Opinion
Civil Action No. 04-1919 (ESH).
April 20, 2005
MEMORANDUM OPINION
Plaintiff Changzhou Laosan Group ("Changzhou") has brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. It contests the withholding by the U.S. Customs and Border Protection Bureau ("CBP") of all or portions of 47 documents pertaining to the seizure of its merchandise. The materials in question have been withheld under Exemptions 2, 4, 5, 6, 7(A), 7(C), and 7(E). Plaintiff only contests defendant's withholdings under Exemptions 2, 4, 5, and 7(A), and it also challenges the adequacy of the search and the segregability of non-exempt information. On cross-motions for summary judgment, the Court finds that defendant's motion for summary judgment should be granted in part as to Exemptions 2, 5 and 7(A), but plaintiff's cross motion shall be granted in part as to withholdings under Exemption 4.
The Court therefore need not address withholdings under Exemptions 6, 7(C) or 7(E).
BACKGROUND
Plaintiff is an exporter of merchandise from China. On April 17, 2003, CBP seized plaintiff's merchandise ( i.e., women's apparel) at the Los Angeles-Long Beach Harbor. (Pl.'s Opp'n, Ex. A.) Plaintiff was informed that although the entry documents indicated that the goods were destined for Mexico, further examination revealed that the merchandise was intended to be smuggled into the United States. ( Id.) Plaintiff petitioned for relief from forfeiture on October 2, 2003, and was informed of CBP's denial in a letter dated October 14, 2004. (Pl.'s Opp'n, Ex. C.) CBP denied plaintiff's supplemental petition for relief on January 12, 2005, and plaintiff was advised to commence an administrative forfeiture procedure. (Pl.'s Opp'n, Ex. D.) CBP received plaintiff's FOIA request on January 15, 2004. (Decl. of Joanne Stump Decl. ¶ 2 ("Stump Decl.").) On May 17, 2004, CBP responded to the FOIA request, withholding seventeen documents in their entirety and a portion of thirty documents. (Stump Decl. ¶ 8, Ex. E.) On May 21, 2004, plaintiff appealed the administrative decision and subsequently requested that all responsive documents be released prior to December 15, 2004, for a "meaningful supplemental petition" in the administrative seizure case. (Stump Decl. ¶¶ 9-11, Def.'s Mot., Exs. F H.)
LEGAL ANALYSIS
I. Standard of Review
In a FOIA case, summary judgment may be granted to the government if "the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Greenberg v. Dep't of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998); see Fed.R.Civ.P. 56(c). The Court may award summary judgment based solely on the information provided in affidavits or declarations when the affidavits or declarations describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). An agency must prove that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted). Review of the agency's denial of a FOIA request is de novo, and the agency "bears the burden of establishing the applicability of the claimed exemption." Assassination Archives Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003).
II. Adequacy
As an initial matter, plaintiff alleges that responsive documents may have been overlooked because the CBP conducted an inadequate search. Specifically, plaintiff challenges the adequacy of defendant's search for records because of its failure to search two particular CBP computer systems: the Treasury Enforcement Computer System ("TECS") and the Seized Asset and Case Tracking System ("SEACATS"). Plaintiff contends that it is "unaware if CBP searched these systems and we request their declaration regarding their search." (Pl.'s Opp'n at 5.)
Under FOIA, a defendant agency is obligated to conduct a "reasonable" search for responsive records using methods that can be reasonably expected to produce the information requested by plaintiff to the extent it exists. Mendoza v. Sec'y of the Army, 1999 WL 515478, at *1 (D.C. Cir. 1999); Patterson v. IRS, 56 F. 3d 832, 841 (7th Cir. 1995); Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). "[T]he competence of any records-search is a matter dependent upon the circumstances of the case." Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 834 (D.C. Cir. 1979). In response to a challenge to the adequacy of its search, the agency must provide a "reasonably detailed affidavit, setting forth the search terms and type of search performed, and averring that all files likely to contain responsive materials . . . were searched." Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency need not "set forth with meticulous documentation the details of an epic search for the requested records," Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982) ("in the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA"), but it must show that the search method was "reasonably calculated to uncover all relevant documents." Weisberg, 745 F.2d at 1485; see also Oglesby, 920 F.2d at 68 (FOIA requires an agency to conduct only a reasonable search for requested records using "methods reasonably expected to produce the information requested"). "The issue is not whether any further documents might conceivably exist but rather whether the government's search for responsive documents was adequate." Perry, 684 F.2d at 128. Agency declarations in this regard are afforded a presumption of good faith. See SafeCard Services, Inc. v. Sec. Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991). An adequate affidavit can be rebutted only "with evidence that the agency's search was not made in good faith." Trans Union LLC v. Fed. Trade Comm'n, 141 F. Supp. 2d 62, 69 (D.D.C. 2001) (citing Maynard v. Cent. Intelligence Agency, 986 F.2d 547, 559 (1st Cir. 1993); Miller v. United States Dep't of State, 779 F.2d 1378, 1383 (8th Cir. 1985)).
