they should be detained. There
is no process through which children have been able to seek
release on bond.
In immigration court, ICE uses these statements from
the interviews that CBP conducts with these children to oppose
these children's requests for relief from deportation or
voluntary departure. In particular, ICE uses these statements to
argue that these children are perpetrators of trafficking, not
victims , and should be considered ineligible for relief for
victims of trafficking.
Legal service lawyers who represent ch ildren detained
at secure detention facilities learned about the JRP because
they saw references to the JRP on their client's documents and
began receiving reports that CBP agents told children that they
were being punished for their role as foot guides. Advocates
began to seek information from CBP, including by seeking
analyses and meetings. CBP refused to provide any information
about the JRP and declines to meet about the JRP until it
decided to terminate the program.
CBP announced that it was undertaking a review of its
screening process generally in response to an OIG report that
found that CBP screening of unaccompanied immigrant children
generally was deficient in a variety of aspects.
CBP rejected advocacy organizations' requests to
participate in the revision to the process it uses when
apprehending unaccompanied Mexican minors.
CBP gave conflicting statements on whether it intended
to prospectively use practices from the JRP or incorporate them
in its attempt to revise the process for screening unaccompanied
On August 8, 2015, CBP officially "concluded the pilot
A memorandum issued in September 2015 ending the pilot
program ordered agents to "no longer refer to the ' Juvenile
Referral Process' or JRP" on any processing documents, referral
in tracking sheets, or in inte lligen ce . CBP did not
direct its agents to stop using the practices that characterized
CBP explicitly directed agents to continue using the
process prospectively on a "case by case basis."
Following these directives, CBP agents have continued
to ref er children to ORR in the same manner as under the JRP
except without using the term "JRP."
After the instant litigation was filed, CBP began
producing samples of emails from CBP agents to the "JRP Inbox"
and the attachments that accompanied those emails.
The JRP Inbox is an email listserv through which CBP
refers JRP children to ORR and requests that the children be
placed in high-security, restrictive detention.
In the emails sent to this inbox and/or the
attachments to those emails, CBP agents include information
about why they are requesting high-security placement.
The emails and the attachment contain, as
"justification" for secure placement, a list of questions asked
by CBP agents and the child's answers or a form entitled
"Unaccompanied Alien Child ("UAC") - JRP Secure Placement
Referral Form," that contains the questions and answers.
In some instances, the BP agents emailed a Form 93 to
the JRP inb ox .
A Form 93 is used for screening unaccompanied minors
to determine whether they have a fear of return such that they
cannot be deported to their home co untry without a hearing.
CBP applied blanket redactions to withhold all
questions and answers in the emails and the Secure Placement
Referral Forms without segregation.
CBP applied blanket redactions to withhold answers in
Form 93s without segregation.
CBP has withheld the questions and answers pursuant to
Exemption 7(E), which covers law enforcement techniques. The
"technique" CBP describes consists of asking questions and
ask ing follow-up questions. CBP has not claimed that this
"technique" requires any special skills or training.
This "technique" has allegedly been portrayed on
television and videos online as well as in online and print news
reports. Specifically, this "technique" has allegedly been shown
in numerous episodes o f "Border Wars."
In the "Border Wars" series, CBP agents were filmed
apprehending and interrogating suspected foot guides and
smugg lers, some of which were children. "Border Wars" shows many
unique details about the people who are apprehended by CBP ,
including their bodies, hair, voices , and clothes. CBP
publicized "Border Wars," wh i ch is widely available online .
More than 800 Mexican children know these questions.
Over 500 of these children have been returned to Mexico. Many of
the ch ildren who were in the JRP resumed their guiding and
smuggling activities upon return to Mexico.
ICE attorneys have given copies of Secure Placement
Referral forms with the questions and answers to at least one
lawyer who represented children in the JRP.
CBP has already released many of the "unique" details
it now claims are identifying.
Plaintiff submitted a FOIA request to ORR seeking
records related to the JRP on September 10, 2015 . ORR did not
respond within the statutory timeframe. Plaintiff filed suit
against ORR. ORR has not completed production of responsive
documents . Plaintiff has identified responsive documents that
ORR did not produce.
ORR also withheld , as relevant to this motion,
portions of one of the documents under Exemption 5.
Plaintiff submitted a FOIA request to ICE seeking
records related to the JRP on September 10, 20 15. ICE did not
respond within the statutory timeframe. Plaintiff filed suit
against ICE. ICE has not completed production of responsive
documents. Plaintiff has identified responsive documents that
ICE did not produce. ICE also withheld, as relevant to this
motion, seven pages on the ground that that redacted information
is "non -responsive ."
The Applicable Standard
Summary judgment is appropriate only where "there is
no genuine issue as to any material fact and .
. the moving
party is entitled to a judgment as a matter of law."
