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Case TitlePoulsen v. United Staes Customs and Border Protection
DistrictNorthern District of California
CitySan Francisco
Case Number3:2006cv01743
Date Filed2006-03-07
Date Closed2006-09-26
JudgeHon. Susan Illston
PlaintiffKevin Poulsen
Case DescriptionJournalist Kevin Poulsen submitted a FOIA request to U.S. Customs and Border Protection for records concerning an August 2005 incident in which the CBP computer system used to process international travelers failed. Poulsen also requested expedited processing. The agency denied the request under Exemption 2 (internal practices and procedures). Poulsen filed an administrative appeal, but after hearing nothing further from the agency, Poulsen filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantUnited Staes Customs and Border Protection
Documents
Docket
Complaint
Opinion/Order [14]
Opinion/Order [18]
Opinion/Order [29]
Opinion/Order [39]
Opinion/Order [42]
Opinion/Order [44]
FOIA Project Annotation: A federal court in California has ruled that Customs and Border Protection must disclose some of its records concerning an incident in which its computer database of international travelers crashed as the result of a computer virus, but can withhold some information under Exemption 2 (international practices and procedures). Journalist Kevin Poulsen requested records pertaining to the Aug. 18, 2005 crash and the agency eventually located 15 documents, consisting of 666 pages. Judge Susan Illston initially rejected the agency's claim that the records were protected by Exemption 7(E) (investigative methods and techniques). The agency argued that the computers were used to assist the agency in border security and thus the repairs to the computer system were done for a law enforcement purpose. But Illston observed that "the connection between the documents and CBP's law enforcement mandate is so attenuated that, according to defendant, virtually any document created by CBP would be 'compiled for law enforcement purposes.' . . . Here, the documents were generated as a matter of course in response to the computer virus; the documents were not created as part of an investigation, or in connection with CBP's enforcement of federal law." Turning to Exemption 2, Illston indicated that "high-2" applied to the precise patch used to repair the computers and detailed information about future remediation efforts, while "low-2" covered incident numbers, codes assigned to particular machines, and which CBP employees were involved in the repair. But Illston found that other information did not fall under Exemption 2. She noted that "defendant improperly withheld descriptive information regarding the scope of the incident, such as the numbers or percentages of computers infected or the different cities reporting problems, or general accounts of the problem and the remedy, such as statements that a virus infected various computers and that patches were installed. This information is of interest to the public, and defendant has failed to meet is burden of showing that exemption 2 applies to this material. Although defendant repeatedly asserts that this information would render the CBP computer system vulnerable, defendant has not articulated how this general information would do so."
Issues: Exemption 2 - Risk of circumvention, Exemption 7(E) - Investigative methods or techniques
Opinion/Order [48]
Opinion/Order [50]
Opinion/Order [56]
FOIA Project Annotation: A federal court in California has awarded Wired reporter Kevin Poulsen $66,000 in attorney's fees for his suit against Customs and Border Protection for information about the extent of a computer virus problem experienced by the agency. The court initially found that Poulsen had substantially prevailed when the court ordered Customs to disclose further information after an in camera inspection. District Court Judge Susan Illston then indicated that "while defendant may be correct that the Court only compelled production of a small percentage of the total pages at issue, those pages contained important information about the nature and breadth of the computer failures. The Court ordered defendant to produce information from the executive summaries, as well as information from spreadsheet reports summarizing all of the calls to the help desk and the resolution of each call; this information revealed the scope and location of the virus as well as defendant's response to the problems." She added that "plaintiff's interest in disclosure of the voluminous database records was less compelling in light of the fact that much, if not all, of the non-exempt information contained in the records was also contained in documents that the Court ordered produced." Saying that "the Court noted that in many instances, defendant's redaction of material was inconsistent and seemingly without any reasoned basis," Illston concluded that Poulsen was entitled to fees. She rejected the agency's claim that his $82,000 fee request was excessive and should be winnowed down to something more like $2,500. However, she agreed with the agency that some items were excessive and unsupported and reduced the fee by about $15,000.
