Bloomer v. U.S. Dep't of Homeland Sec.

• Decision Date: 03 May 2012
• Docket Number: Case No. 5:11–cv–35.
• Citation: 870 F.Supp.2d 358
• Parties: Robert A. BLOOMER, Jr., Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.
• Court: U.S. District Court — District of Vermont

870 F.Supp.2d 358

Robert A. BLOOMER, Jr., Plaintiff,

v.U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

Case No. 5:11–cv–35.

United States District Court, D. Vermont.

May 3, 2012.

Robert A. Bloomer, Jr., Addison, VT, pro se.

Carol L. Shea, AUSA, United States Attorney's Office, Burlington, VT, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S CROSS–MOTION FOR SUMMARY JUDGMENT

(Docs. 20 and 23)

CHRISTINA REISS, Chief Judge.

This matter comes before the court on the parties' cross-motions for summary judgment. The Complaint in this case alleges that Defendant U.S. Department of Homeland Security (“DHS”) failed to properly comply with Plaintiff Robert A. Bloomer Jr.'s request for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. DHS is represented by Carol L. Shea, AUSA. Mr. Bloomer is representing himself. The court heard oral argument on the cross-motions on January 9, 2012.

I. Factual Background.

Mr. Bloomer is seeking records pertaining to Jose Carlos Chavez–Vernaza (“Chavez”), a Peruvian national who was convicted of federal drug crimes in 1986. Mr. Chavez was allegedly released from federal prison in 1993. Facing criminal charges in Peru, he fought the United States government's efforts to deport him to his home country, and ultimately fled to Mexico.

Mr. Chavez was subsequently allowed to return to the United States, allegedly with the assistance of an FBI agent and the knowledge of an Assistant U.S. Attorney. Documents produced pursuant to Mr. Bloomer's FOIA request reveal information about Mr. Chavez's activities in Portland, Oregon in 2000, including his efforts to purchase a house valued at approximately$950,000. Various federal agents were involved in collecting this information, and the names of those agents have been redacted. The name of an Assistant United States Attorney (“AUSA”) has also been redacted. Further redactions include financial information and law enforcement codes.

When Mr. Bloomer's FOIA request was first received, it was referred to U.S. Citizenship and Immigration Services (“CIS”), an agency within DMS. Both CIS and Immigration and Customs Enforcement (“ICE”) subsequently produced relevant documents to Mr. Bloomer. In September 2011, after this lawsuit had begun, CIS produced an additional fourteen pages from the Treasury Enforcement Communications System (“TECS”), a law enforcement database. (Doc. 20–3.) The parties' cross-motions for summary judgment pertain to redactions set forth within these latter fourteen pages.

II. Conclusions of Law and Analysis.

DHS has provided a Vaughn Index with respect to its redactions. The Index is supported by an affidavit from Ryan Law (“Law Declaration”), the Deputy FOIA Officer for ICE. Mr. Law explains that he reviewed each record “line by line,” and that the redacted items are protected by specific exemptions under FOIA. (Doc. 20–1 at 11.)

Mr. Bloomer has two objections to DHS's redactions. He first asserts that the Vaughn Index is “boilerplate” and therefore insufficient. Although he concedes that he is not interested in much of the redacted material, such as “TECS secret codes or case numbers,” he is nonetheless “unwilling to sign off on redactions that are not properly described or explained.” (Doc. 23 at 3.) Second, Mr. Bloomer argues that he is entitled discover the identities of two individuals: (1) the FBI agent who allegedly arranged for Mr. Chavez's return to the United States, and (2) the AUSA who spoke to Mr. Chavez about Chavez's status as a government informant.

