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Case TitleAsian Law Caucus et al v. United States Department of Homeland Security
DistrictNorthern District of California
CityOakland
Case Number4:2008cv00842
Date Filed2008-02-07
Date Closed2008-11-24
JudgeHon. Claudia Wilken
PlaintiffAsian Law Caucus
PlaintiffElectronic Frontier Foundation
Case DescriptionThe Asian Law Caucus submitted a FOIA request to U.S. Customs and Border Protection for records concerning policies for questioning and searching travelers. The agency acknowledged receipt of the request, but after hearing nothing further from the agency, the Asian Law Caucus filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantUnited States Department of Homeland Security
Documents
Docket
Complaint
Opinion/Order [13]
Opinion/Order [16]
Opinion/Order [18]
Opinion/Order [24]
Opinion/Order [26]
Opinion/Order [30]
FOIA Project Annotation: A federal court in California has ruled that the Department of Homeland Security properly claimed Exemption 2 (internal practices and procedures) and Exemption 7(E) (investigative methods and techniques) to protect information concerning questioning and inspection of travelers entering or returning to the United States. While acknowledging that the records were created for law enforcement purposes, the Asian Law Caucus and the Electronic Frontier Foundation challenged the interpretation of 7(E). The original exemption covered "techniques and procedures for law enforcement investigation or prosecutions," but in 1986 Congress added a connecting "or" and followed it with "guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." The plaintiffs argued that the "risk of circumvention" clause applied to the entire exemption, while the agency contended it applied only to "guidelines." While Judge Claudia Wilken indicated the issue had not yet been decided by the Ninth Circuit, she decided that under either interpretation the agency had shown that the information was properly withheld. The Caucus and EFF first argued that use of watchlists was a commonly known technique and could not be protected. Wilken disagreed, noting that while watchlists might be a known technique, the procedures for further use of watchlists were not. She pointed out that "the public does not already have routine and general knowledge about any investigative techniques relating to watchlists. The public merely knows about the existence of watchlists. Knowing about the general existence of government watchlists does not make further detailed information about the watchlists routine and generally known." The plaintiffs then argued that the Privacy Act required that names and locations of systems of records containing personally-identifiable information be published in the Federal Register. This meant that either the systems were publicly known because their existence had been published or that the agency had violated the Privacy Act by failing to publish. Again, Wilken disagreed, observing that "although in some circumstances, simply withholding the names of databases would be improper, in this case, the names of the databases, reports, modules and information about the operation of watchlists appear within a context in the withheld documents such that disclosure 'could lead to circumvention of [Customs and Border Patrol] law enforcement efforts or facilitate improper access to the database for the purpose of frustrating CBP law enforcement functions.'" The Caucus and EFF challenged the withholding of topics for questioning travelers. Showing some sympathy for their argument, Wilken said "releasing the subset of topics for questioning would not permit persons to devise strategies to circumvent the law in the same way that releasing the questions themselves would." But she then added that "however, after in camera review of the documents, the Court concludes that, in this instance, releasing the specific topics for questioning could reasonably be expected to risk circumvention of the law." The plaintiffs also argued that an interim policy had been superseded by a publicly disclosed document and that disclosure of the interim policy would no longer risk circumvention of law or regulation. Siding with the agency, Wilken pointed out that "the information in the interim policy documents reveals the scope and focus of certain law enforcement techniques, disclosure of which could reasonably be expected to risk circumvention of the law."
