Barnard v. Department of Homeland Sec.
| Decision Date | 09 February 2009 |
| Docket Number | Civil Action No. 06-1393 (CKK). |
| Citation | 598 F.Supp.2d 1 |
| Parties | Neal D. BARNARD, M.D., Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, Defendant. |
| Court | U.S. District Court — District of Columbia |
Daniel Kinburn, Physicians Committee for Responsible Medicine, Washington, DC, for Plaintiff.
Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.
This is a Freedom of Information Act ("FOIA") and Privacy Act case brought by Neal D. Barnard against the Department of Homeland Security, seeking to obtain records related to him that could explain why he has been detained, questioned, and/or searched in airports during and after his international trips beginning in January 2003. This is the second time the Court has been called on to resolve this case. On January 29, 2008, the Court granted summary judgment in favor of Defendant, finding that it had properly withheld seven pages of records identified as responsive to Plaintiff's FOIA/Privacy Act requests. Just five days after issuing that decision the parties notified the Court that Defendant had located additional responsive records. At the request of the parties, the Court entered a stay to allow Defendant to process the additional records and ordered the parties to file a Status Report indicating whether, in light of the Court's Memorandum Opinion, there remained any disputes concerning the additional records. The parties subsequently notified the Court that they were able to narrow but not eliminate their disputes. Accordingly, the Court entered another briefing schedule for dispositive motions, which incorporated at Plaintiff's request a reconsideration motion based on "newly discovered evidence."
After thoroughly considering the parties' submissions, including Defendant's two in camera declarations, and all applicable case law, statutory authority, and the entire record of the case as a whole, the Court shall GRANT Defendant's [39] Motion for Summary Judgment and DENY Plaintiff's [40] consolidated Cross-Motion for Summary Judgment and Motion for Reconsideration, for the reasons that follow.
As previously described in the Court's first Memorandum Opinion, Plaintiff claims to have been detained, questioned, and/or searched at various airports before or after international trips on approximately 17 occasions between January 2003 and January 2007. See 531 F.Supp.2d 131, 134 (D.D.C.2008). Seeking to discover the records underlying his traveling difficulties, Plaintiff began filing FOIA/Privacy Act requests. Id.
Plaintiff initially sent a FOIA/Privacy Act request to United States Customs and Border Protection ("CBP") requesting "all records about me that are in IBIS or any other system used by [CBP] at any and all ports of entry to the United States."1 Def.'s Stmt. ¶ 1. CBP erroneously processed Plaintiff's request as a "traveler redress complaint," and incorrectly advised him to seek the requested records from Immigration and Customs Enforcement ("ICE").2 Id. ¶ 2. For purposes of clarity, the Court shall separately discuss the facts pertaining to ICE and CBP.
Plaintiff submitted a FOIA/Privacy Act request to ICE by letter dated March 21, 2006, requesting "any records created from January 1, 2002[,] to the present that were prepared, received, transmitted, collected and/or maintained by [ICE] relating to [fifteen specifically enumerated areas.]" Def.'s Stmt. ¶ 3. After failing to receive a timely response, Plaintiff filed an administrative appeal on May 16, 2006. Barnard Decl. ¶ 27. On August 5, 2006, ICE advised Plaintiff that it did not locate any responsive records. Def.'s Stmt. ¶ 4.
Plaintiff filed a Complaint in this case on August 7, 2006.3 By letter dated November 16, 2006, ICE informed Plaintiff that it located six pages of records responsive to his request but that they were exempt from disclosure, in their entirety, based on FOIA Exemptions 2, 7(A), 7(C), and 7(E).4 Id. ¶ 6. The parties both moved for summary judgment on the dispositive issue of whether ICE properly withheld the records in their entirety.
Defendant argued that the records were properly withheld, and relied on the declaration of Marshall Fields, Chief of the FOIA/Privacy Act Section, Information Disclosure Unit, at ICE. See Def.'s [14] Mot., Ex. A (hereinafter "Fields Decl."). Mr. Fields explained that Plaintiff "is the subject of an open and pending criminal investigation" and that "[r]elease of any information pertaining to this investigation could reasonably be expected to interfere with this open and pending criminal investigation." Id. ¶ 22.
