Reporters Comm. for Freedom Press v. U.S. Customs & Border Prot., Case No. 1:18-cv-00155 (TNM)

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: TREVOR N. McFADDEN, U.S.D.J.
• Citation: 567 F.Supp.3d 97
• Parties: The REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Plaintiff, v. UNITED STATES CUSTOMS AND BORDER PROTECTION, et al., Defendants.
• Docket Number: Case No. 1:18-cv-00155 (TNM)
• Decision Date: 18 October 2021

567 F.Supp.3d 97

The REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Plaintiff,
v.
UNITED STATES CUSTOMS AND BORDER PROTECTION, et al., Defendants.

Case No. 1:18-cv-00155 (TNM)

United States District Court, District of Columbia.

Signed October 18, 2021

567 F.Supp.3d 106

KatieLynn Boyd Townsend, Adam Alexander Marshall, Jennifer Anne Nelson, Reporters Committee for Freedom of the Press, Washington, DC, for Plaintiff.

Kathleene A. Molen, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants United States Customs and Border Protection, Department of Homeland Security.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

This case arises at the thorny intersection of government and social media. In 2017, U.S. Customs and Border Protection ("CBP") directed Twitter to divulge details about a user who criticized CBP's policies. The agency relied on 19 U.S.C. § 1509, a provision that allows CBP to summon anyone who has improperly exported or imported merchandise in the United States. Unsurprisingly, Twitter objected. Amid the public outcry that followed, CBP backed down.

Alarmed at CBP's actions, Reporters Committee for Freedom of the Press ("the

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Committee") submitted multiple requests under the Freedom of Information Act ("FOIA") for records related to CBP's interactions with Twitter. The agency's search for responsive records yielded thousands of pages. But the agency withheld or redacted many of those pages.

Now, over four years after the actions that spawned those requests, the Committee challenges CBP's response. The matter is before the Court on cross-motions for summary judgment. Both motions will be granted in part and denied in part.

I.

In March 2017, CBP's Office of Professional Responsibility (OPR) issued a summons to Twitter under authority allegedly provided by 19 U.S.C. § 1509. See Fourth Declaration of Patrick Howard ¶¶ 11–13 ("Howard 4th Decl."), ECF No. 59-3; Defendants’ Statement of Material Facts ¶ 3, ECF No. 59-2. CBP requested "all records," including the "user name[ ], account login, phone numbers, mailing addresses, and IP addresses" for the user behind the Twitter account @ALT_uscis, which had been critical of CBP policies. Compl. Ex. C at 10, ECF No. 1-3 (copy of CBP summons to Twitter).¹ Special Agent in Charge Stephen Caruso signed the summons, which ordered Twitter to "appear" before Special Agent Adam Hoffman. Id.

Twitter sued one month later, arguing that the summons exceeded CBP's authority and violated Twitter's First Amendment right. See Howard 4th Decl. ¶ 14. CBP withdrew the summons the next day, mooting the case, if not the controversy. See id. ¶ 15.

Soon after, the Committee filed a FOIA request for agency records related to the @ALT_uscis Twitter account and the Twitter summons generally. See Compl. Ex. D at 3, ECF No. 1-4. The agency began to search for documents responsive to the Committee's request. While that search progressed, the Department of Homeland Security's ("DHS") Inspector General released a report detailing his investigation into the imbroglio. See Compl. Ex. B, ECF No. 1-2. He concluded that CBP "may have exceeded the scope of its authority under Section 1509," which "addresses ascertainment, collection, and recovery of customs duties. " Id. at 4–5 (emphasis in original).

By January 2018, CBP had produced no records in response to the Committee's FOIA request. Dissatisfied with that lack of response, the Committee sued the agency (along with DHS), seeking to compel production of responsive records. See Compl., ECF No. 1. Two months later, the Committee filed a second FOIA request for all "processing notes" and "email communications" about how CBP had addressed the Committee's first request. See Howard 4th Decl. ¶ 26. The Committee then filed a third FOIA request for any agency records that referenced 19 U.S.C. § 1509. See id. ¶ 29. When CBP failed to respond to the two most recent FOIA requests, the Committee filed another lawsuit. See Compl., Civil Action No. 18-cv-1289. The Court consolidated the two lawsuits. See Minute Entry, June 12, 2018.

