crew v. dhs: regarding border fence: 12/3/08 - dhs motion for summary judgement

8/7/2019 CREW v. DHS: Regarding Border Fence: 12/3/08 - DHS Motion for Summary Judgement

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

CITIZENS FOR RESPONSIBILITY )

AND ETHICS IN WASHINGTON, ))

Plaintiff, ) Civil Action No. 08-1046 (JDB)

)

v. )

)

U.S. DEPARTMENT OF )

HOMELAND SECURITY, )

)

Defendant. )

)

DEFENDANTS MOTION FOR SUMMARY JUDGMENT IN PART

Pursuant to Fed. R. Civ. P. 56, Defendant, United States Department of Homeland Security

(DHS), by and through undersigned counsel, respectfully moves the Court for summary judgment

in part in this action brought under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as

amended. Specifically, U.S. Customs and Border Protection (CBP), a component of DHS, has

released all non-exempt records that are responsive to the first part of Plaintiffs March 17, 2008

FOIA request, which seeks certain records relating to the U.S.-Mexico border fence. See Compl.

(Document 1), 7(a). Accordingly, there is no genuine issue as to any material fact, and defendant

is entitled to judgment as a matter of law.

In support of this motion, defendant respectfully refers the Court to the accompanying

memorandum of points and authorities and statement of materials facts as to which there is no

genuine issue. A proposed Order consistent with this motion is attached hereto.

Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page


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Respectfully submitted,

/s/

JEFFREY A. TAYLOR, D.C. Bar #498610

United States Attorney

/s/

RUDOLPH CONTRERAS, D.C. Bar #434122

Assistant United States Attorney

/s/

JOHN G. INTERRANTE, PA Bar #61373Assistant United States Attorney

Civil Division, E-4806555 4th Street, N.W.Washington, D.C. 20530

(202) 514-7220

(202) 514-8780 (fax)

[email protected]

Of Counsel:

Simon Fisherow, U.S. Customs and Border Protection

Susan Shama, U.S. Customs and Border Protection



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1 Plaintiffs March 17, 2008 FOIA request was addressed and sent to the FOIA Officer, CBP,

and therefore the records sought are those maintained by CBP. See 6 CFR 5.3(a) (You may

make a request for records of the Department [of Homeland Security] by writing directly to the

Department component that maintains those records.)



)




)

v. )

)



)

Defendant. )

)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OF DEFENDANTS MOTION FOR SUMMARY JUDGMENT IN PART

This case arises under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as

amended, and pertains to the March 17, 2008 request of Plaintiff, Citizens for Responsibility and

Ethics in Washington (CREW), which seeks certain records from U.S. Customs and Border

Protection (CBP), a component of United States Department of Homeland Security (DHS),

relating to the U.S.-Mexico border fence. See Compl. (Document 1), 7.1 Plaintiffs FOIA

request has been bifurcated into two parts for purposes of this litigation, and this memorandum

addresses the first part of Plaintiffs request. Specifically, the first part of Plaintiffs FOIA request

seeks records, reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any

properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., and the construction



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2 This request followed a newspaper article about Mr. Hunt published in the Texas Observer on

February 18, 2008. See Compl., 6.

3 By agreement of the parties on July 15, 2008, the first part of Plaintiffs FOIA request wasclarified to seek the following records from CBP:

Any and all records, regardless of format, dating from January 20, 2001 to the

present reflecting communications concerning Ray L. Hunt, Hunt Consolidated,Inc., or any properties known to be owned by Ray L. Hunt and/or Hunt

Consolidated, Inc., and the construction of fencing along the border between the

U.S. and Mexico, including, but not limited to, input sought or received from Mr.Hunt and/or Hunt Consolidated on border fence construction.

See Defs Answer (Document 4), 7 & Ex. A. Defendants motion for summary judgment on

the first part of Plaintiffs FOIA request is due on December 3, 2008, by the Courts Order datedNovember 18, 2008.

CBP is processing non-exempt records responsive to the second part of Plaintiffs FOIA

request pursuant to the Courts Orders dated September 25, 2008 (Document 10) and November

24, 2008 (Document 22). CBP will file a motion for summary judgment in part upon completionof the processing of those records.

2

of fencing along the border between the U.S. and Mexico.2 See Defs Answer (Document 4),

7.3 As set forth in the accompanying declaration, CBP has conducted a reasonable search of

agency records, has disclosed all non-exempt responsive records, and has not improperly withheld

any responsive records from Plaintiff. Thus, there is no genuine issue as to any material fact, and

Defendant is entitled to judgment in part as a matter of law.

STATEMENT OF FACTS

Defendant hereby incorporates the Statement of Material Facts Not In Genuine Dispute

(SFNGD), and the Declaration of Mark Hanson (Hanson Decl.), Director of FOIA Division,

Office of International Trade, CBP, DHS, filed contemporaneously with this Memorandum.



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3

LEGAL STANDARD

In a FOIA action, the courts have jurisdiction only when an agency has improperly withheld

agency records. 5 U.S.C. 552(a)(4)(B). "[I]t is well established that under the FOIA, 'once the

records are produced the substance of the controversy disappears and becomes moot, since

disclosure which the suit seeks has already been made.'" Trueblood v. U.S. Dept of Treasury, 943

F. Supp. 64, 67 (D.D.C. 1996) (quoting Crooker v. U.S. State Dept, 628 F.2d 9, 10 (D.C. Cir.

1980)); see also Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982).

FOIA, however, does not allow the public to have unfettered access to government files.

McCutchen v. U.S. Dept of Health and Human Services, 30 F.3d 183, 184 (D.C. Cir. 1994).

Although disclosure is the dominant objective of FOIA, there are several exemptions to the statutes

disclosure requirements. Department of Defense v. FLRA, 510 U.S. 487, 494 (1994). To protect

materials from disclosure, the agency must show that they come within one of the FOIA exemptions.

Public Citizen Health Research Group v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999).

Summary judgment is appropriate in a FOIA action, such as the instant case, where the

pleadings, together with the declaration, demonstrate that there are no material facts in dispute and

the requested information has been produced or is exempted from disclosure, and the agency, as the

moving party, is entitled to judgment as a matter of law under Fed. R Civ. P. 56(c). See, e.g.,

Students Against Genocide v. Dept of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisberg v. U.S.

Dept of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).

A. Summary Judgment

Where no genuine dispute exists as to any material fact, summary judgment is required.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A genuine issue of material fact is one that



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4

would change the outcome of the litigation. Id. at 247. The burden on the moving party may be

discharged by showing -- that is, pointing out to the [Court] -- that there is an absence of evidence

to support the non-moving partys case. Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833

F.2d 1560, 1563 (Fed. Cir. 1987).

Once the moving party has met its burden, the non-movant may not rest on mere allegations,

but must instead proffer specific facts showing that a genuine issue exists for trial. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, to avoid summary judgment

here, plaintiff (as the non-moving party) must present some objective evidence that would enable

the Court to find he is entitled to relief. In Celotex Corp. v. Catrett, the Supreme Court held that,

in responding to a proper motion for summary judgment, the party who bears the burden of proof

on an issue at trial must make a sufficient showing on an essential element of [his] case to

establish a genuine dispute. 477 U.S. 317, 322-23 (1986). In Anderson, the Supreme Court further

explained that the mere existence of a scintilla of evidence in support of the Plaintiff's position will

be insufficient; there must be evidence on which the jury could reasonably find for the Plaintiff.