In its opposition, defendant explains that when an administrative seizure file is created, all records contained within SEACATS (which is a module within TECS) that pertain to the seizure are included in the seizure case file. (Def's Reply, Supplemental Decl. of Stump ¶ 4 ("Supp. Stump Decl.").) As plaintiff concedes, the administrative seizure file is the logical location for responsive documents (Pl.'s Opp'n at 4), and since this file is created by searching the Automated Commercial System ("ACS") and SEACATS, there can be no argument that the appropriate computer systems were not searched. Indeed, defendant's Vaughn Index indicates that certain documents came from the CBP computer systems SEACATS and ACS, as noted under the "Document Description" column. (Def.'s Mot., Exs. A (Doc. Nos. 005-009, 012-017) and B (Doc. No. 046).) It was therefore unnecessary to search these computer systems again, since this had already been done, and any challenge to the adequacy of the search must be rejected.
III. Exemption 2
Plaintiff argues that defendant has not specifically identified what it considers high and low Exemption 2 information in the Vaughn Index. (Pl.'s Opp'n at 5.) Exemption 2 authorizes an agency to withhold from disclosure information "related solely to the internal personnel rules and practices of the agency." 5 U.S.C. § 552(b)(2). Courts have divided Exemption 2 into two categories: "low 2" for materials related to trivial administrative matters of no genuine public interest and "high 2" for substantial internal matters. Schiller v. NLRB, 964 F.2d 1205, 1207 (D.C. Cir. 1992); see also FOIA Update, Vol. X, No. 3, at 3-4 ("OIP Guidance: Protecting Vulnerability Assessments Through Application of Exemption Two").
Defendant explains that it has invoked the "low(b)(2)" exemption to cover information consisting of internal administrative markings that are utilized by CBP and "to assist in the management and control if its mission." (Stump Decl. ¶ 18.) It defines "high(b)(2)" information as those pertaining to law enforcement matters and "administrative procedures in regard to the operational responsibilities discussed and assigned to CBP personnel." ( Id. ¶ 20.) A review of the Vaughn Index reveals that Exemption 2 was applied to two categories of information that are easily identifiable as either "low(b)(2)" or "high(b)(2)" without the necessity of attaching specific labels. For example, computer function codes, internal file numbers, computer system and report identity, internal operation information, and internal agency procedures are clearly documents that are predominantly internal to the agency, or are sufficiently related to a personnel rule or practice, and are therefore both easily discernable and properly withheld. Schwaner v. Dep't of the Air Force, 898 F.2d 793, 795 (D.C. Cir. 1990) (finding that the exemption applies only to matters that predominantly relate to internal agency rules and practices). Information described as "law enforcement investigation case name," "investigative team name," and "law enforcement operational handling" (Def.'s Mot., Ex. A (Doc. Nos. 008-010, 012-013)) clearly fall within the "high(b)(2)" category. Such information is properly withheld under Exemption 2. Crooker v. Bureau of Alcohol, Tobacco Firearms, 670 F.2d 1051, 1073 (D.C. Cir. 1981) (exempting manuals designed to establish rules and practices for agency personnel, i.e., law enforcement investigatory techniques under Exemption 2); Schiller, 964 F.2d at 1207 (withholding permissible to the extent that disclosure would reveal techniques and procedures for law enforcement investigations or prosecutions). Further, the Court is unaware of any authority requiring the government to designated whether a withholding falls within a "low" or "high" category. For these reasons, the Court finds that defendant has properly withheld information under Exemption 2.
Exemption 2 was invoked for all or portions of Document Nos. 003-017, 019, 033-034, 036-038, 046.
