Council on American Islamic Relations - Washington v. United States Customs and Border Protection

[5] 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON [7] AT SEATTLE [8] 9 COUNCIL ON AMERICAN-ISLAMIC Case No. C20-217RSM RELATIONS-WASHINGTON, [10] ORDER RE: DOCUMENTS SUBMITTED 11 Plaintiff, FOR IN CAMERA REVIEW 12 v. [13] UNITED STATES CUSTOMS AND 14 BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND 15 SECURITY, [16] Defendants. [17] On October 5, 2020, this Court issued an Order directing Defendants to submit for in [18] 19 camera review all records withheld or redacted on the basis of FOIA Exemption 7(E). Dkt. #29 20 at 15. The Court advised that another order addressing these records would be issued after the [21] Court had a chance to review. [22] The Court has now reviewed these records and determined that the majority were [24] properly withheld and redacted pursuant to Exemption 7(E). 25 Exemption 7 protects from disclosure records or information compiled for law 26 enforcement purposes, but only to the extent that the production of such records or information [27] would result in one of six specified harms. 5 U.S.C. § 522 (b)(7). Under Exemption 7(E), [28] agencies may withhold information “which would disclose techniques and procedures for law [1] 2 enforcement investigation or prosecutions . . . if such disclosure could reasonably be expected 3 to risk circumvention of the law.” 5 U.S.C. § 552 (b)(7)(E). The government must show that the [4] technique or procedure at issue is not well known to the public, see Rosenfeld v. U.S. Dep’t of [5] Justice, 57 F.3d 803, 815 (9th Cir. 1995), and must describe the general nature of the technique [6] or procedure at issue, although it need not provide specific details, see Judicial Watch, Inc. v. [7] 8 U.S. Dep’t of Commerce, 337 F. Supp. 2d 146, 181 (D.D.C. 2004). 9 Defendants argued that they invoked Exemption 7(E) to withhold non-public [10] information including law enforcement terminology, techniques, and procedures used to [11] determine admissibility and other similar information that directly relates to CBP’s law [12] 13 enforcement mission to protect the border, Exemption Decl. ¶¶ 28-29, Ex. 4, Vaughn Index, and 14 that disclosure would allow persons seeking to enter the United States to alter their patterns of 15 conduct to avoid detection, see Dkt. #20 at 20. [16] FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to [17] any person requesting such record after deletion of the portions which are exempt under this [18] 19 subsection.” 5 U.S.C. § 552 (b). Defendants argued they met this standard. CAIR argued that 20 Defendants have cited 7(E) in redacting publicly known information and information to shield [21] illegal activity from public disclosure. Dkt. #23 at 21. [22] Defendants acknowledged but do not respond to CAIR’s argument that 7(E) should not [23] shield the disclosure records of illegal activity. See Dkt. #25 at 10. In its Cross-Motion, CAIR [24] 25 cited to Wilkinson v. F.B.I., 633 F. Supp. 336, 349 (C.D. Cal. 1986) for the proposition that 26 “[b]ecause the policy behind [Exemption 7(E)] is to shield effective and little-known law [27] enforcement techniques from potential violators so that they may not be circumvented, [28] Exemption 7(E) may not be used to withhold information regarding investigative techniques [1] 2 that are illegal or of questionable legality.” Dkt. #23 at 24. CAIR also cites Kuzma v. IRS, 775 3 F.2d 66, 69 (2d Cir. 1985) (“[U]nauthorized or illegal investigative tactics may not be shielded [4] from the public by use of FOIA exemptions.”). Id. CAIR pointed out Defendants’ non5 response and that “Defendants also do not contest that the agency engaged in unlawful activity.” [6] As a result, the Court has already determined that release of the directive that mandated the [7] 8 detention of individuals based on national origin may be appropriate, along with the release of 9 any communications discussing, implementing, criticizing, or withdrawing that directive. [10] Given the above, the Court finds that portions of the following documents were not [11] properly withheld under this exemption and orders their production to Plaintiff: [12] 13  CBP000017: 7(E) redactions on this page are to be removed. 14  CBP000018: The beginning of this document must be produced as it reflects on [15] the underlying unlawful activity. Defendants may continue to redact the bullet [16] points underneath “Procedure” pursuant to 7(E). CBP000019-21, part of the [17] same document, may continue to be redacted as it discusses procedures and [18] 19 knowledge of Defendants related to law enforcement investigation that could 20 allow persons seeking to enter the United States to alter their patterns of conduct [21] to avoid detection. [22]  CBP000023: This page is nearly identical to CBP000018 and must be produced. [23] 24 Defendants may continue to redact the bullet points underneath “Procedure” 25 pursuant to 7(E). CBP000024-27, part of the same document, may continue to [26] be redacted. [28]  CBP000032: This page reflects updated procedures similar to CBP000018 and [1] 2 must be produced. Defendants may continue to redact the bullet points 3 underneath “Procedure” pursuant to 7(E). CBP000033-39, part of the same [4] document, may continue to be redacted. [5]  CBP000046-47: This email explicitly discusses a change in procedures related to [6] 7 the vetting of United States citizens and US legal permanent residents. Section 1 8 and subsection 1a must be unredacted. These do not discuss law enforcement [9] techniques or information that could allow persons seeking to enter the United [10] States to alter their patterns of conduct to avoid detection. Portions of subsection [11] 1b may continue to be redacted to the extent Defendants feel 7(E) still applies. [12] 13 Section 4 must be unredacted. The remaining sections are properly redacted 14 under 7(E). [15]  CBP000048: The first two sentences in the paragraph, starting with “[f]or this [16] operation, CBP will not…” and ending with “…an attack in the United States” [17] are to be unredacted as they discusses the underlying unlawful activity and do [18] 19 not discuss law enforcement techniques or information that could allow persons 20 seeking to enter the United States to alter their patterns of conduct to avoid [21] detection. The remaining sentences of this paragraph may continue to be [22] redacted under 7(E). [23] 24  CBP000062: The first two sentences of point number 3 are identical to the 25 portions in CBP000048 that are to be unredacted. These two sentences must also [26] be unredacted for the same reason. The last sentence of point number 3 must [27] also be unredacted for the same reason. [28]  CBP000063-64: The first two sentences of point number 3 are identical to the [1] 2 portions in CBP000048 that are to be unredacted. These two sentences must also 3 be unredacted for the same reason. The last sentence of point number 3 must [4] also be unredacted for the same reason. [5]  CBP000084: The paragraph starting with “[i]n order to ensure…” including the [6] 7 bulleted list is to be unredacted. 8  CBP000092: The first two sentences of the paragraph starting with “[f]or this [9] operation…” are identical to the portions in CBP000048 that are to be [10] unredacted. These two sentences must also be unredacted for the same reason. [11] The sentence starting with “[d]ue to mandatory…” must also be unredacted for [12] 13 the same reason. 14 These changes and production to Plaintiff are to be accomplished in the next 14 days. If [15] any issues arise, especially minor issues, the parties are to confer with each other to reach a [16] reasonable agreement prior to filing any further motions or otherwise contacting the Court. [17] IT IS SO ORDERED. [18] 19 DATED this 14th day of December, 2020. [21] A [23] RICARDO S. MARTINEZ 24 CHIEF UNITED STATES DISTRICT JUDGE