Murphy v. U. S. Customs and Border Protection
Filing
30
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS MOTION FOR SUMMARY JUDGMENT, GRANTING PLAINTIFFS REQUEST FOR A VAUGHN INDEX AND DENYING WITHOUT PREJUDICE PLAINTIFFS REQUEST FOR AN IN CAMERA REVIEW: denying 22 Motion for Summary Judgment; granting in part 25 Motion to Compel; denying without prejudice 27 Motion for an In Camera Inspection of Documents; denying without prejudice 28 Amended Motion for an In Camera Inspection of Documents. U. S. Customs and Border Protection answer due 9 /2/2016. The Defendant must submit a Vaughn index by September 2, 2016. The Vaughn index must be filed on the docket in this case and must be delivered to the pro se Plaintiff by mail at his physical address. The parties must submit any motions for s ummary judgment by September 30, 2016. Any response in opposition to an opposing partys motion for summary judgment must be filed by October 28, 2016. The parties may file any reply in support of a motion for summary judgment by November 10, 2016. Signed by Chief Judge Gina M. Groh on 8/5/16. (njz) copy mailed to pro se pla via cert. return rec't mail
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
DENNIS FINBARR MURPHY,
Plaintiff,
v.
CIVIL ACTION NO.: 3:15-CV-133
(GROH)
U.S. CUSTOMS AND BORDER
PROTECTION,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, GRANTING PLAINTIFF’S REQUEST FOR A VAUGHN
INDEX AND DENYING WITHOUT PREJUDICE PLAINTIFF’S REQUEST FOR AN
IN CAMERA REVIEW
The Plaintiff, Dennis Finbarr Murphy, claims that the Defendant, U.S. Customs and
Border Protection, has failed to abide by the requirements of the Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552, in the Defendant’s handling of the Plaintiff’s request for
certain information under the act. The Defendant now moves for summary judgment in its
favor, arguing that it has sufficiently demonstrated its compliance with FOIA. For the
following reasons, the Court finds that the Defendant has failed to meet its burden in
demonstrating that documents responsive to the Plaintiff’s FOIA request were withheld
pursuant to a recognized exemption under FOIA. Accordingly, the Defendant’s Motion for
Summary Judgment [ECF No. 22] is denied. Because the Defendant has failed to provide
sufficient information thus far in the litigation, the Court hereby establishes a schedule for
the filing of a Vaughn index and for additional briefing from the parties. The Plaintiff’s
request for an in camera review of the responsive documents is denied without prejudice.
I. Background
The Plaintiff, a former security guard at a U.S. Customs and Border Protection
facility in Harpers Ferry, West Virginia, alleges that he filed a FOIA request in early 2015,
seeking documents pertinent to an Equal Employment Opportunity complaint the Plaintiff
had previously filed against the Defendant. After not receiving a response to his FOIA
request for approximately ten months, the Plaintiff initiated this lawsuit, seeking an order
from this Court enjoining the Defendant from withholding agency records responsive to the
Plaintiff’s FOIA request.
In February of 2016, upon reviewing the record in this case, the Court determined
that the Plaintiff had failed to effect service in the proper manner under Rule 4 of the
Federal Rules of Civil Procedure. The Court ordered the Plaintiff to either demonstrate that
proper service had been made or to show cause why his complaint should not be
dismissed. In the following weeks, the Plaintiff attempted to demonstrate that service had
been made on the proper parties. The Plaintiff’s service remained deficient, however,
because he failed to serve the Attorney General of the United States as required by Rule
4(i). The Defendant then moved to dismiss the Plaintiff’s complaint pursuant to Rule
12(b)(5) for insufficient service of process. Soon thereafter, the Plaintiff submitted proof
of proper service on the Attorney General. On May 20, 2016, the Court denied the
Defendant’s Motion to Dismiss, finding that the Plaintiff cured his failure to serve the
necessary persons under Rule 4(i) within a reasonable time and that, therefore, dismissal
would be inappropriate.
On June 3, 2016, the Defendant submitted the instant Motion for Summary
Judgment. The Defendant avers that it responded to the Plaintiff’s FOIA request on March
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18, 2016. In light of its response to the Plaintiff’s request, the Defendant argues that the
claims raised in the Plaintiff’s complaint are now moot. According to the Defendant, a
search identified 146 documents that are responsive to the Plaintiff’s request. Some of
these documents were provided to the Plaintiff, but the Defendant withheld 116 of the
documents. Of the 30 documents that were provided to the Plaintiff, multiple documents
were heavily redacted. The Defendant argues that it did not disclose the information
contained in the redacted and withheld documents because those documents qualify under
certain statutory exemptions to disclosure provided by FOIA.
