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Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 1 of 29

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 MOTION FOR SUMMARY JUDGMENT IN PART

Pursuant to Fed. R. Civ. P. 56, Defendant, United States Department of Homeland Security

(“DHS”), by and through undersigned counsel, respectfully moves the Court for summary judgment

in part in this action brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as

amended. Specifically, U.S. Customs and Border Protection (“CBP”), a component of DHS, has

released all non-exempt records that are responsive to the first part of Plaintiff’s March 17, 2008

FOIA request, which seeks certain records relating to the “U.S.-Mexico border fence.” See Compl.

(Document 1), ¶ 7(a). Accordingly, there is no genuine issue as to any material fact, and defendant

is entitled to judgment as a matter of law.

In support of this motion, defendant respectfully refers the Court to the accompanying

memorandum of points and authorities and statement of materials facts as to which there is no

genuine issue. A proposed Order consistent with this motion is attached hereto.
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 2 of 29

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, E-4806
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


Susan Shama, U.S. Customs and Border Protection

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Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 3 of 29

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. )
)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT


OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN PART

This case arises under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as

amended, and pertains to the March 17, 2008 request of Plaintiff, Citizens for Responsibility and

Ethics in Washington (“CREW”), which seeks certain records from U.S. Customs and Border

Protection (“CBP”), a component of United States Department of Homeland Security (“DHS”),

relating to the “U.S.-Mexico border fence.” See Compl. (Document 1), ¶ 7.1 Plaintiff’s FOIA

request has been bifurcated into two parts for purposes of this litigation, and this memorandum

addresses the first part of Plaintiff’s request. Specifically, the first part of Plaintiff’s FOIA request

seeks records, “reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any

properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., and the construction

1 Plaintiff’s March 17, 2008 FOIA request was addressed and sent to the FOIA Officer, CBP,
and therefore the records sought are those maintained by CBP. See 6 CFR § 5.3(a) (“You may
make a request for records of the Department [of Homeland Security] by writing directly to the
Department component that maintains those records.”)
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 4 of 29

of fencing along the border between the U.S. and Mexico.”2 See Def’s Answer (Document 4), ¶

7.3 As set forth in the accompanying declaration, CBP has conducted a reasonable search of

agency records, has disclosed all non-exempt responsive records, and has not improperly withheld

any responsive records from Plaintiff. Thus, there is no genuine issue as to any material fact, and

Defendant is entitled to judgment in part as a matter of law.

STATEMENT OF FACTS

Defendant hereby incorporates the Statement of Material Facts Not In Genuine Dispute

(“SFNGD”), and the Declaration of Mark Hanson (“Hanson Decl.”), Director of FOIA Division,

Office of International Trade, CBP, DHS, filed contemporaneously with this Memorandum.

2 This request followed a newspaper article about Mr. Hunt published in the Texas Observer on
February 18, 2008. See Compl., ¶ 6.

3 By agreement of the parties on July 15, 2008, the first part of Plaintiff’s FOIA request was
clarified to seek the following records from CBP:

Any and all records, regardless of format, dating from January 20, 2001 to the
present reflecting communications concerning Ray L. Hunt, Hunt Consolidated,
Inc., or any properties known to be owned by Ray L. Hunt and/or Hunt
Consolidated, Inc., and the construction of fencing along the border between the
U.S. and Mexico, including, but not limited to, input sought or received from Mr.
Hunt and/or Hunt Consolidated on border fence construction.

See Def’s Answer (Document 4), ¶ 7 & Ex. A. Defendant’s motion for summary judgment on
the first part of Plaintiff’s FOIA request is due on December 3, 2008, by the Court’s Order dated
November 18, 2008.

CBP is processing non-exempt records responsive to the second part of Plaintiff’s FOIA
request pursuant to the Court’s Orders dated September 25, 2008 (Document 10) and November
24, 2008 (Document 22). CBP will file a motion for summary judgment in part upon completion
of the processing of those records.

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LEGAL STANDARD

In a FOIA action, the courts have jurisdiction only when an agency has improperly withheld

agency records. 5 U.S.C. § 552(a)(4)(B). "[I]t is well established that under the FOIA, 'once the

records are produced the substance of the controversy disappears and becomes moot, since

disclosure which the suit seeks has already been made.'" Trueblood v. U.S. Dep’t of Treasury, 943

F. Supp. 64, 67 (D.D.C. 1996) (quoting Crooker v. U.S. State Dep’t, 628 F.2d 9, 10 (D.C. Cir.

1980)); see also Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982).

FOIA, however, does not allow the public to have unfettered access to government files.

McCutchen v. U.S. Dep’t of Health and Human Services, 30 F.3d 183, 184 (D.C. Cir. 1994).

Although disclosure is the dominant objective of FOIA, there are several exemptions to the statute’s

disclosure requirements. Department of Defense v. FLRA, 510 U.S. 487, 494 (1994). To protect

materials from disclosure, the agency must show that they come within one of the FOIA exemptions.

Public Citizen Health Research Group v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999).

Summary judgment is appropriate in a FOIA action, such as the instant case, where the

pleadings, together with the declaration, demonstrate that there are no material facts in dispute and

the requested information has been produced or is exempted from disclosure, and the agency, as the

moving party, is entitled to judgment as a matter of law under Fed. R Civ. P. 56(c). See, e.g.,

Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisberg v. U.S.

Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).

A. Summary Judgment

Where no genuine dispute exists as to any material fact, summary judgment is required.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A genuine issue of material fact is one that

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would change the outcome of the litigation. Id. at 247. “The burden on the moving party may be

discharged by ‘showing’ -- that is, pointing out to the [Court] -- that there is an absence of evidence

to support the non-moving party’s case.” Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833

F.2d 1560, 1563 (Fed. Cir. 1987).

Once the moving party has met its burden, the non-movant may not rest on mere allegations,

but must instead proffer specific facts showing that a genuine issue exists for trial. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, to avoid summary judgment

here, plaintiff (as the non-moving party) must present some objective evidence that would enable

the Court to find he is entitled to relief. In Celotex Corp. v. Catrett, the Supreme Court held that,

in responding to a proper motion for summary judgment, the party who bears the burden of proof

on an issue at trial must “make a sufficient showing on an essential element of [his] case” to

establish a genuine dispute. 477 U.S. 317, 322-23 (1986). In Anderson, the Supreme Court further

explained that “the mere existence of a scintilla of evidence in support of the Plaintiff's position will

be insufficient; there must be evidence on which the jury could reasonably find for the Plaintiff.”

Anderson, 477 U.S. at 252; see also Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (the

non-moving party is “required to provide evidence that would permit a reasonable jury to find” in

its favor). In Celotex, the Supreme Court further instructed that the “[s]ummary judgment procedure

is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the

Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive

determination of every action.’” 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

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B. FOIA Cases

The summary judgment standards set forth above also apply to FOIA cases, which are

typically and appropriately decided on motions for summary judgment. See, e.g., Citizens for

Responsibility and Ethics in Washington v. U.S. Dep’t of Labor, 478 F.Supp.2d 77, 80 (D.D.C.

2007) (citing Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir.1993); Rushford v. Civiletti, 485 F.Supp.

477, 481 n. 13 (D.D.C.1980)). In a FOIA suit, as stated, an agency is entitled to summary judgment

once it demonstrates that no material facts are in dispute and that each document that falls within

the class requested either has been produced, not withheld, is unidentifiable, or is exempt from

disclosure. Students Against Genocide, 257 F.3d at 833; Weisberg, 627 F.2d at 368.

An agency satisfies the summary judgment requirements in a FOIA case by providing the

Court and the Plaintiff with affidavits or declarations and other evidence which show that the

documents in question were produced or are exempt from disclosure. Hayden v. NSA, 608 F.2d

1381, 1384, 1386 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980); Church of Scientology v. U.S.

Dept. of Army, 611 F.2d 738, 742 (9th Cir. 1980); Trans Union LLC v. FTC, 141 F. Supp. 2d 62,

67 (D.D.C. 2001) (summary judgment in FOIA cases may be awarded solely on the basis of agency

affidavits “when the affidavits describe ‘the documents and the justifications for non-disclosure 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.’”) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.

Cir. 1981)). See also Public Citizen, Inc. v. Dept. of State, 100 F. Supp. 2d 10, 16 (D.D.C. 2000),

aff’d in part, rev’d in part, 276 F.3d 634 (D.C. Cir. 2002).

Typically, the agency's declarations or affidavits are referred to as a Vaughn index, after the

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case of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). There

is no set formula for a Vaughn index. “[I]t is well established that the critical elements of the

Vaughn index lie in its function, and not in its form.” Kay v. FCC, 976 F. Supp. 23, 35 (D.D.C.