Plaintiff conceded that Defendant could "properly withhold portions of the records if they pertain to an ongoing investigation." 531 F.Supp.2d at 138. Plaintiff nevertheless argued that Defendant failed to meet its burden of showing that there was an ongoing investigation of Plaintiff because Mr. Fields's declaration was not based on his personal knowledge. See Pl.'s [16] Mot. at 8-13. Plaintiff also argued that Defendant had not met its burden of demonstrating that it could not segregate any non-exempt information in the records. Id. at 13-14.
The Court rejected Plaintiff's first argument concerning Mr. Fields's personal knowledge because his statements were made "based upon [his] personal knowledge, review of documents kept in the course of business, and information conveyed to [him] in the course of [his] official duties." Fields Decl. ¶ 4. Because he was "familiar with the processes used to search for the records at issue, and because he [] reviewed the records himself," the Court found that he was "competent to testify as to the information contained in those records." 531 F.Supp.2d at 139. With respect to Plaintiff's second argument concerning the segregation of non-exempt information, the Court agreed with Plaintiff that Defendant had provided an inadequate explanation as to why non-exempt information could not be segregated. Because there were a limited number of pages at issue, and because Defendant argued that a more fulsome segregability explanation would divulge information properly withheld based on the exemptions Defendant had invoked, the Court ordered Defendant to produce the records for an in camera review. Id. at 140-41.
Defendant submitted the records to the Court on January 23, 2008, which included seven (not the previously identified six) pages. Defendant also submitted a declaration from Gloria Marshall, the Unit Chief of the Information Disclosure Unit, at ICE. See Def.'s [25] Notice, Ex. 1 (hereinafter "First Marshall Decl."). Ms. Marshall explained that Mr. Fields was no longer employed at ICE, and that she reviewed the relevant files to locate the six pages of records to submit to the Court. Id. ¶ 6. In the course of her review, she discovered a seventh page that was not previously identified in Mr. Fields's declaration. Id. Accordingly, Ms. Marshall undertook an independent review of the seven pages and "determined that all records are exempt from disclosure . . . for the reasons explained in the Fields Declaration." Id. Following the Court's in camera review of the records, the Court agreed with Defendant that there existed no reasonably segregable non-exempt information and, on January 29, 2008, the Court granted Defendant's Motion for Summary Judgment and denied Plaintiff's Cross-Motion for Summary Judgment.
On February 4, 2008, Defendant filed a Notice and Motion to Stay explaining that it had discovered additional records responsive to Plaintiff's FOIA/Privacy Act requests. See Def.'s [29] Mot. for a Stay at 1. Defendant explained that it reviewed its files to submit the ICE records in response to the Court's order for in camera review and "discovered that it might not have properly processed Plaintiff's July 20, 2005 [FOIA] request." Id. at 1. Defendant further explained that CBP had erroneously treated Plaintiff's FOIA/Privacy Act request as a "traveler's complaint," and did not process the request under its FOIA/Privacy Act procedures. Id. at 2. Defendant notified Plaintiff of this development prior to the Court's January 29, 2008 decision, but neither party brought it to the attention of the Court.5
Defendant also submitted a second declaration from Gloria Marshall. Id., Ex. A (hereinafter "Second Marshall Decl."). Ms. Marshall explained that "[P]laintiff is no longer the subject of the open and pending criminal investigation originally cited in the Fields declaration," a fact that she did not learn until February 1, 2008 (after the Court had issued its decision). Id. ¶ 7. Nevertheless, Ms. Marshall asserted that the seven pages of records were still properly withheld by ICE pursuant to FOIA Exemption 7(A) because disclosure of the records would negatively affect other ongoing investigations:
FOIA [Exemption 7(A)] is no longer applicable with respect to the investigation noted in the Fields Declaration [concerning Plaintiff], however, I have been informed that disclosure of information related to [P]laintiff could have a negative impact on other ongoing investigations. Accordingly, FOIA [Exemption 7(A)] is still applicable to the seven pages of ICE records . . . .
The Court granted a stay on February 6, 2008. See 2/6/08 Min. Order. The Court ordered Defendant to process the additional responsive records and either release them to Plaintiff or prepare a Vaughn Index regarding the same. Id. During the pendency of the stay, ICE obtained twenty-five additional pages of responsive records from the ICE Special Agent in Charge office. Def.'s Stmt. ¶ 14. Fourteen of the pages belonged to CBP and were forwarded to that component for review.6 Id. ¶ 16. With respect to the other eleven pages, ICE released seven of them to Plaintiff and withheld the remaining four. Id. ICE invoked FOIA Exemptions 2, 7(A), 7(C), and 7(E) to withhold the four pages of records in...
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