Mac William Bishop & Christopher Chivers v. U.S. Dep't Of

MAC WILLIAM BISHOP and CHRISTOPHER CHIVERS, Plaintiffs,vUNITED STATES DEPARTMENT OF, HOMELAND SECURITY Defendant.

13 Civ. 8620 (GWG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 16, 2014

OPINION AND ORDER

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiffs Mac William Bishop and Christopher Chivers have brought this suit under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), against the United States Department of Homeland Security ("DHS") to obtain records relating to the questioning of plaintiffs at John F. Kennedy International Airport in May and June 2013. The parties have each moved for summary judgment.¹ They have also consented to disposition of the case by a United StatesMagistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, DHS's motion is granted and plaintiffs' motion is denied.

I. BACKGROUND

Mac William Bishop and Christopher Chivers are reporters for The New York Times who on May 24, 2013, went to John F. Kennedy International Airport ("JFK") to board a flight to Turkey to report on the civil war in Syria. See McCraw Decl. ¶¶ 1, 3. While waiting at the boarding gate, Bishop and Chivers were pulled aside, taken to a separate room, and questioned individually by DHS employees. See id. ¶ 4. Upon returning to the United States from Turkey on June 6, 2013, Chivers was again subjected to such "segregated" questioning by DHS employees at JFK. See id.

In June and July 2013, Chivers and Bishop sent separate FOIA requests to DHS headquarters "seeking all information and records in the possession of DHS concerning" them. Id. ¶¶ 5, 11; see Privacy Act Request/Christopher Chivers, dated June 27, 2013 (annexed as Ex. B to McCraw Decl.); Privacy Act Request/Mac William Bishop, dated July 10, 2013 (annexed as Ex. G to McCraw Decl.). After DHS asserted that it could not locate any responsive documents, plaintiffs made significant efforts, by means of letters and appeals within the agency, to persuade DHS to continue its search. See McCraw Decl. ¶¶ 6-10, 13-18; see also Privacy Act Request/Christopher Chivers, dated Aug. 9, 2013 (annexed as Ex. D to McCraw Decl.); Bishop FOIA Appeal, dated Oct. 28, 2013 (annexed as Ex. I to McCraw Decl.); Privacy ActRequest/Mac William Bishop, dated Aug. 9, 2013 (annexed as Ex. L to McCraw Decl.). As a result of plaintiffs' persistence, which continued even after they filed their complaint in this case, DHS identified numerous responsive documents. See McCraw Decl. ¶ 20; Castelli Decl. ¶¶ 11, 14. Many of the documents were produced with redactions, however, and some were withheld in their entirety. See McCraw Decl. ¶¶ 20-21. The identified documents all emanate from the same division of DHS: U.S. Customs and Border Protection ("CBP"). See generally Castelli Decl. ¶¶ 16-21. Plaintiffs have chosen not to challenge some of the withholdings by DHS, and thus, the disputes remaining in this case are narrow.

A. The Relevant Documents

The documents at issue come from either CBP's "TECS" computer system or CBP's Automated Targeting System ("ATS") database. With regard to the TECS documents, CBP "Privacy Officer" Laurence E. Castelli, see Castelli Decl. ¶ 1, explains that

TECS (not an acronym) is an overarching law enforcement information collection, analysis and sharing environment, comprised of several modules designed to collect, maintain and screen data as well as conduct analysis, screening and information sharing to facilities the law enforcement and antiterrorism mission of CBP . . . . [It] is used by CBP primarily to track individuals who have violated or are suspected of violating a law or regulation enforced or administered by CBP, provides a record of any inspection conducted at the border and assists officers in determining admissibility of persons arriving in the United States.

Id. ¶ 8. "TECS query capabilities can be used to analyze data from various sources to assist authorized users in the identification of areas of law enforcement interest, concern, or relationships indicating the possible presence of such interests/concerns." Supp. Castelli Decl. ¶ 2 (citation omitted).

With regard to the ATS documents, Castelli explains that ATS stores passenger name records, see Castelli Decl. ¶ 12, and contains a "module" maintaining data on "persons travelingto and from the United States on commercial air carriers," id. ¶ 13. This module "provides an hierarchical system that allows DHS personnel to focus efforts on potentially high-risk passengers by eliminating labor-intensive manual reviews of traveler information or interviews with every traveler." Supp. Castelli Decl. ¶ 7. The module reflects an "assessment process" that is "based on a set of uniform and user-defined rules based on specific optional, tactical, intelligence, or local enforcement efforts." Id. The module "augments the CBP officer's decision-making process about whether a traveler or crew member should receive additional screening" and "provides an automated solution that allows CBP personnel to focus efforts on potentially high-risk travelers by eliminating labor-intensive manual comparison of traveler information or interviews with every traveler." Id. ¶ 8.