Anderson, 477 U.S. at 252; see alsoLaningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (the

non-moving party is required to provide evidence that would permit a reasonable jury to find in

its favor). In Celotex, the Supreme Court further instructed that the [s]ummary judgment procedure

is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the

Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive

determination of every action. 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).



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5

B. FOIA Cases

The summary judgment standards set forth above also apply to FOIA cases, which are

typically and appropriately decided on motions for summary judgment. See, e.g., Citizens for

Responsibility and Ethics in Washington v. U.S. Dept of Labor, 478 F.Supp.2d 77, 80 (D.D.C.

2007) (citing Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir.1993); Rushford v. Civiletti, 485 F.Supp.

477, 481 n. 13 (D.D.C.1980)). In a FOIA suit, as stated, an agency is entitled to summary judgment

once it demonstrates that no material facts are in dispute and that each document that falls within

the class requested either has been produced, not withheld, is unidentifiable, or is exempt from

disclosure. Students Against Genocide, 257 F.3d at 833; Weisberg, 627 F.2d at 368.

An agency satisfies the summary judgment requirements in a FOIA case by providing the

Court and the Plaintiff with affidavits or declarations and other evidence which show that the

documents in question were produced or are exempt from disclosure. Hayden v. NSA, 608 F.2d

1381, 1384, 1386 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980); Church of Scientology v. U.S.

Dept. of Army, 611 F.2d 738, 742 (9th Cir. 1980); Trans Union LLC v. FTC, 141 F. Supp. 2d 62,

67 (D.D.C. 2001) (summary judgment in FOIA cases may be awarded solely on the basis of agency

affidavits when the affidavits describe the documents and the justifications for non-disclosure 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.) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.

Cir. 1981)). See also

Public Citizen, Inc. v. Dept. of State, 100 F. Supp. 2d 10, 16 (D.D.C. 2000),

affd in part, revd in part, 276 F.3d 634 (D.C. Cir. 2002).

Typically, the agency's declarations or affidavits are referred to as a Vaughn index, after the



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6

case of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). There

is no set formula for a Vaughn index. [I]t is well established that the critical elements of the

Vaughn index lie in its function, and not in its form. Kay v. FCC, 976 F. Supp. 23, 35 (D.D.C.

1997). The purpose of a Vaughn index is to permit adequate adversary testing of the agency's

claimed right to an exemption. NTEU v. Customs, 802 F.2d 525, 527 (D.C. Cir. 1986) (citing

Mead Data Central v. United States Dept. of the Air Force, 566, F.2d 242, 251 (D.C. Cir. 1977), and

Vaughn, 484 F.2d at 828). Thus, the index must contain an adequate description of the records

and a plain statement of the exemptions relied upon to withhold each record. NTEU, 802 F.2d at

527 n.9.

The Vaughn index serves a threefold purpose: (1) it identifies each document withheld; (2)

it states the statutory exemption claimed; and (3) it explains how disclosure would damage the

interests protected by the claimed exemption. See Citizens Commn on Human Rights v. Food and

Drug Admin., 45 F.3d 1325, 1326 (9th Cir. 1995). Of course the explanation of the exemption

claim and the descriptions of withheld material need not be so detailed as to reveal that which the

agency wishes to conceal, but they must be sufficiently specific to permit a reasoned judgment as

to whether the material is actually exempt under FOIA. Founding Church of Scientology of

Washington, D.C., Inc. v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).

Here, CBP has submitted a declaration and a coded Vaughn index in support of this motion

for summary judgment. See Hanson Decl. at 1-20 & Ex. A thereto. The declaration and index

were prepared by Mark Hanson, Director of the FOIA Division, Office of International Trade, CBP,

DHS. Id. at 10. The Hanson declaration meets the requirements of Vaughn v. Rosen, and provides

the Court with the requisite bases to grant defendants motion. The Vaughn itemizations identify



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and describe the documents responsive to plaintiffs FOIA requests, and set forth the justification

for exemptions claimed for the withholding of certain documents.

A court exercises de novo review over a FOIA matter, and the burden is on the agency to

justify all non-disclosures pursuant to 5 U.S.C. 552(a)(4)(B). U.S. Dept of Justice v. Reporters

Committee For Freedom of Press, 489 U.S. 749, 755 (1989). The agency, however, may carry its

burden by relying on the declaration of a government official because courts normally accord a

presumption of expertise in FOIA as long as the declaration is sufficiently clear and detailed and

submitted in good faith. See, e.g., Oglesby v. U.S. Dept of Army, 920 F.2d 57, 68 (D.C. Cir. 1990);

Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979). A court may therefore

award summary judgment in a FOIA case solely on the basis of information provided by the

department or agency affidavits or declarations. See Hayden, 608 F.2d at 1387; Key v. Dept of

Homeland Security, 510 F.Supp.2d 121, 126-27 (D.D.C. 2007).

ARGUMENT

Defendant Is Entitled to Judgment as a Matter of Law Because an Adequate

Search Was Conducted and Non-Exempt Responsive Materials Have BeenReleased

In responding to a FOIA request, an agency must conduct a reasonable search for responsive

records. Oglesby, 920 F.2d at 68; Weisberg v. U.S. Dept of Justice, 705 F.2d 1344, 1352 (D.C. Cir.

1983). This reasonableness standard focuses on the method of the search, not its results, so that

a search is not unreasonable simply because it fails to produce responsive information. Cleary,

Gottlieb, Steen & Hamilton v. Dept of Health and Human Services, 844 F. Supp. 770, 777 n.4

(D.D.C. 1993). An agency is not required to search every record system, but need only search those

systems in which it believes responsive records are likely to be located. Oglesby, 920 F.2d at 68.



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8

Consistent with the reasonableness standard, the adequacy of the search is dependent upon the

circumstances of the case. Truitt v. Dept of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The

fundamental question is not whether there might exist any other documents responsive to the

request, but rather whether the search for those documents was adequate. Steinberg v. Dept. of

Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. U.S. Dept of Justice, 745 F.2d

1476, 1485 (D.C. Cir. 1984)).

Even when a requested document indisputably exists or once existed, summary judgment

will not be defeated by an unsuccessful search for the document so long as the search was diligent

and reasonable. Nation Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 892

n.7 (D.C. Cir. 1995). Additionally, the mere fact that a document once existed does not mean that

it now exists; nor does the fact that an agency created a document necessarily imply that the agency

has retained it. Maynard v. CIA, 986 F.2d 547, 564 (1st Cir. 1993).

