Case 1:08-cv-01046-JDB Document 16 Filed 10/30/2008 Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, ) Civil Action No. 08-1046 (JDB)
)
v. )
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendant. )
)

DEFENDANT’S STATUS REPORT AND MOTION FOR DISCLOSURE SCHEDULE

Pursuant to the Court’s Order dated October 20, 2008 (Document 15), defendant, U.S.

Department of Homeland Security (“DHS”), by and through undersigned counsel, respectfully

submits this status report regarding the search for and processing of emails responsive to the second

part of Plaintiff’s request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as

amended. Defendant also respectfully moves the Court for entry of an Order setting a disclosure

schedule for the emails. Pursuant to Local Rule 7(m), the parties conferred in this matter and

Plaintiff reserves its right to file a response. A proposed order granting this motion and setting a

disclosure schedule is attached.

Defendant’s Status Report

As set forth in Defendant’s answer, filed on July 18, 2008 (Document 4), the parties

conferred on July 8, 2008 in order to narrow the terms of Plaintiff’s FOIA request due to the fact that

there are voluminous responsive records. On July 15, 2008, the parties agreed that the second part

of the request would be limited to the following new terms:

 Case 1:08-cv-01046-JDB Document 16 Filed 10/30/2008 Page 2 of 4

Any and all records, regardless of format, concerning deliberations,

standards, and criteria encompassing the decision-making process
surrounding where [Secure Border Initiative] fencing should be
constructed along the U.S. border with Mexico. This request
excludes any records relating to fencing done prior to the inception
of the Secure Border Initiative (i.e., pre-existing [Office of Border
Patrol] fencing), as well as any procurement and contract-related
records, with the exception of records referencing the rationale for
any changes in SBI-related fence location.

By Order dated September 25, 2008 (Document 10), the Court set a schedule for the

disclosure of responsive non-exempt records, not including emails, relating to the second part of

Plaintiff’s FOIA request. The parties conferred by telephonic conference on October 10, 2008, to

discuss search terms that may assist in narrowing the scope of the second part of Plaintiff’s FOIA

request as it relates to emails. This conference was followed by additional communications between

the parties. See Exhs. A and B. In response to these discussions, U.S. Customs and Border

Protection (“CBP”), one component of DHS which has custody and control of the majority of

potentially responsive records, continued formulating the parameters of the search and processing

of the second part of the request.

Specifically, CBP identified 25 individuals at various levels of its organizational hierarchy

who were most likely to have been involved in the placement decision. The individuals comprise

a mix of high-level officials at CBP’s headquarters and lower-level officials in the field. The search

for records responsive to the second part of Plaintiff’s FOIA request includes records identifiable

to these 25 individuals and also certain key search terms that have been identified as most likely to

elicit responsive records.

CBP further advised Plaintiff, through counsel, that the search as currently defined narrows

the universe of potentially responsive emails, but is still a broad, general search of CBP records. In

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 Case 1:08-cv-01046-JDB Document 16 Filed 10/30/2008 Page 3 of 4

order to expedite its response to the second part of Plaintiff’s FOIA request, CBP identified several

ways in which Plaintiff may wish to narrow the scope of the search of emails and/or to prioritize the

disclosure of responsive records, which are in the custody of CBP. Specifically, CBP identified the

following three ways in which Plaintiff may narrow the scope of the search, help the agency

prioritize its disclosures, and help the agency to speed its disclosures:

1. Narrow the search to specific sectors in the field;

2. Narrow the search to specific levels of decision-making (e.g., national headquarters
and or certain locations); and/or
3. Narrow the specific time frame for responsive documents.

CBP further advised Plaintiff, through counsel, that if Plaintiff is willing to narrow its

search, as suggested, CBP will revise its search accordingly. Plaintiff has advised CBP that it cannot

narrow its search until and unless CBP discloses the names of the 25 individuals who have been

identified as most likely to have been involved in the decision-making process relating to placement

of the border fence and the certain key search terms that have been identified as most likely to elicit

responsive records. CBP disagrees with Plaintiff’s response. On the contrary, Plaintiff is not

entitled to this information, some of which may be exempt from disclosure under FOIA, and, in any

event, Plaintiff does not need the information to narrow the scope of its FOIA search. Because

Plaintiff has opted not to focus the search in accordance with the suggested guidelines, CBP will

process the second part of the request relating to emails as discussed above.

