United States District Court, D. Maine
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 ...