The burden rests with the agency to establish that it has made a good faith effort to conduct

a search for the requested records, using methods which can be reasonably expected to produce the

information requested. Oglesby, 920 F.2d at 68; seeSafeCard Services v. SEC, 926 F.2d 1197,

1201 (D.C. Cir. 1991). An agency may prove the reasonableness of its search through affidavits

of responsible agency officials so long as the affidavits are relatively detailed, non-conclusory and

submitted in good faith. Miller v. U.S. Dept of State, 779 F.2d 1378, 1383 (8th Cir. 1985); Goland

v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927

(1980). Although the agency has the burden of proof on the adequacy of its search, the affidavits

submitted by an agency are accorded a presumption of good faith, Carney v. U.S. Dept of

Justice, 19 F.3d 807, 812 (2d Cir.), cert. denied, 513 U.S. 823 (1994) (quoting SafeCard Services,



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926 F.2d at 1200). Thus, once the agency has met its burden regarding adequacy of its search, the

burden shifts to the requester to rebut the evidence by a showing of bad faith on the part of the

agency. Miller, 779 F.2d at 1383. A requester may not rebut agency affidavits with purely

speculative allegations. SeeCarney, 19 F.3d at 813; SafeCard Services, 926 F.2d at 1200; Maynard

v. CIA, 986 F.2d 547, 559-560 (1st Cir. 1993). As discussed below, defendant met the

reasonableness standard in conducting its search and is therefore entitled to summary judgment.

A. CBP Conducted an Adequate Search

On or about March 17, 2008, CREW sent a letter to the FOIA Director, CBP, requesting the

following records under FOIA:

any and all records dating from January 20, 2001 to the present reflectingcommunications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any properties

known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., and the

construction of fencing along the border between the U.S. and Mexico.

See SFNGD, 1. The parties subsequently agreed to narrow Plaintiffs March 17, 2008 request, and

also to bifurcate the processing of the request. Id., 2. Subsequent to the filing of Plaintiffs

Complaint, the parties conferred on July 8, 2008 in order to narrow the terms of the request due to

the fact that there are voluminous responsive records. Id. The following new terms of the request

were agreed to by the parties on July 15, 2008:

(1) Any and all records, regardless of format, dating from January 20, 2001 to the

present reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc.,

or any properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc.,and the construction of fencing along the border between the U.S. and Mexico,

including, but not limited to, input sought or received from Mr. Hunt and/or Hunt

Consolidated on border fence construction;

(2) Any and all records, regardless of format, concerning deliberations, standards,

and criteria encompassing the decision-making process surrounding where SBI

fencing should be constructed along the U.S. border with Mexico. This requestexcludes any records relating to fencing done prior to the inception of the Secure



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Id. Each employee was directed to distribute the notice to all personnel in his or her office who may

be involved in, or have information relating to, the records requested. Id.

In response to the above memorandum, two offices produced documents responsive to the

first part of the bifurcated request the Office of the Secure Border Initiative (SBI) within the

Office of the Commissioner and the Office of Border Patrol. See Hanson Decl., 7-8; SFNGD,

5-6. The first responsive search was directed by the SBI Communications Director, who

instructed personnel to provide all relevant documentation responsive to Plaintiffs FOIA request.

See Hanson Decl., 7; SFNGD, 5. Program staff were instructed to search in all potentially

relevant locations for responsive documents, including individual hard drives, shared electronic

drives, and any hard-copy documents. Id. Administrative staff were also directed to search the

same places for potentially responsive records. Id. In response to Plaintiffs request, program staff

searched for all potentially responsive records related to Ray L. Hunt, Hunt Consolidated, Inc., or

any properties known to be owned by Ray L. Hunt or Hunt Consolidated, Inc. Records found as a

result of the above search have been produced to Plaintiff pursuant to Plaintiffs FOIA request. Id.

Also in response to the search memorandum, the Office of Border Patrol searched and

produced responsive records. See Hanson Decl., 8; SFNGD, 6. A search was conducted at

Border Patrol Headquarters in Washington, DC, as well as Border Patrol offices located in the Rio

Grande Valley sector where properties owned by Ray L. Hunt are located. Id. Offices were

instructed to search both hard-copy and electronic files, and offices searched electronic hard drives

and portable thumb drives in addition to hard-copy documents. Id. The search terms used by the

Office of Border Patrol to conduct the search for responsive records were those posed by Plaintiff

in its FOIA request: records reflecting communications concerning Ray L. Hunt, Hunt Consolidated,



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Inc., or any properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., involving

the construction of fencing along the border between the United States and Mexico. Id. Records

identified as a result of that search have been processed by CBP and produced to Plaintiff. Id.

The Hanson declaration demonstrates that the agency has conducted a reasonable search for

responsive records by searching those systems of records in which the agency believes responsive

records are likely to be located. Oglesby, 920 F.2d at 68; Weisberg v. U.S. Dept of Justice, 705

F.2d 1344, 1352 (D.C. Cir. 1983). The Hanson declaration also establishes that the agency has made

a good faith effort to conduct a search for the requested records, using methods which can be

reasonably expected to produce the information requested. Oglesby, 920 F.2d at 68; see

SafeCard

Services v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). Specifically, CBP identified the offices

most likely to have records responsive to the first part of Plaintiffs FOIA request, as revised by

agreement of the parties, and the CBP Chief of Staff issued a memorandum directing those offices

to search for responsive records. A litigation hold notice was also issued instructing certain CBP

employees to preserve all records and information related to Plaintiffs request. Responsive records

were identified by the Office of the Secure Border Initiative within the Office of the Commissioner

and the Office of Border Patrol. The documents were then processed for FOIA exemptions and

disclosed to Plaintiff, in whole or part, subject to the asserted exemptions. The agency search for

records was therefore adequate. See Steinberg, 23 F.3d at 551 (quoting Weisberg, 745 F.2d at

1485).

B. CBP Has Released All Responsive Non-Exempt Records

On September 2, 2008, CBP released the first group of documents responsive to the first part

of the bifurcated request. CBP released additional documents to Plaintiff in supplemental responses



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on October 10, 2008 and November 17, 2008. See Hanson Decl., 9; SFNGD, 7. Prior to release,

these documents were redacted in accordance with 5 U.S.C. 552. Id. The documents were

redacted pursuant to FOIA Exemptions 5, 6, and 7(E), 5 U.S.C. 552 (b)(5), (b)(6), and (b)(7)(E),

each of which will be discussed in greater detail below. Id.

Redactions made on all responsive documents are detailed in an index identifying

information responsive to Plaintiffs FOIA request, but exempt from disclosure under the FOIA, in

accordance with Vaughn v. Rosen. See Hanson Decl., 10; SFNGD, 8. The Hanson declaration

and its attachments, along with the Vaughn index, provide the Court and Plaintiff with an

identification of information that is withheld, the statutory exemption(s) claimed, and the

justification for asserting the exemptions used to withhold certain information contained in the

records at issue. Id. Thus, the Hanson declaration establishes that all responsive documents located

have either been released, or, to the extent all or part of the records have been withheld under a

FOIA Exemption, are described in the Vaughn index. See id.

C. CBP Properly Invoked FOIA Exemptions 5, 6, and 7(E)

To Withhold Information Protected From Disclosure

As explained below, CBP withheld documents responsive to plaintiffs FOIA requests

pursuant to FOIA Exemptions 5, 6, and 7(E). The Declaration of Mark Hanson, and the extensive

Vaughn index, demonstrate that CBP carefully reviewed responsive records, and withheld

information subject to these exemptions. See Hanson Decl., 11-20. Because no non-exempt

responsive records have been improperly withheld from plaintiff, summary judgment should be

entered in favor of DHS on the first part of Plaintiffs FOIA request.