Motion for Schedule for Disclosure of Responsive Non-Exempt Emails

CBP further moves the Court for entry of an order setting a schedule for the disclosure of the

remainder of records responsive to the second part of Plaintiff’s FOIA request. Specifically, CBP

requests that the disclosure of responsive non-exempt emails be ordered as a continuation of the

schedule ordered for disclosure of non-emails responsive to the second part of Plaintiff’s FOIA

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 Case 1:08-cv-01046-JDB Document 16 Filed 10/30/2008 Page 4 of 4

request. Accordingly, CBP will process 1,000 pages of records on a monthly basis and release non-

exempt pages or portions thereof. The disclosure of emails would commence on Friday, February

20, 2009, thirty days after completion of the rolling production of non-email records responsive to

the second part of Plaintiff’s FOIA request. CBP also agrees to file a status report with the Court

on Friday, January 23, 2009, with more specific information about the duration of the rolling

disclosure of the voluminous amount of emails.

WHEREFORE, Defendant respectfully requests that the Court enter an order setting the

disclosure statement proposed herein.

Respectfully submitted,

/s/
JEFFREY A. TAYLOR, D.C. BAR # 498610
United States Attorney

/s/
RUDOLPH CONTRERAS, D.C. BAR # 434122
Assistant United States Attorney

/s/
JOHN G. INTERRANTE
PA Bar # 61373
Assistant United States Attorney
Civil Division
555 4th Street, N.W.
Washington, D.C. 20530
(202) 514-7220
(202) 514-8780 (fax)
John.Interrante@usdoj.gov

Of Counsel:

Simon Fisherow, U.S. Customs and Border Protection

David Palmer, U.S. Department of Homeland Security
Susan Shama, U.S. Customs and Border Protection

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Case 1:08-cv-01046-JDB Document 16-2 Filed 10/30/2008 Page 1 of 3

Exhibit A
 Case 1:08-cv-01046-JDB Document 16-2 Filed 10/30/2008 Page 2 of 3
U.S. Department of Justice

Jeffrey A. Taylor
United States Attorney

District of Columbia

Judiciary Center
555 Fourth St., N.W.
Washington, D.C. 20530

October 23, 2008

By Electronic and First-Class Mail

David L. Sobel, Esquire

Citizens for Responsibility and Ethics
in Washington
1875 Connecticut Avenue, N.W.
Suite 650
Washington, D.C. 20009

RE: Citizens for Responsibility and Ethics in Washington (CREW) v.

U.S. Department of Homeland Security, Civil Action No. 08-1046 (JDB)

Dear David:

This summarizes the status of the search and processing by the U.S. Customs and Border
Protection (CBP) of records responsive to the second part of CREW’s Freedom of Information Act
(FOIA) request for records relating to the placement of fencing along the U.S. border with Mexico.
In order to expedite our response to your request, we have identified several ways in which CREW
may wish to narrow the scope of the search of e-mails and/or to prioritize the disclosure of
responsive records. Please review these suggestions and let me know if CREW is willing to revise
its request accordingly. If you would like to discuss further, please let me know and we can
schedule a conference call prior to October 30, 2008, the due date for filing the status report with
the Court.

CBP has identified 25 individuals at various levels of its organizational hierarchy who were
most likely to have been involved in the placement decision. The individuals comprise a mix of
high-level officials at CBP’s headquarters and lower-level officials in the field. The search for
records responsive to the second part of CREW’s FOIA request includes records identifiable to these
25 individuals and also certain key search terms that have been identified as most likely to elicit
responsive records.

The search as currently defined narrows the universe of potentially responsive e-mails, but
is still a broad, general search of CBP records. CBP has identified the following three ways
 Case 1:08-cv-01046-JDB Document 16-2 Filed 10/30/2008 Page 3 of 3
David L. Sobel, Esquire
October 23, 2008
Page Two

in which CREW may narrow the scope of the search, help the agency prioritize its disclosures, and
help the agency to speed its disclosures:

1. Narrow the search to specific sectors in the field;

2. Narrow the search to specific levels of decision-making (e.g., national headquarters
and or certain locations); and/or
3. Narrow the specific time frame for responsive documents.

If CREW is willing to narrow its search, CBP will revise its search accordingly. If CREW does not
want to focus the search, CBP will process the second part of the request as discussed above.

CBP will incorporate CREW’s suggestions into the status report due on October 30, 2008,
and will propose a rolling disclosure of responsive, non-exempt records. CBP will propose that the
disclosures commence Friday, February 20, 2009, thirty days after completion of the rolling
production of non-email records responsive to the second part of CREW’s FOIA request.

CBP will also offer to file a status report with the Court on Friday, January 23, 2009, with
more specific information about the duration of the rolling disclosure of emails.

As always, please call me at 202-514-7220 to discuss this case.

