                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA




JUDICIAL WATCH, INC.,

                      Plaintiff,

                                             Civil Action No. 12-2014 (BJR)

               v.
                                             MEMORANDUM OPINION
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY,
                      Defendant.




              GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT


       This matter is before the Court on a motion for summary judgment by Defendant United

States Department of Homeland Security (“DHS”) and a cross-motion for summary judgment by

Plaintiff Judicial Watch, Inc (“Judicial Watch”). Judicial Watch claims that DHS violated the

Freedom of Information Act (FOIA) by unlawfully withholding certain records pertaining to the

September 11th hijacker, Mohamed Atta. Having reviewed the materials submitted by the parties

and the balance of the record, the Court grants Defendant’s Motion for Summary Judgment and

denies Plaintiff’s Cross-Motion for Summary Judgment. The reasoning for the Court’s decision

is set forth below.




                                             1
                                        BACKGROUND

        On September 19, 2012, Judicial Watch submitted a FOIA request to the United States

Citizenship and Immigration Services (“USCIS”), a component of DHS, for records pertaining to

Mohamed Atta. Eggleston Decl. [19-1] at 3. Judicial Watch specifically requested the following:

        1. Any and all records concerning, regarding, or relating to the above mentioned
        Mohamed Atta;
        2. Any and all of the following forms completed by or related to the above-
        identified Mohammed Atta:
                a. I-94 forms;
                b. I-130 forms;
                c. I-131 forms;
                d. I-129 forms;
                e. I-539 forms; and
                f. I-20 forms noting transfer of a B-2/B-1 visa;
        3. Any records of applications the above-identified Mohamed Atta filed in
        attendance schools including but not limited to flight schools and academies;
        4. Any and all passports issued to the above-identified Mohamed Atta; and
        5. Any and all records of the above-identified Mohamed Atta passport
        applications;
        6. Any and all records of a passport issued to the above-identified Mohamed Atta
        to the Conch Republic.

Id. at 3-4.

        On October 18, 2012, at the direction of the Federal Bureau of Investigation (“FBI”),

USCIS denied Judicial Watch’s request and withheld the records in full under the exemption

found in 5 U.S.C. § 552(b)(7)(A) (hereinafter “Exemption 7(A)”) for law enforcement records

that could reasonably be expected to interfere with enforcement proceedings. Attach. B to Ex. 1.

Judicial Watch filed an administrative appeal on November 26, 2012. Attach. C to Ex. 1. On

December 3, 2012, USCIS notified Judicial Watch that it had affirmed the decision to withhold

the records in full and that Judicial Watch could seek judicial review of the action under 5 U.S.C.

§ 552(a)(4)(b). Attach. D to Ex. 1.




                                                 2
        On December 17, 2012, Judicial Watch filed the instant Complaint [1], alleging that DHS

unlawfully withheld public records requested in violation of FOIA, and that Judicial Watch “will

continue to be irreparably harmed unless [DHS] is compelled to conform its conduct to the

requirements of the law.” Compl. ¶ 12. Judicial Watch requests that the Court order DHS to

conduct an adequate search for records responsive to Judicial Watch’s FOIA request, produce all

non-exempt records responsive to Judicial Watch’s FOIA request, and produce a Vaughn Index 1

of any responsive records withheld pursuant to a FOIA exemption. Id. ¶ 13.

        Shortly after Judicial Watch filed its Complaint, the FBI informed USCIS that the law

enforcement investigation into the attacks was ongoing and identified specific records that

USCIS should continue to withhold “because they are compiled in the FBI’s ongoing law

enforcement investigation into the September 11, 2001, terrorist attacks, and related law

enforcement proceedings.” Eggleston Decl. at 5. The FBI also identified a portion of the records

that could be released, and USCIS released nine heavily redacted pages to Judicial Watch on or

about August 16, 2013. 2 Id.