A. Summary Judgment Standard.

Summary judgment is appropriate only when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548;see also FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994). When making this determination, a court must review the record in the light most favorable to the non-moving party and draw all reasonable inferences in his or her favor. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Lucente v. IBM Corp., 310 F.3d 243, 253 (2d Cir.2002). An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Lucente, 310 F.3d at 253 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

When deciding cross-motions for summary judgment, a court must consider each motion independent of the other, and the standard to be applied is the same as that for individual summary judgment motions. Bank of N.Y. Trust, N.A. v. Franklin Advisers, Inc., 674 F.Supp.2d 458, 462–63 (S.D.N.Y.2009).

B. Jurisdiction and Summary Judgment in FOIA Cases.

The central purpose of FOIA is to “ensure an informed citizenry ... [which is] needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); accord U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (citation omitted). Under the statute, “any member of the public is entitled to have access to any record maintained by a federal agency, unless that record is exempt from disclosure under one of the Act's nine exemptions.” A. Michael's Piano, Inc. v. FTC, 18 F.3d 138, 143 (2d Cir.1994). By enacting exemptions, “Congress recognized ... that public disclosure is not always in the public interest.” CIA v. Sims, 471 U.S. 159, 166–67, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985).

FOIA confers jurisdiction on the district courts “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld.” 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). However, “jurisdiction is dependent on a showing that an agency has (1) improperly (2) withheld (3) agency records. Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA's disclosure requirements.” Tax Analysts, 492 U.S. at 142, 109 S.Ct. 2841 (internal quotation marks and citation omitted). It is therefore “the responsibility of the federal courts to conduct de novo review when a member of the public challenges an agency's assertion that a record being sought is exempt from disclosure. The burden of proof, upon such review, rests with the agency asserting the exemption, with doubts resolved in favor of disclosure.” A. Michael's Piano, Inc., 18 F.3d at 143 (citations omitted).

Here, the parties submit that they are each entitled to summary judgment on Mr. Bloomer's FOIA claims. A district court “may grant summary judgment in favor of an agency on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir.1999) (quotation marks omitted). “Affidavits or declarations ... giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden ... [and] are accorded a presumption of good faith.” Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir.1994) (citation omitted). When agency submissions are adequate on their face, a district court has the discretion to “forgo discovery and award summary judgment on the basis of affidavits.” Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978). Indeed, it has been held that “FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir.2008).

C. Whether The Exemptions Asserted By DHS Apply In This Case.

1. Exemption 3.

DHS argues that its redactions are appropriate under Exemptions 3, 6, 7(C), and 7(E) to FOIA. Exemption 3 applies to matters “specifically exempted from disclosure by statute” if the statute meets certain requirements. 5 U.S.C. § 552(b)(3). The Supreme Court has set forth a two-part analysis to be employed by a court when reviewing an agency's invocation of Exemption 3. See CIA v. Sims, 471 U.S. 159, 167, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985). First, the court must determine whether the statute designated by the withholding agency is one properly within the bounds of Exemption 3. See id. If so, the court must then determine whether the withheld information meets the requirements of that statute. See id.; see also A. Michael's Piano, Inc., 18 F.3d at 143;Fitzgibbon v. CIA, 911 F.2d 755, 761 (D.C.Cir.1990); ACLU v. Dep't of Defense, 389 F.Supp.2d 547, 554 (S.D.N.Y.2005).

DHS has made one redaction under Exemption 3. (Doc. 20–3 at 7.) In doing so, it relies on the Bank Secrecy Act, which exempts from disclosure information that has been reported by financial institutions to the Treasury Department, and is subsequently shared with other government agencies. See31 U.S.C. § 5319. The Bank Secrecy Act is properly within the bounds of Exemption 3 because it “mandates withholding in such a manner as to leave no discretion on the issue to the agency.” Berger v. IRS, 487 F.Supp.2d 482, 496 (D.N.J.2007); see5 U.S.C. § 552(b)(3)(A) (statute must “require [ ] that the matters be withheld from the public in such a manner as to leave no discretion on the issue.”).

As to the second prong of the test, DHS's Vaughn Index explains that the redaction is part of a ...