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1. Exemption 5

Exemption 5 of FOIA exempts from disclosure inter-agency or intra-agency memorandums

or letters which 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). The Supreme Court has interpreted Exemption 5 as allowing an

agency to withhold from the public documents which a private party could not discover in litigation

with the agency. U.S. v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); National Labor Relations

Board v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975). Exemption 5 incorporates privileges that

the Government enjoys under the relevant statutory and case law in the pretrial discovery context.

Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 26 (1983). Agency documents that are not

routinely discoverable in civil litigation are exempted from disclosure under Exemption 5. Id. at 27.

Accordingly, Exemption 5 allows an agency to invoke traditional civil discovery privileges,

including the attorney-client privilege, attorney work-product privilege, and the executive

deliberative process privilege, to justify the withholding of documents that are responsive to a FOIA

request. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980).

The first part of Plaintiffs March 17, 2008 FOIA request appears to arise from a newspaper

article about Ray Hunt that was published in the Texas Observer on February 18, 2008. See Compl.,

6. In this case, Exemption 5 has been applied in order to protect chains of e-mail messages that

detail the internal deliberations of CBP personnel that would reveal both the deliberative-thought

process of CBP individuals and the overall decision-making process of CBP as an agency. See

Hanson Decl., 13. Specifically, these records reflect internal agency deliberations about how to

properly respond to allegations raised in the media about supposed improprieties resulting from

action taken by CBP. See id., 14. These messages reflect the normal back-and-forth that precedes



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5 The Hanson Declaration explains that the agency withheld [i]nformation that illustrates thedeliberative process within CBP was redacted pursuant to Exemption (b)(5). See Hanson Decl.,

11. The declaration further explains that the agency properly withheld information under

Exemption 5:

The general purpose of this privilege is to prevent injury to the quality of agency

decisions. Specifically, three policy purposes have been consistently held toconstitute the bases for this privilege: (1) to encourage open, frank discussions on

matters of policy between subordinates and superiors; (2) to protect against

premature disclosure of proposed policies before they are adopted; and (3) to

protect against public confusion that might result from the disclosure of reasons

and rationales that were not in fact ultimately the grounds for an agencysdecision. Logically flowing from the foregoing policy considerations is the

privileges protection of the decision-making process of government agencies.The privilege protects not only documents but also the integrity of the process

itself, where exposing that process would result in harm.

Id., 12.

15

an agency decision, in this case the agency response to allegations of improper preferential treatment

being afforded to Ray L. Hunt. Id.

Exemption (b)(5) was also applied to draft documents that reflect the agencys deliberative

process. See Hanson Decl., 15. The very nature of a draft, and the process by which a draft

becomes a final document, can constitute a deliberative process warranting protection under

Exemption (b)(5). Id. The release of draft documents would reveal deliberations regarding what

should, and should not, have been included in the final version of the document. Id.

To withhold a responsive document under the deliberative process privilege, the agency must

demonstrate that the document is both predecisional and deliberative.5 Mapother v. Dept of

Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). A communication is predecisional if it was generated

before the adoption of an agency policy and it is deliberative if it reflects the give-and-take of the

consultative process. Coastal States, 617 F.2d at 866. The privilege covers recommendations,

draft documents, proposals, suggestions, and other subjective documents which reflect the personal



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6 CBP asserted Exemption 5 to withhold information from the following documents listed on the

Vaughn index, attached as Ex. A to the Hanson Declaration: 1, 9-25, 28, and an issue paperdated November 17, 2008, addressing media allegations in Texas Observer article.

16

opinions of the writer rather than the policy of the agency. Id. The deliberative process privilege

reflects Congresss judgment that public disclosure of predecisional, deliberative documents would

inhibit the full and frank exchange of ideas on legal policy matters within an agency. Mead Data

Cent. v. U.S. Dept of the Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977). The Supreme Court has

commented that, [h]uman experience teaches that those who expect public dissemination of their

remarks may well temper candor with a concern for appearances and for their own interests to the

detriment of the decisionmaking process. United States v. Nixon, 418 U.S. 683, 705 (1974).

CBP properly withheld records relating to internal agency discussions about how to respond

to allegations of improper preferential treatment being afforded to Ray L. Hunt.6 See Nielson v.

BLM, 252 FRD 499, 520 (D. Minn. 2008) (BLMs use of deliberative process under Exemption 5

to withhold a document which reflects an agency employees reaction to a newspaper article was

proper; document was predecisional because it contained the opinion of the author of the public

misconception concerning an agency program). In this case, the predecisional documents contained

the deliberative process of CBP officials in their consideration of the agencys response to the media

account. To disclose this information would reveal predecisional communications among

government personnel. Disclosure would jeopardize the candid and comprehensive considerations

essential for efficient and effective agency decision-making.

Furthermore, CBP asserted Exemption 5 to withhold, in part, Document No. 28, which is an

email string beginning on June 27, 2008 related to potential agency responses to media accusations.

This email string included a reference to a confidential attorney-client communication relating to



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7 CBP asserted Exemption 5, along with Exemptions 6, to withhold information from thefollowing documents listed on the Vaughn index, attached as Ex. A to the Hanson Declaration:

10-25, 28, and an issue paper dated November 17, 2008, addressing media allegations in Texas

Observer article. CBP asserted Exemptions 5, 6, and 7(E) to withhold information from thefollowing documents listed on the Vaughn index: 10, 11, 24 and 25.

17

the agencys response. See Mead, 566 F.2d at 252 (The third traditional privilege incorporated into

Exemption 5 concerns confidential communications between an attorney and his client relating to

a legal matter for which the client has sought professional advise.). Thus, CBP properly redacted

Document No. 28 under FOIA Exemption 5 to protect both attorney-client communications and

internal predecisional discussions on the same matter.

Finally, Exemption 5 has been asserted in conjunction with Exemptions 6 and 7(E) to protect

the privacy of CBP employees, agency law enforcement techniques and procedures, and privileged

communications.7

2. Exemption 6

Exemption 6 of the FOIA protects "personnel and medical files and similar files the

disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C.

552(b)(6). "The Supreme Court has interpreted the phrase 'similar files' to include all information

that applies to a particular individual." Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999),

quoting Dept of State v. Washington Post Co., 456 U.S. 595, 602 (1982). The Court has also

emphasized that "both the common law and the literal understanding of privacy encompass the

individual's control of information concerning his or her person." U.S. Dept of Justice v. Reporters

Committee for Freedom of the Press, 489 U.S. 749, 763 (1989).

The Supreme Court has found that [i]ncorporated in the clearly unwarranted language is

the requirement for ... [a] balancing of interests between the protection of an individual's private



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8 CBP asserted Exemption 6 to withhold information from the following documents listed on the

Vaughn index, attached as Ex. A to the Hanson Declaration: 10-28, and an issue paper dated

November 17, 2008, addressing media allegations in Texas Observer article. See also n. 8, supra(listing documents redacted under Exemptions 5 and 6).