        On September 13, 2013, DHS filed a motion for summary judgment, asserting that it (1)

conducted an adequate search, (2) produced all reasonably segregable information from the

records responsive to Judicial Watch’s FOIA request, and (3) properly withheld information

pursuant to FOIA Exemption 7(A). 3 Def.’s Mot. at 8-13.

        In support of its arguments, DHS submitted (1) a declaration from Jill Eggleston, the

Assistant Center Director in the FOIA Unit of USCIS, (2) a declaration from David Hardy,

Section Chief of the Record/Information Dissemination Section, Record Management Division

1
  A Vaughn Index is a detailed account of withheld documents and the justifications for the withholdings. See
Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973).
2
  Judicial Watch claims DHS produced the documents on August 23, 2013. Pl.’s Cross-Mot. at 3.
3
  Alternatively, DHS asserts that it properly withheld information pursuant to the exemptions in 5 U.S.C. §
552(b)(6), 5 U.S.C. § 552(b)(7)(C), and 5 U.S.C. § 552(b)(7)(E). Id. at 13.

                                                         3
of the FBI, and (3) a Vaughn Index, which describes the records responsive to Judicial Watch’s

FOIA request and the exemption asserted for each of the withheld documents. See Eggleston

Decl.; Hardy Decl.; Vaughn Index [19-1] at 1.

       On October 21, 2013, Judicial Watch filed a cross-motion for summary judgment,

asserting that DHS has not established that it properly identified and withheld the responsive

documents. Pl.’s Cross-Mot. at 5. Specifically, Judicial Watch claims that (1) DHS performed an

inadequate search, or alternatively, that DHS produced an inadequate Vaughn Index, and (2)

DHS did not satisfy its burden of proof under Exemptions 7(A) and 7(E). Id. at 5, 9.

                                     LEGAL STANDARD

       The purpose of the FOIA is to “ensure an informed citizenry, vital to the functioning of a

democratic society.” Critical Mass Energy Product v. Nuclear Regulatory Comm’n, 975 F.2d

871, 872 (D.C. Cir. 1992) (citing F.B.I. v. Abramson, 456 U.S. 615, 621 (1982)). As such, the

FOIA allows public access to official information by requiring federal agencies to release all

records responsive to a request for production. Nat’l Sec. Counselors v. C.I.A., 960 F. Supp. 2d

101, 131 (D.D.C. 2013) (citing 5 U.S.C. § 552(a)(3)(A)). This mandate is subject to nine

exemptions, which are aimed at protecting “legitimate governmental and private interests [that]

could be harmed by release of certain types of information . . . .” Abramson, 456 U.S. at 621; see

5. U.S.C. § 552(b). The nine exemptions are “construed narrowly in keeping with [the] FOIA’s

presumption in favor of disclosure.” Vaughn, 484 F.2d at 823.

       The majority of FOIA cases can be resolved on summary judgment. Brayton v. Office of

the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A defendant agency that

seeks summary judgment in a FOIA case must demonstrate that no material facts are in dispute,

“even when the underlying facts are viewed in the light most favorable to the requester.”



                                                4
Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983) (citing Weisberg v. U.S.

Dep’t of Justice, 627 F.2d 365, 358 (D.C. Cir. 1980)); see Fed. R. Civ. P. 56(a). The agency must

also demonstrate that (1) “it has conducted an adequate search for responsive records,” and (2)

“each responsive record that it has located has been produced to the plaintiff or is exempt from

disclosure.” Nat’l Whistleblower Ctr. v. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13,

21-22 (D.D.C. 2012). In addition, the agency must produce “[a]ny reasonably segregable portion

of a record after deletion of the portions which are exempt under [Exemption 7].” 5 U.S.C. §

552(b)(7) (2006).

