Case Detail

FOIA Project Annotation: Magistrate Judge Deborah Robinson has recommended that the court rule in favor of Customs and Border Protection in an FOIA suit brought against them by EPIC for records concerning communications between the Bureau of the Census and law enforcement or intelligence agencies pertaining to access to completed census questionnaires or other data. EPIC challenged the agency's withholding of parts of five emails under Exemption 2 (internal practices and procedures), Exemption 5 (deliberative process privilege) and Exemption 6 (invasion of privacy). Customs argued that five lines in an email that dealt with "CBP's internal review process for authorization to disclose publicly CBP activities" qualified as predominantly internal under Exemption 2 and did not constitute secret law. EPIC argued that the information was of public interest, but Robinson noted that "plaintiff cannot overcome the proposition that an internal review process which has some ripple effect on the public does not embody any 'secret law' of the agency, nor does it 'regulate public behavior.'" She also rejected EPIC's claim that the invocation of Exemption 5 to cover the same information was at odds with its Exemption 2 claim. She pointed out that "plaintiff does not provide any authority for its contention that Defendant could not use the [claimed] statutory exemptions in combination or in the alternative to support its basis for non-disclosure." Turning to the second email, Robinson agreed with the agency that its disclosure could risk circumvention of law or regulation and dismissed EPIC's assertion that the agency's failure to cite any specific law or regulation was fatal to its claim. Challenging the use of Exemption 5 for part of the second email, EPIC contended that the contents were not predecisional because the agency admitted the email was written after the decision to cease the agency's proposed program had been made. However, Robinson found that, because the later email recounted the earlier pre-decisional discussions, it also was protected. EPIC argued that the court should consider how Customs ultimately used the data in deciding whether it was truly deliberative. Robinson observed that "plaintiff does not offer any authority to support its suggestion that information describing an agency proposal loses its deliberative process protection if the agency decides to use the subject matter of the initial proposal for another purpose." Robinson then found that names and identifiers for the staffers who wrote the emails were protected by Exemption 6. Although EPIC contended that "the public undeniably has an interest in knowing which agency officials sought information about where individuals of Arab ancestry live, which position these individuals hold and the true purpose of the request," Robinson concluded that disclosure of the names would not shed any further light on government operations or activities.
Issues: Exemption 2 - Risk of circumvention, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 6 - Invasion of privacy

Date Filed	Doc #	Docket Text
2004-09-22	1	COMPLAINT against DEPARTMENT OF COMMERCE, DEPARTMENT OF HOMELAND SECURITY (Filing fee $ 150) filed by ELECTRONIC PRIVACY INFORMATION CENTER.(td, ) (Entered: 09/23/2004)
2004-09-22	2	LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests (td, ) (Entered: 09/23/2004)
2004-09-23		SUMMONS (4) Issued as to DEPARTMENT OF COMMERCE, DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (td, ) (Entered: 09/23/2004)
2004-10-28	3	NOTICE of Appearance by Elbert Lin on behalf of all defendants (Lin, Elbert) (Entered: 10/28/2004)
2004-10-28	4	ANSWER to Complaint by DEPARTMENT OF HOMELAND SECURITY.(Lin, Elbert) (Entered: 10/28/2004)
2004-10-28	5	MOTION to Dismiss or, in the Alternative, for Summary Judgment by DEPARTMENT OF COMMERCE. (Attachments: # 1 Memorandum in Support# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Text of Proposed Order)(Lin, Elbert) (Entered: 10/28/2004)
2004-11-08	6	STIPULATION of Dismissal of Claim Against Defendant Department of Commerce by DEPARTMENT OF COMMERCE, ELECTRONIC PRIVACY INFORMATION CENTER. (Hofmann, Marcia) (Entered: 11/08/2004)
2004-11-10		MINUTe ORDER approving 6 stipulation of dismissal of claim against defendant Department of Commerce. Defendant Department of Commerce's motion to dismiss or, in the alternative, for summary judgment 5 is denied as moot. Signed by Judge Paul L. Friedman on November 10, 2004. (ma) (Entered: 11/10/2004)
2004-12-01	7	ORDER that defendant shall file a motion to dismiss or, in the alternative, a motion for summary judgment on or before January 17, 2005. No extensions of time will be granted except for good cause shown. Signed by Judge Paul L. Friedman on December 1, 2004. (ma) (Entered: 12/01/2004)
