Skinner v. U.S. Dep't of Justice

• Decision Date: 28 September 2012
• Docket Number: Civil Action No. 09–0725(PLF).
• Citation: 893 F.Supp.2d 109
• Parties: Jesse SKINNER, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

893 F.Supp.2d 109

Jesse SKINNER, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 09–0725(PLF).

United States District Court, District of Columbia.

Sept. 28, 2012.

Jesse Skinner, Yazoo City, MS, pro se.

Leila Jade Levi, U.S. Attorney's Office, Robert D. Trunkey, CBO, Washington, DC, for Defendants.

MEMORANDUM OPINION

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on the Second Renewed Motion for Summary Judgment filed by the Bureau of Alcohol, Tobacco, Firearms and Explosives (“BATFE”). Having carefully considered the motion, the opposition and the reply, and for the reasons stated below, the motion will be granted.

I. BACKGROUND

Plaintiff brought this action under the Freedom of Information Act (“FOIA”). See5 U.S.C. § 552. The sole matter remaining for resolution in this case is the decision of the United States Citizenship and Immigration Service (“USCIS”) to withhold certain information from a one-page document. See Skinner v. U.S. Dep't of Justice, 806 F.Supp.2d 105, 116 (D.D.C.2011). ¹ The document is described as “a printout of information from a Privacy Act system of records commonly referred to as The Enforcement Communications System (formerly, Treasury Enforcement Communications System (TECS)).” Mem. of P. & A. in Supp. of Defs.' Renewed Mot. for Summ. J. [Dkt. # 55] (“Def.'s Renewed Mot.”), Ex. 4 (Decl. of Jill A. Eggleston (“Eggleston Decl.”)) ¶ 5. A fuller description of the document, titled “TECS II—Person/Subject Entry screen printout,” is included in the BATFE's Vaughn Index:

The screen print in questions [sic] displays information maintained by the government on Jesse Manuel Skinner in the U.S. Department of Homeland Security DHS/CBP–011 TECS database, such as, name, physical identifiers, social security number, known resident [sic] address and date of birth. Also displayed in the screen print is the strategy for apprehending Skinner; name and duration of posting of the operation under which the apprehension was orchestrated and undertaken; and name of reporting law enforcement officer, individual identification and contact numbers, and computer access codes.

Def. BATFE's Mem. in Supp. of its Second Renewed Mot. for Summ. J. [Dkt. # 73] (“BATFE Mem.”), Vaughn Index at 1.

The USCIS initially relied in part on Exemptions 2 and 7(E) to redact from the printout “internal computer codes, an unpublicized investigation technique, and the names and employee identification numbers of federal law enforcement officers involved in the matter.” Def.'s Renewed Mot., Eggleston Decl. ¶ 7; see id., Ex. D ( Vaughn Index) at 2–3.² In light of the Supreme Court's ruling in Milner v. Dep't of the Navy, ––– U.S. ––––, ––––, 131 S.Ct. 1259, 1264–71, 179 L.Ed.2d 268 (2011), the USCIS now has abandoned its reliance on Exemption 2. It “has reviewed the redactions and determined that [Exemption 7(E) ] is equally applicable.” BATFE Mem. at 2.

II. DISCUSSION

A. Summary Judgment in a FOIA Case

“FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009). The Court grants summary judgment if the movant shows that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In a FOIA action to compel production of agency records, the agency “is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced ... or is wholly exempt from the [FOIA's] inspection requirements.’ ” Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir.1978)). Summary judgment may be based solely on information provided in an agency's supporting affidavits or declarations if they are relatively detailed and 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 nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see Beltranena v. Clinton, 770 F.Supp.2d 175, 182 (D.D.C.2011).