1997). The purpose of a Vaughn index is “to permit adequate adversary testing of the agency's

claimed right to an exemption.” NTEU v. Customs, 802 F.2d 525, 527 (D.C. Cir. 1986) (citing

Mead Data Central v. United States Dept. of the Air Force, 566, F.2d 242, 251 (D.C. Cir. 1977), and

Vaughn, 484 F.2d at 828). Thus, the index must contain “an adequate description of the records”

and “a plain statement of the exemptions relied upon to withhold each record.” NTEU, 802 F.2d at

527 n.9.

The Vaughn index serves a threefold purpose: (1) it identifies each document withheld; (2)

it states the statutory exemption claimed; and (3) it explains how disclosure would damage the

interests protected by the claimed exemption. See Citizens Comm’n on Human Rights v. Food and

Drug Admin., 45 F.3d 1325, 1326 (9th Cir. 1995). “Of course the explanation of the exemption

claim and the descriptions of withheld material need not be so detailed as to reveal that which the

agency wishes to conceal, but they must be sufficiently specific to permit a reasoned judgment as

to whether the material is actually exempt under FOIA.” Founding Church of Scientology of

Washington, D.C., Inc. v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).

Here, CBP has submitted a declaration and a coded Vaughn index in support of this motion

for summary judgment. See Hanson Decl. at ¶¶ 1-20 & Ex. A thereto. The declaration and index

were prepared by Mark Hanson, Director of the FOIA Division, Office of International Trade, CBP,

DHS. Id. at ¶ 10. The Hanson declaration meets the requirements of Vaughn v. Rosen, and provides

the Court with the requisite bases to grant defendant’s motion. The Vaughn itemizations identify

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and describe the documents responsive to plaintiff’s FOIA requests, and set forth the justification

for exemptions claimed for the withholding of certain documents.

A court exercises de novo review over a FOIA matter, and the burden is on the agency to

justify all non-disclosures pursuant to 5 U.S.C. § 552(a)(4)(B). U.S. Dep’t of Justice v. Reporters

Committee For Freedom of Press, 489 U.S. 749, 755 (1989). The agency, however, may carry its

burden by relying on the declaration of a government official because courts normally accord a

presumption of expertise in FOIA as long as the declaration is sufficiently clear and detailed and

submitted in good faith. See, e.g., Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990);

Hayden v. National Security Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979). A court may therefore

award summary judgment in a FOIA case solely on the basis of information provided by the

department or agency affidavits or declarations. See Hayden, 608 F.2d at 1387; Key v. Dep’t of

Homeland Security, 510 F.Supp.2d 121, 126-27 (D.D.C. 2007).

ARGUMENT

Defendant Is Entitled to Judgment as a Matter of Law Because an Adequate


Search Was Conducted and Non-Exempt Responsive Materials Have Been
Released

In responding to a FOIA request, an agency must conduct a reasonable search for responsive

records. Oglesby, 920 F.2d at 68; Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1352 (D.C. Cir.

1983). This “reasonableness” standard focuses on the method of the search, not its results, so that

a search is not unreasonable simply because it fails to produce responsive information. Cleary,

Gottlieb, Steen & Hamilton v. Dep’t of Health and Human Services, 844 F. Supp. 770, 777 n.4

(D.D.C. 1993). An agency is not required to search every record system, but need only search those

systems in which it believes responsive records are likely to be located. Oglesby, 920 F.2d at 68.

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Consistent with the reasonableness standard, the adequacy of the search is “dependent upon the

circumstances of the case.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The

fundamental question is not “whether there might exist any other documents responsive to the

request, but rather whether the search for those documents was adequate.” Steinberg v. Dept. of

Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. U.S. Dep’t of Justice, 745 F.2d

1476, 1485 (D.C. Cir. 1984)).

Even when a requested document indisputably exists or once existed, summary judgment

will not be defeated by an unsuccessful search for the document so long as the search was diligent

and reasonable. Nation Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 892

n.7 (D.C. Cir. 1995). Additionally, the mere fact that a document once existed does not mean that

it now exists; nor does the fact that an agency created a document necessarily imply that the agency

has retained it. Maynard v. CIA, 986 F.2d 547, 564 (1st Cir. 1993).

The burden rests with the agency to establish that it has “made a good faith effort to conduct

a search for the requested records, using methods which can be reasonably expected to produce the

information requested.” Oglesby, 920 F.2d at 68; see SafeCard Services v. SEC, 926 F.2d 1197,

1201 (D.C. Cir. 1991). “An agency may prove the reasonableness of its search through affidavits

of responsible agency officials so long as the affidavits are relatively detailed, non-conclusory and

submitted in good faith.” Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir. 1985); Goland

v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927

(1980). Although the agency has the burden of proof on the adequacy of its search, the “affidavits

submitted by an agency are ‘accorded a presumption of good faith,’” Carney v. U.S. Dep’t of

Justice, 19 F.3d 807, 812 (2d Cir.), cert. denied, 513 U.S. 823 (1994) (quoting SafeCard Services,

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926 F.2d at 1200). Thus, once the agency has met its burden regarding adequacy of its search, the

burden shifts to the requester to rebut the evidence by a showing of bad faith on the part of the

agency. Miller, 779 F.2d at 1383. A requester may not rebut agency affidavits with purely

speculative allegations. See Carney, 19 F.3d at 813; SafeCard Services, 926 F.2d at 1200; Maynard

v. CIA, 986 F.2d 547, 559-560 (1st Cir. 1993). As discussed below, defendant met the

reasonableness standard in conducting its search and is therefore entitled to summary judgment.

A. CBP Conducted an Adequate Search

On or about March 17, 2008, CREW sent a letter to the FOIA Director, CBP, requesting the

following records under FOIA:

any and all records dating from January 20, 2001 to the present reflecting
communications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any properties
known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., and the
construction of fencing along the border between the U.S. and Mexico.

See SFNGD, ¶ 1. The parties subsequently agreed to narrow Plaintiff’s March 17, 2008 request, and

also to bifurcate the processing of the request. Id., ¶ 2. Subsequent to the filing of Plaintiff’s

Complaint, the parties conferred on July 8, 2008 in order to narrow the terms of the request due to

the fact that there are voluminous responsive records. Id. The following new terms of the request

were agreed to by the parties on July 15, 2008:

(1) Any and all records, regardless of format, dating from January 20, 2001 to the
present reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc.,
or any properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc.,
and the construction of fencing along the border between the U.S. and Mexico,
including, but not limited to, input sought or received from Mr. Hunt and/or Hunt
Consolidated on border fence construction;

(2) Any and all records, regardless of format, concerning deliberations, standards,
and criteria encompassing the decision-making 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

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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.

Id.4

The Hanson declaration described the search conducted by CBP for responsive documents.

See Hanson Decl., ¶¶ 5-9. Specifically, on July 17, 2008, CBP Chief of Staff Thad Bingel issued

a memorandum directing certain CBP offices to conduct a search for the following:

Any and all records, regardless of format, dating from January 20, 2001 to the
present reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc.,
or any properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc.,
and the construction of fencing along the border between the U.S. and Mexico,
including, but not limited to, input sought or received from Mr. Hunt and/or Hunt
Consolidated on border fence construction.

See Hanson Decl., ¶ 5; SFNGD, ¶ 3. The memorandum was sent to the offices determined most

likely to have responsive records: the Office of the Commissioner, Office of Chief Counsel, Office

of Congressional Affairs, Office of Finance, Office of Public Affairs, Office of Border Patrol, Office

of Field Operations, and the Secure Border Initiative within the Office of the Commissioner. Id.

On July 18, 2008, AnnMarie R. Highsmith, Associate Chief Counsel for Trade and Finance,

CBP Office of Chief Counsel, issued a Litigation Hold Notice instructing certain CBP employees

to preserve all records and information related to Plaintiff’s request. See Hanson Decl., ¶ 6;

SFNGD, ¶ 4. The notice was sent to employees from the following CBP offices: the Secure Border

Initiative within the Office of the Commissioner, Office of Border Patrol, Office of Congressional

Affairs, the FOIA Division of the Office of International Trade, and the Office of the Commissioner.

4 CBP is processing non-exempt records responsive to the second part of Plaintiff’s FOIA
request pursuant to the Court’s Orders dated September 25, 2008 (Document 10) and November
24, 2008 (Document 22). CBP will file a motion for summary judgment in part upon completion
of the processing of those records.

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Id. Each employee was directed to distribute the notice to all personnel in his or her office who may

be involved in, or have information relating to, the records requested. Id.