Fed. R .
Civ. P. 56(c). A dispute is "genuine" if "the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party." Anderson v . Liberty Lobby, Inc.,
477 U.S. 242 , 248
(1986) . The relevant inquiry on application for summary judgment
is "whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Id. at 251 -5 2. A
court is not charged with weighing the evidence and determining
its truth, but with determining whether there is a genuine issue
for trial. Westinghouse Elec. Corp . v. N.Y. City Transit Auth.,
735 F. Supp . 1205, 1212 (S.D . N.Y . 1990)
(quoting Anderson, 477
U.S. at 249). "[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact." Anderson,
477 U.S. at 247 -4 8 (emphasis in original).
FOIA generally requires federal agencies to make
documents and other material "available to th e public," see 5
552(a), but specifically exempts nine different
categories of information from that requirement, see id.
552(b). Congress adopted this structure "t o reach a workable
balance between the right of the public to know and the need of
the Government to keep inf ormation in confidence." John Doe
Agency v. John Doe Corp.,
493 U.S. 146, 152 (1989)
Rep. No. 89-147 at 6 (1966), reprinted in 1966 U.S.C.C.A.N.
2418 , 2423). The nine exemptions to FOIA's disclosure
requirements reflect Congress's determination that "public
disclosure is not always in the public interest." CIA v. Sims ,
471 U.S. 159, 166-67 (1985). Accordingly, CBP may properly
withhold information that falls within any of the nine
"Summary judgment is the preferred procedural veh i cle
for resolving FOIA disputes." Bloomberg L.P. v. Ed. of Governors
of Fed. Reserve Sys.,
649 F. Supp. 2d 262, 271 (S.D.N.Y. 2009).
Under Federal Rule of Civil Procedure 56(a), a "co urt shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." When resolving FOIA
claims, courts first consider whether the agency has made
"reasonable efforts to search for the records" requested by the
plaintiff. 5 U. S.C.
F.3d 807, 812
552(a) (3) (C); accord Carney v. DOJ, 19
(2d Cir. 1994). If an agency locates responsive
records, but withholds them under FOIA's exemptions, courts then
consider whether they fall within one or more of FOIA's
exemptions. See 5 U.S.C.
552(a)(4)(B); accord Carney, 19 F.3d
An agency can satisfy its burden on a motion for
summary judgment by submitting a declaration that (1) supplies
"facts indicating that the agency has conducted a thorough
search" and (2) gives "reasonably detailed explanations why any
withheld documents fall within an exemption." Carney, 19 F.3d at
812. The agency's declaration is "accorded a presumption of good
faith," and discovery is "unnecessary if the agency's
submissions are adequate on their face." Id.
marks omitted); accord Wilner v. NSA,
592 F.3d 60, 69 (2d Cir .
At this juncture, the ACLUF does not challenge the
adequacy of the CBP's search, but only the decision to withhold
the interview questions and answers under Exemptions 6 and 7(C),
(E), & (F). CBP can satisfy its burden on a motion for summary
judgment by providing "reasonably detailed explanations why any
withheld documents fall within an exemption." Carney,
19 F.3d at
The CBP Motion to Exempt Questions and Answers Under Exemption
7(E) is Denied
According to CBP the redaction of the questions and
answers is permitted under Exemption 7(E) which permits CBP to
redact information that would "disclose techniques and
procedures for law enforcement investigations or prosecutions."
552(b) (7) (E). The Second Circuit has interpreted the
phrase "techniques and procedures" to refer to "how law
enforcement officials go about investigating a crime," Allard K.
Lowenstein Int'l Human Rights Project v. Dep't of Homeland Sec.,
626 F.3d 678,
680-81 (2d Cir. 2010). The issue presented is
whether the questions posed to the UAC constitute a technique
and procedure. Since disclosing the answers elicited would
reveal the interview questions, and the Exemption 7(E) also
related to the answers.
According to the CBP, while Exemption 7(E) generally
covers "investigatory records that disclose investigative
techniques and procedures not generally known to the public,"
Doherty v . U.S. Dep't of Justice,
775 F.2d 49 , 52 n . 4 (2d Cir .
1985), " even commonly known procedures may be protected from
disclosure if the disclosure could reduce or nullify their
effectiveness ." Judicial Watch, Inc. v . U.S. Dep 't of Commerce,
337 F. Supp. 2d 146, 181 (D .D. C. 2004); see also Bishop v . U. S .
Dep't of Homeland Sec ., 45 F . Supp. 3d 380 , 391 (S . D.N.Y. 2014)
Where disclosure would reduce or nullify the effectiveness of
investigative techniques and procedures, Exemption 7(E) provides
"categorical protection ," which means that it does not require
any "demonstration of harm or balancing of interests. " Keys v.