18

affairs from unnecessary public scrutiny, and the preservation of the public's right to governmental

information. Lepelletier, 164 F.3d at 46 (citing U.S. Dept of Defense v. FLRA, 964 F.2d 26, 29

(D.C. Cir. 1992), quoting Dept of Air Force v. Rose, 425 U.S. 352, 372 (1976)). In determining

how to balance the private and public interests involved, the Supreme Court has sharply limited the

notion of "public interest" under the FOIA: "[T]he only relevant public interest in the FOIA

balancing analysis [is] the extent to which disclosure of the information sought would 'she[d] light

on an agency's performance of its statutory duties' or otherwise let citizens know 'what their

government is up to.'" Lepelletier, 164 F.3d at 46 (quotingFLRA, 510 U.S. at 497) (editing in

original)). See also

Reporters Committee, 489 U.S. at 773. Information that does not directly

reveal the operation or activities of the federal government "falls outside the ambit of the public

interest that the FOIA was enacted to serve." Id. at 775. Further, "something, even a modest privacy

interest, outweighs nothing every time." National Ass'n of Retired Fed. Employees v. Horner, 879

F.2d 873, 879 (D.C. Cir. 1989); but seeLepelletier, 164 F.3d at 48 (in extraordinary circumstances

where the individuals whose privacy the government seeks to protect have a "clear interest" in

release of the requested information, the balancing under Exemption 6 must include consideration

of that interest).

The Hanson declaration explains that CBP withheld certain information under FOIA

Exemption 6 to protect information that would infringe on the personal privacy of the individual

about whom the information relates. See Hanson Decl., 11. Specifically, in this case, Exemption

6 has been applied to the names of lower-level CBP employees.8 Id., 17. These CBP employees



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have a privacy interest in the non-disclosure of their names, and the privacy consideration is to

protect CBP personnel and third parties from unnecessary questioning and harassment. Id. Even

if Plaintiff is already familiar with the names of certain CBP employees, disclosure puts the

information into the public domain. Id.

In applying Exemption (b)(6), the public interest must be weighed against the privacy

interest in non-disclosure. See Hanson Decl., 18. Disclosure must benefit not just the individual

requester, but the public in general. Id. In this case, the privacy interest in non-disclosure of

individual names and contact information far outweighs the public interest in ascertaining their

identities. Id. As a preliminary matter, CBP asserts FOIA Exemption 6 for the names of lower-level

CBP employees involved in after-the-fact discussions about the alleged agency improprieties alleged

in the Texas Observer article. See Ex. A to the Hanson Declaration, Document Nos. 10-28, and the

issue paper dated November 17, 2008. Thus, none of the responsive documents related to the

involvement of the lower-level employees in any events discussed in the article. Under these

circumstances, the privacy consideration, necessary to prevent CBP employees from questioning

and harassment, overrides the public interest in disclosure of lower-level CBP employees who did

not anticipate that their identities would become public information. Id. Disclosure of their

identities will not sufficiently enhance the understanding of how CBP functions such that privacy

considerations should be overridden. Id.

Thus, CBP properly withheld the names of lower-level CBP employees and their contact

information under FOIA Exemption 6 because the release of this information would be considered

a clearly unwarranted invasion of privacy and may subject the employees to unwanted questioning

and harrassment. See, e.g., Electronic Privacy Information Center v. DHS, 384 F.Supp.2d 100, 115-



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18 (D.D.C. 2005) (district court ruled that DHS properly withheld the names of agency employees

who help to formulate airline security policy under FOIA Exemption 6 to protect the employees

from annoyance or harassment). Furthermore, each time Exemption 6 was invoked the agency

performed a balancing test to ensure that the public interest did not outweigh the privacy interest of

the individual involved.

3. Exemption 7(E)

Exemption 7 of FOIA protects from disclosure records or information compiled for law

enforcement purposes, but only to the extent that disclosure of such records would cause an

enumerated harm. 5 U.S.C. 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). In order

to withhold materials properly under Exemption 7, an agency must establish that the records at issue

were compiled for law enforcement purposes, and that the material satisfies the requirements of one

of the subparts of Exemption 7. See Pratt v. Webster, 673 F.3d 408, 413 (D.C. Cir. 1982). In

assessing whether records are compiled for law enforcement purposes, the focus is on how and

under what circumstances the requested files were compiled, and whether the files sought relate to

anything that can fairly be characterized as an enforcement proceeding. Jefferson v. Dept of

Justice, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (citations and internal quotations omitted).

[T]he term law enforcement purpose is not limited to criminal investigations but can also

include civil investigations and proceedings in its scope. Mittleman v. Office of Personnel

Management, 76 F.3d 1240, 1243 (D.C. Cir. 1996), cert. denied, 519 U.S. 1123 (1997), citing Pratt

v. Webster, 673 F.2d 408, 420 n.32 (D.C. Cir. 1982). When, however, a criminal law enforcement

agency invokes Exemption 7, it warrants greater deference than do like claims by other agencies.

Keys v. U.S. Dept of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987), citing Pratt, 673 F.2d at 418. A



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criminal law enforcement agency must simply show that the nexus between the agency's activity

. . . and its law enforcement duties is based on information sufficient to support at least a

colorable claim of its rationality. Keys, 830 F.2d at 340, quoting Pratt, 673 F.2d at 421.

DHS clearly satisfies the standard for invoking Exemption 7 of the FOIA because of its law

enforcement mission. Rugiero v. U.S. Dept of Justice, 257 F.3d 534, 550 (6th Cir. 2001)

(explaining that the "Court has adopted a per se rule" that applies not only to criminal enforcement

actions, but to "records compiled for civil enforcement purposes as well.") Indeed, the Hanson

declaration explains that Plaintiffs FOIA request for information about the Secure Border Initiative

necessarily implicates certain law enforcement functions of CBP. For example, [m]aps containing

locations and types of surveillance cameras, as well as known and documented smuggling routes

across the United States border, could compromise effective law enforcement procedures and

techniques if disclosed to the public. Thus, Exemption 7's requirement that responsive records

were compiled for law enforcement purposes is clearly met in this case.

Exemption 7(E) of the FOIA provides protection for all information compiled for law

enforcement purposes when release "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). The first clause of Exemption 7(E) affords "categorical" protection for

"techniques and procedures" used in law enforcement investigations or prosecutions. Smith v.

Bureau of Alcohol, Tobacco and Firearms, 977 F. Supp. 496, 501 (D.D.C. 1997), citing

Fisher v.

U.S. Dept of Justice, 772 F. Supp. 7, 12 n. 9 (D.D.C. 1991), aff'd, 968 F.2d 92 (D.C. Cir. 1992).

While Exemption 7(E)'s protection is generally limited to techniques or procedures that are not well



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9 CBP asserted Exemption 7(E) to withhold information from the following documents listed on

the Vaughn index, attached as Ex. A to the Hanson Declaration: 2-8, 10, 11, 24, 25. See also n.8, supra (listing documents redacted under Exemptions 5 and 7(E)).

23

The Hanson declaration explains that CBP has invoked FOIA Exemption 7(E) in this case

to protect[] information, the disclosure of which, would disclose techniques or procedures for law

enforcement investigations or prosecutions. See Hanson Decl., 19. As a result, withholding of

information is proper when disclosure would shed light on certain law enforcement techniques or

procedures. Id. Law enforcement agencies are entitled to withhold records under Exemption 7(E)

to protect law enforcement records that illustrate enforcement techniques or procedures, as well as

records that if disclosed could reasonably be expected to risk circumvention of the law. Id.

