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Case TitleCENTER FOR INVESTIGATIVE REPORTING v. U.S. CUSTOMS AND BORDER PROTECTION et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv02901
Date Filed2018-12-11
Date Closed2020-05-20
JudgeChief Judge Beryl A. Howell
PlaintiffCENTER FOR INVESTIGATIVE REPORTING
Case DescriptionThe Center for Investigative Reporting submitted a FOIA request to U.S. Customs and Border Protection for contract proposals submitted to build to a wall on the Mexican-U.S. border near Chula Vista, CA. CIR also requested a fee waiver and expedited processing. The agency acknowledged receipt of the request. The agency denied the request under Exemption 4 (confidential business information). CIR filed an administrative appeal. In response to CIR's appeal, the agency told CIR that it had located 6,762 pages. It disclosed 1,019 unredacted pages and 155 pages with redactions, and withheld 5,558 pages under Exemption 3 (other statutes), Exemption 4, Exemption 5 (privileges), Exemption 6 (invasion of privacy), and Exemption 7 (law enforcement records). CIR then filed suit.
Complaint issues: Litigation - Attorney's fees

DefendantU.S. CUSTOMS AND BORDER PROTECTION
DefendantU.S. DEPARTMENT OF HOMELAND SECURITY
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Complaint attachment 8
Opinion/Order [22]
FOIA Project Annotation: Ruling in a case brought by the Center for Investigative Reporting for access to contract proposals submitted to U.S. Customs and Border Protection to build a wall on the border between the United States and Mexico, Judge Beryl Howell has provided the first substantive discussion of the effects of the 2019 Supreme Court decision, Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), rejecting the substantial harm test developed in National Parks and replacing it instead with a customarily confidential standard. Further, in rejecting CBP's Exemption 5 (privileges) claims, she has also explored in much greater detail the meaning of the codification of the foreseeable harm test to all the exemptions in the 2016 FOIA Improvement Act. In response to CIR's request, CBP located 6.762 pages of potentially responsive records stemming from over 150 submitted proposals. The agency's Office of Acquisition found 990 pages of responsive records and disclosed 946 in full and 44 in part. The Office of Facilities and Asset Management found 101 pages of responsive records, one page of which was released in full, one page was released in part, and 99 pages were withheld entirely. The Office of Information Technology, which had managed the email account for the border wall project, located an additional 5,671 pages of responsive records, 72 pages were released in full, 110 pages were released in part, and 5,489 pages were withheld in full. The agency claimed Exemption 4 (confidential business information), Exemption 5 (privileges), Exemption 3 (other statutes), Exemption 6 (invasion of privacy), Exemption 7(C) (invasion of privacy concerning law enforcement records), and Exemption 7(E) (investigative methods or techniques). However, CIR only chose to challenge withholdings under Exemption 4 and 5 of 110 pages of emails, and under Exemption 5, 216 pages of documents related to the border wall. CIR did little to challenge the agency's assertion that the deliberative process privilege applied to many of its Exemption 5 claims, but instead focused on whether the agency had met the foreseeable harm test. Howell noted that "this choice is not surprising. . .[T]he foreseeable-harm requirement is a 'heightened standard' and thus a FOIA requester may perceive a foreseeable-harm argument to be easier to advance than an argument about whether a FOIA exemption applies at the outset." But she pointed out that "focusing exclusively on foreseeable harm, however, risks conflating an agency's failure to establish the basis for an exemption with failure to demonstrate foreseeable harm." Howell found that the agency had failed to show that the records were deliberative. She noted that "the defendants have failed to identify the final decisions to which the withheld documents pertain." She explained that "some of the document descriptions in the defendants' Vaughn Index create the impression that the documents at issue might themselves be final subsidiary agency decisions." She then pointed out that "the defendants have made essentially no effort to satisfy the 'key feature' by identifying 'the relation between the author and recipients of the document'" and noted that for other records "the defendants do not identify the author to assess the deliberative nature of the contents." She also faulted the agency's failure to provide any chronology of the decision-making process. She observed that "given that the defendants have not identified the specific final agency decisions to which the documents withheld and redacted pursuant to Exemption 5 relate, they have, by extension, failed to establish that the documents predated those decisions." Having shown skepticism as to whether the records qualified under the deliberative process privilege, Howell found the agency's foreseeable harm claims suspect as well. Howell noted