Dep't of Homeland Sec ., 510 F. Supp. 2d 1 21, 129 (D .D. C . 2007)
(internal quotation marks omitted).
The Second Circuit has explained that, as used in
Exemption 7(E), a "technique" is "a technical method of
accomplishing a desired aim" and a "procedure" is "a particular
way of doing or going about the accomplishment of something."
Allard K. Lowenstein Int'l Human Rights Project v. DHS,
at 682. But Exemption 7(E) only protects techniques and
626 F . 3d
procedures "not generally known to the public." Doherty v.
United States Dep't of Justice,
775 F.2d 49, 52 n. 4 (2d Cir.
1985). Accordingly, to invoke Exemption 7(E) here, the agency
must justify its assertion that its practice of asking the
questions at issue in this motion actually shows a "technique"
or "procedure" and that it is not already known to the public.
The CBP argues that questions asked of JRP candidates
may be withheld under Exemption 7(E) beca use they disclose
"techniques to ' elicit information regarding affiliations
between suspected smugglers and each other , criminal
organizations , and gangs, as well as about their modus
operandi .'" The Government also asserts that the questions
reveal "situational responses" that CBP officials may use to
follow up on the answers in order to obtain additional
information." A list of questions and some possible follow-up
questions is, according to CBP, a "technique."
However, the CBP has cited no case in which i nterviews
like the ones at issue here have been withheld under this
exempt ion. Instead, it cites cases involving polygraph
(citing Piper v . U.S. Dep't of Justice,
Supp.2d 16, 30 (D.D.C. 2003) and Perrone v. FBI,
908 F. Supp.
(D.D.C. 1995)) and a case involving passenger screening
at airports (Bishop v. Department of Homeland Security,
Supp. 3d 380
(S.D.N.Y. 2014)). Neither context is comparable.
Polygraph questions are administered by certified examiners who
use questions arranged in particular patterns designed to
produce physiological responses, see Plaintiff's Opposition
Brief ("Oppn. Br."), Ex. 12 (excerpt from National Academy of
Science, The Polygraph and Lie Detection (2003)).
Similarly, in Bishop, the redactions at issue shielded
from disclosure "which databases CBP considers in its targeting
process and how such information can lead to the triggering of
additional security screening." Bishop, like the polygraph cases
(and the tax examiner example used in Allard K. Lowenstein Int'l
Human Rights Project), permitted agencies to withhold certain
techniques used internally by agencies when, even after those
techniques were applied, the target did not know how the
technique worked. Bishop involved a challenge to the redaction
of different types of information. First, it involved redacted
data fields, a complex system to query multiple databases and
track individuals. Bishop, 45 F. Supp. 3d at 388-92. Second, it
involved secondary inspection and "Automated Targeting System"
database records, the revelation of which would not only show
how law enforcement database bases worked, but would also show
how CBP uses this technology to determine which of the many
travelers in airports should be subject to additional screening.
Id. at 390-91,
The cases cited by CBP also included those which
involved questions in polygraph examinations or methods used to
ferret out fraud or terrorism from otherwise innocuous conduct,
see, e.g., Arn.
Immigration Lawyers Ass'n v. DHS,
852 F. Supp. 2d
(involving questionnaire filled out by site
inspectors to "document their personal observations" that was
a "probing internal assessment sheet used to ferret out
legitimacy of the H-lB" visa relationship, see id., 10-cv-01224,
Dkt. 25, Ex. 5 at 105); Asian Law Caucus v. DHS, No.
2008 WL 5047839, at *5
(N.D. Cal. Nov. 24, 2008)
question topics asked in screening known or suspected terrorists
attempting to enter the United States and noting fact-specific
nature of decision based on in-camera review.
Here, CBP has not established that there is anything
technical about the questions asked, that any special method or
skills are being used, or that children who were subjected to
questioning would not thereby learn the "technique" that CBP
wishes to keep secret. See Defs.' Mot. at 11- 12;
29. It offered nothing more than the fact that these records
would reveal that CBP asks questions about these topics and may
ask follow-up questions.
Id. Courts require the government to
offer mo re than "generic assertions " and "boilerplate" to
justify Exemption 7(E) withholding, ACLU v. Office of the Dir.
of Nat'l Intelligence, 10 Civ. 4419, 201 1 WL 5563520, at *11
(S.D.N.Y . Nov. 15, 2011) , and the Government has not met its
burden here. See Albuquerque Pub. Co. v . U.S. Dep't of Justice ,
726 F. Supp. 851 , 857
(D.D .C. 1989)
(rejecting the government's
invocation of Exemption 7(E) where there was "nothing
exceptional or secret about the techniques it described.")
In opposition to the ACLUF's cross-motion, an agency
l awyer who heads CBP's FOIA appeals office in Washington, D.C.
has affirmed that the terminology used and order of questions
are "carefully calibrated ," based on "intelligence " and
" experiences " and "observations." (Suzuki Supp.