In this case, Exemption 7(E) has been applied to prevent disclosure of information that

would disclose law enforcement techniques and could, if disclosed, reasonably be expected to risk

circumvention of the law.9 See Hanson Decl., 20. Maps containing locations and types of

surveillance cameras, as well as known and documented smuggling routes across the United States

border, could compromise effective law enforcement procedures and techniques if disclosed to the

public. Id. In addition, records which include details of specific vanishing points, the locations that

allow for easy assimilation into the local population after crossing the border, could if disclosed lead

to circumvention of the law by allowing a comparison of which vanishing points prove to be more

effective. Id.

If DHS were to disclose this law enforcement information, and release details of the specific

techniques used, it could jeopardize the effectiveness of any future investigation or enforcement

action. See Key, 510 F.Supp.2d at 130 (The Court finds that the Secret Service properly relied on

Exemption 7(E) to withhold information relating to methods used to investigate criminal



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24

counterfeiting activity because the release of such information could compromise future

investigation.).

C. All Reasonably Segregable Material Has Been Released to Plaintiff

The FOIA requires that if a record contains information that is exempt from disclosure, any

"reasonably segregable" information must be disclosed after deletion of the exempt information

unless the non-exempt portions are "inextricably intertwined with exempt portions." 5 U.S.C.

552(b); Mead Data, 566 F.2d at 260. The Court of Appeals for the District of Columbia Circuit has

held that a District Court considering a FOIA action has "an affirmative duty to consider the

segregability issue sua sponte.

" Trans-Pacific Policing Agreement v. United States Customs Serv.,

177 F.3d 1022, 1028 (D.C. Cir. 1999).

In order to demonstrate that all reasonably segregable material has been released, the agency

must provide a "detailed justification" rather than "conclusory statements." Mead Data, 566 F.2d

at 261. The agency is not, however, required "to provide such a detailed justification" that the

exempt material would effectively be disclosed. Id. All that is required is that the government show

"with 'reasonable specificity'" why a document cannot be further segregated. Armstrong v.

Executive Office of the President, 97 F.3d 575, 578-79 (D.C. Cir. 1996). Moreover, the agency is

not required to "commit significant time and resources to the separation of disjointed words, phrases,

or even sentences which taken separately or together have minimal or no information content."

Mead Data, 566 F.2d at 261, n.55.

A review of Mr. Hansons declaration, and the accompanying Vaughn index, reveals that

CBP carefully reviewed each document to determine if any information could be segregated and

released, that some documents were withheld in part and others in their entirety (with appropriate



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redactions), and that all reasonably segregable non-exempt material has been released. See Hanson

Decl., 10-20 & Ex. A thereto; see also SFNGD, 9; Armstrong, 97 F.3d at 578-79; Mead Data,

566 F.2d at 26.

CONCLUSION

For all the foregoing reasons, Defendants Motion for Summary Judgment in Part should be

granted.



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/s/



/s/



/s/

JOHN G. INTERRANTE, PA Bar #61373

Assistant United States AttorneyCivil Division, E-4806

555 4th Street, N.W.

Washington, D.C. 20530

(202) 514-7220

(202) 514-8780 (fax)

[email protected]

Of Counsel:





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CERTIFICATE OF SERVICE

I hereby certify that, on this 3rd day of December, 2008, I caused Defendants Motion for

Summary Judgment in Part, supporting memorandum of points and authorities, statement of material

facts as to which there is no genuine issue, and a proposed Order to be served on Plaintiff, though

counsel, at the ECF address of record in this case.

/s/

John G. Interrante




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)




)

v. )

)



)

Defendant. )

)

DEFENDANTS STATEMENT OF MATERIAL FACTS

AS TO WHICH THERE IS NO GENUINE DISPUTE

Pursuant to LCvR 7(h), Defendant, U.S. Department of Homeland Security (DHS) hereby

submits the following statement of material facts as to which there is no genuine dispute in support

of Defendants Motion for Summary Judgment in Part.

1. On or about March 17, 2008, plaintiff, Citizens for Responsibility and Ethics in

Washington (CREW), sent a letter to the FOIA Director, U.S. Customs and Border Protection

(CBP),requesting in part the following records under the Freedom of Information Act (FOIA),

as amended:

any and all records dating from January 20, 2001 to the present reflecting

communications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any properties

known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., and the

construction of fencing along the border between the U.S. and Mexico.

See Declaration of Mark Hanson (Hanson Decl.), Director of the FOIA Division, Office of

International Trade, CBP, DHS, 4; Defs Answer (Document 4), 7 & Ex A thereto.

2. The parties subsequently agreed to narrow Plaintiffs March 17, 2008 request, and also

to bifurcate the processing of the request. See Hanson Decl., 4. Subsequent to the filing of

Case 1:08-cv-01046-JDB Document 23-2 Filed 12/03/2008 Pa


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3

Congressional Affairs, Office of Finance, Office of Public Affairs, Office of Border Patrol, Office

of Field Operations, and the Secure Border Initiative within the Office of the Commissioner. Id.

4. On July 18, 2008, AnnMarie R. Highsmith, Associate Chief Counsel for Trade and

Finance, CBP Office of Chief Counsel, issued a Litigation Hold Notice instructing certain CBP

employees to preserve all records and information related to Plaintiffs request. See Hanson Decl.,

6. The notice was sent to employees from the following CBP offices: the Secure Border Initiative

within the Office of the Commissioner, Office of Border Patrol, Office of Congressional Affairs, the

FOIA Division of the Office of International Trade, and the Office of the Commissioner. Id. Each

employee was directed to distribute the notice to all personnel in his or her office who may be

involved in, or have information relating to, the records requested. Id.

5. In response to the above memorandum, two offices produced documents responsive

to the first part of the bifurcated request the Office of the Secure Border Initiative (SBI) within

the Office of the Commissioner and the Office of Border Patrol. See Hanson Decl., 7-8. The first

responsive search was directed by the SBI Communications Director, who instructed personnel to

provide all relevant documentation responsive to Plaintiffs FOIA request. Id. Program staff were

instructed to search in all potentially relevant locations for responsive documents, including

individual hard drives, shared electronic drives, and any hard-copy documents. Id. Administrative

staff were also directed to search the same places for potentially responsive records. Id. In response

to Plaintiffs request, program staff searched for all potentially responsive records related to Ray L.

Hunt, Hunt Consolidated, Inc., or any properties known to be owned by Ray L. Hunt or Hunt

Consolidated, Inc. Id. Records found as a result of the above search have been produced to Plaintiff

pursuant to Plaintiffs FOIA request. Id.



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4

6. Also in response to the search memorandum, the Office of Border Patrol searched

and produced responsive records. See Hanson Decl., 8. A search was conducted at Border Patrol

Headquarters in Washington, DC, as well as Border Patrol offices located in the Rio Grande Valley

sector where properties owned by Ray L. Hunt are located. Id. Offices were instructed to search

both hard-copy and electronic files, and offices searched electronic hard drives and portable thumb

drives in addition to hard-copy documents. Id. The search terms used by the Office of Border Patrol

to conduct the search for responsive records were those posed by Plaintiff in its FOIA request:

records reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any

properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., involving the

construction of fencing along the border between the United States and Mexico. Id. Records

identified as a result of that search have been processed by CBP and produced to Plaintiff. Id.