Issues: Exemption 2 - Risk of circumvention, Exemption 7(E) - Investigative methods or techniques
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2008-02-071COMPLAINT against United States Department of Homeland Security ( Filing fee $ 350, receipt number 34611015545.). Filed byAsian Law Caucus, Electronic Frontier Foundation. (cp, COURT STAFF) (Filed on 2/7/2008) (cp, COURT STAFF). (Entered: 02/08/2008)
2008-02-07Summons Issued as to United States Department of Homeland Security. (cp, COURT STAFF) (Filed on 2/7/2008) (Entered: 02/08/2008)
2008-02-07Summons Issued as to Civil Process Clerk, U.S. Attorney's Office(cp, COURT STAFF) (Filed on 2/7/2008) (Entered: 02/08/2008)
2008-02-07Summons Issued as to U.S. Attorney General (cp, COURT STAFF) (Filed on 2/7/2008) (Entered: 02/08/2008)
2008-02-072Certificate of Interested Entities by Asian Law Caucus, Electronic Frontier Foundation (no entities to report) (cp, COURT STAFF) (Filed on 2/7/2008) (cp, COURT STAFF). (Entered: 02/08/2008)
2008-02-073ADR SCHEDULING ORDER: Case Management Statement due by 5/6/2008. Case Management Conference set for 5/13/2008 02:00 PM. (Attachments: # 1 Standing order)(cp, COURT STAFF) (Filed on 2/7/2008) (Entered: 02/08/2008)
2008-02-07CASE DESIGNATED for Electronic Filing. (cp, COURT STAFF) (Filed on 2/7/2008) (Entered: 02/08/2008)
2008-02-124NOTICE of Appearance by John Robert Coleman (Coleman, John) (Filed on 2/12/2008) (Entered: 02/12/2008)
2008-03-175ANSWER to Complaint byUnited States Department of Homeland Security. (Coleman, John) (Filed on 3/17/2008) (Entered: 03/17/2008)
2008-04-226ADR Certification (ADR L.R. 3-5b) of discussion of ADR options (Coleman, John) (Filed on 4/22/2008) (Entered: 04/22/2008)
2008-04-227ADR Certification (ADR L.R. 3-5b) of discussion of ADR options by Parties and Counsel (Hofmann, Marcia) (Filed on 4/22/2008) (Entered: 04/22/2008)
2008-04-228NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Hofmann, Marcia) (Filed on 4/22/2008) (Entered: 04/22/2008)
2008-05-019ADR Clerks Notice Setting ADR Phone Conference on 5/9/08 at 11:00 a.m. Please take note that plaintiff's counsel initiates the call to all parties. (tjs, COURT STAFF) (Filed on 5/1/2008) (Entered: 05/01/2008)
2008-05-0610JOINT CASE MANAGEMENT STATEMENT filed by Electronic Frontier Foundation, Asian Law Caucus, United States Department of Homeland Security. (Attachments: # 1 Proposed Order)(Hofmann, Marcia) (Filed on 5/6/2008) Modified on 5/7/2008 (kc, COURT STAFF). (Entered: 05/06/2008)
2008-05-0711MOTION to Appear by Telephone for Case Management Conference filed by United States Department of Homeland Security. Motion Hearing set for 5/13/2008 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Attachments: # 1 Proposed Order)(Coleman, John) (Filed on 5/7/2008) (Entered: 05/07/2008)
2008-05-0812ORDER by Judge Claudia Wilken granting 11 Motion to Appear by Telephone for Case Management Conference (scc, COURT STAFF) (Filed on 5/8/2008) Modified on 5/9/2008 (kc, COURT STAFF). (Entered: 05/08/2008)
2008-05-09ADR Remark: ADR Phone Conference conducted on 5/9/08 by DB. (tjs, COURT STAFF) (Filed on 5/9/2008) (Entered: 05/12/2008)
2008-05-1213ORDER re 10 ESTABLISHING BRIEFING SCHEDULE AS MODIFIED AND VACATING CASE MANAGEMENT CONFERENCE. Motion Hearing set for 10/30/2008 02:00 PM.. Signed by Judge Claudia Wilken on 5/12/08. (scc, COURT STAFF) (Filed on 5/12/2008) (Entered: 05/12/2008)
2008-08-1414Joint Stipulation Requesting Order Changing Time by United States Department of Homeland Security., Asian Law Caucus, et al (Coleman, John) (Filed on 8/14/2008) Modified on 8/15/2008 (cp, COURT STAFF). (Entered: 08/14/2008)
2008-08-2515STIPULATION Revised Joint Stipulation for Order Requesting Change in Time by United States Department of Homeland Security, Asian Law Caucus, et al. (Coleman, John) (Filed on 8/25/2008) Modified on 8/26/2008 (cp, COURT STAFF). (Entered: 08/25/2008)