       A. Legal Standard for Adequacy of a Search

       Where a plaintiff challenges the adequacy of an agency’s search, the agency “must show

beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all

relevant documents.” Weisberg, 705 F.2d at 1351. Whether the search was reasonable is

dependent upon the circumstances of the case. Id.; see also Meeropol v. Meese, 790 F.2d 942,

956 (D.C. Cir. 1986) (“[A]dequacy is measured by the reasonableness of the effort in light of the

specific request.”). To demonstrate the adequacy of the search, an agency may rely solely on “a

reasonably detailed affidavit [or declaration], setting forth the search terms and the type of search

performed, and averring that all files likely to contain responsive materials (if such records exist)

were searched.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999)

(quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). A court must give

substantial weight to an agency’s affidavits, and the presumption of good faith accorded to such

affidavits “cannot be rebutted by purely speculative claims about the existence and

discoverability of other documents.” Nat’l Whistleblower Ctr., 849 F. Supp. 2d at 22 (quoting




                                                 5
SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991)) (internal

quotation marks omitted).

       B. Legal Standard for Withholding Pursuant to an Exemption

       Where a plaintiff challenges an agency’s withholding, “the burden is on [the agency] to

establish [its] right to withhold information from the public . . . .” Coastal States Gas Corp. v.

Dep’t of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980). A defendant agency may meet this burden

“by providing the requester with a Vaughn [I]ndex, adequately describing each withheld

document and explaining the exemption’s relevance.” Elec. Privacy Info. Ctr. v. Dep’t of

Homeland Sec., 384 F. Supp. 2d 100, 106 (D.D.C. 2005) (citing Summers v. Dep’t of Justice, 140

F.3d 1077, 1080 (D.C. Cir. 1998)). An agency may rely on affidavits in a Vaughn Index to

establish that a withholding is proper, provided that the affidavits: (1) “describe the documents

and the justifications for nondisclosure with reasonably specific detail,” (2) “demonstrate that the

information withheld logically falls within the claimed exemption,” and (3) “are not controverted

by either contrary evidence in the record nor by evidence of agency bad faith.” Elect. Privacy

Info. Ctr., 384 F. Supp. 2d at 106 (quoting Military Audit Project v. Casey, 656 F.2d 724, 738

(D.C. Cir. 1981)). In assessing the adequacy of a Vaughn Index, a court will “focus on the

functions of the Vaughn Index, not the length of the document descriptions,” and will find it

sufficient “so long as [it] give[s] the reviewing court a reasonable basis to evaluate the claim of

privilege.” Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006). An

agency “is not required to provide so much detail that the exempt material would be effectively

disclosed.” Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)

(citing Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977)).

With regard to Exemption 7 specifically, “[a law enforcement agency’s] decision to invoke



                                                 6
[E]xemption 7 is entitled to deference.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 32 (D.C.

Cir. 1998).

                                                    ANALYSIS

         A. Adequacy of the Search

         1. In General

         As previously noted, in order to prevail on a summary judgment motion, an agency must

show that it conducted a search reasonably calculated to locate records responsive to the FOIA

request. See Nat’l Whistleblower Ctr., 849 F. Supp. 2d at 21-22. Judicial Watch contends that

material doubt exists as to whether DHS conducted a search reasonably calculated to uncover

specific primary immigration records that were requested “because Defendant’s response does

not specifically address or identify any . . . individual records 4 in its motion and declarations.”

Pl.’s Cross-Mot. at 6.

         The declaration by Jill Eggleston of the USCIS FOIA Unit, which DHS filed in support

of its motion, is sufficient on its own to establish that the search was adequate, as it is reasonably

detailed, states the search terms and type of search performed, and avers that all potentially

responsive files were located and searched. Eggleston Decl.; see Valencia-Lucena, 180 F.3d at

326. The declaration attests that USCIS employees determined that the relevant records would be

located within the program offices for Fraud Detection and National Security, Service Center

Operations, and the Field Office Directorate. Id. ¶ 22. Eggleston states that USCIS then directed

staff within those offices to search for the appropriate documents, and the employees within each

of these offices utilized “a variety of DHS computer databases that store records and data

relating to the processing of immigration benefits and petitions, including the Interagency Border


4
 The records at issue are applications filed in attendance schools, passports, passport applications, and forms I-94, I-
130, I-131, I-129, I-539, and I-20. Attach. A to Ex. 1 at 2.

