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Case TitleBishop et al v. United States Department of Homeland Security
DistrictSouthern District of New York
CityFoley Square
Case Number1:2013cv08620
Date Filed2013-12-04
Date Closed2014-09-18
JudgeMagistrate Judge Gabriel W. Gorenstein
PlaintiffMac William Bishop
PlaintiffChristopher Chivers
Case DescriptionBishop and Christopher Chivers, reporters for the New York Times, made requests to the agency for records about themselves and provided Privacy Act waivers. The agency told Chivers it could not search for records about him because it did not maintain a central database of individuals. Homeland Security referred Chivers' request to the Transportation Security Administration and Immigration and Customs Enforcement. No further action was taken on Chivers' request. Bishop's request was also transferred to TSA and ICE. ICE indicated it found no records. On appeal, the agency's response was upheld. TSA indicated the request was too broad. Bishop provided further information about having been interviewed by TSA employees at JFK Airport in June 2013. There was no further response from TSA. Bishop and Chivers then filed suit.
Complaint issues: adequacy of search, improper withholding, attorney's fees

DefendantUnited States Department of Homeland Security
Documents
Docket
Complaint
Opinion/Order [27]
FOIA Project Annotation: A federal magistrate judge ruled that Customs and Border Protection properly claimed Exemption 7(E) (investigative methods and techniques) to withhold portions of records concerning why New York Times reporters Mac William Bishop and Christopher Chivers were questioned by CBP staff at Kennedy International Airport when they boarded a flight to Turkey and when they subsequently returned from Turkey. After the reporters filed FOIA/Privacy Act requests for records concerning their questioning, the Department of Homeland Security told them it could find no records. Magistrate Judge Gabriel Gorenstein noted that "as a result of plaintiffs' persistence, which continued even after they filed their complaint in this case, DHS identified numerous responsive documents," although many of them were withheld or redacted under Exemption 7(E) (investigative methods and techniques). Bishop and Chivers challenged the redactions made to "passenger activity" and "hit data" from the agency's databases, arguing that the data was so abbreviated that it would not "seem to provide any information about a government technique or procedure of use to a criminal or terrorist" since it would not "display the calculus used to reach that result or method through which that information was obtained." But Gorenstein disagreed. He noted that "requiring the production of this information, which was returned from a query of law enforcement databases, would plainly 'disclose. . .procedures for law enforcement investigations' within the meaning of Exemption 7(E) to anyone who could make sense of the letters or numbers." He pointed out that "if numerous records of this sort were made available to the public through FOIA, it is 'logical or plausible' that a motivated individual could decipher the true import of the coded information by analyzing the field data." Bishop and Chivers questioned the agency's Exemption 7(E) claim as it pertained to secondary inspection reports, arguing that the agency had failed to show that the techniques were unknown to the public. But Gorenstein observed that "we cannot find that the techniques or procedures at issue are generally known to the public. Certainly, as plaintiffs point out, the public is aware of the fact that CBP engages in the practice of collecting information about travelers and that it uses such information to target some of them for questioning. However, nothing submitted by plaintiffs suggests that the public has knowledge of the particular techniques or procedures reflected in the redacted fieldsâ€"in other words, which databases CBP considers in its targeting process and how such information can lead to the triggering of additional security screening."
