Council on Am.-Islamic Relations-Wash. v. U.S. Customs & Border Prot., Case No. C20-217RSM

492 F.Supp.3d 1158

COUNCIL ON AMERICAN-ISLAMIC RELATIONS-WASHINGTON, Plaintiff,

v.UNITED STATES CUSTOMS AND BORDER PROTECTION, United States Department of Homeland Security, Defendants.

Case No. C20-217RSM

United States District Court, W.D. Washington, at Seattle.

Signed October 5, 2020

Aaron Korthuis, Matt Adams, Northwest Immigrant Rights Project, Seattle, WA, for Plaintiff.

Michelle R. Lambert, US Attorney's Office, Tacoma, WA, for Defendants.

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This Freedom of Information Act ("FOIA") matter comes before the Court on cross-motions for summary judgment by Defendant United States Customs and Border Protection ("CBP") and Plaintiff Council on American-Islamic Relations Washington ("CAIR"). Dkts. #20 and #23. The Court has determined that oral argument is unnecessary. For the following reasons, the Court DENIES Defendant's Motion and GRANTS IN PART Plaintiff's Motion.

II. BACKGROUND

In early January 2020, CBP's Tactical Analytical Unit Seattle Field Office issued a "high alert" stating "Iranian Supreme Leaders Vows Forceful Revenge after US Kills Maj. General Qassim Suleimani" and directing that "all persons (males and females) born after 1961 and born before 2001 with links (POB, travel, Citizenship)" to Palestine, Lebanon, or Iran were to be vetted with extra questioning on their entry to the United States from British Columbia, Canada. See Dkt. 16-7. Reporting has indicated that On January 4 and 5, U.S. citizens and lawful permanent residents ("LPRs") of Iranian background were detained, questioned and held for hours—including with their small children or throughout most of the night—at the Port of Entry in Blaine, Washington. Dkt. #24 ("Maltese Decl."), Ex A (CBP FOIA production) at 84 (detailing vetting to conduct of "Iranian National[s]"); id. Exs. B-H (news articles). These facts are not in dispute.

On or about January 8, 2020, Plaintiff submitted to CBP the following FOIA request:

Please provide records of all directives, orders, guidance, briefings, instructions, musters, e-mail, other electronic communications or any other communications, whether issued verbally or in writing, issued by the Seattle Field Office Director or any other Department of Homeland Security (DHS) or Customs and Border Protection (CBP) official, officer, or employee to any CBP officer, port director, or CBP Seattle Field Officer or Blaine Sector or Blaine Port of Entry employee regarding the screening of individuals of Iranian heritage or any other changes in screening or secondary inspection procedures between January 1, 2020, and January 8, 2020, including, but not limited to, any changes based on the ‘current threat environment,’ or the need for ‘enhanced vigilance,’ ‘additional caution,’ or an ‘enhanced posture.’

In addition, please provide records of any directives, orders, guidance, briefings, instructions, e-mails, other electronic communications or any other communications, whether issued verbally or in writing, sent by DHS or CBP headquarters to the Seattle Field Office or the Blaine Sector of CBP in response to the reports of secondary screenings, vetting, detention, or denial of entry or exit of individuals of Iranian heritage at the Blaine Port of entry, issued between January 3, 2020 and January 8, 2020.

Finally, please also provide records of any statements provided to any press or media outlet regarding the secondary inspection and enhanced vetting of individuals of Iranian heritage at the Blaine Port of Entry on January 3 and 4 from the Relevant Time Period....

Dkt. #21-1 (emphasis in original). The CBP FOIA Division received CAIR's FOIA request and assigned the request a tracking number on or about the same day. Dkt. #21 ("Search Decl."), ¶ 19.

After Defendants failed to respond to the request within the statutory timeframe, CAIR filed the instant action on February 12, 2020. Dkt. #1.

On April 14, 2020, CBP released four documents in part and withheld 124 pages pursuant to FOIA Exemptions 6, 7(A), 7(C) and 7(E). Dkt. #22 ("Exemption Decl."), ¶ 7. CBP later produced in part 5 of 19 pages, withholding the remaining pages pursuant to Exemptions 6, 7(C), and 7(E). Id. at ¶ 9. CBP initially applied Exemption 7(A) to withhold certain documents due to an ongoing investigation; however, this investigation ended. Accordingly, on June 18, 2020, CBP produced 147 pages with exemptions applied and duplicate documents redacted. Id. at ¶¶ 11-12. Portions of the pages were withheld pursuant to Exemptions 5, 6, 7(C), and 7(E). Id. at ¶ 15. These exemptions are discussed in further detail below.