Issues: Litigation - Attorney's fees - Entitlement - Public benefit
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2006-03-071COMPLAINT (Summons issued); against United Staes Customs and Border Protection ( Filing fee $ 250, receipt number 3382788.). Filed byKevin Poulsen. (ys, COURT STAFF) (Filed on 3/7/2006) Additional attachment(s) added on 3/24/2006 (ys, COURT STAFF). (Entered: 03/08/2006)
2006-03-072ADR SCHEDULING ORDER: Case Management Statement due by 6/30/2006. Case Management Conference set for 7/7/2006 02:00 PM. (Attachments: # 1 standing order and cmc order)(ys, COURT STAFF) (Filed on 3/7/2006) (Entered: 03/08/2006)
2006-03-07Summons Issued as to United Staes Customs and Border Protection, U.S. Attorney and U.S. Attorney General (ys, COURT STAFF) (Filed on 3/7/2006) (Entered: 03/08/2006)
2006-03-07CASE DESIGNATED for Electronic Filing. (ys, COURT STAFF) (Filed on 3/7/2006) (Entered: 03/08/2006)
2006-03-103SUMMONS Returned Executed by Kevin Poulsen. United Staes Customs and Border Protection served on 3/7/2006, answer due 5/8/2006. (ys, COURT STAFF) (Filed on 3/10/2006) (Entered: 03/13/2006)
2006-03-234CLERK'S NOTICE re: Failure to E-File complaint by plaintiff's counsel. (ys, COURT STAFF) (Filed on 3/23/2006) (Entered: 03/23/2006)
2006-03-305CERTIFICATE OF SERVICE by Kevin Poulsen Amended Proof of Service (Gelman, Lauren) (Filed on 3/30/2006) (Entered: 03/30/2006)
2006-04-066Defendant's ANSWER to Complaint byUnited Staes Customs and Border Protection. (Cheng, Andrew) (Filed on 4/6/2006) (Entered: 04/06/2006)
2006-04-147Memorandum of Points and Authorities in support of 9 MOTION for Summary Judgment filed by Kevin Poulsen. (Gelman, Lauren) (Filed on 4/14/2006) Modified on 4/17/2006 (ys, COURT STAFF). (Entered: 04/14/2006)
2006-04-148Declaration of Kevin Poulsen in Support of 9 MOTION for Summary Judgment filed byKevin Poulsen. (Related document(s) 9 ) (Gelman, Lauren) (Filed on 4/14/2006) Modified on 4/17/2006 (ys, COURT STAFF). (Entered: 04/14/2006)
2006-04-149MOTION for Summary Judgment Notice of Motion and Motion filed by Kevin Poulsen. Motion Hearing set for 5/19/2006 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Gelman, Lauren) (Filed on 4/14/2006) (Entered: 04/14/2006)
2006-04-1410Proposed Order re 9 MOTION for Summary Judgment by Kevin Poulsen. (Gelman, Lauren) (Filed on 4/14/2006) Modified on 4/17/2006 (ys, COURT STAFF). (Entered: 04/14/2006)
2006-04-1711STIPULATION Joint Stipulation and [Proposed] Order to Continue Case Management Conference by United Staes Customs and Border Protection. (Cheng, Andrew) (Filed on 4/17/2006) (Entered: 04/17/2006)
2006-04-1712NOTICE by United Staes Customs and Border Protection Defendant's Ex Parte Motion to Continue Summary Judgment Hearing Date (Cheng, Andrew) (Filed on 4/17/2006) (Entered: 04/17/2006)
2006-04-1713Declaration of Andrew Y.S. Cheng in Support of Ex Parte Motion to Continue Sumary Judgment Hearing Date filed byUnited Staes Customs and Border Protection. (Attachments: # 1 Exhibit A - D)(Cheng, Andrew) (Filed on 4/17/2006) (Entered: 04/17/2006)
2006-04-1814ORDER continuing case management to 7/21/06. Signed by Judge Illston on 4/18/06. (ts, COURT STAFF) (Filed on 4/18/2006) (Entered: 04/18/2006)
