Buzzfeed, Inc. v. U.S. Dep't of Homeland Sec.

610 F.Supp.3d 139

BUZZFEED, INC., Plaintiff,

v.U.S. DEPARTMENT OF HOMELAND SECURITY et al., Defendants.

No. 19-cv-03062 (DLF)

United States District Court, District of Columbia.

Signed June 27, 2022

Shelley Geiszler, Matthew Topic, Loevy & Loevy, Chicago, IL, for Plaintiff.

Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge

In this action, Buzzfeed challenges the U.S. Customs and Border Protection's (CBP) withholding of documents under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Before the Court is the Department's Motion for Summary Judgment, Dkt. 37, and the plaintiff's Cross-Motion for Summary Judgment, Dkt. 39. For the reasons that follow, the Court will grant the Department's motion in part and deny it in part, deny the plaintiff's motion, and direct the Department to file a supplemental declaration addressing the issues highlighted in this opinion.

I. BACKGROUND

On July 2, 2019, the Inspector General of the Department of Homeland Security (DHS) issued an alert on overcrowding and prolonged detention of adults and children in the Rio Grande Valley (RGV Alert). Def.’s Stmt. of Material Facts ¶ 1, Dkt. 37-1; Howard Decl. ¶ 13, Dkt. 37-3. The next day, Buzzfeed requested "any and all databases containing records on which the calculation in" the RGV Alert "are based" including "a full and up-to-date copy of the database(s) referenced in the above custody database." Howard Decl. ¶¶ 5, 15. Buzzfeed's request "also demanded all records from 2010 through the date of the search documenting the structure and use of databases relied upon, to specifically include user manuals, schemas, layout, relationships, and definitions of variables." Id. ¶ 17.

Buzzfeed filed the instant case on October 14, 2019. See generally Compl., Dkt. 1. CBP answered on December 29, 2019. See generally Answer, Dkt. 11. The agency determined that Border Patrol was the division most likely to have responsive information, and it was likely to be stored "within the Enforcement Integrated Database (EID)." Howard Decl. ¶¶ 19, 21. The EID is a shared DHS database "owned and operated by U.S. Immigration and Customs Enforcement (ICE)." Id. ¶ 21. The database "captures and maintains information related to the investigation, arrest, booking, detention, and removal of persons encountered during immigration and criminal law enforcement investigations and operations conducted by DHS components." Id.

Over the following months, CBP worked with Buzzfeed to "narrow and clarify the scope of" the request. Id. ¶ 24. In November 2020, this resulted in "a spreadsheet file for each fiscal year from FY2010 to FY2020" with "over 4,423,000 unredacted rows of responsive data." Id. ¶ 25. Each row contained the following data fields: Border Patrol sector, Date and Time of Apprehension, Citizenship, Gender, Age, Demographic, Time in the U.S., Data and Time of Initial Booking, Date and Time of Final Booking, Time in Custody. Id. ¶¶ 24–25. Buzzfeed sought additional data for each individual that CBP withheld: facility name, alien registration number (A-number) or "some other ‘unique identifier’ that would permit [p]laintiff to track individuals and aggregate their records across multiple data sets," justification for missing data, and "technical documentation revealing the underlying structure, code, and maintenance of the Department of Homeland Security's Enforcement Integrated Database." Id. ¶ 26.

CBP justified its withholdings under three FOIA exemptions: Exemptions 6, 7(C), and 7(E). Id. ¶¶ 27–29. Exemption 7(E) allows the withholding of law enforcement records or information that would disclose techniques or procedures of investigations or prosecutions. Id. ¶ 29. Under this exemption, CBP withheld both the specific "Border Patrol station or operational site" for each CBP encounter and documentation of the EID's structure and use. Id. ¶¶ 30, 38. Exemption 6 allows the withholding of personnel, medical, and similar personally identifying private information. Id. ¶ 27. Exemption 7(C) allows the same as to "law enforcement records or information that could reasonably be expected to constitute an unwarranted invasion of personal privacy." Id. ¶ 28. Under these exemptions, CBP withheld the A-number associated with each entry and any other "similar unique identifier[ ] that would enable tracking and aggregation of data about individuals across multiple data sets." Id. ¶ 34.

The parties have filed cross-motions for summary judgment. See generally Defs.’ Mot. for Summ. J., Dkt. 37; Pl.’s Cross-Mot. for Summ. J., Dkt. 39. Buzzfeed does not challenge the adequacy of the government's searches for responsive records, see Pl.’s Mem. in Supp. of Cross-Mot. for Summ. J. at 4 n.1, Dkt. 39-1, nor does it object to all of CBP's withholdings, just those that reveal (1) unique identifying information about individuals, (2) detention locations, and (3) technical documentation about the EID, see id. at 1–2.

