Murphy v. U. S. Customs and Border Protection
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF'S MOTION RE-REQUESTING AN IN CAMERA INSPECTION: the Court ORDERS that the Defendant's 41 second Motion for Summary Judgment is DENIED. The Plaintiff's 38 Motion Re-Requesting an In Camera Inspection of Documents is GRANTED. The Court ORDERS the Defendant to submit the responsive documents for an in camera review before February 10, 2017. Signed by Chief Judge Gina M. Groh on 1/23/2017. (cwm) Modified: copy mailed to pro se plaintiff by CMRR on 1/23/2017 (cwm). (Additional attachment(s) added on 1/23/2017: # 1 Certified Mail Return Receipt) (cwm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DENNIS FINBARR MURPHY,
CIVIL ACTION NO.: 3:15-CV-133
U.S. CUSTOMS AND BORDER
MEMORANDUM OPINION AND ORDER DENYING
DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT AND
GRANTING PLAINTIFF’S MOTION RE-REQUESTING AN IN CAMERA INSPECTION
This matter is before the Court on the Defendant’s Motion for Summary Judgement
and the Plaintiff’s Motion Re-Requesting an In Camera Inspection of Documents. 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.
After denying the Defendant’s first motion for summary
judgment and ordering it to file a Vaughn Index, the Defendant again moves for summary
judgment, arguing that it has sufficiently demonstrated 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 second
Motion for Summary Judgment [ECF No. 41] is denied. For the reasons that follow, the
Court also grants the pro se Plaintiff’s Motion Re-Requesting an In Camera Inspection of
Documents [ECF No. 38].
The Plaintiff, a former security guard at a U.S. Customs and Border Protection
(“CBP”) 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 his FOIA request.
On August 5, 2016, the Court entered a memorandum opinion and order denying
the Defendant’s motion for summary judgement, granting the Plaintiff’s request for a
Vaughn index and denying without prejudice the Plaintiff’s request for an in camera
ECF No. 30. Thereafter, the Defendant filed its answer and a motion for
extension of time to file the Vaughn index.
ECF No. 35.
The Court granted the
Defendant’s motion in part, allowing the Defendant to have an additional two weeks in
which to file the Vaughn index. On September 16, 2016, the Defendant filed the Vaughn
index along with a supporting declaration of Sabrina Burroughs, Director of the FOIA
Division at CBP.
On September 22, 2016, the Plaintiff filed a second motion seeking an in camera
inspection of documents. ECF No. 38. On September 29, 2016, the Defendant filed a
motion seeking an extension of time to file its second motion for summary judgement.
ECF No. 39. The Court granted the Defendant’s extension, and the Defendant filed its
motion for summary judgement on October 2, 2016. ECF No. 41.
In its motion for summary judgement, the Defendant argues that its search was
reasonable and thorough, and the Vaughn index it has provided is adequate under the
law. ECF No. 41-1 at 6-8. In its argument to the Court, the Defendant avers that after
the Court denied its first motion for summary judgement, it undertook a second search in
response to the Plaintiff’s FOIA request. Id. at 6. The new search returned 269 pages of
responsive documents, or 123 more pages than the first search that the Defendant relied
upon when filing its first motion for summary judgement. See ECF No. 22-1 at 4. The
Defendant explains that the additional pages are comprised of “1) additional documents
than those identified during the first search and 2) email attachments which had been
among the documents withheld.” ECF No. 41 at 6. Finally, the Defendant’s motion relies
upon Ms. Burroughs’s declaration to provide the Court with sufficient detail regarding the
search for documents so that it can determine whether the Defendant’s search was in
fact adequate. The Defendant further argues that the Vaughn index is adequate under
the law because it explains with reasonable specificity why the Defendant has redacted
or withheld various documents related to the Plaintiff’s FOIA request.
Upon reviewing the Vaughn index and accompanying attachments submitted by
the CBP, the Court finds that although the search performed was adequate, the Vaughn
index is not. As to the search, the Court has reviewed Sabrina Burroughs’s declaration
[ECF No. 37-2], which explains with sufficient particularity the search CBP performed. “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.” Rein v. U.S. Patent & Trademark Office, 553 F.3d 353
(4th Cir. 2009).
However, the Vaughn index does not provide the Court with reasonable specificity
such that it can determine whether the claimed exemption applies to the withheld material.
See Rein, 553 F.3d 353 (noting that a Vaughn index may be provided in lieu of in camera
production of the withheld documents, but the index must meet threshold requirements).
In Rein, the Fourth Circuit found that an index lacking information about the withheld
documents’ authors and recipients or an explanation that adequately substitutes this
information did “not contain adequate information for the district court to have determined
whether they were properly withheld.” 553 F.3d at 366. “Without this information, it is
‘difficult, if not impossible,’ to determine whether they fall under Exemption 5.” Id. at 367.
Moreover, the Rein Court cautioned that Vaughn index entries “articulat[ing] the
Exemption 5 privilege in general terms, using FOIA language, and coupl[ing] the
statement of privilege for each document with a general description of the document” are
inadequate. Id. at 368 (internal quotations omitted). Regarding a Vaughn index similar
to the one here, the Court of Appeals for the District of Columbia found it “patently
inadequate to permit a court to decide whether the exemption was properly claimed.” Id.
(quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980)).
Further, the “Bates Range or Document” numbers listed in the Vaughn index are
missing from the accompanying documents that they are supposed to identify.
Accordingly, it is not possible for the Court to undertake any meaningful review of the
provided index and documents because it is entirely unclear which entries correspond to
what documents. “To find such superficial entries to be sufficient would permit the
Agencies to evade judicial review.” Id. at 369.
Upon review and consideration, for the aforementioned reasons, the Court
ORDERS that the Defendant’s second Motion for Summary Judgment [ECF No. 41] is
DENIED. The Plaintiff’s Motion Re-Requesting an In Camera Inspection of Documents
[ECF No. 38] is GRANTED. The Court ORDERS the Defendant to submit the responsive
documents for an in camera review before February 10, 2017.
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.
It is so ORDERED.
DATED: January 23, 2017
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