2006-04-18Set Deadlines/Hearings: Case Management Conference set for 7/21/2006 02:00 PM. (ys, COURT STAFF) (Filed on 4/18/2006) (Entered: 04/19/2006)
2006-04-2015Memorandum in Opposition to Defendant's Ex Parte Motion to Continue Summary Judgment Hearing Date and Cross-Motion for Protective Order re: Plaintiff's Deposition filed byKevin Poulsen. (Gelman, Lauren) (Filed on 4/20/2006) (Entered: 04/20/2006)
2006-04-2016Declaration of David L. Sobel in support of 15 Opposition to Defendant's Ex Parte Motion to Continue Summary Judgment Hearing Date and Cross-Motion for Protective Order re: Plaintiff's Deposition filed byKevin Poulsen. (Gelman, Lauren) (Filed on 4/20/2006) Modified on 4/24/2006 (ys, COURT STAFF). (Entered: 04/20/2006)
2006-04-2017CLERK'S NOTICE Continuing Motion Hearing Motion Hearing set for 5/26/2006 09:00 AM. (ts, COURT STAFF) (Filed on 4/20/2006) (Entered: 04/20/2006)
2006-04-2118ORDER. Signed by Judge Illston on 4/20/06. (ts, COURT STAFF) (Filed on 4/21/2006) (Entered: 04/21/2006)
2006-05-0419Defendant's Opposition to 9 Plaintiff's Motion for Summary Judgment filed byUnited Staes Customs and Border Protection. (Cheng, Andrew) (Filed on 5/4/2006) Modified on 5/5/2006 (ys, COURT STAFF). (Entered: 05/04/2006)
2006-05-0420DECLARATION of Andrew Y.S. Cheng in support to 19 Memorandum in Opposition to Motion for Summary Judgment filed byUnited Staes Customs and Border Protection. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 19 ) (Cheng, Andrew) (Filed on 5/4/2006) Modified on 5/10/2006 (ys, COURT STAFF). (Entered: 05/04/2006)
2006-05-0421DECLARATION of Shari Suzuki in Opposition to 9 Motion for Summary Judgment filed byUnited Staes Customs and Border Protection. (Attachments: # 1 Exhibit 1 to 4)(Related document(s) 19 ) (Cheng, Andrew) (Filed on 5/4/2006) Modified on 5/10/2006 (ys, COURT STAFF). (Entered: 05/04/2006)
2006-05-0422Proposed Order Denying 19 Plaintiff's Motion for Summary Judgment by United Staes Customs and Border Protection. (Cheng, Andrew) (Filed on 5/4/2006) Modified on 5/10/2006 (ys, COURT STAFF). (Entered: 05/04/2006)
2006-05-0423DECLARATION of Zachary Mann in Opposition to 9 Motion for Summary Judgment filed byUnited Staes Customs and Border Protection. (Related document(s) 19 ) (Cheng, Andrew) (Filed on 5/4/2006) Modified on 5/10/2006 (ys, COURT STAFF). (Entered: 05/04/2006)
2006-05-0924CORRECTION re - 21 Declaration of Shari Suzuki in Opposition to Motion for Summary Judgment filed byUnited Staes Customs and Border Protection. (Attachments: # 1 Exhibit 1 to 4# 2 Exhibit 5)(Related document(s) 19 , 21 ) (Cheng, Andrew) (Filed on 5/9/2006) Modified on 5/10/2006 (ys, COURT STAFF). (Entered: 05/09/2006)
2006-05-1225Reply in support of 9 Motion for summary judgment filed byKevin Poulsen. (Gelman, Lauren) (Filed on 5/12/2006) Modified on 5/15/2006 (ys, COURT STAFF). (Entered: 05/12/2006)
2006-05-1226Declaration of Lauren Gelman in Support of 25 Reply in support filed byKevin Poulsen. (Related document(s) 25 ) (Gelman, Lauren) (Filed on 5/12/2006) Modified on 5/15/2006 (ys, COURT STAFF). (Entered: 05/12/2006)
