Abdelfattah v. U.S. Dept. of Homeland Sec.

• Decision Date: 30 May 2007
• Docket Number: No. 06-4106.,06-4106.
• Citation: 488 F.3d 178
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Osama ABDELFATTAH v. U.S. DEPARTMENT OF HOMELAND SECURITY; Michael Chertoff, in his official capacity as Secretary of the Department of Homeland Security; Magda S. Oriz, Director of FOIA/PA Branch; U.S. Citizenship and Immigration Service; U.S. Immigration and Customs Enforcement; Federal Bureau of Investigation. Osama Abdelfattah v. U.S. Department of Homeland Security. Osama Abdelfattah v. U.S. Department of Homeland Security; U.S. Citizenship and Immigration Service; U.S. Immigration and Custom Enforcement; Federal Bureau of Investigation. Osama Abdelfattah v. U.S. Customs and Border Protection; U.S. Immigration and Custom Enforcement Osama Abdelfattah, Appellant.

488 F.3d 178

Osama ABDELFATTAH v. U.S. DEPARTMENT OF HOMELAND SECURITY; Michael Chertoff, in his official capacity as Secretary of the Department of Homeland Security; Magda S. Oriz, Director of FOIA/PA Branch; U.S. Citizenship and Immigration Service; U.S. Immigration and Customs Enforcement; Federal Bureau of Investigation.

Osama Abdelfattah v. U.S. Department of Homeland Security.

Osama Abdelfattah v. U.S. Department of Homeland Security; U.S. Citizenship and Immigration Service; U.S. Immigration and Custom Enforcement; Federal Bureau of Investigation.

Osama Abdelfattah v. U.S. Customs and Border Protection; U.S. Immigration and Custom Enforcement

Osama Abdelfattah, Appellant.

No. 06-4106.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) March 27, 2007.

Filed: May 30, 2007.

Osama Abdelfattah, Appellant, Pro Se.

James B. Clark, III, Office of United States Attorney, Newark, NJ, Attorney for Appellees.

Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

Osama Abdelfattah appeals pro se from an order of the United States District Court for the District of New Jersey granting the defendants' motion for summary judgment in this action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act ("PA"), 5 U.S.C. § 552a. We will affirm in part, vacate in part, and remand to the District Court for further proceedings. In doing so, we clarify the test, announced in Davin v. United States Department of Justice, 60 F.3d 1043, 1056 (3d Cir.1995), for evaluating whether material withheld pursuant to FOIA Exemption 7 qualifies as "records or information compiled for law enforcement purposes."

I.

In an effort to obtain records pertaining to himself, Abdelfattah submitted FOIA/PA requests to the United States Citizenship and Immigration Services ("CIS"), the Bureau of United States Customs and Border Protection ("CBP"), the Bureau of United States Immigration and Customs Enforcement ("ICE"), and the Federal Bureau of Investigation ("FBI"). The CIS conducted a search using Abdelfattah's name and located 420 pages of responsive documents. Ultimately, the CIS referred 57 pages to the ICE, released 344 pages in full, released one page with redactions, and withheld 18 pages in full. Of the 57 pages referred to the ICE, 51 were released in full, four were withheld in part, and two were withheld in their entirety. When Abdelfattah filed his complaint against the ICE, that agency had not yet responded to the request submitted directly to it. In response to Abdelfattah's request to the CBP, two pages were determined to be non-responsive and one document was released with certain redactions. The FBI informed Abdelfattah that a search of its automated indices yielded no responsive records at its headquarters.

Beginning in October 2005, Abdelfattah filed a series of complaints in the District Court alleging that his FOIA requests were not timely processed, that the searches were inadequate, and that certain information in the responsive documents was improperly withheld. These actions were eventually consolidated and the parties filed cross motions for summary judgment. The District Court granted the defendants' motion.¹ Abdelfattah appeals.

II.

We employ a two-tiered test in reviewing an order of a District Court granting summary judgment in proceedings seeking disclosure under the FOIA. We must "first decide whether the district court had an adequate factual basis for its determination." McDonnell v. United States, 4 F.3d 1227, 1242 (3d Cir.1993) (citations omitted). If it did, we "must then decide whether that determination was clearly erroneous." Id. (citations omitted). Under this standard, we will reverse only "if the findings are unsupported by substantial evidence, lack adequate evidentiary support in the record, are against the clear weight of the evidence or where the district court has misapprehended the weight of the evidence." Id. (quoting Lame v. U.S. Dep't of Justice, 767 F.2d 66, 70 (3d Cir.1985)).