Issues: Exemption 7(E) - Investigative methods or techniques, Exemption 7(E) - Unknown to public
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2013-12-041COMPLAINT against United States Department of Homeland Security. (Filing Fee $ 350.00, Receipt Number 465401082688)Document filed by Christopher Chivers, Mac William Bishop.(msa) (Entered: 12/06/2013)
2013-12-04SUMMONS ISSUED as to United States Department of Homeland Security, U.S. Attorney and U.S. Attorney General. (msa) (Entered: 12/06/2013)
2013-12-04Case Designated ECF. (msa) (Entered: 12/06/2013)
2013-12-04Magistrate Judge Gabriel W. Gorenstein is so designated. (msa) (Entered: 12/06/2013)
2013-12-192SCHEDULING ORDER FOR INITIAL CONFERENCE: Initial Conference set for 2/4/2014 at 10:30 AM in Courtroom 18B, 500 Pearl Street, New York, NY 10007 before Judge Kimba M. Wood. (Signed by Judge Kimba M. Wood on 12/19/2013) (tn) (Entered: 12/19/2013)
2013-12-233NOTICE OF APPEARANCE by Jean-David Barnea on behalf of United States Department of Homeland Security. (Barnea, Jean-David) (Entered: 12/23/2013)
2013-12-234LETTER addressed to Judge Kimba M. Wood from David E. McCraw dated December 23, 2013 re: Schedule. Document filed by Mac William Bishop, Christopher Chivers.(McCraw, David) (Entered: 12/23/2013)
2013-12-235MEMO ENDORSEMENT on re: 4 Letter filed by Mac William Bishop, Christopher Chivers. ENDORSEMENT: Defendant's time to answer is extended to February 5, 2014. The parties must inform the Court by February 5, 2014 whether an initial conference is necessary. The initial conference is adjourned to February 19, 2014 at 11:00 AM. (Initial Conference set for 2/19/2014 at 11:00 AM before Judge Kimba M. Wood.) United States Department of Homeland Security answer due 2/5/2014. (Signed by Judge Kimba M. Wood on 12/23/2013) (tn) (Entered: 12/26/2013)
2014-02-036CONSENT LETTER MOTION for Extension of Time to File Answer addressed to Judge Kimba M. Wood from AUSA Jean-David Barnea dated 2/3/14. Document filed by United States Department of Homeland Security.(Barnea, Jean-David) (Entered: 02/03/2014)
2014-02-047ORDER granting 6 Letter Motion for Extension of Time to Answer: Granted. Defendant's time to answer is extended to February 26, 2014. The parties must inform the Court by February 26, 2014 whether an initial conference is necessary. The initial conference is adjourned to March 13, 2014 at 10:30 AM. United States Department of Homeland Security answer due 2/26/2014. (Signed by Judge Kimba M. Wood on 2/4/2014) (tn) (Entered: 02/04/2014)
2014-02-04Set/Reset Hearings: Initial Conference set for 3/13/2014 at 10:30 AM before Judge Kimba M. Wood. (tn) (Entered: 02/04/2014)
2014-02-268LETTER addressed to Judge Kimba M. Wood from David E. McCraw dated 02/26/2014 re: Initial Conference. Document filed by Mac William Bishop, Christopher Chivers.(McCraw, David) (Entered: 02/26/2014)
2014-02-269ANSWER to 1 Complaint. Document filed by United States Department of Homeland Security.(Barnea, Jean-David) (Entered: 02/26/2014)
2014-03-0610LETTER addressed to Judge Kimba M. Wood from David McCraw dated 3/6/2014 re: Scheduling Order. Document filed by Mac William Bishop, Christopher Chivers.(Baranetsky, Diana) (Entered: 03/06/2014)
2014-03-0711MEMO ENDORSEMENT on re: 10 Letter filed by Mac William Bishop, Christopher Chivers. ENDORSEMENT: The initial conference scheduled for March 13, 2014 is hereby cancelled. This case is referred to Magistrate Judge Gorenstein for all purposes. (Signed by Judge Kimba M. Wood on 3/7/2014) (ajs) (Entered: 03/07/2014)
2014-03-0712ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Consent under 28 U.S.C. 636(c) for all purposes (including trial). Referred to Magistrate Judge Gabriel W. Gorenstein. (Signed by Judge Kimba M. Wood on 3/7/2014) (ft) (Entered: 03/07/2014)
2014-03-0713CONSENT TO JURISDICTION BY A US MAGISTRATE JUDGE by Mac William Bishop, Christopher Chivers, United States Department of Homeland Security. (Case No Longer Referred to Magistrate Judge) CASE ASSIGNED to Magistrate Judge Gabriel W. Gorenstein. (Signed by Judge Kimba M. Wood on 3/7/2014) (ft) (Entered: 03/10/2014)
2014-03-1014LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from David McCraw dated 3/10/2014 re: Briefing Schedule. Document filed by Mac William Bishop, Christopher Chivers.(Baranetsky, Diana) (Entered: 03/10/2014)