2006-05-2427Supplemental Declaration of Shari Suzuki in Opposition to 9 Motion for Summary Judgment filed byUnited Staes Customs and Border Protection. (Cheng, Andrew) (Filed on 5/24/2006) Modified on 5/25/2006 (ys, COURT STAFF). (Entered: 05/24/2006)
2006-05-3128Minute Entry: Motion Hearing held on 5/26/2006 before Illston (Date Filed: 5/31/2006). (Court Reporter K. Wyatt.) (ts, COURT STAFF) (Date Filed: 5/31/2006) (Entered: 05/31/2006)
2006-06-0529ORDER RE: IN CAMERA REVIEW. Signed by Judge Illston on 6/5/06. (ts, COURT STAFF) (Filed on 6/5/2006) (Entered: 06/05/2006)
2006-06-0630Ex Parte Application Defendant's Ex Parte Motion Seeking Court's Approval to File Declaration of John MacDonald filed by United Staes Customs and Border Protection. Motion Hearing set for 5/26/2006 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Cheng, Andrew) (Filed on 6/6/2006) (Entered: 06/06/2006)
2006-06-0631Proposed Order re 30 Ex Parte Application Defendant's Ex Parte Motion Seeking Court's Approval to File Declaration of John MacDonald [Proposed] Order Granting Defendant's Ex Parte Motion to File Declaration of John MacDonald by United Staes Customs and Border Protection. (Cheng, Andrew) (Filed on 6/6/2006) (Entered: 06/06/2006)
2006-06-0632DECLARATION of John R. (Rod) MacDonald in Opposition to Motion for Summary Judgment filed byUnited Staes Customs and Border Protection. (Cheng, Andrew) (Filed on 6/6/2006) (Entered: 06/06/2006)
2006-06-0833ORDER by Judge Illston granting 30 Ex Parte Application (ts, COURT STAFF) (Filed on 6/8/2006) (Entered: 06/08/2006)
2006-06-1234Letter from Lauren Gelman re: In Camera Review . (Gelman, Lauren) (Filed on 6/12/2006) (Entered: 06/12/2006)
2006-06-2235ADR Clerks Notice re: Non-Compliance with Court Order. (tjs, COURT STAFF) (Filed on 6/22/2006) (Entered: 06/22/2006)
2006-06-2336ADR Certification (ADR L.R. 3-5b) of discussion of ADR options ADR Certification by Parties and Counsel (Cheng, Andrew) (Filed on 6/23/2006) (Entered: 06/23/2006)
2006-06-2637ADR Certification (ADR L.R. 3-5b) of discussion of ADR options (Gelman, Lauren) (Filed on 6/26/2006) (Entered: 06/26/2006)
2006-07-1138STIPULATION Joint Stipulation and [Proposed] Order to Continue Case Management Conference by United Staes Customs and Border Protection. (Cheng, Andrew) (Filed on 7/11/2006) (Entered: 07/11/2006)
2006-07-1439ORDER continuing cmc to 8/18/06. Signed by Judge Illston on 7/14/06. (ts, COURT STAFF) (Filed on 7/14/2006) (Entered: 07/14/2006)
2006-07-14Set Deadlines/Hearings: Case Management Statement due by 8/11/2006. Case Management Conference set for 8/18/2006 02:00 PM. (ys, COURT STAFF) (Filed on 7/14/2006) (Entered: 07/17/2006)
2006-08-0340JOINT CASE MANAGEMENT STATEMENT Joint Case Management Conference Statement filed by United Staes Customs and Border Protection. (Cheng, Andrew) (Filed on 8/3/2006) (Entered: 08/03/2006)
2006-08-1441STIPULATION Joint Stipulation and [Proposed] Order to Continue Case Management Conference by Kevin Poulsen. (Gelman, Lauren) (Filed on 8/14/2006) (Entered: 08/14/2006)
2006-08-1842ORDER continuing case management conference to 9/8/06. Signed by Judge Illston on 8/15/06. (ts, COURT STAFF) (Filed on 8/18/2006) (Entered: 08/18/2006)
