Case Detail

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

Date Filed	Doc #	Docket Text
2013-12-04	1	COMPLAINT 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)
2013-12-04		SUMMONS ISSUED as to United States Department of Homeland Security, U.S. Attorney and U.S. Attorney General. (msa) (Entered: 12/06/2013)
2013-12-04		Case Designated ECF. (msa) (Entered: 12/06/2013)
2013-12-04		Magistrate Judge Gabriel W. Gorenstein is so designated. (msa) (Entered: 12/06/2013)
2013-12-19	2	SCHEDULING 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)
2013-12-23	3	NOTICE OF APPEARANCE by Jean-David Barnea on behalf of United States Department of Homeland Security. (Barnea, Jean-David) (Entered: 12/23/2013)
2013-12-23	4	LETTER 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)
2013-12-23	5	MEMO 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)
2014-02-03	6	CONSENT 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)
2014-02-04	7	ORDER 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)
2014-02-04		Set/Reset Hearings: Initial Conference set for 3/13/2014 at 10:30 AM before Judge Kimba M. Wood. (tn) (Entered: 02/04/2014)
2014-02-26	8	LETTER 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)
2014-02-26	9	ANSWER to 1 Complaint. Document filed by United States Department of Homeland Security.(Barnea, Jean-David) (Entered: 02/26/2014)
2014-03-06	10	LETTER 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)
2014-03-07	11	MEMO 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)
2014-03-07	12	ORDER 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)
2014-03-07	13	CONSENT 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)
2014-03-10	14	LETTER 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)
2014-03-10	15	MEMO 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)
2014-03-10		Set/Reset Deadlines: Motions due by 4/21/2014. (js) (Entered: 03/10/2014)
2014-04-21	16	MOTION 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)
2014-04-21	17	MEMORANDUM 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)
2014-04-21	18	DECLARATION 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)
2014-05-12	19	CROSS 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)
2014-05-12	20	MEMORANDUM 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)
2014-05-12	21	DECLARATION 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)
2014-06-02	22	REPLY 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)
2014-06-02	23	REPLY 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)
2014-06-12	24	REPLY 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)
2014-07-17	25	ORDER: 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)
2014-07-17	26	LETTER 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)
2014-09-16	27	OPINION 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)
2014-09-16		Transmission to Judgments and Orders Clerk. Transmitted re: 27 Memorandum & Opinion to the Judgments and Orders Clerk. (rjm) (Entered: 09/16/2014)
2014-09-16	28	SEALED DOCUMENT placed in vault.(rz) (Entered: 09/16/2014)
2014-09-18	29	CLERK'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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