that the foreseeable harm standard was included in a presidential memorandum issued by former President Barack Obama on his first day in office, which was later implemented in the Holder memorandum. But in 2016 Congress decided to codify the foreseeable harm test. Howell noted Congress was particularly worried about the overuse of Exemption 5. She pointed out that "the text, history, and purpose of the FOIA Improvement Act confirm that the foreseeable-harm requirement was intended to restrict agencies' discretion in withholding documents under FOIA." After reviewing the agency's foreseeable harm claims, she indicated that "the defendants' claims of foreseeable harm consist of 'general explanations' and 'boiler plate language' that do not satisfy the foreseeable-harm requirement." She noted that "if the defendants wish to establish foreseeable harm when they supplement the record, they will need to provide 'context or insight into the specific decision-making processes or deliberations at issue, and how they in particular would be harmed by disclosure.'" All that remained in dispute under Exemption 4 were a series of question-and-concern emails. CIR agreed that the information was commercial and obtained from a person but challenged whether or not it was confidential. Howell began her discussion by noting that the D.C. Circuit had already applied the customarily confidential standard to voluntarily submitted commercial or financial information in its decision in Critical Mass Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871 (D.C. Cir. 1992). She pointed out that in Food Marketing, the Supreme Court "set forth a single test for determining whether information " regardless of whether voluntarily or involuntarily submitted to the government " is confidential under Exemption 4. Specifically, 'commercial or financial information' is confidential for the purpose of Exemption 4 when it is 'both customarily and actually treated as private by its owner' and, perhaps as well, 'provided to the government under an assurance of privacy.'" Howell explained that "the import of Food Marketing's holding that the ordinary meaning of 'confidential' applies in all Exemption 4 cases, then, is clear: Critical Mass and its progeny now supply the framework in this Circuit for determining whether voluntarily and involuntarily submitted commercial or financial information are 'confidential' under Exemption 4." Howell pointed out that for the government to establish the confidentiality practice of the submitter, it had to show some degree of personal knowledge. She observed that "conclusory statements by an agency official about what the agency official may believe about how a submitter customarily treats the information at issue are simply insufficient." Howell found the agency had failed to support its confidentiality claims. She noted that "the defendants contend only that unsuccessful bidders have an interest in keeping their information private. They never claim, however, that unsuccessful bidders submitted the redacted questions and concerns." While the Supreme Court in Food Marketing suggested that agency assurances that submitter information would be considered confidential would probably be sufficient to show that the submitter could reasonably expect its information would be held confidential, the Supreme Court left that issue unaddressed. Because the Supreme Court left the issue of assurances unresolved, Howell noted that "suffice it to say that if Exemption 4 does so, the defendants must supply at least some evidence that this assurance was given." Howell then found that the foreseeable harm test also applied to Exemption 4. She observed that "to meet this requirement, the defendants must explain how disclosing, in whole or in part, the specific information withheld under Exemption 4 would harm an interest protected by the exemption, such as by causing 'genuine harm to [the submitter's] economic or business interests,' and thereby dissuading others from submitting information to the government."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 4 - Confidential business information
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-12-111COMPLAINT against U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number 0090-5833416) filed by CENTER FOR INVESTIGATIVE REPORTING. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Civil Cover Sheet Civil Cover Sheet, # 8 Summons Summons)(Topic, Matthew) (Entered: 12/11/2018)
2018-12-112NOTICE of Appearance by Matthew Topic on behalf of CENTER FOR INVESTIGATIVE REPORTING (Topic, Matthew) (Entered: 12/11/2018)
2018-12-14Case Assigned to Chief Judge Beryl A. Howell. (zef, ) (Entered: 12/14/2018)
2018-12-143SUMMONS (4) Issued Electronically as to U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(zef, ) (Entered: 12/14/2018)
2018-12-144STANDING ORDER. Signed by Chief Judge Beryl A. Howell on December 14, 2018. (lcbah1) (Entered: 12/14/2018)
2019-01-245MOTION to Stay in Light of Lapse in Appropriations by U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY (Field, Brian) (Entered: 01/24/2019)