2006-08-18Set Deadlines/Hearings: Case Management Conference set for 9/8/2006 02:00 PM. (ys, COURT STAFF) (Filed on 8/18/2006) (Entered: 08/21/2006)
2006-09-0643CLERK'S NOTICE Further Case Management Conference set for 10/27/2006 02:00 PM. (ts, COURT STAFF) (Filed on 9/6/2006) (Entered: 09/06/2006)
2006-09-2644ORDER re: cross motions for summary judgment (ts, COURT STAFF) (Filed on 9/26/2006) (Entered: 09/26/2006)
2006-09-2645JUDGMENT. Signed by Judge Illston on 9/25/06. (ts, COURT STAFF) (Filed on 9/26/2006) (Entered: 09/26/2006)
2006-10-0646STIPULATION TO EXTEND TIME FOR FILING MOTION FOR ATTORNEY'S FEES by Kevin Poulsen. (Gelman, Lauren) (Filed on 10/6/2006) (Entered: 10/06/2006)
2006-10-0647Proposed Order re 46 Stipulation TO EXTEND TIME FOR FILING MOTION FOR ATTORNEYS FEES by Kevin Poulsen. (Gelman, Lauren) (Filed on 10/6/2006) (Entered: 10/06/2006)
2006-10-1148ORDER re: extending deadline to file motion for attorney's fees. Signed by Judge Illston on 10/10/06. (ts, COURT STAFF) (Filed on 10/11/2006) (Entered: 10/11/2006)
2006-10-2649STIPULATION TO EXTEND TIME FOR FILING MOTION FOR ATTORNEYS FEES by Kevin Poulsen. (Gelman, Lauren) (Filed on 10/26/2006) (Entered: 10/26/2006)
2006-10-2650ORDER re: extension to filing motion for attorney's fees. Signed by Judge Illston on 10/26/06. (ts, COURT STAFF) (Filed on 10/26/2006) (Entered: 10/26/2006)
2006-11-0351MOTION for Attorney Fees filed by Kevin Poulsen. Motion Hearing set for 1/19/2007 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Attachments: # 1 Affidavit Declaration by Lauren Gelman in Support of Motion for Award of Attorney's Fees and Costs# 2 Affidavit Declaration by David Olson in Support of Motion for Award of Attorney's Fees and Costs# 3 Affidavit Declaration by Jennifer Granick in Support of Motion for Award of Attorney's Fees and Costs# 4 Proposed Order Proposed Order for Motion for Award of Attorney's Fees and Costs)(Gelman, Lauren) (Filed on 11/3/2006) (Entered: 11/03/2006)
2006-12-2152Memorandum in Opposition Federal Defendant's Opposition to 51 Motion for Attorney's Fees filed byUnited Staes Customs and Border Protection. (Cheng, Andrew) (Filed on 12/21/2006) Modified on 12/27/2006 (ys, COURT STAFF). (Entered: 12/21/2006)
2006-12-2153Declaration of Andrew Y.S. Cheng in Support of 52 Memorandum in Opposition Declaration of Andrew Y.S. Cheng in Support of Opposition to Motion for Attorney's Fees filed byUnited Staes Customs and Border Protection. (Attachments: # 1 Exhibit A and B)(Related document(s) 52 ) (Cheng, Andrew) (Filed on 12/21/2006) (Entered: 12/21/2006)
2007-01-0554Reply to Opposition to 51 motion filed byKevin Poulsen. (Gelman, Lauren) (Filed on 1/5/2007) Modified on 1/8/2007 (ys, COURT STAFF). (Entered: 01/05/2007)
2007-01-0555Declaration of Lauren Gelman in Support of 54 Reply to Opposition to Plaintiff's Motion for Fees and Costs filed byKevin Poulsen. (Attachments: # 1 Exhibit # 2 Exhibit)(Related document(s) 54 ) (Gelman, Lauren) (Filed on 1/5/2007) (Entered: 01/05/2007)
2007-01-1756ORDER by Judge Illston granting 51 Motion for Attorney Fees (SI, COURT STAFF) (Filed on 1/17/2007) (Entered: 01/17/2007)
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