Having produced these documents, Defendants move to dismiss this action. Dkt. #20-1. Plaintiff CAIR moves the Court to order Defendants to:

... conduct an adequate search, including by searching the emails of at least (1) Adele Fasano, (2) the Seattle Field Office Assistant Director, (3) Randy Howe, and (4) the Senior Official Performing the Duties of the Commissioner of Customs and Border Protection, Mark A. Morgan. Defendants must also eliminate the redactions of names and emails in the responsive materials for Assistant Directors and Port Directors within the Seattle Field Office [and].... provide unredacted copies of the responsive documents to Plaintiff, and specifically, any related directive or instructions that Plaintiff has requested, along with any responsive documents from DHS or CBP Headquarters relating to that directive or instructions.

Dkt. #23-1.

III. DISCUSSION

A. Legal Standard

In FOIA cases, the usual summary judgment standards apply and "if there are genuine issues of material fact in a FOIA case, the district court should proceed to a bench trial or adversary hearing" and issue findings of fact and conclusions of law. Animal Legal Def. Fund v. U.S. Food & Drug Administration , 836 F.3d 987, 990 (2016) (citing Fed. R. Civ. P. 52(a)(1) ); see also Cameranesi v. United States DOD , 856 F.3d 626, 636 (9th Cir. 2017) ("We have now overruled this FOIA-specific summary judgment standard, and instead apply our usual summary judgment standard.").

Accordingly, summary judgment is appropriate where "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) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those which might affect the outcome of the suit under governing law. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. In ruling on summary judgment, a court does not weigh evidence to determine the truth of the matter, but "only determine[s] whether there is a genuine issue for trial." Crane v. Conoco, Inc. , 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O'Melveny & Myers , 969 F.2d 744, 747 (9th Cir. 1992) ).

On a motion for summary judgment, the court views the evidence and draws inferences in the light most favorable to the non-moving party. Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ; Sullivan v. U.S. Dep't of the Navy , 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable inferences in favor of the non-moving party. See O'Melveny & Myers , 969 F.2d at 747, rev'd on other grounds , 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994). However, the nonmoving party must make a "sufficient showing on an essential element of her case with respect to which she has the burden of proof" to survive summary judgment. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FOIA establishes "a judicially enforceable right to secure [government] information from possibly unwilling official hands." Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1976) (citing S. Rep. No. 813, 89th Cong. (1st Sess. 1965)); see also Lahr v. NTSB , 569 F.3d 964, 973 (9th Cir. 2009). The aim of these disclosure requirements is to "ensure an informed citizenry, vital to the functioning of democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978) ; see also Hamdan v. United States DOJ , 797 F.3d 759, 770 (9th Cir. 2015) ; Shannahan v. I.R.S. , 672 F.3d 1142, 1148 (9th Cir. 2012).

Federal agencies have a duty to construe FOIA requests liberally. Yagman v. Pompeo , 868 F.3d 1075, 1080 (9th Cir. 2017). Upon receipt of a FOIA request, a federal agency "shall make the records promptly available," 5 U.S.C. § 552(a)(3)(A), and "shall make reasonable efforts to search for the records" responsive to a request. Id. § 552(a)(3)(C)–(D). Agencies must respond to FOIA requests within twenty business days of receipt, id. § 552(a)(6)(A)(i), and disclose responsive documents unless one or more of FOIA's exemptions apply. These exemptions are "narrowly construed." Shannahan , 672 F.3d at 1149. An agency bears the burden of establishing that an exemption applies. Lahr , 569 F.3d at 973. "Any reasonably segregable portion of a record shall be provided" to the FOIA requester. 5 U.S.C. § 552(b).

B. Timeliness of FOIA Responses

CAIR asserts that CBP failed to respond to its request within 20 days as required by FOIA. Dkt. #15 ("Am. Compl."), ¶¶ 40-45. Defendants do not deny that CBP failed to meet the 20-day deadline, but argue that "many federal courts have held that untimeliness is not an automatic basis for violation of FOIA for purposes of summary or declaratory judgment," Dkt. #20 at 21 (citing cases), and that "CAIR has already received its relief or CBP's delayed response through this litigation," id. at 22. CBP cites to Cmty. Ass'n for Restoration of the Env't. v. U.S. Env't Prot. Agency , 36 F. Supp. 3d 1039, 1047-1054 (E.D. Wash. 2014), which discussed the difference between late responses and "egregiously late" responses, itself citing to Oregon Natural Desert Ass'n v. Gutierrez ,...