In response to the above memorandum, two offices produced documents responsive to the

first part of the bifurcated request – the Office of the Secure Border Initiative (“SBI”) within the

Office of the Commissioner and the Office of Border Patrol. See Hanson Decl., ¶¶ 7-8; SFNGD,

¶¶ 5-6. The first responsive search was directed by the SBI Communications Director, who

instructed personnel to provide all relevant documentation responsive to Plaintiff’s FOIA request.

See Hanson Decl., ¶ 7; SFNGD, ¶ 5. Program staff were instructed to search in all potentially

relevant locations for responsive documents, including individual hard drives, shared electronic

drives, and any hard-copy documents. Id. Administrative staff were also directed to search the

same places for potentially responsive records. Id. In response to Plaintiff’s request, program staff

searched for all potentially responsive records related to Ray L. Hunt, Hunt Consolidated, Inc., or

any properties known to be owned by Ray L. Hunt or Hunt Consolidated, Inc. Records found as a

result of the above search have been produced to Plaintiff pursuant to Plaintiff’s FOIA request. Id.

Also in response to the search memorandum, the Office of Border Patrol searched and

produced responsive records. See Hanson Decl., ¶ 8; SFNGD, ¶ 6. A search was conducted at

Border Patrol Headquarters in Washington, DC, as well as Border Patrol offices located in the Rio

Grande Valley sector where properties owned by Ray L. Hunt are located. Id. Offices were

instructed to search both hard-copy and electronic files, and offices searched electronic hard drives

and portable thumb drives in addition to hard-copy documents. Id. The search terms used by the

Office of Border Patrol to conduct the search for responsive records were those posed by Plaintiff

in its FOIA request: records reflecting communications concerning Ray L. Hunt, Hunt Consolidated,

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Inc., or any properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., involving

the construction of fencing along the border between the United States and Mexico. Id. Records

identified as a result of that search have been processed by CBP and produced to Plaintiff. Id.

The Hanson declaration demonstrates that the agency has conducted a reasonable search for

responsive records by searching those systems of records in which the agency believes responsive

records are likely to be located. Oglesby, 920 F.2d at 68; Weisberg v. U.S. Dep’t of Justice, 705

F.2d 1344, 1352 (D.C. Cir. 1983). The Hanson declaration also establishes that the agency has made

a good faith effort to conduct a search for the requested records, using methods which can be

reasonably expected to produce the information requested. Oglesby, 920 F.2d at 68; see SafeCard

Services v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). Specifically, CBP identified the offices

most likely to have records responsive to the first part of Plaintiff’s FOIA request, as revised by

agreement of the parties, and the CBP Chief of Staff issued a memorandum directing those offices

to search for responsive records. A litigation hold notice was also issued instructing certain CBP

employees to preserve all records and information related to Plaintiff’s request. Responsive records

were identified by the Office of the Secure Border Initiative within the Office of the Commissioner

and the Office of Border Patrol. The documents were then processed for FOIA exemptions and

disclosed to Plaintiff, in whole or part, subject to the asserted exemptions. The agency search for

records was therefore adequate. See Steinberg, 23 F.3d at 551 (quoting Weisberg, 745 F.2d at

1485).

B. CBP Has Released All Responsive Non-Exempt Records

On September 2, 2008, CBP released the first group of documents responsive to the first part

of the bifurcated request. CBP released additional documents to Plaintiff in supplemental responses

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on October 10, 2008 and November 17, 2008. See Hanson Decl., ¶ 9; SFNGD, ¶ 7. Prior to release,

these documents were redacted in accordance with 5 U.S.C. § 552. Id. The documents were

redacted pursuant to FOIA Exemptions 5, 6, and 7(E), 5 U.S.C. §§ 552 (b)(5), (b)(6), and (b)(7)(E),

each of which will be discussed in greater detail below. Id.

Redactions made on all responsive documents are detailed in an index identifying

information responsive to Plaintiff’s FOIA request, but exempt from disclosure under the FOIA, in

accordance with Vaughn v. Rosen. See Hanson Decl., ¶ 10; SFNGD, ¶ 8. The Hanson declaration

and its attachments, along with the Vaughn index, provide the Court and Plaintiff with an

identification of information that is withheld, the statutory exemption(s) claimed, and the

justification for asserting the exemptions used to withhold certain information contained in the

records at issue. Id. Thus, the Hanson declaration establishes that all responsive documents located

have either been released, or, to the extent all or part of the records have been withheld under a

FOIA Exemption, are described in the Vaughn index. See id.

C. CBP Properly Invoked FOIA Exemptions 5, 6, and 7(E)


To Withhold Information Protected From Disclosure

As explained below, CBP withheld documents responsive to plaintiff’s FOIA requests

pursuant to FOIA Exemptions 5, 6, and 7(E). The Declaration of Mark Hanson, and the extensive

Vaughn index, demonstrate that CBP carefully reviewed responsive records, and withheld

information subject to these exemptions. See Hanson Decl., ¶¶ 11-20. Because no non-exempt

responsive records have been improperly withheld from plaintiff, summary judgment should be

entered in favor of DHS on the first part of Plaintiff’s FOIA request.

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1. Exemption 5

Exemption 5 of FOIA exempts 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). The Supreme Court has interpreted Exemption 5 as allowing an

agency to withhold from the public documents which a private party could not discover in litigation

with the agency. U.S. v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); National Labor Relations

Board v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975). Exemption 5 incorporates privileges that

the Government enjoys under the relevant statutory and case law in the pretrial discovery context.

Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 26 (1983). Agency documents that are not

routinely discoverable in civil litigation are exempted from disclosure under Exemption 5. Id. at 27.

Accordingly, Exemption 5 allows an agency to invoke traditional civil discovery privileges,

including the attorney-client privilege, attorney work-product privilege, and the executive

deliberative process privilege, to justify the withholding of documents that are responsive to a FOIA

request. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980).

The first part of Plaintiff’s March 17, 2008 FOIA request appears to arise from a newspaper

article about Ray Hunt that was published in the Texas Observer on February 18, 2008. See Compl.,

¶ 6. In this case, Exemption 5 has been applied in order to protect chains of e-mail messages that

detail the internal deliberations of CBP personnel that would reveal both the deliberative-thought

process of CBP individuals and the overall decision-making process of CBP as an agency. See

Hanson Decl., ¶ 13. Specifically, these records reflect internal agency deliberations about how to

properly respond to allegations raised in the media about supposed improprieties resulting from

action taken by CBP. See id., ¶ 14. These messages reflect the normal back-and-forth that precedes

14
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 17 of 29

an agency decision, in this case the agency response to allegations of improper preferential treatment

being afforded to Ray L. Hunt. Id.

Exemption (b)(5) was also applied to draft documents that reflect the agency’s deliberative

process. See Hanson Decl., ¶ 15. The very nature of a draft, and the process by which a draft

becomes a final document, can constitute a deliberative process warranting protection under

Exemption (b)(5). Id. The release of draft documents would reveal deliberations regarding what

should, and should not, have been included in the final version of the document. Id.

To withhold a responsive document under the deliberative process privilege, the agency must

demonstrate that the document is “both predecisional and deliberative.”5 Mapother v. Dep’t of

Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). A communication is predecisional if “it was generated

before the adoption of an agency policy” and it is deliberative if “it reflects the give-and-take of the

consultative process.” Coastal States, 617 F.2d at 866. The privilege “covers recommendations,

draft documents, proposals, suggestions, and other subjective documents which reflect the personal

5 The Hanson Declaration explains that the agency withheld “[i]nformation that illustrates the
deliberative process within CBP was redacted pursuant to Exemption (b)(5).” See Hanson Decl.,
¶ 11. The declaration further explains that the agency properly withheld information under
Exemption 5:

The general purpose of this privilege is to prevent injury to the quality of agency
decisions. Specifically, three policy purposes have been consistently held to
constitute the bases for this privilege: (1) to encourage open, frank discussions on
matters of policy between subordinates and superiors; (2) to protect against
premature disclosure of proposed policies before they are adopted; and (3) to
protect against public confusion that might result from the disclosure of reasons
and rationales that were not in fact ultimately the grounds for an agency’s
decision. Logically flowing from the foregoing policy considerations is the
privilege’s protection of the decision-making process of government agencies.
The privilege protects not only documents but also the integrity of the process
itself, where exposing that process would result in harm.

Id., ¶ 12.