IV. Exemption 4
Plaintiff seeks the release of all commercial documents that relate to the seizure of its merchandise that defendants have withheld under Exemption 4. FOIA's Exemption 4 permits an agency to withhold from disclosure "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential." 5 U.S.C. § 522(b)(4). The terms "commercial" and "financial" in FOIA's Exemption 4 are given their ordinary meanings. Pub. Citizen Health Research Group v. Food Drug Admin., 704 F.2d 1280, 1290 (D.C. Cir. 1983). Plaintiff does not dispute that the withheld documents contain commercial information. (Pl.'s Opp'n at 6.) The dispute is over whether the documents are "privileged or confidential."
The legal standard used to determine whether information is privileged or confidential within the meaning of Exemption 4 varies depending on whether the information was provided to the government voluntarily or if it was required to be provided. If information was voluntarily provided, it is confidential if it is "of a kind that would customarily not be released to the public by the person from whom it was obtained." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 879 (D.C. Cir. 1992) (en banc). If, however, the information was given involuntarily, it will not be considered confidential unless the submitter can show that disclosure will (1) "impair the government's ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained." Nat'l Parks Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
The information at issue under Exemption 4 falls into two categories. The first category consists of four entry documents referred to as Customs Forms 7512. These are records and documents filed by importers or agents for importers with CBP in order to enter their merchandise into the customs territory of the United States. These documents (Nos. 035, 043, 044 and 047) contain information regarding "the movement of merchandise in-bond through customs territory" including "identification of the manufacturer, shipper, consignee, brokers, freight forwarders, description of the merchandise, quantity, value, entry numbers and other commercial information concerning the importation (including invoice numbers, origin of goods, visa or certificates issued or required and names or signatures of the individuals who signed the CF 7512's). (Stump Decl. ¶ 25.) The second category of documents consists of commercial information, including "entry numbers, value of merchandise, specific classification or type of merchandise, visa category, purchase order numbers, shipment routing information, IRS and bond numbers, the frequency of entry filings, and the names and identifying information of third party entities such as consignees, importers, carriers, etc." ( Id. ¶ 30.) This category includes Document Nos. 002-003, 006-007, 009-021, 023-032, 034-035 and 039-047. As to both categories, the parties appear to agree that the information was involuntarily submitted, and that the issue is whether the disclosure of this information would likely result in substantial competitive harm within the meaning of National Parks.
Since the Court concludes in Section VI, infra, that Document Nos. 043, 044, and 047, which concern entries unrelated to plaintiff, are properly withheld under Exemption 7(A), only the withholding of Document No. 035 is at issue under Exemption 4. ( See id. at ¶ 26.)
With respect to Document Nos. 030, 032, 034, 039-042, 045 and 046, it appears that portions of these documents are being withheld under other exemptions, including (2), (6), 7(A) and 7(C). To the extent that these exemptions are either not contested or the withholdings are found herein to have been properly invoked, these portions need not be produced. However, to the extent that the government relies solely on Exemption 4 to support the redaction of a portion of a document, the Court's rejection of this exemption as a basis for nondisclosure applies to these specific redactions.
The criterion for assessing the competitive harm prong of National Parks has been interpreted to require both a showing of (1) actual competition and (2) a likelihood of substantial competitive injury. See CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1152 (D.C. Cir. 1987). With regard to the second element, the Court need only "exercise its judgment in view of the nature of the material sought and competitive circumstances in which the submitter does business," but "no actual adverse effect on competition need be shown." Nat'l Parks Conservation Ass'n v. Kleppe, 547 F.2d 673, 675 (D.C. Cir. 1976). The exemption protects persons who submit financial or commercial data to government agencies from the competitive disadvantages which would result from its publication. ( Id. at 768.) Courts have, however, rejected competitive harm claims when agencies provide conclusory statements of competitive harm. See Pac. Architects and Eng's, Inc. v. Renegotiation Bd., 505 F.2d 383, 384 (D.C. Cir. 1974)) (requiring agencies to provide more than generalized assertions and conclusory allegations). But the agency is not required to provide "detailed economic analysis of the competitive environment." Kleppe, 547 F.2d at 679.