III.

On appeal, Abdelfattah challenges the adequacy of the searches and the sufficiency of the justifications for withholding material pursuant to FOIA Exemptions 5 and 7. See 5 U.S.C. § 552(b)(5) & (b)(7). He also challenges the degree of compliance with the FOIA's requirement that "[a]ny reasonably segregable portion of a record shall be provided . . . after deletion of the portions which are exempt . . . ." 5 U.S.C. § 552(b).

A.

Under the FOIA, an agency has a duty to conduct a reasonable search for responsive records. See Oglesby v. U.S. Department of Army, 920 F.2d 57, 68 (D.C.Cir.1990). The relevant inquiry is not "whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). To demonstrate the adequacy of its search, the agency should provide a "reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999) (quoting Oglesby, 920 F.2d at 68).

Abdelfattah alleges the CIS's search was inadequate because it failed to produce records pertaining to his applications for relief (e.g., application for adjustment of status, application for a travel document, application for employment authorization, etc.). The District Court concluded that the detailed affidavits in this case establish that the CIS's search was adequate and "reasonably calculated to uncover all relevant documents." Oglesby, 920 F.2d at 68. We agree. In particular, the affidavit of a paralegal specialist in the CIS FOIA/PA Unit at the National Records Center described Abdelfattah's numerous requests (including the specific file numbers assigned to the relief applications he sought), explained the search terms that were employed, and described the various files that were searched. Among those files was the "Computer Linked Application Information Management System," which is "used to track applications or petitions for benefits filed under the Immigration and Nationality Act."

Abdelfattah further complains the FBI failed to demonstrate the adequacy of its search.² In October 2005, Abdelfattah submitted a FOIA/PA request to the FBI. The FBI informed him that a search of its automated indices to its central records system files at its headquarters located no responsive records. After exhausting his administrative remedies, Abdelfattah filed a complaint challenging the adequacy of the FBI's search, asserting that records must exist because he had been interviewed by FBI agents in July 2004. The FBI did not submit an affidavit describing its search. See Valencia-Lucena, 180 F.3d at 326 (describing information necessary to demonstrate adequacy of search). The District Court thus had no factual basis for its determination that the "FBI has satisfied its FOIA obligations to Plaintiff." See McDonnell, 4 F.3d at 1242. Accordingly, we will remand for further proceedings on this issue. Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1185-87 (D.C.Cir.1996) (remanding where agencies failed to justify the adequacy of their searches).

B.

Abdelfattah further contends the declarations and Vaughn index³ submitted by the defendants in support of their motion for summary judgment were inadequate. Specifically, he claims that those submissions (1) failed to adequately justify the ICE's withholding of a draft incident report pursuant to Exemption 5; (2) did not demonstrate that records located by the CIS and the CBP met the threshold for Exemption 7 that was established by this Court in Davin;⁴ and (3) omitted any indication that the CIS had disclosed all reasonably segregable information.

1.

After reviewing the record in its entirety, including the ICE's affidavit, we conclude that the District Court possessed a sufficient factual basis for its determination that the ICE properly used Exemption 5 to withhold a draft incident report. Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." 5 U.S.C. § 552(b)(5). The Exemption encompasses the traditional discovery privileges, including the deliberative process privilege, which "protects agency documents that are both predecisional and deliberative." Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.Cir.2006); see also Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). The ICE indicated that the draft report involved discussions "between [the agency's] subordinates and seniors" and noted that the report "may have been modified to ensure accurate reporting and clarify misleading statements." Moreover, there is no indication in the record that the draft report was expressly adopted as, or incorporated by reference into, the ICE's final decision. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (holding that "if an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5.").

2.

Abdelfattah also contends the CIS failed to sufficiently justify its use of Exemption 7. Under the present version of Exemption 7, which was enacted in 1986, agencies may withhold "records or information compiled for law enforcement purposes" to the extent that disclosure threatens (to varying degrees of certainty) one of six enumerated harms. See 5 U.S.C. § 552(b)(7). With respect to the first part of this analysis—whether the record or information was...