15
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opinions of the writer rather than the policy of the agency.” Id. The deliberative process privilege

reflects Congress’s judgment that public disclosure of predecisional, deliberative documents would

inhibit “the full and frank exchange of ideas on legal policy matters” within an agency. Mead Data

Cent. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977). The Supreme Court has

commented that, “[h]uman experience teaches that those who expect public dissemination of their

remarks may well temper candor with a concern for appearances and for their own interests to the

detriment of the decisionmaking process.” United States v. Nixon, 418 U.S. 683, 705 (1974).

CBP properly withheld records relating to internal agency discussions about how to respond

to allegations of improper preferential treatment being afforded to Ray L. Hunt.6 See Nielson v.

BLM, 252 FRD 499, 520 (D. Minn. 2008) (BLM’s use of deliberative process under Exemption 5

to withhold a document which reflects an agency employee’s reaction to a newspaper article was

proper; document was predecisional because it contained the opinion of the author of the public

misconception concerning an agency program). In this case, the predecisional documents contained

the deliberative process of CBP officials in their consideration of the agency’s response to the media

account. To disclose this information would reveal predecisional communications among

government personnel. Disclosure would jeopardize the candid and comprehensive considerations

essential for efficient and effective agency decision-making.

Furthermore, CBP asserted Exemption 5 to withhold, in part, Document No. 28, which is an

email string beginning on June 27, 2008 related to potential agency responses to media accusations.

This email string included a reference to a confidential attorney-client communication relating to

6 CBP asserted Exemption 5 to withhold information from the following documents listed on the
Vaughn index, attached as Ex. A to the Hanson Declaration: 1, 9-25, 28, and an issue paper
dated November 17, 2008, addressing media allegations in Texas Observer article.

16
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 19 of 29

the agency’s response. See Mead, 566 F.2d at 252 (The third traditional privilege incorporated into

Exemption 5 concerns “confidential communications between an attorney and his client relating to

a legal matter for which the client has sought professional advise.”). Thus, CBP properly redacted

Document No. 28 under FOIA Exemption 5 to protect both attorney-client communications and

internal predecisional discussions on the same matter.

Finally, Exemption 5 has been asserted in conjunction with Exemptions 6 and 7(E) to protect

the privacy of CBP employees, agency law enforcement techniques and procedures, and privileged

communications.7

2. Exemption 6

Exemption 6 of the FOIA protects "personnel and medical files and similar files the

disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C.

§ 552(b)(6). "The Supreme Court has interpreted the phrase 'similar files' to include all information

that applies to a particular individual." Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999),

quoting Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982). The Court has also

emphasized that "both the common law and the literal understanding of privacy encompass the

individual's control of information concerning his or her person." U.S. Dep’t of Justice v. Reporters

Committee for Freedom of the Press, 489 U.S. 749, 763 (1989).

The Supreme Court has found that “[i]ncorporated in the ‘clearly unwarranted’ language is

the requirement for ... [a] ‘balancing of interests between the protection of an individual's private

7 CBP asserted Exemption 5, along with Exemptions 6, to withhold information from the
following documents listed on the Vaughn index, attached as Ex. A to the Hanson Declaration:
10-25, 28, and an issue paper dated November 17, 2008, addressing media allegations in Texas
Observer article. CBP asserted Exemptions 5, 6, and 7(E) to withhold information from the
following documents listed on the Vaughn index: 10, 11, 24 and 25.

17
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 20 of 29

affairs from unnecessary public scrutiny, and the preservation of the public's right to governmental

information.’” Lepelletier, 164 F.3d at 46 (citing U.S. Dep’t of Defense v. FLRA, 964 F.2d 26, 29

(D.C. Cir. 1992), quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976)). In determining

how to balance the private and public interests involved, the Supreme Court has sharply limited the

notion of "public interest" under the FOIA: "[T]he only relevant public interest in the FOIA

balancing analysis [is] the extent to which disclosure of the information sought would 'she[d] light

on an agency's performance of its statutory duties' or otherwise let citizens know 'what their

government is up to.'" Lepelletier, 164 F.3d at 46 (quoting FLRA, 510 U.S. at 497) (editing in

original)). See also Reporters Committee, 489 U.S. at 773. Information that does not directly

reveal the operation or activities of the federal government "falls outside the ambit of the public

interest that the FOIA was enacted to serve." Id. at 775. Further, "something, even a modest privacy

interest, outweighs nothing every time." National Ass'n of Retired Fed. Employees v. Horner, 879

F.2d 873, 879 (D.C. Cir. 1989); but see Lepelletier, 164 F.3d at 48 (in extraordinary circumstances

where the individuals whose privacy the government seeks to protect have a "clear interest" in

release of the requested information, the balancing under Exemption 6 must include consideration

of that interest).

The Hanson declaration explains that CBP withheld certain information under FOIA

Exemption 6 to protect “information that would infringe on the personal privacy of the individual

about whom the information relates.” See Hanson Decl., ¶ 11. Specifically, in this case, Exemption

6 has been applied to the names of lower-level CBP employees.8 Id., ¶ 17. These CBP employees

8 CBP asserted Exemption 6 to withhold information from the following documents listed on the
Vaughn index, attached as Ex. A to the Hanson Declaration: 10-28, and an issue paper dated
November 17, 2008, addressing media allegations in Texas Observer article. See also n. 8, supra
(listing documents redacted under Exemptions 5 and 6).

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Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 21 of 29

have a privacy interest in the non-disclosure of their names, and the privacy consideration is to

protect CBP personnel and third parties from unnecessary questioning and harassment. Id. Even

if Plaintiff is already familiar with the names of certain CBP employees, disclosure puts the

information into the public domain. Id.

In applying Exemption (b)(6), the public interest must be weighed against the privacy

interest in non-disclosure. See Hanson Decl., ¶ 18. Disclosure must benefit not just the individual

requester, but the public in general. Id. In this case, the privacy interest in non-disclosure of

individual names and contact information far outweighs the public interest in ascertaining their

identities. Id. As a preliminary matter, CBP asserts FOIA Exemption 6 for the names of lower-level

CBP employees involved in after-the-fact discussions about the alleged agency improprieties alleged

in the Texas Observer article. See Ex. A to the Hanson Declaration, Document Nos. 10-28, and the

issue paper dated November 17, 2008. Thus, none of the responsive documents related to the

involvement of the lower-level employees in any events discussed in the article. Under these

circumstances, the privacy consideration, necessary to prevent CBP employees from questioning

and harassment, overrides the public interest in disclosure of lower-level CBP employees who did

not anticipate that their identities would become public information. Id. Disclosure of their

identities will not sufficiently enhance the understanding of how CBP functions such that privacy

considerations should be overridden. Id.

Thus, CBP properly withheld the names of lower-level CBP employees and their contact

information under FOIA Exemption 6 because the release of this information would be considered

a clearly unwarranted invasion of privacy and may subject the employees to unwanted questioning

and harrassment. See, e.g., Electronic Privacy Information Center v. DHS, 384 F.Supp.2d 100, 115-

19
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 22 of 29

18 (D.D.C. 2005) (district court ruled that DHS properly withheld the names of agency employees

who help to formulate airline security policy under FOIA Exemption 6 to protect the employees

from annoyance or harassment). Furthermore, each time Exemption 6 was invoked the agency

performed a balancing test to ensure that the public interest did not outweigh the privacy interest of

the individual involved.

3. Exemption 7(E)

Exemption 7 of FOIA protects from disclosure “records or information compiled for law

enforcement purposes,” but only to the extent that disclosure of such records would cause an

enumerated harm. 5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). In order

to withhold materials properly under Exemption 7, an agency must establish that the records at issue

were compiled for law enforcement purposes, and that the material satisfies the requirements of one

of the subparts of Exemption 7. See Pratt v. Webster, 673 F.3d 408, 413 (D.C. Cir. 1982). In

assessing whether records are compiled for law enforcement purposes, the “focus is on how and

under what circumstances the requested files were compiled, and whether the files sought relate to

anything that can fairly be characterized as an enforcement proceeding.” Jefferson v. Dep’t of

Justice, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (citations and internal quotations omitted).

“[T]he term ‘law enforcement purpose’ is not limited to criminal investigations but can also

include civil investigations and proceedings in its scope.” Mittleman v. Office of Personnel

Management, 76 F.3d 1240, 1243 (D.C. Cir. 1996), cert. denied, 519 U.S. 1123 (1997), citing Pratt

v. Webster, 673 F.2d 408, 420 n.32 (D.C. Cir. 1982). When, however, a criminal law enforcement

agency invokes Exemption 7, it “warrants greater deference than do like claims by other agencies.”

Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987), citing Pratt, 673 F.2d at 418. A

20
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 23 of 29

criminal law enforcement agency must simply show that “the nexus between the agency's activity

. . . and its law enforcement duties” is “‘based on information sufficient to support at least ‘a

colorable claim’ of its rationality.’” Keys, 830 F.2d at 340, quoting Pratt, 673 F.2d at 421.