2014-03-1015MEMO ENDORSED on re: 10 Letter filed by Mac William Bishop, Christopher Chivers. ENDORSEMENT: in light of this letter, the Court will not schedule a Rule 16 conference. Defendant shall file its motion by April 21, 2014. The remaining schedule shall be in accordance with paragraph 2.B of this Court's Individual Practices. (Signed by Magistrate Judge Gabriel W. Gorenstein on 3/20/2014) (js) Modified on 3/11/2014 (tro). (Entered: 03/10/2014)
2014-03-10Set/Reset Deadlines: Motions due by 4/21/2014. (js) (Entered: 03/10/2014)
2014-04-2116MOTION for Summary Judgment. Document filed by United States Department of Homeland Security. Responses due by 5/12/2014(Barnea, Jean-David) (Entered: 04/21/2014)
2014-04-2117MEMORANDUM OF LAW in Support re: 16 MOTION for Summary Judgment.. Document filed by United States Department of Homeland Security. (Barnea, Jean-David) (Entered: 04/21/2014)
2014-04-2118DECLARATION of Laurence E. Castelli in Support re: 16 MOTION for Summary Judgment.. Document filed by United States Department of Homeland Security. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Barnea, Jean-David) (Entered: 04/21/2014)
2014-05-1219CROSS MOTION for Summary Judgment . Document filed by Mac William Bishop, Christopher Chivers. Responses due by 6/9/2014 Return Date set for 5/16/2014 at 05:00 PM.(Baranetsky, Diana) (Entered: 05/12/2014)
2014-05-1220MEMORANDUM OF LAW in Support re: 19 CROSS MOTION for Summary Judgment . . Document filed by Mac William Bishop, Christopher Chivers. (Baranetsky, Diana) (Entered: 05/12/2014)
2014-05-1221DECLARATION of David E. McCraw in Support re: 19 CROSS MOTION for Summary Judgment .. Document filed by Mac William Bishop, Christopher Chivers. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J, # 11 Exhibit Exhibit K, # 12 Exhibit Exhibit L, # 13 Exhibit Exhibit M, # 14 Exhibit Exhibit N, # 15 Exhibit Exhibit O)(Baranetsky, Diana) (Entered: 05/12/2014)
2014-06-0222REPLY MEMORANDUM OF LAW in Support re: 16 MOTION for Summary Judgment. . Document filed by United States Department of Homeland Security. (Barnea, Jean-David) (Entered: 06/02/2014)
2014-06-0223REPLY AFFIRMATION of Laurence E. Castelli in Support re: 16 MOTION for Summary Judgment.. Document filed by United States Department of Homeland Security. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Barnea, Jean-David) (Entered: 06/02/2014)
2014-06-1224REPLY MEMORANDUM OF LAW in Support re: 19 CROSS MOTION for Summary Judgment . . Document filed by Mac William Bishop, Christopher Chivers. (Baranetsky, Diana) (Entered: 06/12/2014)
2014-07-1725ORDER: Counsel for defendant is directed to deliver to Chambers (by email or hand delivery), ex parte and for in camera review, unredacted versions of the documents at issue in this case. If counsel wishes to email these documents, counsel should contact Chambers by telephone for instructions on how to do so.SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 7/17/2014) (ama) (Entered: 07/17/2014)
2014-07-1726LETTER addressed to Magistrate Judge Gabriel W. Gorenstein from AUSA Jean-David Barnea dated 7/17/14 re: In Camera Submission. Document filed by United States Department of Homeland Security.(Barnea, Jean-David) (Entered: 07/17/2014)
2014-09-1627OPINION AND ORDER #104735. For the foregoing reasons, DHS's motion for summary judgment (Docket #16) is granted, and plaintiffs' motion for summary judgment (Docket #19) is denied. The Clerk is requested to enter judgment dismissing the complaint. re: 16 MOTION for Summary Judgment filed by United States Department of Homeland Security, 19 CROSS MOTION for Summary Judgment filed by Mac William Bishop, Christopher Chivers. (Signed by Magistrate Judge Gabriel W. Gorenstein on 9/16/2014) (rjm) Modified on 9/18/2014 (ca). (Entered: 09/16/2014)
2014-09-16Transmission to Judgments and Orders Clerk. Transmitted re: 27 Memorandum & Opinion to the Judgments and Orders Clerk. (rjm) (Entered: 09/16/2014)
2014-09-1628SEALED DOCUMENT placed in vault.(rz) (Entered: 09/16/2014)
2014-09-1829CLERK'S JUDGMENT: That for the reasons stated in the Court's Opinion and Order dated September 16, 2014, DHS's motion for summary judgment is granted; plaintiffs' motion for summary judgment is denied; and the complaint is dismissed. (Signed by Clerk of Court Ruby Krajick on 9/18/2014) (Attachments: # 1 Notice of Right to Appeal, # 2 Notice of Right to Appeal)(dt) (Entered: 09/19/2014)
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by FOIA Project Staff