     09-2225-cv
     Lowenstein v. Dept. of Homeland Sec.

 1                        UNITED STATES COURT OF APPEALS
 2
 3                            FOR THE SECOND CIRCUIT
 4
 5                                  -------------
 6
 7                               August Term, 2010
 8
 9    (Argued: August 31, 2010                    Decided: November 22, 2010)
10
11                            Docket No. 09-2225-cv
12
13   - - - - - - - - - - - - - - - - - - - - - - X
14
15      ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS PROJECT, and
16              JEROME N. FRANK LEGAL SERVICES ORGANIZATION,
17
18                            Plaintiffs-Appellants,
19
20                                   - against -
21
22                   DEPARTMENT OF HOMELAND SECURITY, and
23                    UNITED STATES DEPARTMENT OF JUSTICE,
24
25                             Defendants-Appellees,
26
27                          DEPARTMENT OF STATE, and
28                     EXECUTIVE OFFICE OF THE PRESIDENT,
29
30                                   Defendants.
31
32   - - - - - - - - - - - - - - - - - - - - - - X
33
34   Before:     RAGGI and LYNCH, Circuit Judges, and
35               RAKOFF, District Judge.*
36
37        Appeal from the March 23, 2009 judgment of the United States
38   District Court for the District of Connecticut (Mark R. Kravitz,
39   Judge), granting partial summary judgment to defendants, in
40   Freedom of Information Act action, on the ground that the
41   information at issue is exempt from disclosure under 5 U.S.C. §


           *
           The Honorable Jed S. Rakoff, United States District Judge
     for the Southern District of New York, sitting by designation.

                                            -1-
 1   552(b)(7)(E).   AFFIRMED.
 2
 3                         SAURABH SANGHVI, (Michael Wishnie, Hope
 4                              Metcalf, Daniel Mullkoff, Jennifer
 5                              Chang, on the brief), for Plaintiff-
 6                              Appellant.
 7
 8                         IAN J. SAMUEL (Nora R. Dannehy, United States
 9                              Attorney for the District of
10                              Connecticut, Lisa E. Perkins, Sandra S.
11                              Glover, Susan Scott, on the brief), for
12                              Defendants-Appellees.

13   RAKOFF, District Judge.

14        Plaintiffs-Appellants, the Allard K. Lowenstein

15   International Human Rights Project and the Jerome N. Frank Legal

16   Services Organization (collectively, "the Project"), appeal the

17   district court's partial grant of summary judgment to

18   Defendant-Appellee, the Department of Homeland Security ("DHS").

19   Having determined that the DHS properly withheld certain portions

20   of a 2004 memorandum under Exemption (b)(7)(E) of the Freedom of

21   Information Act ("FOIA"), 5 U.S.C. § 552(b)(7)(E), the Court

22   hereby affirms the decision of the district court.

23                                BACKGROUND

24        In the months preceding the 2004 presidential election and

25   2005 inauguration, U.S. Immigration and Customs Enforcement

26   ("ICE"), a division of DHS, undertook "Operation Front Line" for

27   the stated purpose of identifying and preventing potential

28   terrorist activities that were anticipated in connection with

29   those events.   See   Allard K. Lowenstein Int'l Human Rights

30   Project v. Dep't of Homeland Sec., 603 F. Supp. 2d 354, 360 (D.

                                      -2-
1    Conn. 2009).    The Project claims, however, that Operation Front

2    Line, in dragnet fashion, indiscriminately targeted men from

3    Muslim-majority countries and charged them with minor immigration

4    violations.    The Project has sought through FOIA to obtain

5    internal government documents that the Project believes may

6    reveal governmental misconduct of this kind.

7         This appeal concerns the Project’s request under FOIA for

8    one of these documents: a September 2004 memorandum regarding

9    Operation Front Line issued to special agents and deputy

10   assistant directors by Mary Forman, the Acting Director of ICE’s

11   Office of Investigations.    Although most of this “Forman

12   Memorandum” was furnished to the Project, portions of a few

13   paragraphs of the Forman Memorandum that describe three

14   “priorities” for investigation were redacted.1

15        At the outset, it should be noted that these very modest

16   redactions are all that remain in dispute of much broader

17   requests for information that were materially granted, largely on

18   consent.   The Project's two initial FOIA requests, submitted to



          1
           Priority 1 cases, the highest priority, were investigated
     with the assistance of the FBI and its Joint Terrorism Task
     Force. Priority 2 cases, the middle priority, consisted of
     suspected immigration status violators meeting the “Front Line
     threat profile,” and were sometimes investigated with the
     assistance of local FBI agents depending on the potential source
     recruitment and intelligence value of the targets. Priority 3
     cases, the lowest priority, were generally investigated by ICE
     agents without FBI assistance.