                                                           7
Inspection System (IBIS), Computer Linked Application Information Management System

(CLAIMS), Central Index System (CIS), National File Tracking System (NFTS), and the Person

Centric Query System (PCQS).” Id. She adds that the employees also searched “their personal

records for paper documents, as well as any personal electronic databases, including computer

hard drives, shared folders, and email archives.” Id. Eggleston also provides the specific search

terms used by USCIS employees to conduct the search, including “the records’ subject’s name,

date of birth, place of birth, and the subject’s application receipt number.” Id.

       2. The Three Publicly Released Documents

       Judicial Watch also takes issue with the failure of DHS to identify and produce certain

documents pertaining to Atta that had previously been made public by the 9-11 Commission,

specifically an I-94 form, notes from an INS official, and a B1/B2 Five Year Visa. Pl.’s Cross-

Mot. at 6. Judicial Watch claims that “the absence of any discussion by [DHS] in the record of

these specific documents is a material indication that the search was insufficient, and if the

records are indeed within the responsive documents, [DHS] has inadequately identified them in

its Vaughn Index and declarations.” Id. at 6-7.

       This claim is unpersuasive. First, the record does not demonstrate that the documents

were in the custody and control of USCIS at the time of the FOIA request. See Def.’s Mot. at 3

(“Plaintiff’s reference to the general existence of three documents . . . is not evidence that the

three documents were in USCIS’ custody and control at the time of Plaintiff’s FOIA request.”);

Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 151 (1980) (“agency

possession or control is prerequisite to triggering any duties under the FOIA”). The Eggleston

Declaration expressly references the specific immigration forms sought by Judicial Watch and

provides a detailed description of the search procedures that USCIS undertook based on the



                                                  8
information requested. Eggleston Decl. at 4-6. Moreover, the records in question were created

under USCIS’s predecessor agency, Immigration and Naturalization Services (“INS”), which

was under the Department of Justice, rather than the Department of Homeland Security. Hardy

Decl. at 7. Because the records from INS were distributed among USCIS, Customs and Border

Protection (“CBP”), and Immigration and Customs Enforcement (“ICE”), Id., it cannot be

assumed that the records were in the custody and control of USCIS at the time of the FOIA

request. See Kissinger, 445 U.S. at 151 (“The guidelines state that FOIA refers . . . only to

records in being and in the possession or control of an agency . . . . [It] imposes no obligation to

compile or procure a record in response to a request.”) (quoting Attorney General’s

Memorandum on the Public Information Section of the Administrative Procedure Act 23-24

(June 1967), Source Book I, pp. 222-23) (internal quotation marks omitted).

       Second, “it is long settled that the failure of an agency to turn up one specific document

in its search does not alone render a search inadequate . . . [because] a reasonable and thorough

search may have missed [it].” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.

2003) (citing Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 896 n.7

(D.C. Cir. 1995)); see also Jennings v. U.S. Dep’t of Justice, 230 F. App’x 1 (D.C. Cir. 2007)

(“the adequacy of a FOIA search is generally determined not by the fruits of the search but by

the appropriateness of the methods used to carry out the search”) (quoting Iturralde, 315 F.3d at

315); Mobley v. C.I.A., 924 F. Supp. 2d 24, 36 (D.D.C. 2013) (“The question is not whether there

might exist any other documents possibly responsive to the request, but rather whether the

search for those documents was adequate.”) (quoting Steinberg v. U.S. Dep’t of Justice, 23 F.3d

548, 551 (D.C. Cir. 1994)). Consequently, even if USCIS had the documents in its possession, its




                                                 9
failure to produce them as part of Judicial Watch’s FOIA request does not alone render the

search inadequate.