DHS clearly satisfies the standard for invoking Exemption 7 of the FOIA because of its law

enforcement mission. Rugiero v. U.S. Dep’t of Justice, 257 F.3d 534, 550 (6th Cir. 2001)

(explaining that the "Court has adopted a per se rule" that applies not only to criminal enforcement

actions, but to "records compiled for civil enforcement purposes as well.") Indeed, the Hanson

declaration explains that Plaintiff’s FOIA request for information about the Secure Border Initiative

necessarily implicates certain law enforcement functions of CBP. For example, “[m]aps containing

locations and types of surveillance cameras, as well as known and documented smuggling routes

across the United States border, could compromise effective law enforcement procedures and

techniques if disclosed to the public.” Thus, Exemption 7's requirement that responsive records

were compiled for law enforcement purposes is clearly met in this case.

Exemption 7(E) of the FOIA provides protection for all information compiled for law

enforcement purposes when release "would disclose techniques and procedures for law enforcement

investigations or prosecutions, or would disclose guidelines for law enforcement investigations or

prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5

U.S.C. § 552(b)(7)(E). The first clause of Exemption 7(E) affords "categorical" protection for

"techniques and procedures" used in law enforcement investigations or prosecutions. Smith v.

Bureau of Alcohol, Tobacco and Firearms, 977 F. Supp. 496, 501 (D.D.C. 1997), citing Fisher v.

U.S. Dep’t of Justice, 772 F. Supp. 7, 12 n. 9 (D.D.C. 1991), aff'd, 968 F.2d 92 (D.C. Cir. 1992).

While Exemption 7(E)'s protection is generally limited to techniques or procedures that are not well

21
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 24 of 29

known to the public, even commonly known procedures may be protected from disclosure if the

disclosure could reduce or nullify their effectiveness. See, e.g., Coleman v. FBI, 13 F. Supp. 2d. 75,

83 (D.D.C. 1998) (applying 7(E) to behavioral science analysis and details of polygraph

examination); Perrone v. FBI, 908 F. Supp. 24, 28 (D.D.C. 1995) (applying 7(E) to type of

polygraph test, type of machine used, polygraph questions and sequence). In justifying the

application of Exemption 7(E) the agency may describe the general nature of the technique while

withholding the full details. See, e.g., Bowen v. FDA, 925 F.2d 1225, 1228 (9th Cir. 1991). The

agency is not, however, required to describe secret law enforcement techniques, even in general

terms, if the description would disclose the very information sought to be withheld. Coleman, 13

F. Supp. 2d at 83; Smith, 977 F. Supp. at 501.

Exemption 7(E)'s second clause separately protects "guidelines for law enforcement

investigations or prosecutions if [their] disclosure could reasonably be expected to risk

circumvention of the law." 5 U.S.C. § 552(b)(7)(E). Accordingly, this clause of the Exemption

protects any "law enforcement guideline" that pertains to the prosecution or investigative stage of

a law enforcement matter whenever its disclosure "could reasonably be expected to risk

circumvention of the law." See, e.g., PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d 248, 251 (D.C.

Cir. 1993) ("release of FBI guidelines as to what sources of information are available to its agents

might encourage violators to tamper with those sources of information and thus inhibit investigative

efforts"); Jimenez v. FBI, 938 F. Supp. 21, 30 (D.D.C. 1996) (applying Exemption 7(E) to gang-

validation criteria used by Bureau of Prisons to determine whether individual is gang member).

22
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 25 of 29

The Hanson declaration explains that CBP has invoked FOIA Exemption 7(E) in this case

to “protect[] information, the disclosure of which, would disclose techniques or procedures for law

enforcement investigations or prosecutions.” See Hanson Decl., ¶ 19. As a result, withholding of

information is proper when disclosure would shed light on certain law enforcement techniques or

procedures. Id. Law enforcement agencies are entitled to withhold records under Exemption 7(E)

to protect law enforcement records that illustrate enforcement techniques or procedures, as well as

records that if disclosed could reasonably be expected to risk circumvention of the law. Id.

In this case, Exemption 7(E) has been applied to prevent disclosure of information that

would disclose law enforcement techniques and could, if disclosed, reasonably be expected to risk

circumvention of the law.9 See Hanson Decl., ¶ 20. Maps containing locations and types of

surveillance cameras, as well as known and documented smuggling routes across the United States

border, could compromise effective law enforcement procedures and techniques if disclosed to the

public. Id. In addition, records which include details of specific vanishing points, the locations that

allow for easy assimilation into the local population after crossing the border, could if disclosed lead

to circumvention of the law by allowing a comparison of which vanishing points prove to be more

effective. Id.

If DHS were to disclose this law enforcement information, and release details of the specific

techniques used, it could jeopardize the effectiveness of any future investigation or enforcement

action. See Key, 510 F.Supp.2d at 130 (“The Court finds that the Secret Service properly relied on

Exemption 7(E) to withhold information relating to methods used to investigate criminal

9 CBP asserted Exemption 7(E) to withhold information from the following documents listed on
the Vaughn index, attached as Ex. A to the Hanson Declaration: 2-8, 10, 11, 24, 25. See also n.
8, supra (listing documents redacted under Exemptions 5 and 7(E)).

23
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 26 of 29

counterfeiting activity because the release of such information could compromise future

investigation.”).

C. All Reasonably Segregable Material Has Been Released to Plaintiff

The FOIA requires that if a record contains information that is exempt from disclosure, any

"reasonably segregable" information must be disclosed after deletion of the exempt information

unless the non-exempt portions are "inextricably intertwined with exempt portions." 5 U.S.C. §

552(b); Mead Data, 566 F.2d at 260. The Court of Appeals for the District of Columbia Circuit has

held that a District Court considering a FOIA action has "an affirmative duty to consider the

segregability issue sua sponte." Trans-Pacific Policing Agreement v. United States Customs Serv.,

177 F.3d 1022, 1028 (D.C. Cir. 1999).

In order to demonstrate that all reasonably segregable material has been released, the agency

must provide a "detailed justification" rather than "conclusory statements." Mead Data, 566 F.2d

at 261. The agency is not, however, required "to provide such a detailed justification" that the

exempt material would effectively be disclosed. Id. All that is required is that the government show

"with 'reasonable specificity'" why a document cannot be further segregated. Armstrong v.

Executive Office of the President, 97 F.3d 575, 578-79 (D.C. Cir. 1996). Moreover, the agency is

not required to "commit significant time and resources to the separation of disjointed words, phrases,

or even sentences which taken separately or together have minimal or no information content."

Mead Data, 566 F.2d at 261, n.55.

A review of Mr. Hanson’s declaration, and the accompanying Vaughn index, reveals that

CBP carefully reviewed each document to determine if any information could be segregated and

released, that some documents were withheld in part and others in their entirety (with appropriate

24
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 27 of 29

redactions), and that all reasonably segregable non-exempt material has been released. See Hanson

Decl., ¶¶ 10-20 & Ex. A thereto; see also SFNGD, ¶ 9; Armstrong, 97 F.3d at 578-79; Mead Data,

566 F.2d at 26.

CONCLUSION

For all the foregoing reasons, Defendant’s Motion for Summary Judgment in Part should be

granted.

25
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 28 of 29

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, E-4806
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


Susan Shama, U.S. Customs and Border Protection

26
Case 1:08-cv-01046-JDB Document 23 Filed 12/03/2008 Page 29 of 29

CERTIFICATE OF SERVICE

I hereby certify that, on this 3rd day of December, 2008, I caused Defendant’s Motion for

Summary Judgment in Part, supporting memorandum of points and authorities, statement of material

facts as to which there is no genuine issue, and a proposed Order to be served on Plaintiff, though

counsel, at the ECF address of record in this case.

/s/
John G. Interrante
Assistant United States Attorney
Case 1:08-cv-01046-JDB Document 23-2 Filed 12/03/2008 Page 1 of 5

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 STATEMENT OF MATERIAL FACTS


AS TO WHICH THERE IS NO GENUINE DISPUTE

Pursuant to LCvR 7(h), Defendant, U.S. Department of Homeland Security (“DHS”) hereby

submits the following statement of material facts as to which there is no genuine dispute in support

of Defendant’s Motion for Summary Judgment in Part.

1. On or about March 17, 2008, plaintiff, Citizens for Responsibility and Ethics in

Washington (“CREW”), sent a letter to the FOIA Director, U.S. Customs and Border Protection

(“CBP”), requesting in part the following records under the Freedom of Information Act (“FOIA”),

as amended:

any and all records dating from January 20, 2001 to the present reflecting
communications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any properties
known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., and the
construction of fencing along the border between the U.S. and Mexico.

