ConcepcióN v. U.S. Customs & Border Prot.

• Decision Date: 04 December 2012
• Docket Number: Civil Action No. 10–0599 (ABJ).
• Citation: 907 F.Supp.2d 133
• Parties: Alberto CONCEPCIÓN, Plaintiff, v. U.S. CUSTOMS AND BORDER PROTECTION, Defendant.
• Court: U.S. District Court — District of Columbia

907 F.Supp.2d 133

Alberto CONCEPCIÓN, Plaintiff,

v.U.S. CUSTOMS AND BORDER PROTECTION, Defendant.

Civil Action No. 10–0599 (ABJ).

United States District Court, District of Columbia.

Dec. 4, 2012.

Alberto Concepcion, Fort Dix, NJ, pro se.

Leila Jade Levi, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

This matter is before the Court on the renewed motion for summary judgment filed on behalf of U.S. Customs and Border Protection (“CBP”). For the reasons discussed below, the motion will be granted.

I. BACKGROUNDA. Documents related to Miguel Concepción (FOIA Case Number 2009F1670)

According to the complaint, at one time, plaintiff, Alberto Concepción, was using the driver's license, credit cards, and Social Security number of his deceased brother, Miguel Concepción. See Compl. ¶¶ 9, 27. He purchased airline tickets in his late brother's name, see id. ¶ 27, and travelled out of the state of New Jersey during the same time period that law enforcement authorities accused him of being involved in the sale of heroin. Id.¹ In order to obtain information regarding his departures from and arrivals into the United States in connection with his defense to those charges, plaintiff submitted a request under the Freedom of Information Act (“FOIA”), see5 U.S.C. § 552, to CBP for the following information:

A COPY OF ANY, & ALL OF THE RECORDS, DOCUMENTS, FILES, DATA, ETC., OF THE PRIMARY QUERY HISTORY OF PASSENGER ACTIVITY, FROM JAN. 1, 1991, UNTIL PRESENT FOR MY DECEASE[D] BROTHER MIGUEL CONCEPCIÓN.

Def.'s Mem. in Supp. of the Renewed Mot. for Summ. J. [Dkt. # 37] (“Def.'s Mem.”), Decl. of Shari Suzuki (“Suzuki Decl.”), Attach. A (Freedom of Information Act Request dated July 8, 2008) (emphasis in original). CBP staff interpreted the request as one “for a ‘Passenger Activity’ record, which is a commonly requested record [of] an individual's international travel history, showing the date, time, and location of each border crossing recorded by CBP.” Suzuki Decl. ¶ 8. The search of a database known as “TECS using the name ‘Miguel Concepción’ and [his] date of birth” as search terms yielded “a one page ‘Passenger Activity’ record,” id. ¶ 10, “on the international arrival of Miguel Concepción on June 11, 1997,” id. ¶ 11. The agency released the record after having redacted information under Exemptions 6, 7(C), and 7(E). See id. ¶¶ 11, 23, 44; see also id., Attach. C (Letter from Mark Hanson, Director, FOIA Division, Office of International Trade, CBP, to plaintiff dated January 30, 2009). Plaintiff pursued administrative appeals of this determination to CBP's FOIA Appeals, Policy and Litigation Branch, id. ¶¶ 12–13, without success, see id. ¶ 19.

B. Documents related to Alberto Concepción

Plaintiff also submitted a separate request “ all records wherein [his] name is utilized, and this request is all inclusive.” Compl., Ex. N–8 (Freedom of Information/Privacy Act Request dated July 8, 2008) (emphasis in original). CBP did not process the request upon receipt, however, because it “had previously processed an almost identical request from [p]laintiff in March, 2008,” Suzuki Decl. ¶ 25, as well as a referral to CBP from the Federal Bureau of Investigation” which also sought information about plaintiff himself, id. ¶ 26, resulting in the release on April 8, 2008, of “three pages of records ... on the international arrivals of [p]laintiff on February 22, 1997[,] May 31, 1999 and June 7, 1999,” in redacted form, id. ¶ 28.² Plaintiff did not appeal this determination, so it is the request for documents related to travel in the name of his brother that is before the Court.³Id. ¶ 30.