                                      -3-
1    DHS in October 2006, broadly sought information related to

2    Operation Front Line, much of which was at first denied; but

3    after the Project filed this action in the district Court on

4    November 21, 2006, the parties entered into two stipulations,

5    pursuant to which DHS released thousands of pages of such

6    documents.   The Project then moved for release of the remaining

7    requested documents.     After reviewing unredacted documents in

8    camera, the district court ordered the release of many but not

9    all of the remaining documents.     Then, after the Project filed

10   this appeal, DHS voluntarily released most of the information

11   that remained in dispute.     Accordingly, the information the

12   Project now seeks consists simply of a paragraph describing

13   "Priority 1" and several redacted lines under “Priority 2.”2

14                                 DISCUSSION

15        We review a district court's grant of summary judgment in a

16   FOIA action de novo. Wood v. FBI, 432 F.3d 78, 82 (2d Cir. 2005).

17        The district court determined that DHS properly withheld the

18   redacted portions of the Forman Memorandum under FOIA Exemptions

19   (b)(2) and (b)(7)(E).3     We need not here consider whether


          2
           At the beginning of this appeal, the Project also disputed
     the withholding of two other words indicating the numbers of
     Priority 2 and 3 cases. However, during oral argument before
     this Court, the Project stated that it no longer disputed DHS’s
     right to withhold this information.
          3
           Although the district court did not specifically cite the
     exemptions it applied, its conclusion that “DHS properly withheld
     th[e] specific information because it is either predominantly

                                       -4-
1    Exemption (b)(2) applies because we conclude that the district

2    court properly applied Exemption (b)(7)(E).   Exemption (b)(7)(E)

3    exempts from disclosure:

 4        records or information compiled for law enforcement
 5        purposes, but only to the extent that the production of such
 6        law enforcement records or information . . . (E) would
 7        disclose techniques and procedures for law enforcement
 8        investigations or prosecutions, or would disclose guidelines
 9        for law enforcement investigations or prosecutions if such
10        disclosure could reasonably be expected to risk
11        circumvention of the law . . . .
12
13   5 U.S.C. § 552(b)(7)(E).

14        The Project first argues that the redacted information in

15   the Forman Memorandum constitutes "guidelines" rather than

16   "techniques and procedures."   Since Exemption (b)(7)(E) provides

17   that law enforcement guidelines may only be withheld if their

18   disclosure "could reasonably be expected to risk circumvention of

19   the law," the Project contends that the information at issue

20   could not reasonably be expected to engender such a risk and

21   therefore must be released to the Project.

22        In the alternative, the Project argues that even if the

23   redacted information relates to “techniques and procedures,” the

24   qualifier at the end of the clause allowing non-disclosure only

25   “if such disclosure could reasonably be expected to risk



     internal or compiled for law enforcement purposes and its
     disclosure could risk circumvention of the law” indicates that it
     applied Exemption (b)(2) and Exemption (b)(7)(E). See
     Lowenstein, 603 F. Supp. 2d at 364.


                                     -5-
1    circumvention of the law" applies not just to "guidelines" but

2    also to "techniques and procedures," and, accordingly, DHS still

3    must release the information.

4         We reject these arguments.    Beginning, as we must, with the

5    plain meaning of the statute’s text and structure, we see no

6    ambiguity.   See Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir.

7    2010) (“Statutory analysis necessarily begins with the plain

8    meaning of the law’s text, and, absent ambiguity, will generally

9    end there.” (internal quotation marks omitted)).   The sentence

10   structure of Exemption (b)(7)(E) indicates that the qualifying

11   phrase (“if such disclosure could reasonably be expected to risk

12   circumvention of the law”) modifies only “guidelines” and not

13   “techniques and procedures.”    This is because the two alternative

14   clauses that make up Exemption 7(E) are separated by a comma,

15   whereas the modifying condition at the end of the second clause

16   is not separated from its reference by anything at all.   Thus,

17   basic rules of grammar and punctuation dictate that the

18   qualifying phrase modifies only the immediately antecedent

19   “guidelines” clause and not the more remote “techniques and

20   procedures” clause.   See Barnhart v. Thomas, 540 U.S. 20, 26

21   (2003) (citing “the grammatical ‘rule of the last antecedent’”).