2019-01-25MINUTE ORDER (paperless) GRANTING, over the plaintiff's opposition, the defendants' 5 Motion to Stay Proceedings in Light of Lapse of Appropriations. Accordingly, the parties shall, within five days of appropriations being restored, submit a Joint Status Report proposing a briefing schedule for the defendants' responsive pleading and any dispositive motions. See 4 Standing Order. The plaintiff is not precluded from seeking, at a later date, depending on the duration of the lapse of appropriations and the relevance of the records sought in the complaint for the reasons given in the plaintiff's opposition to the government's motion to stay, that the stay be lifted. Signed by Chief Judge Beryl A. Howell on January 25, 2019. (lcbah4) (Entered: 01/25/2019)
2019-02-016Joint STATUS REPORT by U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY. (Field, Brian) (Entered: 02/01/2019)
2019-02-017NOTICE of Appearance by Brian J. Field on behalf of All Defendants (Field, Brian) (Entered: 02/01/2019)
2019-02-01MINUTE ORDER (paperless) EXTENDING, upon consideration of the parties' 6 Joint Status Report, and over the plaintiff's objection, the deadline for defendants to answer the plaintiff's 1 Complaint until March 4, 2019 and ORDERING, consistent with the 4 Standing Order ¶ 3.b.ii, the parties to file a joint status report, by March 18, 2019. Signed by Chief Judge Beryl A. Howell on February 1, 2019. (lcbah1) (Entered: 02/01/2019)
2019-02-04Set/Reset Deadlines: Answer to the complaint due by 3/4/2019; joint status report due by 3/18/2019. (tg) (Entered: 02/04/2019)
2019-02-088RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. CUSTOMS AND BORDER PROTECTION served on 1/15/2019 (Topic, Matthew) Modified on 2/14/2019 to edit the service date (zrdj). (Entered: 02/08/2019)
2019-02-089RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF HOMELAND SECURITY served on 12/26/2018 (Topic, Matthew) (Entered: 02/08/2019)
2019-02-0810RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 12/26/2018. (Topic, Matthew) Modified on 2/14/2019 to correct service date (zrdj). (Entered: 02/08/2019)
2019-02-0811RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 12/27/2018. Answer due for ALL FEDERAL DEFENDANTS by 1/26/2019. (Topic, Matthew) (Entered: 02/08/2019)
2019-03-0412ANSWER to Complaint by U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY.(Field, Brian) (Entered: 03/04/2019)
2019-03-1813Joint STATUS REPORT by U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY. (Field, Brian) (Entered: 03/18/2019)
2019-03-19MINUTE ORDER (paperless) ISSUING, upon consideration of the parties' 13 Joint Status Report, the following SCHEDULING ORDER to control the timing of proceedings: (1) by May 15, 2019, the defendants shall file any motion for summary judgment; (2) by June 14, 2019, the plaintiff shall file any cross-motion for summary judgment and any opposition to the defendants' motion for summary judgment; (3) by July 15, 2019, the defendants shall file any opposition to the plaintiff's cross-motion for summary judgment and any reply in support of their own motion for summary judgment; (4) by August 9, 2019, the plaintiff shall file any reply in support of its cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on March 19, 2019. (lcbah1) (Entered: 03/19/2019)
2019-03-19Set/Reset Deadlines: Summary judgment motion due by 5/15/2019; cross-motion and opposition to motion for summary judgment due by 6/14/2019; opposition to cross-motion and reply to opposition to motion for summary judgment due by 7/15/2019; reply to opposition to cross-motion due by 8/9/2019. (tg) (Entered: 03/19/2019)
2019-05-1514MOTION for Summary Judgment by U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration Suzuki Decl., # 4 Text of Proposed Order)(Field, Brian) (Entered: 05/15/2019)
2019-06-1415Memorandum in opposition to re 14 MOTION for Summary Judgment Plaintiff's Combined Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Cross-Motion for Summary Judgment filed by CENTER FOR INVESTIGATIVE REPORTING. (Burday, Joshua) (Entered: 06/14/2019)
2019-06-1416MOTION for Summary Judgment Plaintiff's Combined Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Cross-Motion for Summary Judgment by CENTER FOR INVESTIGATIVE REPORTING (Burday, Joshua) (Entered: 06/14/2019)
2019-07-1517Memorandum in opposition to re 16 MOTION for Summary Judgment Plaintiff's Combined Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Cross-Motion for Summary Judgment filed by U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Field, Brian) (Entered: 07/15/2019)
2019-07-1518REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Declaration)(Field, Brian) (Entered: 07/15/2019)
2019-08-0619NOTICE of Appearance by Merrick Jason Wayne on behalf of CENTER FOR INVESTIGATIVE REPORTING (Wayne, Merrick) (Entered: 08/06/2019)
2019-08-0920REPLY to opposition to motion re 16 MOTION for Summary Judgment Plaintiff's Combined Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Cross-Motion for Summary Judgment filed by CENTER FOR INVESTIGATIVE REPORTING. (Topic, Matthew) (Entered: 08/09/2019)
2019-12-3121ORDER GRANTING in part and DENYING in part the defendants' 14 Motion for Summary Judgment and DENYING the plaintiff's 16 Cross-Motion for Summary Judgment. See Order for further details. Signed by Chief Judge Beryl A. Howell on December 31, 2019. (lcbah1) (Entered: 12/31/2019)