See Declaration of Mark Hanson (“Hanson Decl.”), Director of the FOIA Division, Office of

International Trade, CBP, DHS, ¶ 4; Def’s Answer (Document 4), ¶ 7 & Ex A thereto.

2. The parties subsequently agreed to narrow Plaintiff’s March 17, 2008 request, and also

to bifurcate the processing of the request. See Hanson Decl., 4. Subsequent to the filing of
Case 1:08-cv-01046-JDB Document 23-2 Filed 12/03/2008 Page 2 of 5

Plaintiff’s Complaint, the parties conferred on July 8, 2008 in order to narrow the terms of the

request due to the fact that there are voluminous responsive records. Id. The following new terms

of the request were agreed to by the parties on July 15, 2008:

(1) Any and all records, regardless of format, dating from January 20, 2001 to the
present reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc.,
or any properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc.,
and the construction of fencing along the border between the U.S. and Mexico,
including, but not limited to, input sought or received from Mr. Hunt and/or Hunt
Consolidated on border fence construction;

(2) Any and all records, regardless of format, concerning deliberations, standards,
and criteria encompassing the decision-making 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.

Id.1

3. On July 17, 2008, CBP Chief of Staff Thad Bingel issued a memorandum directing

certain CBP offices to conduct a search for the following:

Any and all records, regardless of format, dating from January 20, 2001 to the
present reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc.,
or any properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc.,
and the construction of fencing along the border between the U.S. and Mexico,
including, but not limited to, input sought or received from Mr. Hunt and/or Hunt
Consolidated on border fence construction.

See Hanson Decl., ¶ 5. The memorandum was sent to the offices determined most likely to have

responsive records: the Office of the Commissioner, Office of Chief Counsel, Office of

1
CBP is processing non-exempt records responsive to the second part of Plaintiff’s
FOIA request pursuant to the Court’s Orders dated September 25, 2008 (Document 10) and
November 24, 2008 (Document 22). CBP will file a motion for summary judgment in part upon
completion of the processing of those records.

2
Case 1:08-cv-01046-JDB Document 23-2 Filed 12/03/2008 Page 3 of 5

Congressional Affairs, Office of Finance, Office of Public Affairs, Office of Border Patrol, Office

of Field Operations, and the Secure Border Initiative within the Office of the Commissioner. Id.

4. On July 18, 2008, AnnMarie R. Highsmith, Associate Chief Counsel for Trade and

Finance, CBP Office of Chief Counsel, issued a Litigation Hold Notice instructing certain CBP

employees to preserve all records and information related to Plaintiff’s request. See Hanson Decl.,

¶ 6. The notice was sent to employees from the following CBP offices: the Secure Border Initiative

within the Office of the Commissioner, Office of Border Patrol, Office of Congressional Affairs, the

FOIA Division of the Office of International Trade, and the Office of the Commissioner. Id. Each

employee was directed to distribute the notice to all personnel in his or her office who may be

involved in, or have information relating to, the records requested. Id.

5. In response to the above memorandum, two offices produced documents responsive

to the first part of the bifurcated request – the Office of the Secure Border Initiative (“SBI”) within

the Office of the Commissioner and the Office of Border Patrol. See Hanson Decl., ¶¶ 7-8. The first

responsive search was directed by the SBI Communications Director, who instructed personnel to

provide all relevant documentation responsive to Plaintiff’s FOIA request. Id. Program staff were

instructed to search in all potentially relevant locations for responsive documents, including

individual hard drives, shared electronic drives, and any hard-copy documents. Id. Administrative

staff were also directed to search the same places for potentially responsive records. Id. In response

to Plaintiff’s request, program staff searched for all potentially responsive records related to Ray L.

Hunt, Hunt Consolidated, Inc., or any properties known to be owned by Ray L. Hunt or Hunt

Consolidated, Inc. Id. Records found as a result of the above search have been produced to Plaintiff

pursuant to Plaintiff’s FOIA request. Id.

3
Case 1:08-cv-01046-JDB Document 23-2 Filed 12/03/2008 Page 4 of 5

6. Also in response to the search memorandum, the Office of Border Patrol searched

and produced responsive records. See Hanson Decl., ¶ 8. A search was conducted at Border Patrol

Headquarters in Washington, DC, as well as Border Patrol offices located in the Rio Grande Valley

sector where properties owned by Ray L. Hunt are located. Id. Offices were instructed to search

both hard-copy and electronic files, and offices searched electronic hard drives and portable thumb

drives in addition to hard-copy documents. Id. The search terms used by the Office of Border Patrol

to conduct the search for responsive records were those posed by Plaintiff in its FOIA request:

records reflecting communications concerning Ray L. Hunt, Hunt Consolidated, Inc., or any

properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc., involving the

construction of fencing along the border between the United States and Mexico. Id. Records

identified as a result of that search have been processed by CBP and produced to Plaintiff. Id.

7. On September 2, 2008, CBP released the first group of documents responsive to the first

part of the bifurcated request. See Hanson Decl., ¶ 9. CBP released additional documents to Plaintiff

in supplemental responses on October 10, 2008 and November 17, 2008. Id. Prior to release, these

documents were redacted in accordance with 5 U.S.C. § 552. Id. The documents were redacted

pursuant to FOIA exemptions (b)(5), (b)(6), and (b)(7)(E). Id.

8. Redactions made on the responsive documents are detailed in a Vaughn index

identifying information responsive to Plaintiff’s FOIA request, but exempt from disclosure under

the FOIA, in accordance with Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415

U.S. 977 (1974). See Hanson Decl., ¶ 10. The Declaration and its attachments, along with the

Vaughn index, identify information that is withheld, the statutory exemption(s) claimed, and the

justification for asserting the exemptions used to withhold certain information contained in the

4
Case 1:08-cv-01046-JDB Document 23-2 Filed 12/03/2008 Page 5 of 5

records at issue. Id.

9. No reasonably segregable non-exempt portions of the documents were withheld from

Plaintiff. See Hanson Decl., ¶ 10. Accordingly, the redacted information was exempt from

disclosure pursuant to a FOIA exemption or was not reasonably segregable because its release would

have revealed the underlying protected material. Id.

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, E-4806
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


Susan Shama, U.S. Customs and Border Protection

5
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VAUGHN INDEX
Citizens for Responsibility and Ethics in Washington v. Department of Homeland Security
Case No. 08-1046
Hunt Documents – Release #1
(including supplemental releases of October 10, 2008 and November 17, 2008)

Document File Name Originating Document Description Number of Pages Disposition &
(as it appears on CD) Office/Location Exemption(s)
One (Redacted) Office of Border Patrol (OBP) Talking points regarding Hunt 1 - Document redacted in full.
Property, City of Granjeno and - Information that illustrates the
Border Fencing in RGV Sector deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because information
contains deliberations on how to
respond to allegations raised in the
media.
Two (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property 2 - Document redacted in full.
showing known and documented - Information is redacted pursuant to
smuggling routes, and locations of 5 U.S.C. § 552(b)(7)(E), as it pertains
Remote Video Surveillance System to records compiled for law
(RVSS) cameras enforcement purposes, the release of
which would disclose certain
techniques or procedures for law
enforcement investigations or
prosecutions, including known and
documented smuggling routes, and
locations of Remote Video
Surveillance System (RVSS)
cameras.
Three (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property 1 - Document redacted in full.
prepared in response to Texas - Information is redacted pursuant to
Observer article 5 U.S.C. § 552(b)(7)(E), as it pertains
to records compiled for law
enforcement purposes, the release of
which would disclose certain
techniques or procedures for law
enforcement investigations or
prosecutions.
Four (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property 1 - Document redacted in full.
showing known and documented - Information is redacted pursuant to
smuggling routes 5 U.S.C. § 552(b)(7)(E), as it pertains
to records compiled for law