Together with its Motion for Summary Judgment, the Defendant submitted a
Declaration [ECF No. 22-2] prepared by Sabrina Burroughs, director of the FOIA division
of U.S. Customs and Border Protection. Ms. Burroughs stated that she is “personally
familiar with Plaintiff Murphy’s FOIA request,” and she confirmed that “[o]n March 18, 2016,
CBP issued its Final Response to Plaintiff Murphy’s FOIA request.” Ms. Burroughs did not
reference the nature of the search that was conducted to locate the subject documents.
As for the exemptions under which the Defendant claims it may redact or withhold the
responsive documents, Ms. Burroughs stated that “U.S. Customs and Border Protection
has complied in full with Title 5, U.S.C. § 552, et seq. in responding to Plaintiff Murphy’s
FOIA request.” Also submitted as an attachment to the Defendant’s motion was a letter
prepared by a Government Information Specialist at U.S. Customs and Border Protection.
The letter, which the Defendant avers was mailed to the Plaintiff together with the
responsive documents, provides that “certain information” was withheld by the Defendant.
The letter goes on to list four exemptions to disclosure under FOIA. The letter provides
short descriptions of the types of documents that may be withheld under the enumerated
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FOIA exemptions, but the letter does not describe how any specific documents responsive
to the Plaintiff’s request could qualify under the different exemptions in this case.
Initially, the Plaintiff’s primary argument in opposition to the Defendant’s motion was
that he had not received any documents from the Defendant. This was apparently the
product of confusion regarding the process of accessing FOIA records on the internet. It
appears that this issue was resolved when the Defendant mailed hard copies of the
pertinent documents to the Plaintiff’s physical address. In a subsequent filing, captioned
as “Plaintiff’s Motion for an Order to Compel Production of Documents Requested Under
FOIA and for a Detailed Vaughn Index,” the Plaintiff moved the Court to order the
Defendant to file a document “describing and justifying its withholdings.”1 In response to
that filing, the Defendant argues that it has already provided the Plaintiff and the Court with
a sufficient explanation as to why the responsive documents were redacted or withheld,
and that, therefore, no Vaughn index is required. The Plaintiff has since made a request
for the Court to conduct an in camera inspection of the responsive documents to determine
whether the exemptions identified by the Defendant apply in this case.2 To date, the
Defendant has not filed an answer to the Plaintiff’s complaint.
1
A Vaughn index, so named after the decision that first discussed the use of such a document, is a
list identifying and describing documents that an agency has withheld after a FOIA request. See Vaughn v.
Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973). “The list must include sufficiently detailed information to enable
a district court to rule whether the document falls within a FOIA exemption.” Rein v. U.S. Patent & Trademark
Office, 553 F.3d 353, 357 n.6 (4th Cir. 2009).
2
The Plaintiff’s request for an in camera review was raised in his Motion for an In Camera Inspection
of Documents [ECF No. 27], which was subsequently amended by his Amended Motion for an In Camera
Inspection of Documents [ECF No. 28]. Although the Plaintiff’s Amended Motion for an In Camera Inspection
of Documents was filed on July 1, 2016, the Defendant did not file a response to the Plaintiff’s amended
motion until July 27, 2016. Because the Defendant’s response was not filed in a timely manner, see LR Civ
P 7.02(b)(1), the Court has disregarded that filing and has not considered the arguments asserted therein.
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II. Discussion
The Freedom of Information Act serves an important purpose: “to maintain an open
government and to ensure the existence of an informed citizenry ‘to check against
corruption and to hold the governors accountable to the governed.’” Ethyl Corp. v. EPA,
25 F.3d 1241, 1245 (4th Cir. 1994) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978)).
When an individual or an entity requests information from a
governmental agency under FOIA, the agency is generally required to make the requested
information and records available to the public, so long as the request for information
“reasonably describes such records” and “is made in accordance with published rules”
regarding the procedures for such a request. 5 U.S.C. § 552(a)(3)(A). However, because
legitimate governmental and private interests could be harmed by the release of certain
information, FOIA was designed to include several exemptions to disclosure. See Wickwire
Gavin, P.C. v. U.S. Postal Serv., 356 F.3d 588, 592 (4th Cir. 2004). The nine exemptions
to disclosure are enumerated in § 552(b). When a plaintiff challenges an agency’s decision
to withhold responsive documents under an enumerated exemption, the district court
tasked with reviewing the agency’s action “must make a de novo determination of whether
government records were properly withheld.” Wickwire Gavin, P.C. v. Def. Intelligence
Agency, 330 F. Supp. 2d 592, 596 (E.D. Va. 2004) (quoting Willard v. IRS, 776 F.2d 100,
102 (4th Cir. 1985)). “Whether a given document properly falls within the scope of one of
the statutory exemptions is a question of law.” Id. (citing Ethyl Corp., 25 F.3d at 1246).