In an attempt to support its Exemption 4 claim, defendant essentially argues for a blanket exemption for entry documents based on two cases where entry documents were shielded from disclosure under Exemption 4. (Def.'s Mot. at 13, citing Inter Ocean Free Zone v. United States Customs Service, 982 F. Supp. 867, 869-70 (S.D. Fla. 1997), and Timken Co. v. United States Customs Service, 531 F. Supp. 194, 200-01 (D.D.C. 1981) (" Timken II").) As explained by defendant, "[b]ased on these court rulings, CBP has maintained that entry documents and Automated Commercial System (ACS) records comprised of entry information are categorically exempt from disclosure to third parties." (Stump Decl. ¶¶ 27 28 ("CBP applies a categorical exclusion to the CF 7512's. . . .").) Similarly, with respect to the second category of information, defendant also takes a categorical approach, claiming that the documents include confidential information, " i.e., from whom the merchandise was purchased, the quantity of merchandise being imported, the value of the merchandise, the customers of exporters and a description of the exporters' business operations and organization. This is not the type of information a commercial entity would give to a competitor. It would enable a commercial to learn a great deal about its competitor, including the identification of the supplier and the cost and amount of merchandise purchased." ( Id. ¶ 29.) Defendant also argues in its Reply that even if the information in the documents relates to plaintiff's merchandise, the documents were not submitted by the plaintiff to CBP and are thus exempt because they implicate the confidential commercial information of third parties, and since plaintiff has failed to obtain an authorization from any of these parties for the release of their information, it cannot show that release of the information will cause competitive harm. (Def.'s Reply at 8-9.) These arguments are unpersuasive.
First, defendant, not plaintiff, has the burden of proof, and it cannot sustain this burden by faulting plaintiff for not obtaining authorizations from third parties. On the contrary, as is often the case, the defendant notifies the submitters of the confidential information, and in many cases, files the submitter's objections to disclosure with the court to assist it in determining the propriety of the Exemption 4 claim.
In fact, Exec. Order No. 12,600 § 1 provides for mandatory notification of submitters whenever an agency "determines that it may be required to disclose" such information under FOIA. 52 Fed. Reg. 23781, 23781 (June 23, 1987).
Indeed, courts have rejected claims of competitive harm when supported only by agency affidavits. See, e.g., N.C. Network for Animals v. USDA, 1991 WL 10757, at *4 (4th Cir. Feb. 5, 1991); Wiley Rein Fielding v. United States Dep't of Commerce, 782 F. Supp. 675, 676 (D.D.C. 1992); Brown v. Dep't of Labor, No. 89-1220, 1991 U.S. Dist. LEXIS 1780, at *7 (D.D.C. Feb. 15, 1991).
Nor may defendant, as it has done here, rely on generalized and conclusory allegations of competitive harm without so much as a showing of actual competition, an identification of the competitor whose interests are at issue, or an explanation as to how the release of specific information would result in harm to the competitor. See, e.g., Pub. Citizen Research Group v. FDA, 185 F.3d 895, 906 (D.C. Cir. 1999) ("`[c]onclusory and generalized allegations of substantial competitive harm . . . cannot support an agency's decision to withhold requested documents.'") (internal citation omitted). In particular, defendant cannot merely rest on a claim that "this is not the type of information a commercial entity would give to a competitor. It would enable a commercial entity to learn a great deal about its competitor, including the identification of the supplier and the cost and amount of merchandise purchased." (Stump Decl. ¶ 29.)
Nor may defendant's categorical approach be sustained by reference to two cases where entry documents were found to be exempt. In both Timken II and Inter Ocean Free Zone, the agency supported its position with detailed affidavits. For instance, in Inter Ocean Free Zone, the court relied on an affidavit from the company alleging competitive harm to sustain its finding, 982 F. Supp. at 872, and in Timken II, the court had a detailed affidavit from the competitor, a Japanese exporter, as well as letters from the counsel of the Japanese company and their related American importers of roller bearings. 531 F. Supp. 194, 197 n. 2. See also Timken v. United States Customs Serv., 491 F. Supp. 557, 559-60 (D.D.C. 1980) (" Timken I") (relying on two detailed affidavits from the agency that demonstrated competitive harm to both the importer American Koyo Corporation ("AKO") and the exporter Koyo Seiko because the release of data could have "allow[ed] the competition to approximate the production costs of Koyo and the profit margin of AKC" and threatened competitive injury by revealing "competitive strengths[,] . . . weaknesses," and the marketing strategy of Koyo companies and its distributors.) Thus, these cases do not support the approach advocated by defendant here.