7. On September 2, 2008, CBP released the first group of documents responsive to the first

part of the bifurcated request. See Hanson Decl., 9. CBP released additional documents to Plaintiff

in supplemental responses on October 10, 2008 and November 17, 2008. Id. Prior to release, these

documents were redacted in accordance with 5 U.S.C. 552. Id. The documents were redacted

pursuant to FOIA exemptions (b)(5), (b)(6), and (b)(7)(E). Id.

8. Redactions made on the responsive documents are detailed in a Vaughn index

identifying information responsive to Plaintiffs FOIA request, but exempt from disclosure under

the FOIA, in accordance with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415

U.S. 977 (1974). See Hanson Decl., 10. The Declaration and its attachments, along with the

Vaughn index, identify information that is withheld, the statutory exemption(s) claimed, and the

justification for asserting the exemptions used to withhold certain information contained in the



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5

records at issue. Id.

9. No reasonably segregable non-exempt portions of the documents were withheld from

Plaintiff. See Hanson Decl., 10. Accordingly, the redacted information was exempt from

disclosure pursuant to a FOIA exemption or was not reasonably segregable because its release would

have revealed the underlying protected material. Id.


/s/



/s/



/s/

JOHN G. INTERRANTE, PA Bar #61373


Civil Division, E-4806

555 4th Street, N.W.Washington, D.C. 20530

(202) 514-7220

(202) 514-8780 (fax)

[email protected]

Of Counsel:





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1

VAUGHN INDEXCitizens for Responsibility and Ethics in Washington v. Department of Homeland Security

Case No. 08-1046

Hunt Documents Release #1

(including supplemental releases of October 10, 2008 and November 17, 2008)

Document File Name

(as it appears on CD)

Originating

Office/Location

Document Description Number of Pages Disposition &

Exemption(s)One (Redacted) Office of Border Patrol (OBP) Talking points regarding Hunt

Property, City of Granjeno andBorder Fencing in RGV Sector

1 - Document redacted in full.- Information that illustrates thedeliberative process within CBP is

redacted pursuant to 5 U.S.C. 552(b)(5) because informationcontains deliberations on how to

respond to allegations raised in themedia.

Two (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property

showing known and documentedsmuggling routes, and locations ofRemote Video Surveillance System

(RVSS) cameras

2 - Document redacted in full.

- Information is redacted pursuant to5 U.S.C. 552(b)(7)(E), as it pertainsto records compiled for law

enforcement purposes, the release ofwhich would disclose certain

techniques or procedures for lawenforcement investigations orprosecutions, including known and

documented smuggling routes, andlocations of Remote VideoSurveillance System (RVSS)

cameras.Three (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property

prepared in response to Texas

Observer article

1 - Document redacted in full.- Information is redacted pursuant to

5 U.S.C. 552(b)(7)(E), as it pertainsto records compiled for lawenforcement purposes, the release of

which would disclose certain

techniques or procedures for lawenforcement investigations orprosecutions.

Four (Redacted) Office of Border Patrol (OBP) Map referencing Hunt propertyshowing known and documentedsmuggling routes

1 - Document redacted in full.- Information is redacted pursuant to5 U.S.C. 552(b)(7)(E), as it pertains

to records compiled for law

Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 10 of 51


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2

enforcement purposes, the release of

which would disclose certaintechniques or procedures for law

enforcement investigations orprosecutions, such as known anddocumented smuggling routes.

Five (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property

showing apprehension sites and

narcotics seizures


- Information is redacted pursuant to



enforcement investigations orprosecutions such as illegal alienapprehension sites, smuggling

apprehensions, and narcoticsseizures.

Six (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property

showing known and documentedsmuggling routes


- Information is redacted pursuant to5 U.S.C. 552(b)(7)(E), as it pertainsto records compiled for law

enforcement purposes, the release ofwhich would disclose certaintechniques or procedures for law

enforcement investigations or

prosecutions such as known anddocumented smuggling routes.

Seven (Redacted) Office of Border Patrol (OBP) Map dated April 22, 2008 prepared

in response to Texas Observer articleshowing known and documented

smuggling routes


- Information is redacted pursuant to5 U.S.C. 552(b)(7)(E), as it pertains

to records compiled for law


enforcement investigations orprosecutions such as known anddocumented smuggling routes.

Eight (Redacted) Office of Border Patrol (OBP) Document related to Rio GrandValley (RGV) Pedestrian Fence (PF)

225 Fence Segments (Issues withHunt Development)

2 - Document redacted in full.- Information is redacted pursuant to

5 U.S.C. 552(b)(7)(E), as it pertainsto records compiled for law


enforcement investigations or



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3

prosecutions.

Nine (Redacted) Secure Border Initiative (SBI) Draft Talking Points related to TexasBorder Coalition Lawsuit

5 - Document redacted in full.- Information that illustrates thedeliberative process within CBP is

redacted pursuant to 5 U.S.C. 552(b)(5) because the document is adraft that reflects internal discussions

and is not in final form.

Ten (Redacted) Secure Border Initiative (SBI) Email string beginning April 30,2008 related to Texas Observer

article and letter to Congressman

Thompson on Texas fence

6 - Document released with partialredactions.

- Information that illustrates the

deliberative process within CBP isredacted pursuant to 5 U.S.C. 552(b)(5) because the document

reflects internal discussions on howto respond to allegations raised in themedia.

- Names of some lower-level CBPemployees or third parties and their

contact information (which containtheir names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),

because release would be considereda clearly unwarranted invasion ofprivacy.

- Information is redacted pursuant to


which would disclose certaintechniques or procedures for lawenforcement investigations or

prosecutions.Eleven (Redacted) Secure Border Initiative Email string beginning April 30,2008 related to Texas Observer

article and letter to CongressmanThompson on Texas fence


- Information that illustrates thedeliberative process within CBP isredacted pursuant to 5 U.S.C.

552(b)(5) because the documentreflects internal discussions on how

to respond to allegations raised in themedia.- Names of some lower-level CBP

employees or third parties and their

contact information (which containtheir names in full) are redacted



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5

2008 related to tasker regarding

response to allegations related toHunt property. Attachments include

letter from Congressman Thompsonand response from Secretary Chertoff

redactions.

- Information that illustrates thedeliberative process within CBP is

redacted pursuant to 5 U.S.C. 552(b)(5) because the documentreflects internal discussions on how


employees or third parties and theircontact information (which contain

their names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),


- Signatures of some CBP employeesor third parties are redacted pursuant

to 5 U.S.C. 5 52(b)(6), becauserelease would be considered a clearlyunwarranted invasion of privacy.

Fifteen (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008

related to tasker regarding response

to allegations related to Huntproperty

4 - Document released with partial

redactions.

- Information that illustrates thedeliberative process within CBP isredacted pursuant to 5 U.S.C. 552(b)(5) because responses

constitute deliberations on how torespond to allegations raised in themedia.