If a dispute arises, a governmental agency must demonstrate that the search it
conducted after receiving a FOIA request was adequate and that any information the
agency withheld qualifies under an exemption to FOIA. As to the adequacy of the search,
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the act itself provides that in responding to a request for records “an agency shall make
reasonable efforts to search for the records in electronic form or format.” 5 U.S.C.
§ 552(a)(3)(C). To “search,” as that term is used in FOIA, is “to review, manually or by
automated means, agency records for the purpose of locating those records which are
responsive to a request.” 5 U.S.C. § 552(a)(3)(D). A FOIA search does not need to be a
perfect search, “only a reasonable one.” Rein v. U.S. Patent & Trademark Office, 553 F.3d
353, 362 (4th Cir. 2009); see also Ethyl Corp., 25 F.3d at 1246 (“In judging the adequacy
of an agency search for documents the relevant question is not whether every single
potentially responsive document has been unearthed, but whether the agency has
demonstrated that it has conducted a search reasonably calculated to uncover all relevant
documents.” (internal quotation marks and citation omitted)). An agency may offer an
affidavit in an attempt to demonstrate that its FOIA search was reasonable. Such an
affidavit “must provide sufficient detail regarding the search for documents to allow the
district court to determine if the search was adequate.” Wickwire Gavin, P.C. v. Def.
Intelligence Agency, 330 F. Supp. 2d at 598. An agency will not succeed on summary
judgment if it simply avers that a search was conducted “consistent with customary practice
and established procedure.” Ethyl Corp., 25 F.3d at 1246-47.
When arguing in support of its decision to withhold responsive information or
records, an agency “bears the burden of demonstrating that a requested document falls
under [a § 552(b) exemption].” Rein, 553 F.3d at 366. In determining whether an agency
has met its burden, the district court may examine the withheld records in camera. See 5
U.S.C. § 552(a)(4)(B). However, an agency is not automatically required to submit all
potentially responsive documents to the district court for in camera review. Although in
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camera review may be necessary and appropriate in certain situations, “[a]n agency should
be given the opportunity, by means of detailed affidavits or oral testimony, to establish to
the satisfaction of the District Court that the documents sought fall clearly beyond the range
of material that would be available to a private party in litigation with the agency.” EPA v.
Mink, 410 U.S. 73, 93 (1973). That being said, even when a party offers an affidavit or
declaration from an individual with personal knowledge of the plaintiff’s FOIA request, some
detail is required—“conclusory and generalized allegations of exemptions” will not do.
Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973).
Accordingly, when necessary, a court may order an agency to produce a Vaughn
index—a thorough list that identifies and describes the documents that an agency has
withheld and the justification for withholding the documents under the applicable
exemption—in order to ensure “that allegations of exempt status are adequately justified.”
Id. To justify summary judgment in the agency’s favor, a Vaughn index should be both
itemized and specific, allowing the district court to determine whether the claimed privileges
apply to the specific documents being withheld. See Ethyl Corp., 25 F.3d at 1250. “If the
index is so vague as to leave the district court with an inability to rule, then some other
means of review must be undertaken, such as in camera review.” Id. In camera review
should be ordered only with adequate justification, however, not simply on the theory that
“it can’t hurt.” Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996) (citing Ray v. Turner,
587 F.2d 1187, 1195 (D.C. Cir. 1978) (per curiam)).
In the Fourth Circuit, as a general rule, disputes over whether information was validly
withheld under a § 552(b) exemption are resolved on summary judgment, without the need
for trial. Hanson v. U.S. Agency for Int’l Dev., 372 F.3d 286, 290 (4th Cir. 2004). Under
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Rule 56 of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment
when a dispute presents no genuine issue as to any material fact and the movant is thus
entitled to judgment in its favor as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). In determining whether summary judgment is appropriate, a court must
conduct “the threshold inquiry of determining whether there is the need for a trial—whether,
in other words, there are any genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in favor of either party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If the movant is able to show
the absence of genuine issues of material fact, the party opposing summary judgment must
then come forward with evidence demonstrating that there is in fact a genuine issue
requiring adjudication. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 323-35; Anderson,
477 U.S. at 248. “If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted).
When considering a summary judgment motion in a FOIA action, a court should view the
evidence in the light most favorable to the nonmovant. See City of Virginia Beach v. U.S.
Dep’t of Commerce, 995 F.2d 1247, 1252 (4th Cir. 1993). As noted, because there is a
presumption for disclosure under FOIA, “the burden of justifying nondisclosure rests
squarely upon the government.” Id. (citing 5 U.S.C. § 552(a)(4)(B)).