        DHS submitted an affidavit describing the search with specificity. Judicial Watch does

not allege that USCIS failed to search a particular location that was likely to contain the specific

records sought, but rather assumes USCIS had the records in its custody. That is insufficient to

create a “material doubt” as to whether USCIS “conducted a search reasonably calculated to

uncover all relevant documents.” Weisberg, 705 F.2d at 1351; see also Iturralde, 315 F.3d at 315

(holding that although a court may place significant weight on the absence of a particular

document, the plaintiff could not overcome an adequate agency affidavit without demonstrating

that the defendant “refused to interview government officials for whom there was strong

evidence that they might have been helpful,” “failed to search particular offices or files where the

document might well have been found,” or “ignored indications in documents found in its initial

search that there were additional responsive documents elsewhere”) (citing Valencia-Lucena,

180 F.3d at 327-28; Campbell, 164 F.3d at 28). 5

        B. Documents Withheld under Exemption 7(A) 6

        Exemption 7(A) protects from disclosure certain “records or information compiled for

law enforcement purposes, but only to the extent that the production of such law enforcement

records or information could reasonably be expected to interfere with enforcement proceedings.”

5 U.S.C. § 552(b)(7)(A). To justify a withholding under Exemption 7(A), an agency must

demonstrate that (1) “a law enforcement proceeding is pending or prospective,” and (2) “release

of the information could reasonably be expected to cause some articulable harm to the

5
  Although DHS’s affidavit demonstrates that the agency has conducted an adequate search, it would have been
preferable for there to have been an explanation from DHS as to why the three documents are missing from the
production of documents produced.
6
  Because the documents in question are exempt under 7(A), the Court need not address Defendant’s claims that the
withheld documents are also covered by FOIA Exemptions 6, 7(C), and 7(E).

                                                       10
proceeding.” Voinche v. F.B.I., 46 F. Supp. 2d 26, 31 (D.D.C. 1999). There need not be a

“presently pending enforcement proceeding,” but instead, “it is sufficient that the government’s

ongoing . . . investigation is likely to lead to [enforcement] proceedings.” Ctr. for Nat. Sec.

Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 926 (D.C. Cir. 2003). Courts owe “some measure

of deference to the [E]xecutive in cases implicating national security, a uniquely executive

purview.” Id. at 926-927; see also Zadvydas v. Davis, 533 U.S. 678, 696 (2001) (finding that

terrorism or other special circumstances might warrant “heightened deference to the judgments

of the political branches with respect to matters of national security”).

       According to the Hardy Declaration, “responsive records are contained in files pertaining

to the FBI’s investigation of the September 11, 2001 terrorist attacks.” Hardy Decl. ¶ 8. Hardy

further asserts that “[t]he investigation is ongoing and clearly within the law enforcement duties

of the FBI to detect and undertake investigations into possible violations of Federal criminal and

national security laws.” Id. (citing 28 U.S.C. § 533). He asserts that the records in question were

compiled for law enforcement purposes and “readily meet the threshold for applying FOIA

Exemption 7.” Id. Hardy concludes that “[t]he FBI has determined that disclosure of any of the

specified responsive records in the midst of this active, on-going investigation is reasonably

expected to interfere with that investigation as well as any resulting prosecutions.” Id. ¶ 10.

       Judicial Watch claims that DHS “has not provided . . . a particularized explanation of

how disclosing primary immigration documents . . . could be reasonably expected to interfere

with any ongoing law enforcement investigations . . . .” Pl.’s Cross-Mot. at 10. Judicial Watch

further claims that because the records in question involve an individual who died over twelve

years ago, the FBI’s reliance on a “generally stated ongoing investigation into the September 11,




                                                 11
2001 terrorist attacks” is “broad and vague” and therefore insufficient for purposes of Exemption

7(A). Id. at 11 (internal quotation marks omitted).