From April 2018 to December 2019, the agency released 4,151 pages of records to the Committee in 19 responses. See Howard 4th Decl. ¶ 35. CBP listed all produced documents in a Vaughn Index. See Howard 4th Decl., Ex. A, ECF No. 43-2. According to that Index, some released pages contained information that was exempt from FOIA's prohibitions. For those documents,

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the agency released only the non-exempt information.

Each party then moved for summary judgment. The Government argued that it had properly responded to the Committee's requests. See Motion for Summary Judgment, ECF No. 43. The Committee argued the opposite. See Cross-Motion for Summary Judgment, ECF No. 45. The Court denied both motions, holding that the agency's Vaughn Index and accompanying declarations were so "plainly inadequate" that the Court could not "meaningfully review" the record. Order at 2–3, ECF No. 52. The Court ordered the agency to submit a new Index before further summary-judgment briefing could occur. See id. at 3. After the Court's order, CBP consulted with the Committee and released 127 pages with revised redactions. See Pl.’s Statement of Material Facts ¶ 50, ECF No. 60-2.

The parties then cross-moved for summary judgment. See Defendants’ Motion for Summary Judgment, ECF No. 59 ("Defs.’ MSJ"); Plaintiff's Cross-Motion for Summary Judgment, ECF No. 60 ("Pl.’s MSJ"). Those motions are now before the Court.²

II.

To prevail on a motion for summary judgment, a party must show that "there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). FOIA requires "disclosure of documents held by a federal agency unless the documents fall within one of nine enumerated exemptions, which are listed at 5 U.S.C. § 552(b)." U.S. Fish & Wildlife Serv. v. Sierra Club, Inc. , ––– U.S. ––––, 141 S. Ct. 777, 785, 209 L.Ed.2d 78 (2021). To obtain summary judgment, the agency bears the burden to show the applicability of the claimed exemptions. See ACLU v. DOD , 628 F.3d 612, 619 (D.C. Cir. 2011). Courts construe these exemptions narrowly. See Milner v. Dep't of the Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). Courts review the applicability of FOIA exemptions de novo. See King v. DOJ , 830 F.2d 210, 217 (D.C. Cir. 1987).

To meet its burden, an agency may rely on declarations describing the applicability of a FOIA exemption to information that the agency has withheld. See Shapiro v. DOJ , 893 F.3d 796, 799 (D.C. Cir. 2018). Those declarations receive "a presumption of good faith." SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991). The Court may grant summary judgment based solely on the agency's declarations if they are not contradicted by contrary record evidence or by evidence of the agency's bad faith. See Aguiar v. DEA , 865 F.3d 730, 734–35 (D.C. Cir. 2017).

Here, CBP cited three of FOIA's nine exemptions to justify withholdings. See generally Howard 4th Decl., Ex. A, ECF No. 59-4 (" Vaughn Index"). Exemption 5 allows nondisclosure of records "that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Put simply, a FOIA requester cannot obtain by FOIA what the requester could not obtain in a lawsuit against the agency. See NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). Thus, documents protected under (as relevant here) the deliberative process privilege, the attorney-client privilege, and the attorney work-product privilege in civil litigation may be withheld under FOIA. See Sierra Club , 141 S. Ct. at 785.

CBP also withheld information under Exemptions 6 and 7(C), which cover information

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that, if disclosed, might threaten personal privacy. See 5 U.S.C. § 552(b)(6), (b)(7)(C). Lastly, CBP withheld information under Exemption 7(E), which protects information that, if disclosed, would divulge techniques, procedures, or guidelines for law enforcement investigations or prosecutions. See id. § 552(b)(7)(E).

Whether an exemption applies, however, does not end the matter. Under a 2016 amendment to FOIA, an agency may not withhold exempt materials unless the agency "reasonably foresees that disclosure would harm an interest protected by" a FOIA exemption. 5 U.S.C. § 552(a)(8)(A)(i)(I). Early decisions in this district construing this language held that, to meet the foreseeable-harm standard, the agency must articulate a link between the withheld information and the foreseen harm. See, e.g. , Jud. Watch, Inc. v. Dep't of Com. , 375 F. Supp. 3d 93, 100 (D.D.C. 2019). How specific an agency's explanation needed to be, however, remained a somewhat open question, particularly in decisions that involved the deliberative process privilege under Exemption 5.

Two recent cases from the D.C. Circuit elucidate how courts should deal with the foreseeable harm requirement. In Machado Amadis v. Department of State , 971 F.3d 364, 370 (D.C. Cir. 2020), the agency withheld under the deliberative...