In addition, and perhaps most troubling, is the fact that defendant appears to be invoking Exemption 4 to justify nondisclosure of information where the competitive harm, if any, would be suffered by the plaintiff whose merchandise was seized. For, while it is true that plaintiff was not the submitter of the information and despite plaintiff's argument to the contrary (Pl.'s Opp'n at 7), the mere mention of its name in the document does not necessarily preclude the application of Exemption 4, the Court is unwilling to sustain a claim of Exemption 4 where the competitive harm, if any, is to the plaintiff, as opposed to a third party. Indeed, as plaintiff correctly argues, since it "seeks only those records pertaining to the seizure of its merchandise, actual competition and a likelihood of substantial injury to any other person does not exist." ( Id. at 6.) Thus, to the extent that defendant's claim of Exemption 4 rests only on the need to protect confidential information relating to the plaintiff or its merchandise, it must be rejected.
In particular, it is difficult to understand why the information in Document No. 035 (as opposed to Document Nos. 043, 044 and 047), which is the entry form that was filed with respect to plaintiff's merchandise, implicates the competitive interests of any third party. Although it cannot be determined from the Vaughn Index, the same may also be true with respect to Document Nos. 002-003, 006-007, 009-021 and 023-030.
In addition, since it appears that at least some of the information may already have been officially disclosed ( see Pl.'s Opp'n, Ex. A), there may be a basis to argue that there has been a waiver. See Cottone v. Reno, 193 F.3d 550, 555 (D.C. Cir. 1999) ("exemption can serve no purpose once information . . . becomes public"). See also Parker v. Bureau of Land Mgmt., 141 F. Supp. 2d 71, 79-81 (D.D.C. 2001).
For these reasons, the Court concludes that CBP has not met its burden of showing that it may withhold entire documents or portions thereof under Exemption 4.
V. Exemption 5
Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Pursuant to this exemption, defendant has withheld a two-page internal memorandum (Document Nos. 037-038) in its entirety. This memorandum is described as "CBP's internal memorandum relating to the seizure," and according to ¶ 34 of the Stump Declaration, the memorandum contains CBP's internal deliberative thought process and theory of the case. While plaintiff does not contest the applicability of Exemption 5, it argues that it "has the right to examine the documents relied upon by CBP to suspect the `diversion smugglng scheme,'" and it should get access to "the facts contained in this 2 page document. . . ." (Pl.'s Opp'n at 8-9.)
Plaintiff's first argument that it has the right to examine documents relied upon by the defendant is misguided, for the purpose of FOIA is not to serve as a tool for obtaining discovery for an administrative forfeiture proceeding. See NLRB v. Sears, Roebuck Co., 421 U.S. 132, 144 (1975) ("The Act is fundamentally designed to inform the public about agency action and not to benefit private litigants."); Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 24 (1974) ("Interference with the agency proceeding opens the way to the use of the FOIA as a tool of discovery. . . . Discovery for litigation purposes is not an expressly indicated purpose of the Act); Johnson v. U.S. Dep't of Justice, 758 F. Supp. 2, 5 (D.D.C. 1991) (FOIA "is not a discovery statute"). Release of information under FOIA is a release to the general public, not solely to plaintiff. National Archives Records Admin. v. Favish, 541 U.S. 157, 1581; Inter Ocean Free Zone, 982 F. Supp. at 871 ( citing U.S. Dep't of Justice v. Reporters Committee, 489 U.S. 749, 771) (1989) ("what is given to one requester is what is available to all who make the same request"). Therefore, the identity of the FOIA requester and the requester's reasons for making the request have no bearing upon its entitlement to the information. Id.
Second, as attested to in ¶ 13 of the Supplemental Stump Declaration, the factual information is inextricably intertwined with the deliberative material and much of the factual material is nondisclosable under Exemptions (b(7)(A)-(C). Therefore, since the factual information is either protected by other exemptions or is interconnected with the agency's deliberations, the Court will uphold the claim of Exemption 5 to protect Document Nos. 037-038.
VI. Exemption 7(A)
Exemption 7(A) shields from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such records could . . . interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). Thus, an investigatory record must meet two criteria to fall within Exemption 7(A): first, it must be "compiled for law enforcement purposes," and second, its release must "interfere with enforcement proceedings." But Exemption 7(A) does not authorize an agency to withhold all documents related to a pending investigation. Nat'l Labor Relations Bd. v. Robbins Tire Rubber Co., 437 U.S. 214, 236 (1978) (Exemption 7(A) is not a "blanket exemption for Government records simply because they are found in investigatory files compiled for law enforcement purposes").
