Defenders of Wildlife v. U.S. Border Patrol

• Decision Date: 11 June 2009
• Docket Number: Civil Action No. 04-1832 (PLF).
• Citation: 623 F.Supp.2d 83
• Parties: DEFENDERS OF WILDLIFE, Plaintiff, v. UNITED STATES BORDER PATROL, et al., Defendants.
• Court: U.S. District Court — District of Columbia

623 F.Supp.2d 83

DEFENDERS OF WILDLIFE, Plaintiff, v. UNITED STATES BORDER PATROL, et al., Defendants.

Civil Action No. 04-1832 (PLF).

United States District Court, District of Columbia.

June 11, 2009.

COPYRIGHT MATERIAL OMITTED

Scott Allan Hodes, Brian Paul Segee, Washington, DC, for Plaintiff.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

This Freedom of Information Act case is before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment and on plaintiff's cross-motion for summary judgment.¹ After careful consideration of the parties' papers and the attached exhibits and declarations, the Court concludes that the Vaughn Index submitted by the Department of Homeland Security ("DHS") and accompanying declarations are inadequate for the Court to resolve either party's motion on the merits. It therefore will order DHS to supplement the Vaughn Index and declarations as described below.

I. BACKGROUND

Plaintiff Defenders of Wildlife is a Washington, D.C. based nonprofit corporation whose mission is to preserve wildlife and emphasize appreciation and protection for all species in their ecological role within the natural environment through education and advocacy. See Compl. ¶ 3. On April 28, 2004, plaintiff sent a FOIA request to the Tucson and Yuma Sectors of the United States Border Patrol ("USBP") and the Citizenship and Immigration Services ("CIS"). See Pl. Mot., Plaintiff's Statement of Material Facts as to Which There is No Genuine Dispute ("Pl. Facts") ¶ 11.² Plaintiff requested six categories of records concerning the agencies' adherence to environmental laws in relation to the Arizona Border Control Initiative, documents produced pursuant to the Endangered Species Act, and correspondence with other federal agencies and Congressional representatives. See id. On May 4, 2004, the California CIS office advised plaintiff that if any records existed they would be maintained at the Bureau of Customs and Border Protection ("CBP") in Washington, D.C. See id. ¶ 12. On May 12, 2004, plaintiff submitted a separate FOIA request to CBP for the same categories of information as in the original request. See id. ¶ 14. Having received no records in response to these requests, plaintiff filed suit in this Court on January 3, 2005 alleging that USBP and CBP violated the FOIA because they had not responded to plaintiff's request and they had not conducted an adequate search for records. See Compl. ¶¶ 34, 37, 40, 61.

On August 15, 2005, CIS provided some responsive records to plaintiff on behalf of USBP as well as a Vaughn Index identifying records that were withheld. See Pl. Facts ¶ 13. On November 29, 2005, the Department of Homeland Security, of which USBP and CBP are components, filed an amended Vaughn Index in support of a motion to dismiss or, in the alternative, for summary judgment. The sufficiency of that Vaughn Index and the adequacy of the agencies' searches are at issue in the pending motions.³

II. STANDARD OF REVIEW

A. The Freedom of Information Act

The fundamental purpose of the FOIA is to assist citizens in discovering "what their government is up to." 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) (emphasis in original). The FOIA strongly favors openness, as Congress recognized in enacting it that an informed citizenry is "vital to the functioning of a democratic society, 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); see also Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (purpose of the FOIA is "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny"). As such, "disclosure, not secrecy, is the dominant objective of the Act." Dep't of the Air Force v. Rose, 425 U.S. at 361, 96 S.Ct. 1592.

B. Summary Judgment

The Court will grant a motion for summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits or declarations show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits its own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992).

FOIA cases typically and appropriately are decided on motions for summary judgment. Bigwood v. United States Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C.2007); Farrugia v. Executive Office for United States Attorneys, Civil Action No. 04-0294, 2006 WL 335771 at *3 (D.D.C. Feb. 14, 2006). In a FOIA case, the Court may award summary judgment solely on the basis of information provided in affidavits or declarations when the affidavits or declarations are "relatively detailed and non-conclusory," SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991), and 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 nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974); Hertzberg v. Veneman, 273 F.Supp.2d 67, 74 (D.D.C.2003). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978); see also Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001); Hertzberg v. Veneman, 273 F.Supp.2d at 74.

III. DISCUSSION

DHS has produced 602 pages of records responsive to plaintiff's FOIA request in full, has withheld 853 pages of potentially responsive records in full, has withheld 189 pages of potentially responsive records in part, and has referred 255 pages of potentially responsive records to other agencies. See Vaughn Index, Declaration of Magda S. Ortiz ("Ortiz Decl.") ¶ 6. Plaintiff challenges the adequacy of this production on several grounds, summarizing its complaints as follows:

The Vaughn index is legally insufficient, and the agencies have not carried their burden to justify withholdings under exemption 5's deliberative process privilege and exemption 7(E). The agencies have additionally failed to segregate releasable information. Finally, DHS has not demonstrated that searches have been conducted and records provided for all DHS agencies, and the searches that have been conducted were not reasonable.

Pl. Mot. at 2.⁴ The Court agrees with plaintiff that DHS's Vaughn Index and the accompanying declarations are legally insufficient—the Court is unable to determine whether DHS's claimed exemptions are valid, whether it has met its burden to reasonably segregate information for release, and whether the agencies involved have conducted adequate searches for responsive records.

A. The Vaughn Index

Under the FOIA, an agency may withhold documents responsive to a FOIA request only if the responsive documents fall within one of nine enumerated statutory exemptions. See 5 U.S.C. § 552(b); see also Dep't of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). The agency bears the burden of justifying any withholding. See Bigwood v. United States Agency for Int'l Dev., 484 F.Supp.2d at 74. To enable the Court to determine whether documents properly were withheld, the agency must provide a detailed description of the information withheld through the submission of a so-called "Vaughn Index," sufficiently detailed affidavits or declarations, or both. Id.; see also Oglesby v. Dep't of the Army, 79 F.3d 1172, 1178 (D.C.Cir.1996); Vaughn v. Rosen, 484 F.2d at 827-28. The Vaughn Index and/or accompanying affidavits or declarations must "provide[ ] a relatively detailed justification, specifically identif[y] the reasons why a particular exemption is relevant and correlat[e] those claims with the particular part of a withheld document to which they apply." Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C.Cir.2006) (quoting Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242, 251 (D.C.Cir.1977)). While there is no set form for a Vaughn Index, the agency should "disclose as much information as possible without thwarting the exemption's purpose." Hall v. Dep't of Justice, 552 F.Supp.2d 23, 27 (D.D.C.2008) (quoting King v. Dep't of Justice, 830 F.2d 210, 224 (D.C.Cir.1987)).

DHS's Vaughn Index is lengthy, identifying each document by page number and providing three categories of information: a brief description of the document, the exemption(s) cited, and the content of the withheld portion and the basis for its withholding. The Vaughn Index, however, systematically fails to identify relevant information such as the originating component agency, the author, and frequently the recipient(s) of the document. As the court of appeals recently has explained, details such as these are necessary "to enable the court and the opposing party to understand the withheld information in order to address the merits of the claimed exemptions." Judicial Watch, Inc. v. FDA, 449 F.3d at 150.

DHS's descriptions of the documents withheld and the reasons for withholding...