1
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 11 of 51

enforcement purposes, the release of


which would disclose certain
techniques or procedures for law
enforcement investigations or
prosecutions, such as known and
documented smuggling routes.
Five (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property 1 - Document redacted in full.
showing apprehension sites and - Information is redacted pursuant to
narcotics seizures 5 U.S.C. § 552(b)(7)(E), as it pertains
to records compiled for law
enforcement purposes, the release of
which would disclose certain
techniques or procedures for law
enforcement investigations or
prosecutions such as illegal alien
apprehension sites, smuggling
apprehensions, and narcotics
seizures.
Six (Redacted) Office of Border Patrol (OBP) Map referencing Hunt property 1 - Document redacted in full.
showing known and documented - Information is redacted pursuant to
smuggling routes 5 U.S.C. § 552(b)(7)(E), as it pertains
to records compiled for law
enforcement purposes, the release of
which would disclose certain
techniques or procedures for law
enforcement investigations or
prosecutions such as known and
documented smuggling routes.
Seven (Redacted) Office of Border Patrol (OBP) Map dated April 22, 2008 prepared 1 - Document redacted in full.
in response to Texas Observer article - Information is redacted pursuant to
showing known and documented 5 U.S.C. § 552(b)(7)(E), as it pertains
smuggling routes to records compiled for law
enforcement purposes, the release of
which would disclose certain
techniques or procedures for law
enforcement investigations or
prosecutions such as known and
documented smuggling routes.
Eight (Redacted) Office of Border Patrol (OBP) Document related to Rio Grand 2 - Document redacted in full.
Valley (RGV) Pedestrian Fence (PF) - Information is redacted pursuant to
225 Fence Segments (Issues with 5 U.S.C. § 552(b)(7)(E), as it pertains
Hunt Development) to records compiled for law
enforcement purposes, the release of
which would disclose certain
techniques or procedures for law
enforcement investigations or

2
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 12 of 51

prosecutions.
Nine (Redacted) Secure Border Initiative (SBI) Draft Talking Points related to Texas 5 - Document redacted in full.
Border Coalition Lawsuit - Information that illustrates the
deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because the document is a
draft that reflects internal discussions
and is not in final form.
Ten (Redacted) Secure Border Initiative (SBI) Email string beginning April 30, 6 - Document released with partial
2008 related to Texas Observer redactions.
article and letter to Congressman - Information that illustrates the
Thompson on Texas fence deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because the document
reflects internal discussions on how
to respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
- Information is redacted pursuant to
5 U.S.C. § 552(b)(7)(E), as it pertains
to records compiled for law
enforcement purposes, the release of
which would disclose certain
techniques or procedures for law
enforcement investigations or
prosecutions.
Eleven (Redacted) Secure Border Initiative Email string beginning April 30, 6 - Document released with partial
2008 related to Texas Observer redactions.
article and letter to Congressman - Information that illustrates the
Thompson on Texas fence deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because the document
reflects internal discussions on how
to respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted

3
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 13 of 51

pursuant to 5 U.S.C. § 552(b)(6),


because release would be considered
a clearly unwarranted invasion of
privacy.
- Information is redacted pursuant to
5 U.S.C. § 552(b)(7)(E), as it pertains
to records compiled for law
enforcement purposes, the release of
which would disclose certain
techniques or procedures for law
enforcement investigations or
prosecutions.
Twelve (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008 3 - Document released with partial
related to tasker regarding response redactions.
to allegations related to Hunt - Information that illustrates the
property deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because reflects internal
discussions on how to respond to
allegations raised in the media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
Thirteen (Redacted) Secure Border Initiative (SBI) Email string beginning April 21, 2 - Document released with partial
2008 related to tasker regarding redactions.
response to allegations related to - Information that illustrates the
Hunt property deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because the document
reflects internal discussions on how
to respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
Fourteen (Redacted) Secure Border Initiative (SBI) Email string beginning April 21, 17 - Document released with partial

4
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 14 of 51

2008 related to tasker regarding redactions.


response to allegations related to - Information that illustrates the
Hunt property. Attachments include deliberative process within CBP is
letter from Congressman Thompson redacted pursuant to 5 U.S.C. §
and response from Secretary Chertoff 552(b)(5) because the document
reflects internal discussions on how
to respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
- Signatures of some CBP employees
or third parties are redacted pursuant
to 5 U.S.C. § 552(b)(6), because
release would be considered a clearly
unwarranted invasion of privacy.
Fifteen (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008 4 - Document released with partial
related to tasker regarding response redactions.
to allegations related to Hunt - Information that illustrates the
property deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because responses
constitute deliberations on how to
respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
Sixteen (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008 3 - Document released with partial
related to tasker regarding response redactions.
to allegations related to Hunt - Information that illustrates the
property deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because responses
constitute deliberations on how to
respond to allegations raised in the

5
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 15 of 51

media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
Seventeen (Redacted) Secure Border Initiative (SBI) Email string beginning April 21, 2 - Document released with partial
2008 related to tasker regarding redactions.
response to allegations related to - Information that illustrates the
Hunt property deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because responses
constitute deliberations on how to
respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
Eighteen (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008 3 - Document released with partial
related to tasker regarding response redactions.
to allegations related to Hunt - Information that illustrates the
property deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because responses
constitute deliberations on how to
respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
Nineteen (Redacted) Secure Border Initiative (SBI) Email string beginning April 21, 3 - Document released with partial
2008 related to tasker regarding redactions.
response to allegations related to - Information that illustrates the

6
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 16 of 51

Hunt property deliberative process within CBP is


redacted pursuant to 5 U.S.C. §
552(b)(5) because responses
constitute deliberations on how to
respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
Twenty (Redacted) Secure Border Initiative (SBI) Email string beginning April 21, 5 - Document released with partial
2008 related to tasker regarding redactions.
response to allegations related to - Information that illustrates the
Hunt property deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because responses
constitute deliberations on how to
respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
Twenty-one (Redacted) Secure Border Initiative (SBI) Email string beginning April 21, 2 - Document released with partial
2008 related to tasker regarding redactions.
response to allegations related to - Information that illustrates the
Hunt property deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because the document
reflects internal discussions on how
to respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered

7
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 17 of 51

a clearly unwarranted invasion of


privacy.
Twenty-two (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008 5 - Document released with partial
related to tasker regarding response redactions.
to allegations related to Hunt - Information that illustrates the
property. Attachments include deliberative process within CBP is
Talking Points related to border redacted pursuant to 5 U.S.C. §
fence at Hunt Ranch 552(b)(5) because the document
reflects internal discussions on how
to respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
Twenty-three (Redacted) Secure Border Initiative (SBI) Email string beginning April 21, 5 - Document released with partial
2008 related to tasker regarding redactions.
response to allegations related to - Information that illustrates the
Hunt property. Attachment: letter deliberative process within CBP is
from Congressman Thompson to redacted pursuant to 5 U.S.C. §
Secretary Chertoff 552(b)(5) because the document
reflects internal discussions on how
to respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
Twenty-four (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008 12 - Document released with partial
related to tasker regarding response redactions.
to allegations related to Hunt - Information that illustrates the
property. Attachments include deliberative process within CBP is
Document Related to Rio Grand redacted pursuant to 5 U.S.C. §
Valley (RGV) Pedestrian Fence (PF) 552(b)(5) because the document
225 Fence Segments (Issues with reflects internal discussions on how
Hunt Development), minutes from to respond to allegations raised in the
Office of Border Patrol (OBP) media.
meeting, After Action Report (AAR) - Names of some lower-level CBP

8
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 18 of 51

on Sabal Palm property issues, employees or third parties and their


Tamez property updated briefing, contact information (which contain
and Tamez property talking points their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
- Information is redacted pursuant to
5 U.S.C. § 552(b)(7)(E), as it pertains
to records compiled for law
enforcement purposes, the release of
which would disclose certain
techniques or procedures for law
enforcement investigations or
prosecutions, such as particular
points of vulnerability along the U.S.
border with Mexico and details of
vanishing points, locations where
illegal immigrants can quickly and
easily assimilate into the local
population.
Twenty-five (Redacted) Secure Border Initiative (SBI) Email string beginning January 22, 12 - Document released with partial
2008 related to fence segment redactions.
requirements. Attachment includes - Information that illustrates the
detailed synopses of fence sectors, deliberative process within CBP is
including vulnerabilities and redacted pursuant to 5 U.S.C. §
vanishing points 552(b)(5) because the document
reflects internal discussions of
proposed construction projects of a
pre-decisional nature.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
- Information is redacted pursuant to
5 U.S.C. § 552(b)(7)(E), as it pertains
to records compiled for law
enforcement purposes, the release of
which would disclose certain
techniques or procedures for law
enforcement investigations or
prosecutions such as detailed