An agency need not proceed on a document-by-document basis, but "may take a generic approach, grouping documents into relevant categories that are sufficiently distinct to allow a court to grasp how each . . . category of documents, if disclosed, would interfere with the investigation. See Bevis v. Dep't of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986) (citations omitted). In order to withhold documents by category, a defendant must: (1) define the categories by function, (2) conduct a document-by-document review of responsive documents in order to assign documents in the proper category, and (3) explain to the Court how the release of each category could reasonably be expected to interfere with enforcement proceedings. Id. at 1389-90.
The affidavit submitted by CBP to justify withholding documents under this exemption proceeds on a category-by-category basis. The first category ( i.e., Documents Nos. 018-030), includes "names of suspects and/or witnesses," while the second category ( i.e., Document Nos. 033-034 and 036-047) contains "names of suspects and/or witnesses and specific documentary evidence collected in support of CBP's case." (Stump Decl. ¶ 41.) This satisfies the first prong of the test because it "define[s] the nature of the information contained in the included documents" by allowing the court to assess how the release of such information would interfere with law enforcement proceedings. Bevis, 801 F.2d at 1390. Defendant then conducts an itemby-item review to assign each document or redaction to a category, thereby satisfying the second prong of the test. Lastly, defendant explains that disclosing such information could alert suspects to the investigation and identify the nature of evidence that has been identified and collected in the investigation. The disclosure could also "generally inform the public as to the nature of evidence that is generally sought or scrutinized in this type of investigation." (Stump Decl. ¶ 40.) Therefore, the Court finds the materials are properly withheld pursuant to Exemption(7)(A).
In response, plaintiff does not contest that the information was compiled for law enforcement purposes or that its disclosure could interfere with an ongoing investigation. Rather, plaintiff appears to believe that it is entitled to production if the information relates to the seizure of its merchandise. (Pl.'s Opp'n at 10.) But there is no such exception to 7(A) for the benefit of targets of an investigation. Indeed, plaintiff has no greater entitlement to materials protected by 7(A) because it is the subject of the investigation than any other member of the public, and thus, its objection to withholdings under Exemption 7(A) must be rejected.
See Pinnavaia v. F.B.I., 2004 WL 2348155, at *1 (D.C. Cir. 2004) (quoting In re Sealed Case, 121 F.3d 729, 738 n. 5 (D.C. Cir. 1997) ("[T]he particular purpose for which a FOIA plaintiff seeks information is not relevant in determining whether FOIA requires disclosure.").
VII. Segregability
Plaintiff argues that defendant has failed to disclose all reasonably segregable information. Specifically, it alleges that the defendant's declaration and Vaughn Index fail to "correlate the theories of exemptions with the particular textual segments which it desired exempted" and are generally vague. ( Id. at 11.)
FOIA requires that "any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b). Specifically, the D.C. Circuit has held that "non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Central, Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir 1977). The agency must provide a "detailed justification" rather than "conclusory statements." Id. at 261. However the agency should not "be forced to provide such a detailed justification that would itself compromise the secret nature of potentially exempt information." Id.
The Court has examined the Vaughn Index and the partially disclosed documents. CBP has clearly indicated which exemption applies to specific redactions by indicating the exemption next to the redacted information directly on the document. The Vaughn Index details the type of information redacted, and since many of the documents are forms or templates, it is also clear from the face of the document why certain information is redacted. As to other documents which have been withheld in their entirety, defendant has explained that segregation is not possible because all the information contained in the document is exempt, the redaction of exempt material would have left mere templates or meaningless words or phrases, or the nonexempt portions are inextricably intertwined with exempt material. (Supp. Stump Decl. ¶¶ 10-13.) The Court therefore concludes that CBP has met is burden of reasonable segregation.
CONCLUSION
For the foregoing reasons, the Court will enter judgment for the defendant as to all withholdings except those that rely solely on Exemption 4. As to those documents (or those portions thereof) as to which defendant invokes only Exemption 4, those documents and/or the portions of those documents that are being withheld on the basis of Exemption 4 only shall be produced to plaintiff within thirty (30) days.
The universe of documents in this category may include all or portions of Document Nos. 002, 003, 006, 007, 009-021, 023-032, 034, 035, 039-042, 045 and 046. See also notes 3-4 supra.
An appropriate Order accompanies this Memorandum Opinion.