2005-01-07	8	Unopposed MOTION for Extension of Time to File Motion for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Lin, Elbert) (Entered: 01/07/2005)
2005-01-10		MINUTE ORDER granting 8 defendant's unopposed motion for an extension of time up to and including January 21, 2005 to file its motion for summary judgment. Signed by Judge Leon for Judge Paul L. Friedman on January 10, 2005.(ma) (Entered: 01/10/2005)
2005-01-21	9	MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Statement of Undisputed Material Facts# 2 Memorandum of Points and Authorities# 3 Exhibit 1# 4 Exhibit 2# 5 Exhibit 3# 6 Exhibit 4# 7 Text of Proposed Order)(Lin, Elbert) (Entered: 01/21/2005)
2005-01-28	10	Unopposed MOTION for Extension of Time to File Response/Reply to Defendant's Motion for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Hofmann, Marcia) (Entered: 01/28/2005)
2005-01-31		ORDER granting 10 plaintiff's unopposed motion for extension of time up to and including February 22, 2005 to file its response to defendant's motion for summary judgment. Signed by Judge Paul L. Friedman on January 31, 2005.(ma) (Entered: 01/31/2005)
2005-02-22	11	Memorandum in opposition to motion re 9 Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Response to Statement of Material Facts# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J)(Hofmann, Marcia) (Entered: 02/22/2005)
2005-02-28	12	Unopposed MOTION for Extension of Time to File Response/Reply as to 11 Memorandum in Opposition, by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Lin, Elbert) (Entered: 02/28/2005)
2005-03-03	13	ORDER; Proposed Order granting Defendant's Unopposed Motion for an Extension of Time . Signed by Chief Judge Thomas F. Hogan for Judge Paul L. Friedman on 3/5/05. (hs, ) (Entered: 03/03/2005)
2005-03-18	14	ENTERED IN ERROR.....REPLY to opposition to motion re 9 Motion for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Reply to Plaintiff's Response to Defendant's Statement of Material Facts# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3)(Lin, Elbert) Modified on 3/21/2005 (jf, ). (Entered: 03/18/2005)
2005-03-18	15	REPLY to opposition to motion re 9 Defendant's Motion for Summary Judgment -- CORRECTION OF DOCKET # 14 filed by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Reply to Plaintiff's Response to Defendant's Statement of Undisputed Facts# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3)(Lin, Elbert) (Entered: 03/18/2005)
2005-03-21		NOTICE OF CORRECTED DOCKET ENTRY. Document No. 14 was entered in error as a duplicte to No. 15. (jf, ) (Entered: 03/21/2005)
2006-04-21	16	ORDER referring this action to Magistrate Judge Deborah Robinson for a report & recommendation regarding the disposition of 9 defendant's motion for summary judgment. Signed by Judge Paul L. Friedman on April 21, 2006. (MA) (Entered: 04/21/2006)
2006-04-21	17	CASE REFERRED to Magistrate Judge Deborah A. Robinson for Report and Recommendation disposition of motion for summary judgment. (jsc) (Entered: 04/25/2006)
2006-05-01		Set Hearing: Status Conference set for Friday, 5/5/2006 @ 02:00 PM in Courtroom 4-2nd Floor, E. Barrett Prettyman Bldg. before Magistrate Judge Deborah A. Robinson. (EW) (Entered: 05/01/2006)
2006-05-02	18	NOTICE OF SUBSTITUTION OF COUNSEL by Jonathan Eli Zimmerman on behalf of DEPARTMENT OF COMMERCE, DEPARTMENT OF HOMELAND SECURITY Substituting for attorney Elbert Lin (Zimmerman, Jonathan) (Entered: 05/02/2006)
2006-05-05		Minute Entry for proceedings held before Magistrate Judge Deborah A. Robinson : Status Conference held on 5/5/2006. Plaintiff to file local rule 7 H statement of genuine issue by 5/12/2006; Defendant may have until 5/19/06 to file supplemental reply. (Court Reporter Pro-typists.) (lm ) (Entered: 05/05/2006)
2006-05-12	19	NOTICE of Filing by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Supplemental Statement of Genuine Issues)(Hofmann, Marcia) (Entered: 05/12/2006)
2006-05-26	20	NOTICE OF SUBSTITUTION OF COUNSEL by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER Substituting for attorney Marcia Hofmann (Rotenberg, Marc) (Entered: 05/26/2006)
2006-12-22	21	REPORT AND RECOMMENDATION re 9 MOTION for Summary Judgment recommended that Motion for Summary Judgment be Granted. Signed by Magistrate Judge Deborah A. Robinson on 12/22/06. (EW) (Entered: 12/22/2006)
2007-01-23	22	ORDER granting 9 defendant's motion for summary judgment. Signed by Judge Paul L. Friedman on January 23, 2007. (MA) (Entered: 01/23/2007)
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