2008-08-2916ORDER re 15 granting Revised Joint Stipulation for Order Requesting Change in Time. Motion Hearing set for 11/13/2008 02:00 PM.. Signed by Judge Claudia Wilken on 8/29/08. (scc, COURT STAFF) (Filed on 8/29/2008) (Entered: 08/29/2008)
2008-09-1617Second Joint Stipulation to Modify Schedule; (Proposed) Order by United States Department of Homeland Security. (Coleman, John) (Filed on 9/16/2008) Modified on 9/17/2008 (cp, COURT STAFF). (Entered: 09/16/2008)
2008-09-1818ORDER re 17 GRANTING Second Joint Stipulation to Modify Schedule. Motion Hearing set for 12/4/2008 02:00 PM.. Signed by Judge CLAUDIA WILKEN on 9/18/08. (scc, COURT STAFF) (Filed on 9/18/2008) (Entered: 09/18/2008)
2008-10-1419MOTION for Summary Judgment filed by United States Department of Homeland Security. Motion Hearing set for 12/4/2008 02:00 PM. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Coleman, John) (Filed on 10/14/2008) (Entered: 10/14/2008)
2008-10-2720Memorandum in Opposition re 19 MOTION for Summary Judgment and Notice of Cross Motion and Cross Motion for Summary Judgment; Memorandum of Points and Authorities in Support of Cross Motion for Summary Judgment; Motion hearing set for 12/4/08 at 2:00pm filed byAsian Law Caucus, Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 10/27/2008) Modified on 10/28/2008 (cp, COURT STAFF). (Entered: 10/27/2008)
2008-10-2721Declaration of Marcia Hofmann in opposition to re 19 MOTION for Summary Judgment and in support of re 20 Cross Motion for Summary Judgment filed byAsian Law Caucus, Electronic Frontier Foundation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13)(Related document(s) 19 20 ) (Hofmann, Marcia) (Filed on 10/27/2008) Modified on 10/28/2008 (cp, COURT STAFF). (Entered: 10/27/2008)
2008-10-2722Proposed Order denying re 19 MOTION for Summary Judgment, and granting re 20 Cross-Motion for Summary Judgment, by Asian Law Caucus, Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 10/27/2008) Modified on 10/28/2008 (cp, COURT STAFF). (Entered: 10/27/2008)
2008-10-3023Third Joint Stipulation and Proposed Order by Asian Law Caucus, Electronic Frontier Foundation, United States Department of Homeland Security, Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 10/30/2008) Modified on 10/31/2008 (cp, COURT STAFF). (Entered: 10/30/2008)
2008-11-0324ORDER re 23 granting Third Joint Stipulation. Signed by Judge Claudia Wilken on 11/3/08. (scc, COURT STAFF) (Filed on 11/3/2008) (Entered: 11/03/2008)
2008-11-0525Opposition to plaintiff's cross-motion for summary judgment, and Reply to Opposition re 19 MOTION for Summary Judgment filed byUnited States Department of Homeland Security. (Attachments: # 1 Exhibit)(Coleman, John) (Filed on 11/5/2008) Modified on 11/6/2008 (cp, COURT STAFF). (Entered: 11/05/2008)
2008-11-1226ORDER RE: IN CAMERA REVIEW OF DOCUMENTS. Signed by Judge Claudia Wilken on 11/12/08. (scc, COURT STAFF) (Filed on 11/12/2008) (Entered: 11/12/2008)
2008-11-1227Reply Memorandum in Support of Cross Motion for Summary Judgment filed byAsian Law Caucus, Electronic Frontier Foundation. (Hofmann, Marcia) (Filed on 11/12/2008) (Entered: 11/12/2008)
2008-11-1228Supplemental Declaration of Marcia Hofman in opposition to defendant's motion for summary judgment and in Support of Cross Motion for Summary Judgment by Asian Law Caucus, Electronic Frontier Foundation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Hofmann, Marcia) (Filed on 11/12/2008) Modified on 11/13/2008 (cp, COURT STAFF). (Entered: 11/12/2008)
2008-11-1729NOTICE by United States Department of Homeland Security re 26 Order (Coleman, John) (Filed on 11/17/2008) (Entered: 11/17/2008)
2008-11-2430ORDER by Judge CLAUDIA WILKEN granting 19 DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT (scc, COURT STAFF) (Filed on 11/24/2008) (Entered: 11/24/2008)
2008-11-2431JUDGMENT (scc, COURT STAFF) (Filed on 11/24/2008) (Entered: 11/24/2008)
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