22        Any potential ambiguity in the statute’s plain meaning is

23   removed, moreover, by the history of the statute’s amendments.

24   See, e.g., Slayton v. Am. Express Co., 604 F.3d 758, 770-71 (2d


                                       -6-
1    Cir. 2010) (“[W]here we find ambiguity we may delve into other

2    sources, including the legislative history, to discern Congress’s

3    meaning.”).   Prior to 1986, the second clause did not exist and

4    the exemption consisted of "investigatory records compiled for

5    law enforcement purposes" to the extent that their production

6    would "disclose investigative techniques and procedures," without

7    any further qualification.   5 U.S.C. § 552(b)(7)(E) (1976).   When

8    Congress enacted the current version of the statute in 1986, it

9    expanded the scope of Exemption 7(E) by adding the entire second

10   clause (including the modifier), thereby exempting "guidelines"

11   from disclosure only if public access to such guidelines would

12   risk circumvention of the law.   See Pub. L. No. 99-570 § 1802(a),

13   100 Stat. 3207, 3207-48 to -49 (1986); see also S. Rep. No. 98-

14   221, at 25 (1983) (“The amendment also expands (b)(7)(E) to

15   permit withholding of ‘guidelines for law enforcement

16   investigations or prosecutions if such disclosure could

17   reasonably be expected to risk circumvention of the law.’”);

18   American Civil Liberties Union v. Dep’t of Def., 543 F.3d 59, 79

19   (2d Cir. 2008) (“Exemption 7(E) was expanded to allow agencies to

20   withhold information that would disclose law enforcement

21   guidelines - in addition to the already protected techniques and

22   procedures - if disclosure of the guidelines could reasonably be

23   expected to risk circumvention of the law.” (internal quotation

24   marks omitted)), vacated on other grounds and remanded, 130 S.


                                      -7-
1    Ct. 777 (2009); Keys v. Dep’t of Homeland Sec., 510 F. Supp. 2d

2    121, 129 (D.D.C. 2007) (concluding that “first clause of

3    Exemption 7(E) provides categorical protection for techniques and

4    procedures” without need for “demonstration of harm” (internal

5    quotation marks omitted)); Fischer v. U.S. Dep’t of Justice, 772

6    F. Supp. 7, 12 n.9 (D.D.C. 1991) (noting that amendment to

7    Exemption (7)(E) provided “categorical protection” to techniques

8    and procedures), aff’d, 968 F.2d 92 (D.C. Cir. 1992).    The fact

9    that the two clauses of the statute were introduced at different

10   times (the first clause in 1974 and the second clause in 1986)

11   and that the modifying language (requiring disclosure unless

12   “such disclosure could reasonably be expected to risk

13   circumvention of the law”) was not part of the first clause as it

14   was originally enacted reinforces the conclusion that the

15   modifying language should be read as attaching only to the new

16   basis for exemption that was created along with it.

17        The argument that the redacted information constitutes

18   “guidelines” information, instead of information about

19   “techniques and procedures,” requires us to address the

20   difference between the two categories.   While difficulties may

21   arise in unusual cases, the basic distinction is apparent.    The

22   term "guidelines" –- meaning, according to Webster’s Third New

23   International Dictionary (1986), “an indication or outline of

24   future policy or conduct” –- generally refers in the context of


                                    -8-
1    Exemption 7(E) to resource allocation.   For example, if a law

2    enforcement agency concerned with tax evasion directs its staff

3    to bring charges only against those who evade more than $100,000

4    in taxes, that direction constitutes a “guideline.”   The phrase

5    "techniques and procedures," however, refers to how law

6    enforcement officials go about investigating a crime.   See

7    Webster’s Third New International Dictionary (1986) (defining

8    “technique” as “a technical method of accomplishing a desired

9    aim”; and “procedure” as “a particular way of doing or of going

10   about the accomplishment of something”).   For instance, if the

11   same agency informs tax investigators that cash-based businesses

12   are more likely to commit tax evasion than other businesses, and

13   therefore should be audited with particular care, focusing on

14   such targets constitutes a "technique or procedure" for

15   investigating tax evasion.   Our in camera review of the entire

16   Forman Memorandum leads us to conclude that the redacted portions

17   constitute "techniques and procedures" for law enforcement

18   investigation.

19        Because we find that DHS properly withheld the information

20   under Exemption (b)(7)(E), we need not consider the other

21   arguments put forth by the Project.   Accordingly, the judgment of

22   the district court granting partial summary in favor of DHS is

23   hereby AFFIRMED.




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