       In light of the deference owed to the agency, Campbell, 164 F.3d at 32, the Court

concludes that DHS properly withheld the documents. The Hardy Declaration demonstrates that

the information in question is part of an ongoing investigation into the September 11, 2001

terrorist attacks, which may lead to future law enforcement proceedings, and that the FBI

determined that disclosure of any of the records in question in the midst of the ongoing

investigation is reasonably expected to interfere with enforcement proceedings. Hardy Decl. ¶ 8.

Hardy explains that “[p]roviding a detailed description of the material within these specific

USCIS records concerning Mohamed Atta would undermine the very interests that USCIS and

FBI seek to protect under Exemption 7(A).” Id. at 7.

       Furthermore, Exemption 7(A) applies to “multiple intermingled investigations,” Cucci v.

Drug Enforcement Admin., 871 F. Supp. 508, 512 (D.D.C. 1994), so the fact that Atta is dead, as

Judicial Watch repeatedly points out, does not render the exemption irrelevant, because the

investigation into the 9-11 attacks is still ongoing. See N.L.R.B. v. Robbins Tire & Rubber Co.,

437 U.S. 214, 236 (1978) (“disclosure of particular kinds of investigatory records while a case is

pending would generally interfere with enforcement proceedings.”) (internal quotation marks

omitted).

       C. Adequacy of the Vaughn Index

       A defendant agency may prevail on summary judgment by producing a Vaughn Index

detailing the responsive records and reasons for their withholding, if applicable. See Elec.

Privacy Info. Ctr., 384 F. Supp. 2d at 106. Judicial Watch contends that there is material doubt as

to the adequacy of the Vaughn Index because DHS did not correlate the claimed exemption with



                                                12
particular records or parts of records to which the exemption applies. Pl.’s Cross-Mot. at 7-8

(citing King v. U.S. Dep’t of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987) (“Specificity is the

defining requirement of the Vaughn Index and affidavit; affidavits cannot support summary

judgment if they are conclusory, merely reciting statutory standards, or if they are too vague or

sweeping.”) (internal citation omitted)). Instead, DHS grouped responsive documents into four

broad categories: “memoranda,” “emails,” “database searches,” and “other investigative

documents.” Hardy Decl. ¶¶ 12-15.

       The Vaughn Index is sufficient. This Circuit has held that “[b]ecause generic

determinations are permitted, the government need not justify its withholdings document-by-

document; it may instead do so category-of-document by category-of-document.” Crooker v.

Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64, 67 (D.C. Cir. 1986); see also Judicial

Watch, Inc., 449 F.3d at 147 (“[The court has] never required repetitive, detailed explanations for

each piece of withheld information–that is, codes and categories may be sufficiently

particularized to carry the agency’s burden of proof.”). Furthermore, because courts owe

“substantial weight to . . . agency explanations in the national security context,” King, 830 F.2d

at 236, and DHS claims that “providing a detailed description of the material within these

specific DHS records concerning Mohamed Atta would undermine the very interests that the FBI

seeks to protect under Exemption 7(A),” Hardy Decl. at 7, DHS’s grouping of the withheld

documents into four general categories satisfies the requirement under 5 U.S.C. § 552(b)(7)(A).

See Johnson, 310 F.3d at 776 (an agency is not required to provide so much detail that the

exempt material would be effectively disclosed).

                                        CONCLUSION




                                                13
       For the reasons set forth above, Defendant’s Motion for Summary Judgment is

GRANTED and Plaintiff’s Cross-Motion for Summary Judgment is DENIED. An Order

consistent with this Memorandum Opinion shall issue.

       DATED this 24th day of July, 2014.




                                                  BARBARA J. ROTHSTEIN
                                                  UNITED STATES DISTRICT JUDGE




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