2019-12-31Set/Reset Deadlines: Joint Status Report due by 1/31/2020. (tg) (Entered: 12/31/2019)
2019-12-3122MEMORANDUM OPINION regarding the defendants' 14 Motion for Summary Judgment and the plaintiff's 16 Cross-Motion for Summary Judgment. Signed by Chief Judge Beryl A. Howell on December 31, 2019. (lcbah1) (Entered: 12/31/2019)
2020-01-3123Joint STATUS REPORT by U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY. (Field, Brian) (Entered: 01/31/2020)
2020-02-03MINUTE ORDER (paperless) ISSUING, upon consideration of the parties' 23 Joint Status Report, the following SCHEDULING ORDER to control the timing of proceedings: (1) by March 27, 2020, the defendants shall file any renewed motion for summary judgment; (2) by April 24, 2020, the plaintiff shall file any renewed cross-motion for summary judgment and any opposition to the defendants' renewed motion for summary judgment; (3) by May 26, 2020, the defendants shall file any opposition to the plaintiff's renewed cross-motion for summary judgment and any reply in support of their own renewed motion for summary judgment; (4) by June 16, 2020, the plaintiff shall file any reply in support of its renewed cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on February 3, 2020. (lcbah1) (Entered: 02/03/2020)
2020-02-03Set/Reset Deadlines: Renewed summary judgment motion due by 3/27/2020; cross-motion and opposition to renewed summary judgment motion due by 4/24/2020; opposition to cross-motion and reply to opposition to renewed summary judgment motion due by 5/26/2020; reply to opposition to cross-motion due by 6/16/2020. (tg) (Entered: 02/03/2020)
2020-03-2324Unopposed MOTION for Extension of Time to file renewed summary judgment motion by U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY (Field, Brian) (Entered: 03/23/2020)
2020-03-23MINUTE ORDER (paperless) GRANTING the defendants' unopposed 24 Motion for Extension of Time and ISSUING the following SCHEDULING ORDER to control the timing of proceedings: (1) by April 17, 2020, the defendants shall file any renewed motion for summary judgment; (2) by May 15, 2020, the plaintiff shall file any renewed cross-motion for summary judgment and any opposition to the defendants' renewed motion for summary judgment; (3) by June 16, 2020, the defendants shall file any opposition to the plaintiff's renewed cross-motion for summary judgment and any reply in support of their own renewed motion for summary judgment; (4) by July 7, 2020, the plaintiff shall file any reply in support of its renewed cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on March 23, 2020. (lcbah1) (Entered: 03/23/2020)
2020-03-24Set/Reset Deadlines: Summary judgment motion due by 4/17/2020; cross-motion and opposition to motion for summary judgment due by 5/15/2020; opposition to cross-motion and reply to opposition to summary judgment motion due by 6/16/2020; reply to opposition to cross-motion due by 7/7/2020. (tg) (Entered: 03/24/2020)
2020-04-1725MOTION for Summary Judgment by U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration Supp. Suzuki Decl.)(Field, Brian) (Entered: 04/17/2020)
2020-05-1526RESPONSE re 25 MOTION for Summary Judgment filed by CENTER FOR INVESTIGATIVE REPORTING. (Attachments: # 1 Text of Proposed Order)(Burday, Joshua) (Entered: 05/15/2020)
2020-05-19MINUTE ORDER (paperless) GRANTING, in light of the plaintiff's 26 Response to Defendants' Renewed Motion for Summary Judgment ("Pl.'s Resp."), the defendants' 25 Renewed Motion for Summary Judgment ("Renewed Mot."). The defendants initially withheld information from the plaintiff pursuant to Freedom of Information Act ("FOIA") Exemptions 3, 4, 5, 6, 7(C), and 7(E), and moved for summary judgment. 22 Mem. Op. at 1, 3. The plaintiff did not contest the withholdings under Exemptions 3, 6, 7(C), and 7(E), and the defendant was accordingly granted summary judgment with respect to those withholdings. Id. at 1. The Court, however, denied the defendants' motion (as well as a cross-motion for summary judgment filed by the plaintiff), without prejudice, with respect to the defendants' withholdings pursuant to Exemptions 4 and 5. Id. Subsequently, the defendants withdrew their FOIA Exemption 4 withholdings and several of their Exemption 5 withholdings, and submitted a renewed motion for summary judgment with respect to the information they continued to withhold pursuant to Exemption 5. Defs.' Mem. Supp. Renewed Mot. at 1, ECF No. 25-1. Although the plaintiff initially anticipated opposing the defendants' renewed motion and filing a renewed cross-motion of its own, see 23 Joint Status Report at 2-3, the plaintiff now reports that it "elects not to challenge the remaining withholdings," Pl.'s Resp. at 1. The defendants' Renewed Motion is therefore granted, and Judgment is entered in favor of the defendants with respect to the defendants' remaining withholdings. The Clerk of the Court shall close this case. This is a final and appealable order. Signed by Chief Judge Beryl A. Howell on May 19, 2020. (lcbah1) (Entered: 05/19/2020)
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