- Names of some lower-level CBP



pursuant to 5 U.S.C. 552(b)(6),because release would be considereda clearly unwarranted invasion of

privacy.

Sixteen (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008related to tasker regarding response

to allegations related to Hunt

property


- Information that illustrates the

deliberative process within CBP isredacted pursuant to 5 U.S.C. 552(b)(5) because responses

constitute deliberations on how torespond to allegations raised in the



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6

media.




Seventeen (Redacted) Secure Border Initiative (SBI) Email string beginning April 21,2008 related to tasker regarding

response to allegations related toHunt property



redacted pursuant to 5 U.S.C. 552(b)(5) because responsesconstitute deliberations on how to

respond to allegations raised in themedia.- Names of some lower-level CBP

employees or third parties and theircontact information (which containtheir names in full) are redacted

pursuant to 5 U.S.C. 552(b)(6),


Eighteen (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008related to tasker regarding responseto allegations related to Hunt

property

3 - Document released with partialredactions.- Information that illustrates the

deliberative process within CBP isredacted pursuant to 5 U.S.C. 552(b)(5) because responses

constitute deliberations on how torespond to allegations raised in the

media.- Names of some lower-level CBPemployees or third parties and their


because release would be considered

a clearly unwarranted invasion ofprivacy.

Nineteen (Redacted) Secure Border Initiative (SBI) Email string beginning April 21,

2008 related to tasker regardingresponse to allegations related to


redactions.- Information that illustrates the



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8

a clearly unwarranted invasion of

privacy.

Twenty-two (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008related to tasker regarding response

to allegations related to Huntproperty. Attachments includeTalking Points related to border

fence at Hunt Ranch



552(b)(5) because the document

reflects internal discussions on howto respond to allegations raised in themedia.




Twenty-three (Redacted) Secure Border Initiative (SBI) Email string beginning April 21,2008 related to tasker regardingresponse to allegations related to

Hunt property. Attachment: letterfrom Congressman Thompson toSecretary Chertoff

5 - Document released with partialredactions.- Information that illustrates the

deliberative process within CBP isredacted pursuant to 5 U.S.C. 552(b)(5) because the document

reflects internal discussions on how


employees or third parties and theircontact information (which containtheir names in full) are redacted

pursuant to 5 U.S.C. 552(b)(6),because release would be considered


Twenty-four (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008related to tasker regarding response

to allegations related to Huntproperty. Attachments include

Document Related to Rio GrandValley (RGV) Pedestrian Fence (PF)225 Fence Segments (Issues with

Hunt Development), minutes from

Office of Border Patrol (OBP)meeting, After Action Report (AAR)



redacted pursuant to 5 U.S.C. 552(b)(5) because the documentreflects internal discussions on how

to respond to allegations raised in the

media.- Names of some lower-level CBP



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9

on Sabal Palm property issues,

Tamez property updated briefing,and Tamez property talking points




privacy.- Information is redacted pursuant to5 U.S.C. 552(b)(7)(E), as it pertains

to records compiled for lawenforcement purposes, the release of


enforcement investigations orprosecutions, such as particularpoints of vulnerability along the U.S.

border with Mexico and details ofvanishing points, locations where

illegal immigrants can quickly andeasily assimilate into the localpopulation.

Twenty-five (Redacted) Secure Border Initiative (SBI) Email string beginning January 22,

2008 related to fence segment

requirements. Attachment includesdetailed synopses of fence sectors,including vulnerabilities andvanishing points


redactions.

- Information that illustrates thedeliberative process within CBP isredacted pursuant to 5 U.S.C. 552(b)(5) because the document

reflects internal discussions ofproposed construction projects of apre-decisional nature.

- Names of some lower-level CBP




privacy.- Information is redacted pursuant to


which would disclose certaintechniques or procedures for lawenforcement investigations or

prosecutions such as detailed



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10

synopses of fence sectors, in cluding

vulnerabilities and vanishing points.

Twenty-six (Redacted) Secure Border Initiative (SBI) Letter from Secretary Chertoff toCongressman Thompson dated May

22, 2008 regarding border fencing inTexas. Attachment includesmemorandum written by

Commissioner Basham on placement

on border fencing


- Names of some lower-level CBPemployees or third parties and theircontact information (which contain

their names in full) are redacted


privacy.- Signatures of some CBP employees

or third parties are redacted pursuantto 5 U.S.C. 5 52(b)(6), becauserelease would be considered a clearly

unwarranted invasion of privacy.

Twenty-seven (Redacted) Secure Border Initiative (SBI) Media response dated June 17, 2008pertaining to fence construction

questions



their names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),because release would be considered

a clearly unwarranted invasion of

privacy.

Twenty-eight (Redacted)

Supplemental Release #1

(October 10, 2008)

Secure Border Initiative (SBI) Email string beginning June 27, 2008

related to potential agency responses

to media accusations


redactions.


redacted pursuant to 5 U.S.C.

552(b)(5) because the documentreflects internal discussions on howto respond to allegations raised in the

media.- Information is redacted pursuant to5 U.S.C. 552(b)(5) because it

contains confidentialcommunications between attorney

and client.- Names of some lower-level CBPemployees or third parties and their

contact information (which contain

their names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),



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11

because release would be considered


Fence Justification Response to

Texas Observer _ 2-21-08 (edited on4-08-08) (Redacted)


(November 17, 2008)

Office of Border Patrol (OBP) Document discussing lack of outside

influence on decisions related toparticular section of fencing

1 - Document released in full.

Fence Justification Response toTexas Observer _ 2-21-08 (Redacted)


(November 17, 2008)

Office of Border Patrol (OBP) Document discussing lack of outsideinfluence on decisions related to

particular section of fencing


Issue Paper _ 2-21-08 NewspaperArticle (Redacted)

Supplemental Release #2(November 17, 2008)

Office of Border Patrol (OBP) Issue paper addressing mediaallegations made in Texas Observer

newspaper article



552(b)(5) because the documentreflects internal discussions on howto respond to allegations raised in the

media.


their names in full) are redactedpursuant to 5 U.S.C. 552(b)(6),because release would be considereda clearly unwarranted invasion of

privacy.

Issue Paper _ 5-19-08 Affluent vs.

Non-Affluent (HL) (Redacted)Supplemental Release #2

(November 17, 2008)

Office of Border Patrol (OBP) Issue paper addressing media

allegations made in Texas Observernewspaper article




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Vaughn Index

Document:One (Redacted)

Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Pag


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(b) (5)



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7)(e)


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7)(E)


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Vaughn Index

Document:Three (Redacted)



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7)(E)



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Vaughn Index

Document:Four (Redacted)



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7)(E)



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Vaughn Index

Document:Five (Redacted)



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(b) (7)(E) Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2


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Vaughn Index

Document:Six (Redacted)



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Vaughn Index

Document:Seven (Redacted)



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Vaughn Index

Document:Eight (Redacted)



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RGV PF 225 Fence Segments

(b) (7)(E)



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2

(b) (7)(E)

(b) (7)(E)



73/209

Vaughn Index

Document:Nine (Redacted)



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(b) (5)



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(b) (5)



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(b) (5)



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(b) (5)

Case 1:08-cv-01046-JD