Sincerely yours,

John G. Interrante
Assistant United States Attorney

cc: Ann L. Weismann, Esquire

Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W.
Suite 450
Washington, D.C. 20005
Case 1:08-cv-01046-JDB Document 16-3 Filed 10/30/2008 Page 1 of 3

Exhibit B
 Case 1:08-cv-01046-JDB Document 16-3 Filed 10/30/2008 Page 2 of 3

David L. Sobel
Attorney-at-Law

Suite 650 (202) 246-6180 (voice)

1875 Connecticut Avenue, N.W. (202) 237-7727 (fax)
Washington, DC 20009 sobel@att.net (e-mail)

October 28, 2008

BY ELECTRONIC MAIL

John G. Interrante
Assistant United States Attorney
555 Fourth Street, N.W.
Washington, DC 20530

RE: Citizens for Responsibility and Ethics in Washington (CREW) v. U.S.

Department of Homeland Security, Civil Action No. 08-1046 (JDB)

Dear John:

Thank you for your letter of October 23, which summarizes the status of the search by
U.S. Customs and Border Protection (“CBP”) for records responsive to CREW’s FOIA request
at issue in the above-captioned litigation. As I believe you know, CREW has, from the outset of
the litigation, indicated its willingness to revise the scope of its request to assist the agency in its
search efforts. To that end, we engaged in a discussion with your predecessor, Ms. Owens, and
representatives of CBP on July 8 concerning the scope of the second part of CREW’s request,
which initially sought:

[A]ll records discussing or reflecting where fencing should be constructed along

the U.S. border with Mexico.

Following our discussion, and based upon the specific recommendation of Ms. Owens and CBP,
CREW agreed to revise the request language to read:

Any and all records, regardless of format, concerning deliberations, standards, and
criteria encompassing the decisionmaking process surrounding where SBI fencing
should be constructed along the U.S. border with Mexico. This request excludes
any records relating to fencing done prior to the inception of the Secure Border
Initiative (i.e., pre-existing OBP fencing), as well as any procurement and
contract-related records, with the exception of records referencing the rationale
for any changes in SBI-related fence location.

In light of that revision – agreed upon at the agency’s behest – I am disappointed to learn
that the agency proposes to first begin making disclosures on February 20, 2009, almost one year
after CREW submitted its FOIA request and seven months after the parties mutually agreed to
 Case 1:08-cv-01046-JDB Document 16-3 Filed 10/30/2008 Page 3 of 3

John G. Interrante
October 28, 2008
Page two

revise the scope of the request in order to hasten the completion of processing. I am further
disappointed by the agency’s apparent unwillingness to commit to a date certain for the
completion of its search and processing. While CREW has been willing to hold in abeyance
litigation of its claimed entitlement to “expedited processing” of its request under the FOIA and
applicable DHS regulations, the agency’s continuing failure to identify a completion date will
soon compel us to seek appropriate relief from the Court.

In response to your suggestions concerning “ways in which CREW may [further] narrow
the scope of the search,” my client is unable to do so on the basis you propose, due to the lack of
information the agency has made available. If, however, CBP will identify 1) the 25 individuals
“who were most likely to have been involved in the placement decision,” and 2) the “key search
terms that have been identified as most likely to elicit responsive records,” CREW believes that
it may be able to work with the agency in an effort to further narrow the scope of its request (I
note that in our most recent discussion with CBP staff, we indicated that we might be better able
to assist the agency in its search efforts if we were informed of the search terms it proposes to
employ). If the agency is not willing to share such information with us, I believe it would be
appropriate to inform the Court that the parties are at an impasse and jointly request that the
Court schedule a status conference at which we can address our mutual concerns and attempt,
with the Court’s assistance, to move forward.

I share your desire to resolve the outstanding issues concerning CBP’s search for
responsive records, and would be happy to discuss those issues.

Sincerely,

/s/

David L. Sobel
 Case 1:08-cv-01046-JDB Document 16-4 Filed 10/30/2008 Page 1 of 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, ) Civil Action No. 08-1046 (JDB)
)
v. )
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendant. )
)

ORDER

Upon Consideration of the Joint Status Report and Motion for Disclosure Schedule

submitted by the parties relating to the search for and processing of emails responsive to the second

part of Plaintiff’s FOIA request, and the entire record herein, it is hereby ORDERED that the

motion is GRANTED.

It is further ORDERED that for all emails responsive to the second part of Plaintiff’s FOIA

request, the processing and release schedule shall be as follows:

January 23, 2009 U.S. Customs and Border Protection shall submit a status report
providing more specific information about the duration of the
disclosure of emails, and setting additional disclosure dates.

February 20, 2009 U.S. Customs and Border Protection to process 1,000 pages and
release non-exempt pages or portion thereof.

It is SO ORDERED this day of , 2008.

John D. Bates
United States District Judge