Castelli explains:

ATS is a decision support tool that compares traveler, cargo, and conveyance information against law enforcement, intelligence, and other enforcement data using risk-based targeting scenarios and assessments. ATS was designed to efficiently perform risk assessments on information pertaining to international travelers and shipments arriving in or departing the United States. ATS uses a rule-managed technology that facilitates the targeting of high-risk travelers and cargo . . . .

ATS compares existing information on individuals and cargo entering and existing the country with patterns identified as requiring additional security. The patterns are based on CBP officer experience, analysis of trends of suspicious activity, and raw intelligence corroborating those trends . . . .

Specifically, [the module] combines the information provided by airlines with law enforcement and intelligence information, and displays this combined data in a law-enforcement-sensitive format, showing the importance that CBP places on different elements and factors in making law enforcement decisions, as well as the law-enforcement-sensitive information underlying such decision-making.

Castelli Decl. ¶¶ 21-23.

B. The Contested Redactions and Withholdings

Plaintiffs dispute redactions made to "passenger activity" and "hit data" records from the TECS system. See Redacted Documents (annexed as Ex. C to Castelli Decl.) ("Red. Doc."), at CBP0002-CBP0014, CBP0029, CBP0099, CBP0110-CBP0115, CBP0119. These records contain columns for the passenger's name and date of birth, followed by columns headed "date," "time," "agn," "rslt," "typ," "ref," "lane," "api" and "dim." The letters and numbers appearing under each of these columns (most of which have no obvious meaning) have been released with the exception of the information under "RSLT," which has room for about four characters. Plaintiffs challenge the redactions made in the RSLT field.

An additional area of dispute relates to redactions in the "secondary inspection records," which also emanate from TECS. See id. at CBP0091-CBP0093, CPB0140-CBP0143. In these records, redactions have been made to the "Referring Officer Code," "Reason for Referral," and "Remarks" fields. Additionally, a small amount of text — no more than 30 characters — has been redacted from the section entitled "Inspection Remarks."² Plaintiffs challenge only the redactions in the "Reason for Referral" field and the "Inspection Remarks" section. See Pl. Mem. at 12.

Plaintiffs' remaining objection is to DHS's withholding of two entire pages of records from ATS. See Castelli Decl. ¶ 24; Red. Doc. at CBP0265-CBP0266. Castelli asserts in his declaration that these pages "were compiled for law enforcement purposes in that the information was collected and used by CBP in its mission to secure the border of the UnitedStates." Castelli Decl. ¶ 24.

DHS has claimed the exemption in 5 U.S.C. § 552(b)(7)(E) as the basis for all of these redactions and withholdings. See Vaughn Index; see also Castelli Decl. ¶¶ 19-21. At the Court's request, see Order, filed July 17, 2014 (Docket # 25), DHS submitted the withheld material for in camera review, see Letter from Jean-David Barnea, filed July 17, 2014 (Docket # 26). The Court has thus reviewed all of the disputed records in unredacted form.

II. LAW GOVERNING FOIA ACTIONS

FOIA's general purpose is to "ensure an informed citizenry, vital to the functioning of a 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 (1978); accord Nat'l Archives & Record Admin. v. Favish, 541 U.S. 157, 171 (2004) (explaining that the purpose of FOIA is to allow the general public to learn "what their Government is up to") (internal quotation marks and citation omitted); Associated Press v. U.S. Dep't of Def., 554 F.3d 274, 283 (2d Cir. 2009) ("[FOIA] was designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.") (citation and internal quotation marks omitted). FOIA favors broad disclosure and "any member of the public is entitled to have access to any record maintained by a federal agency, unless that record is exempt from disclosure under one of the Act's nine exemptions." A. Michael's Piano, Inc. v. FTC, 18 F.3d 138, 143 (2d Cir. 1994); accord Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143, 147 (2d Cir. 2010); Associated Press, 553 F.3d at 283; Garcia v. U.S. Dep't of Justice, 181 F. Supp. 2d 356, 369 (S.D.N.Y. 2002). Federal courts conduct a de novo review of an agency's decision to withhold records requested under FOIA, Bloomberg, 601 F.3d at 147, and all statutory exemptions must be construed...