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American Civil Liberties Union of Maine Foundation v. U.S. Department of Homeland Security

United States District Court, D. Maine

May 8, 2019

AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, and U.S. CUSTOMS AND B PROTECTION, Defendants.

          ORDER ADJUDICATING DISPUTED REDACTIONS

          JON D. LEVY CHIEF U.S. DISTRICT JUDGE

         This matter arises from a request under the Freedom of Information Act (“FOIA”), 5 U.S.C.A. § 552 (West 2019), made by the American Civil Liberties Union of Maine Foundation (“ACLU”) to the U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”) (collectively, the “Government”) for certain records about immigration investigations in which Government officers have stopped bus passengers to ask whether they are United States citizens. The Government has subsequently produced responsive records but the ACLU objects to certain redactions made to those records by the Government. The Government contends that the redactions are supported by § 552(b)(7)(E) (“Exemption 7(E)”), which concerns law enforcement techniques and procedures. After an in camera review of the disputed records, and as explained below, I conclude that some, but not all, of the redactions qualify under Exemption 7(E) and are properly redacted.

         I. ANALYSIS

         “The basic purpose of FOIA 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.” N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). As a result, FOIA requires federal agencies to promptly release records in response to a request for production, § 552(a)(3)(A), and authorizes federal courts “to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” § 552(a)(4)(B). However, to “safeguard[] the efficient administration of the government, the FOIA provides that certain categories of materials are exempted from the general requirements of disclosure.” Carpenter v. U.S. Dep't of Justice, 470 F.3d 434, 438 (1st Cir. 2006). Nonetheless, FOIA exemptions are construed narrowly, and any doubts are resolved in favor of disclosure. Id. (citing U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)).

         The Government asserts that all of the contested redactions are subject to Exemption 7(E), which shields from disclosure:

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law[.]

§ 552(b)(7)(E). Exemption 7(E) “sets a relatively low bar for [an] agency to justify withholding, requiring only that the agency demonstrate logically how the release of the requested information might create a risk of circumvention of the law.” Widi v. McNeil, No. 2:12-cv-00188-JAW, 2016 WL 4394724, at *28 (D. Me. Aug. 16, 2016) (quoting Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 2011)). However, the Government bears the burden of proving that the withheld materials fall within an enumerated exemption, § 552(a)(4)(B), and a “district court must make a de novo determination as to the validity of [an] agency's exemption claim.” Providence Journal Co. v. U.S. Dep't of Army, 981 F.2d 552, 556-57 (1st Cir. 1992).

         The records at issue here can be sorted into three broad categories: (1) an officer training presentation (the “Trans Check Presentation”), see ECF No. 27-1; (2) daily unit assignment log summaries (the “Shift Logs”), see ECF No. 27-2; and (3) agency e-mail correspondence (the “Bus Check E-Mails”), see ECF Nos. 27-3, 27-4, 27-5, 27-6. I address each in order.

         1. The Trans Check Presentation

         The Trans Check Presentation contains “agent instruction and guidance pursuant to agency policy, discussing mandatory tactics and techniques used by U.S. Border Protection during transportation checks.” ECF No. 28 at 2. The Government argues that the disputed redactions are appropriate under Exemption 7(E) because “if made public, such information could potentially be used to circumvent the law and/or make agents jobs more difficult[, ]” and because “the guidance at issue pertains directly to how the agency's law enforcement personnel are required to interact with bus passengers.” Id. at 2-3 (internal citations omitted). After reviewing the unredacted document in camera, I conclude that the redactions appearing in ECF No. 27-1 at pages 7, 8, and 11 ¶¶ 10-11, which relate to the Supreme Court's holding in United States v. Drayton, 536 U.S. 194 (2002), do not fall within the ambit of Exemption 7(E) because they do not implicate “investigative techniques not generally known to the public.” Rosenfeld v. U.S. Dep't of Justice, 57 F.3d 803, 815 (9th Cir. 1995).

         2. The Shift Logs

         The Shift Logs contain information “covering [agency] staffing levels, shift hours, zone assignments, zone boundaries, and vehicle numbers[.]” ECF No. 28 at 3.

         The Government argues that the disputed redactions are appropriate under Exemption 7(E) because:

[D]isclosing this information to the public would provide an outline of the Houlton Sector's enforcement capabilities and the number of agents patrolling certain sections at certain hours. This information is especially sensitive because it represents locations where U.S. Border Patrol is present and the areas of its concentrated patrolling and enforcement activities. Making this information publically available, whether in Houlton Sector alone, or nationwide, would give an advantage to those seeking to avoid encounters with U.S. Border Patrol; aid individuals who seek to cross the border illegally, or who seek to remain in the country illegally, to develop countermeasures to evade detection, inspection and examination; and ...

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