II. LEGAL STANDARDS

Rule 56 of the Federal Rules of Civil Procedure states that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When a federal agency moves for summary judgment in a FOIA case, the court views all facts and inferences in the light most favorable to the requester, and the agency bears the burden of showing that it complied with FOIA. Chambers v. U.S. Dep't of Interior , 568 F.3d 998, 1003 (D.C. Cir. 2009).

To prevail under Rule 56, a federal agency "must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the (FOIA) inspection requirements." Perry v. Block , 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam) (citation omitted). The agency "must show beyond material doubt ... that it has conducted a search reasonably calculated to uncover all relevant documents," Weisberg v. U.S. Dep't of Justice , 705 F.2d 1344, 1351 (D.C. Cir. 1983), and must also explain why any of the nine enumerated exemptions listed in 5 U.S.C. § 552(b) apply to withheld information, see Judicial Watch, Inc. v. FDA , 449 F.3d 141, 147 (D.C. Cir. 2006) ; see also Mobley v. CIA , 806 F.3d 568, 580 (D.C. Cir. 2015) (agency bears burden of justifying application of exemptions, "which are exclusive and must be narrowly construed").

"The peculiarities inherent in FOIA litigation, with the responding agencies often in sole possession of requested records and with information searches conducted only by agency personnel, have led federal courts to rely on government affidavits to determine whether the statutory obligations of the FOIA have been met."

Perry , 684 F.2d at 126. Agency affidavits are entitled to a presumption of good faith, see SafeCard Servs. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991), and a court may grant summary judgment based on an affidavit if it contains reasonably specific detail and if neither contradictory record evidence nor evidence of bad faith calls it into question, see Judicial Watch, Inc. v. U.S. Secret Serv. , 726 F.3d 208, 215 (D.C. Cir. 2013). The "vast majority of FOIA cases can be resolved on summary judgment." Brayton v. Off. of the U.S. Trade Representative , 641 F.3d 521, 527 (D.C. Cir. 2011).

III. ANALYSIS

A. Exemption 6 and 7(C)

"FOIA Exemptions 6 and 7(C) seek to protect the privacy of individuals identified in certain agency records." ACLU v. DOJ , 655 F.3d 1, 6 (D.C. Cir. 2011). Exemption 6 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), and Exemption 7(C) protects "records or information compiled for law enforcement purposes" that "could reasonably be expected to constitute an unwarranted invasion of personal privacy," id. § 552(b)(7)(C). When an agency invokes both exemptions, courts "focus" on Exemption 7(C) because it "establishes a lower bar for withholding material." Citizens for Responsibility & Ethics in Wash. v. DOJ (CREW I ), 746 F.3d 1082, 1091 n.2 (D.C. Cir. 2014) (internal quotation marks omitted). CBP withheld A-numbers and any other similar unique database identifiers under both exemptions. Howard Decl. ¶¶ 34–37.

Under Exemption 7(C), courts balance the privacy interests implicated by the records being sought against the public's interest in their disclosure. Citizens for Responsibility & Ethics in Wash. v. DOJ (CREW II ), 854 F.3d 675, 681 (D.C. Cir. 2017). The government "must account for the privacy interests at stake, recognizing that previous disclosures or admissions may have diminished those interests." Id. at 683. But if the withheld information implicates a substantial privacy interest, the FOIA requester "bears the burden of showing (1) that ‘the public interest sought to be advanced is a significant one, an interest more specific than having the information for its own sake,’ and (2) that the information [it] seeks ‘is likely to advance that interest.’ " Roth v. DOJ , 642 F.3d 1161, 1175 (D.C. Cir. 2011) (quoting Nat'l Archives & Records Admin. v. Favish , 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) ). It is well established that "the only public interest relevant for purposes of Exemption 7(C) is one that focuses on the citizens’ right to be informed about what their government is up to." Sussman v. U.S. Marshals Serv. , 494 F.3d 1106, 1115 (D.C. Cir. 2007) (internal quotation marks omitted).

CBP's declaration discusses privacy concerns related to the release of A-numbers, but not to any other unique database identifiers. See Howard Decl. ¶¶ 34–37. The agency explains that A-numbers, unlike unique database identifiers, are used in contexts other than the EID, and so their release could reveal immigrants’ identities in a way that a database identifier...