Plaintiff asserts that there were trips for which no records were produced, so his first contention is that the search was inadequate and/or the records have been deliberately destroyed. While the agency did produce one Passenger Activity Record for Miguel Conception, it redacted certain information from the document before providing it to the plaintiff. So plaintiff's second challenge goes to the grounds for redactions.

II. DISCUSSIONA. Summary Judgment in a FOIA Case

Summary judgment is granted “if the movant shows that 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). The moving party must support the assertion that no facts are in dispute by “citing to particular parts of materials in the record, including ... affidavits.” Fed.R.Civ.P. 56(c)(1)(A). The non-moving party has the burden “to produce admissible evidence establishing a genuine issue of material fact.” Bush v. District of Columbia, 595 F.3d 384, 386 (D.C.Cir.2010) (citing Celotex v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the nonmoving party fails to “make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof,” then the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The Supreme Court defines material facts as “those that might affect the outcome of the suit under governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and a dispute over a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

In a FOIA case, the Court may grant summary judgment based on the information provided in affidavits or declarations when they describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record [or] by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’ ” SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)).

B. The CBP's Searches for Responsive Records

An agency “fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C.Cir.2011) (citations and internal quotation marks omitted). A search need not be exhaustive. See Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383 (8th Cir.1985). “The issue in a FOIA case is not whether the [agency's] searches uncovered responsive documents, but rather whether the searches were reasonable.” Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C.1996) (citations omitted).

To meet its burden, an agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). These affidavits or declarations must describe “what records were searched, by whom, and through what processes.” Steinberg v. Dep't of Justice, 23 F.3d 548, 552 (D.C.Cir.1994). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate compliance with the FOIA. Perry, 684 F.2d at 127. If the record “leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990).

CBP's declarant explains that records responsive to plaintiff's request for information about Miguel Concepción, “ ‘Passenger Activity’ records[,] are retrieved from the TECS database.” Suzuki Decl. ¶ 9. “TECS is an overarching law enforcement information collection, analysis, and sharing environment that securely links telecommunications devices and personal computers to a central system and database.” Id. It “is comprised of several modules designed to collect, maintain, and screen data as well as conduct analysis, screening, and information sharing.” Id. Its “databases contain temporary and permanent enforcement, inspection and intelligence records relevant to the anti-terrorism and law enforcement mission of CBP and numerous other federal agencies that it supports.” Id.

CBP is “responsible for collecting and reviewing border crossing information related to international travel.” ⁴Id. ¶ 10. A person arriving in the United States is “subject to CBP inspectional processing,” which requires that he “establish his ... identity, nationality, and admissibility to the satisfaction of a CBP officer.” Id. TECS maintains information that the person “has been admitted into the United States at a particular time and port of entry.” Id. TECS, the declarant explains, “is the only CBP system that maintains border crossing information (i.e., travel history or ‘Passenger Activity’ record).” Id. ¶ 10; see id. ¶ 17. Using Miguel Concepción's name and date of birth as search terms, a TECS query yielded the one-page Passenger Activity record. Id. ¶ 10; see id., Attach. J (redacted Passenger Activity record).

Plaintiff contends that he “has traveled to the [B]ahama[ ]s (TWICE), [J]amaica (ONCE), [C]ancun[, M]exico (ONCE), & [S]aint [m]artin's [sic] (TWICE), among ... other ‘international destinations[,]’ ” under his brother's name between 1995 and 1999, yet “no such international airline travel flight information exist[s] on the records that were provide by CBP.” Plaintiff's Third Opposition Motion/Declaration/Memorandum of Law/Brief of Facts[ ] & Law in Support of his Genuine Issues, Inter Alia, in Response to Counsel of Record Third Frivolous, Inter Alia, Motion for Summary Judgment [Dkt. # 40] (“Pl.'s Opp'n”) ¶ 12. He contends that, because only government employees have access to databases with travel information, see id., a...