Plaintiff's opposition to the BATFE's pending motion discusses only his desire to obtain trial exhibits which had been filed in the United States District Court for the Southern District of Mississippi. See generally Pl.'s Resp. in Opp'n to Def.'s Mot. for Summ. J. [Dkt. # 76] (“Pl.'s Opp'n”) ¶¶ 3, 5–7, 12–25. According to plaintiff, defendant is “not being forthcoming with all information relevant to this instant case at bar,” id. ¶ 12, because an employee of the Drug Enforcement Administration (“DEA”) allegedly obtained the trial exhibits from the district court, id. ¶ 12, at a time when plaintiff's motions for release of these exhibits were pending both in the District of Mississippi and the District of Columbia. Id. ¶ 14. All FOIA issues regarding the DEA's response to plaintiff's FOIA request have been resolved. See generally Skinner v. U.S. Dep't of Justice, 744 F.Supp.2d 185 (D.D.C.2010). Furthermore, this Court already has ruled that the United States District Court for the Southern District of Mississippi is not subject to the FOIA, and that any trial exhibits kept there are not agency records responsive to plaintiff's FOIA request to the BATFE. See Order, Skinner v. U.S. Dep't of Justice, No. 09–0725 (D.D.C. filed Jan. 18, 2011). Wholly absent from plaintiff's opposition to the pending motion is any discussion of the BATFE's argument that the USCIS properly withheld TECS access codes under Exemption 7(E).

Ordinarily, the Court may treat as conceded any argument raised in a motion which the opposing party fails to address. See, e.g., Augustus v. McHugh, 870 F.Supp.2d 167, 172 (D.D.C.2012) (where plaintiff's “opposition did not challenge the Secretary's proffered justifications under FOIA for having redacted [information,]” the arguments were “deemed conceded, and summary judgment [was] entered in favor of the Secretary”); People for the Ethical Treatment of Animals v. Nat'l Inst. of Health, 853 F.Supp.2d 146, 151 (D.D.C.2012) (“Plaintiff also did not respond to defendant's arguments with respect to Count I or Count III in its opposition to defendant's motion for summary judgment,” and, accordingly, “the Court ... treat[ed] Count I and II as conceded and ... dismiss[ed] these claims without prejudice”); see also LCvR7(h) In these circumstances, however, the Court will discuss briefly the applicability of Exemption 7(E) to USCIS's redactions from the TECS screen printout at issue.

B. Exemption 7(E)

Exemption 7(E) protects from disclosure law enforcement records “to the extent that the production of such ... information ... would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). There is no dispute that the records responsive to plaintiff's FOIA request, including the one-page document at issue, were compiled for law enforcement purposes. See Skinner v. U.S. Dep't of Justice, 744 F.Supp.2d at 206.

Courts have held that information pertaining to law enforcement techniques and procedures properly is withheld under Exemption 7(E) where disclosure reasonably could lead to circumvention of laws or regulations. See, e.g., Morley v. Cent. Intelligence Agency, 453 F.Supp.2d 137, 157 (D.D.C.2006) (approving the withholding of information pertaining to security clearances and background investigations on the ground that “disclosure ... would risk circumvention of those processes in the future”), rev'd on other grounds,508 F.3d 1108 (D.C.Cir.2007).

1. TECS Database

It is helpful first to review defendant's description of TECS:

TECS is a comprehensive computerized law enforcement and communications information system ... designed to identify individuals and organizations suspected of involvement in violations of federal law. TECS is principally owned and managed by DHS's U.S. Customs and Border Protection (CBP), and is CBP's principal law enforcement and anti-terrorisminformation system. This system is comprised of several modules designed to collect, maintain, screen, analyze, and share information via secure links to telecommunications devices and computers of law enforcement agencies. For example, TECS provides direct access to other major law enforcement systems of records, including the U.S. Department of Justice's National Crime Information Center (NCIC), the National Law Enforcement Telecommunications System (NLETS), and the Canadian Police Information Centre (CPIC). In addition to CBP, TECS has users from other federal agencies, including U.S. Immigration and Customs Enforcement (ICE); the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE); Federal Bureau of Investigation (FBI); the Internal Revenue Service (IRS); and the Drug Enforcement Administration (DEA), to name a few.

BATFE's Mem., Vaughn Index at 1 (page numbers designated by the Court). Records maintained in TECS include those “pertaining to known or suspected violators, wanted persons, persons of interest for law enforcement and counterterrorism purposes, reference information, [and] regulatory and compliance data.” Id., Vaughn Index at 1. Access to TECS is strictly limited:

All government law enforcement officers and employees authorized to execute TECS inquiries have had a full field background investigation, database training, and are given access to information on a need-to-know basis only. DHS relies on strict access controls, passwords and background checks for individuals accessing...