Here, the Defendant has failed to meet its burden under FOIA and the authority
discussed above. The Defendant has provided almost no information to justify its decision
to redact or withhold over 80% of the documents that were deemed responsive to the
Plaintiff’s FOIA request. Instead, the Defendant stands on conclusory and generalized
statements concerning the responsive documents and the purportedly applicable § 552(b)
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exemptions. The Defendant’s argument in support of its Motion for Summary Judgment
is brief and unpersuasive. “In the case at hand,” the Defendant argues, “the agency’s letter
to Plaintiff . . . clearly demonstrates that each responsive document in regard to Plaintiff’s
request has been produced or is exempt.” In fact, the agency’s letter does nothing to
demonstrate that the responsive documents are exempt. The letter simply asserts that 116
of the 146 pages deemed responsive by the Defendant are being “withheld in their entirety,
pursuant to Title 5 U.S.C. § 552 (b)(5), (b)(6), (b)(7)(C) and (b)(7)(E).” The letter goes on
to briefly describe the general types of information that could be withheld under those
exemptions. The accompanying declaration states that the Defendant sent the Plaintiff a
letter, and that the Defendant now considers the matter closed.
The Defendant argues that by submitting the letter and the declaration, it has
already provided a sufficient explanation to justify withholding the subject documents.
Accordingly, the Defendant contends that the Plaintiff is not entitled to a Vaughn index. In
support, the Defendant accurately cites Brown v. FBI, 675 F. Supp. 2d 122, 130 (D.D.C.
2009), for the principle that a FOIA plaintiff is not entitled to a Vaughn index, but rather “is
entitled to an explanation of why information was redacted or withheld, which may be
conveyed in any number of ways.” But here, the Plaintiff has yet to be provided with any
explanation for why the responsive documents were redacted or withheld. The letter that
the Defendant claims provided such an explanation is far from sufficient, stating only that
a specialist reviewed the responsive documents and deemed116 of them (together with
portions of the remaining 30) subject to one of four exemptions. The Defendant also cites
Voinche v. FBI, 412 F. Supp. 2d 60, 65 (D.D.C. 2006), as support for its position that
although an agency’s explanation for withholding documents may include a detailed
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description of the withheld documents or take the form of a Vaughn index, an agency may
also “satisfy its burden by other means.” In quoting from Voinche, the Defendant omits the
second half of the following sentence: “Thus, an agency does not have to provide an index
per se, but can satisfy its burden by other means, such as submitting the documents in
question for an in camera review or by providing a detailed affidavit or declaration.” Id.
(emphasis added). In this case, the Defendant has not submitted the subject documents
for review and has provided a single declaration devoid of detail. Because the Defendant
has provided only conclusory and generalized allegations of exemptions, without any
supporting information, the Court cannot find that the Defendant is entitled to summary
judgment in its favor. For the same reasons, the Court finds that the Defendant must
submit a Vaughn index.
III. Conclusion
Upon review and consideration, for the aforementioned reasons, the Court ORDERS
that the Defendant’s Motion for Summary Judgment [ECF No. 22] is DENIED. The
Plaintiff’s Motion for an Order to Compel Production of Documents Requested Under FOIA
and for a Detailed Vaughn Index [ECF No. 25] is GRANTED IN PART. The Court
ORDERS that the Defendant must prepare and file with the Court a detailed Vaughn index.
Because the Court hereby grants the Plaintiff’s request for a Vaughn index, the Court
ORDERS that the Plaintiff’s Motion for an In Camera Inspection of Documents [ECF No.
27] and his Amended Motion for an In Camera Inspection of Documents [ECF No. 28] are
DENIED WITHOUT PREJUDICE. If, upon review, the Court finds the Defendant’s Vaughn
index to be insufficient, the Court will order the Defendant to submit the subject documents
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for in camera review at that time.
Finally, as this case proceeds toward resolution, the Court ORDERS that the parties
abide by the following deadlines:
- The Defendant must file an answer to the Plaintiff’s complaint by
September 2, 2016.
- The Defendant must submit a Vaughn index by September 2, 2016. The
Vaughn index must be filed on the docket in this case and must be delivered
to the pro se Plaintiff by mail at his physical address.
- The parties must submit any motions for summary judgment by September
30, 2016.
- Any response in opposition to an opposing party’s motion for summary
judgment must be filed by October 28, 2016.
- The parties may file any reply in support of a motion for summary judgment
by November 10, 2016.
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record
herein and to send a copy by certified mail, return receipt requested, to the pro se Plaintiff.
DATED: August 5, 2016
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