10). There is
no evidence submitted with respect to formulating the questions,
observation of that process or any intelligence and experience
which caused its creation, the relevance of the order of the
questions, or the context in which it is used.
Asking well-known law-enf orcement arrest questions in
a particular order does not amount t o a "te chnique. "
7(E) requires that the material being withheld truly embody a
specialized, calculated technique or procedure and tha t
be apparent to the public. In Allard K. Lowenstein Int'l Human
Rights Project v. DHS , 626 F.3d 678 , 682
(2d Cir. 2010) it was
held that a "predominantly internal" memorandum containing
specific ranking criteria showing how the Department of Homeland
Security chose targets for enforcement and sources for leads
would reveal techniques or procedures within the meaning of
Exemption 7(E). Allard K. Lowenstein Int'l Human Rights Project
v . DHS,
603 F. Supp. 2d 354, 364-65 (D. Conn. 2009).
Here, CBP officers question ch ildren who were already
arrested, and do so to get information in response to questions,
necessarily revealing the questions to the hundreds of children.
An issue remains as to whether or not CBP has rebutted
the substant ial evidence showing that these questions are indeed
"generally known to the public." Doherty v. DOJ, 775 F.2d 49, 52
(2d Cir. 1985). The evidence in support of the ACLUF crossmotion establishes that routine questioning by law enforcement
agents is well known, including through filmed arrests and
questioning of smugglers that CBP itself made available to
anyone with television or internet access. CBP has itself
disclosed one question in its script: "Do you know that it's
illegal to smuggle/guide subjects into the United States?"
Suzuki Ex. A at 1.
The specific JRP questions are known by the children
whom CBP already questioned, including the more than 500 who are
now back in Mexico, as well as lawyers to whom the Government
provided copies of interviews. Pl.'s Stmt.
contends that the ACLUF cannot prove that these children
remembered each question asked. Defs.' Opp'n at 4. However, it
can be assumed that some children would remember and report
these questions to former (or perhaps current) employers upon
return to Mexico. Cf. See Kubik v. Bureau of Prisons, 10-cv 6078, 2011 WL 2619538, at *11 (D. Or. July 1, 2011)
that riot response technique was generally known and therefore
not protected by Exemption 7(E) without requiring the plaintiff
to demonstrate that the inmates who saw the riot response
remembered the technique).
Relying on decisions from district courts in other
circuits, the CBP seeks to narrow the Doherty rule, arguing that
even "generally known" techniques and procedures may be withheld
if disclosure would nullify their effectiveness. Defs .' Opp 'n at
3 . CBP has cited two cases from this district, Bishop v . DHS, 45
F. Supp . 3d 380 , 391 (S.D.N.Y. 2014) which relied on district
court decisions from other circuits, and the second is Platsky
v. NSA , No. 15 Civ . 1529, 2016 WL 3661534 , at *1
(S .D.N. Y. July
1, 2016) , a national security case litigated by a pro se
plaintiff, which relied on Bishop. Neither plaintiff disputed
the "nullify the effectiveness" rule CBP advances here, Defs.'
Mot. at 10.
However, the Second Circuit has not adopted that
exception. Here, ACLUF contends that the 57-episode Border Wars
series documents the questions CBP asks smugglers, see Pl.'s
67-72, and that to the extent that CBP contends that
disclosing the questions to Plaintiff would nullify their
effectiveness because they may become known to smugglers, the
damage been done, in large part on CBP's own initiative.
Because the CBP has not established that the questions
employed a specialized, calculated technique, Exemption 7(E)
does not apply .
The CBP Motion to Bar Questions and Answers under Exemptions 6,
7(C) and 7(F) is Granted
The ACLUF has conceded the applicability of Exemptions
6 , 7(C) and 7(F)
(P ltf. Reply Memo p. 7). According to the
ACLUF, the only issue is as to the number of border crossings ,
of citizens brought across the border and details relating to
the conclusion that reference to secure placement is required.
Having concluded that the 7(E) exception is not
applicable , after a review of the questions and answers, the
parties will meet and confer with respect to the applicability
of the privacy exemptions . In the event a resolution is not
reached , the parties are granted leave to renew the instant
The Relief with Respect to the Form 93 and ORR and ICE
Production is Denied
The CBP has indicated that it intends t o make further
disclosures with respect to Form 93 and that ICE and ORR
searches have not been completed. Any issues remaining after
these events have been conc luded can be the subject of r e newed
The CBP motion for summary judgment with respect to
is denied and with respect to Exemptions 6,
is granted. The ACLUF motion for summary judgment with
respect to Exemption 7(E)
is granted and denied with respect to
Form 93, and the ORR and ICE production.
It is so ordered.
New York, NY
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