9
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 19 of 51

synopses of fence sectors, including


vulnerabilities and vanishing points.
Twenty-six (Redacted) Secure Border Initiative (SBI) Letter from Secretary Chertoff to 5 - Document released with partial
Congressman Thompson dated May redactions.
22, 2008 regarding border fencing in - Names of some lower-level CBP
Texas. Attachment includes employees or third parties and their
memorandum written by contact information (which contain
Commissioner Basham on placement their names in full) are redacted
on border fencing pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
- Signatures of some CBP employees
or third parties are redacted pursuant
to 5 U.S.C. § 552(b)(6), because
release would be considered a clearly
unwarranted invasion of privacy.
Twenty-seven (Redacted) Secure Border Initiative (SBI) Media response dated June 17, 2008 2 - Document released with partial
pertaining to fence construction redactions.
questions - Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
Twenty-eight (Redacted) Secure Border Initiative (SBI) Email string beginning June 27, 2008 3 - Document released with partial
Supplemental Release #1 related to potential agency responses redactions.
(October 10, 2008) to media accusations - Information that illustrates the
deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because the document
reflects internal discussions on how
to respond to allegations raised in the
media.
- Information is redacted pursuant to
5 U.S.C. § 552(b)(5) because it
contains confidential
communications between attorney
and client.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),

10
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 20 of 51

because release would be considered


a clearly unwarranted invasion of
privacy.
Fence Justification Response to Office of Border Patrol (OBP) Document discussing lack of outside 1 - Document released in full.
Texas Observer _ 2-21-08 (edited on influence on decisions related to
4-08-08) (Redacted) particular section of fencing
Supplemental Release #2
(November 17, 2008)
Fence Justification Response to Office of Border Patrol (OBP) Document discussing lack of outside 3 - Document released in full.
Texas Observer _ 2-21-08 (Redacted) influence on decisions related to
Supplemental Release #2 particular section of fencing
(November 17, 2008)
Issue Paper _ 2-21-08 Newspaper Office of Border Patrol (OBP) Issue paper addressing media 2 - Document released with partial
Article (Redacted) allegations made in Texas Observer redactions.
Supplemental Release #2 newspaper article - Information that illustrates the
(November 17, 2008) deliberative process within CBP is
redacted pursuant to 5 U.S.C. §
552(b)(5) because the document
reflects internal discussions on how
to respond to allegations raised in the
media.
- Names of some lower-level CBP
employees or third parties and their
contact information (which contain
their names in full) are redacted
pursuant to 5 U.S.C. § 552(b)(6),
because release would be considered
a clearly unwarranted invasion of
privacy.
Issue Paper _ 5-19-08 Affluent vs. Office of Border Patrol (OBP) Issue paper addressing media 1 - Document released in full.
Non-Affluent (HL) (Redacted) allegations made in Texas Observer
Supplemental Release #2 newspaper article
(November 17, 2008)

11
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 21 of 51

Vaughn Index
Document:
One (Redacted)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 22 of 51

(b) (5)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 23 of 51

Vaughn Index
Document:
Two (Redacted)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 24 of 51
(b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 25 of 51
(b) (7)(E)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 26 of 51

Vaughn Index
Document:
Three (Redacted)
(b) (7)(E)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 27 of 51
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 28 of 51

Vaughn Index
Document:
Four (Redacted)
(b) (7)(E)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 29 of 51
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 30 of 51

Vaughn Index
Document:
Five (Redacted)
(b) (7)(E)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 31 of 51
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 32 of 51

Vaughn Index
Document:
Six (Redacted)
(b) (7)(E)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 33 of 51
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 34 of 51

Vaughn Index
Document:
Seven (Redacted)
(b) (7)(E)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 35 of 51
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 36 of 51

Vaughn Index
Document:
Eight (Redacted)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 37 of 51

RGV PF 225 Fence Segments

(b) (7)(E)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 38 of 51

(b) (7)(E)

(b) (7)(E)

2
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 39 of 51

Vaughn Index
Document:
Nine (Redacted)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 40 of 51

(b) (5)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 41 of 51

(b) (5)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 42 of 51

(b) (5)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 43 of 51

(b) (5)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 44 of 51

(b) (5)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 45 of 51

Vaughn Index
Document:
Ten (Redacted)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 46 of 51

(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 47 of 51
(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 48 of 51

(b) (6)

(b) (6)

(b) (6)

(b) (6) (b) (6)

(b) (6)

(b) (7)(E)

(b) (6)

(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 49 of 51

(b) (6)

(b) (6)

(b) (6) (b) (6)

(b) (6)
(b) (6)
(b) (6) (b) (6)
(b) (6) (b) (6) (b) (6)

(b) (5)

(b) (6)

(b) (5)
(b) (6)
(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 50 of 51

(b) (6)

(b) (7)(E)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6) (b) (6)


(b) (6)
(b) (6) (b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-3 Filed 12/03/2008 Page 51 of 51

(b) (6) ) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 1 of 52

Vaughn Index
Document:
Eleven (Redacted)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 2 of 52

(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 3 of 52
(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 4 of 52

(b) (6)

(b) (6)

(b) (6)

(b) (6) (b) (6)

(b) (6)

(b) (7)(E)

(b) (6)

(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 5 of 52

(b) (6)

(b) (6)

(b) (6) (b) (6)

(b) (6)
(b) (6)
(b) (6) (b) (6)
(b) (6) (b) (6) (b) (6)

(b) (5)

(b) (6)

(b) (5)
(b) (6)
(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 6 of 52

(b) (6)

(b) (7)(E)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6) (b) (6)


(b) (6)
(b) (6) (b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 7 of 52

(b) (6) ) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 8 of 52

Vaughn Index
Document:
Twelve (Redacted)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 9 of 52

(b) (6)

(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (5)

(b)
(6)

(b) (6)

(b) (6) (b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 10 of 52

(b) (6)
(b) (6) (b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)

(b) (5)

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 11 of 52
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 12 of 52

Vaughn Index
Document:
Thirteen (Redacted)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 13 of 52
(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6) b) (6)
(b) (6)

(b) (5)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (5)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 14 of 52

(b) (6)

(b) (6)
(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 15 of 52

Vaughn Index
Document:
Fourteen (Redacted)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 16 of 52

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (6)

(b) (6) (b) (6)


(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6) (b) (6)


(b) (6)

(b) (1)
(A)

(b) (6)

(b) (6)
(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 17 of 52

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)
(b) (6)

(b) (5)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 18 of 52

(b) (6)
(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 19 of 52

(b) (6)
(b) (6) (b) (6)

(b) (6)

(b) (6)
(b) (6)
(b)
(6)

(b) (6)
(b) b) (6)
(6)
(b) ) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 20 of 52

(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 21 of 52
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 22 of 52
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 23 of 52
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 24 of 52
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 25 of 52
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 26 of 52
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 27 of 52
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 28 of 52
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 29 of 52
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 30 of 52

(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 31 of 52
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 32 of 52
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 33 of 52

Vaughn Index
Document:
Fifteen (Redacted)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 34 of 52
(b) (6)

(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)

(b) (6) (b) (6)


(b)
(6)
(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 35 of 52
(b) (6)

(b) (5)

(b) (6)

(b) (6)

(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (5)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 36 of 52
(b) (6)

(b) (6)

(b) (6) (b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (5)

(b) (5)

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 37 of 52

(
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 38 of 52

Vaughn Index
Document:
Sixteen (Redacted)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 39 of 52
(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (5)

(b) (6)

(b) (6)

(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 40 of 52
(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (5)

(b) (6)

(b) (6)

(b) (6) (b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (5) (b) (6)

(b) (5)
(b) (5) Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 41 of 52

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 42 of 52

Vaughn Index
Document:
Seventeen (Redacted)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 43 of 52
(b) (6)

(b) (6)
(b) (6)
(b) (6) 6)
(b) (6)

(b) (5)

(b) (6)

(b) (6)

(b) (6) (b) (6)


(b) (6) (b) (6)
(b) (6)

(b) (5)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 44 of 52

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (5)

(b) (6)

(b) (6)
(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 45 of 52

Vaughn Index
Document:
Eighteen (Redacted)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 46 of 52
(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (5)

(b) (6)

(b) (6)

(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 47 of 52
(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (5)

(b) (6)

(b) (6)

(b) (6) (b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (5)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (5) (b) (6)

(b) (5)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 48 of 52
(b) (5)

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 49 of 52

Vaughn Index
Document:
Nineteen (Redacted)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 50 of 52
(b) (6)

(b) (6)
(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6) (b) (6)
(b) (6)

(b) (5)

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6) (b) (6)
(b) (6)

(b) (5)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 51 of 52
(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (5)

(b) (6)

(b) (6)
(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-4 Filed 12/03/2008 Page 52 of 52
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 1 of 60

Vaughn Index
Document:
Twenty (Redacted)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 2 of 60

(b) (6)

(b) (6) (6)

(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b
(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6) (b) (6)
(b) (6)

(b) (5)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 3 of 60

(b) (6)

(b) (6)
(b) (6) (b) (6) (b) (6)
(b) (6)

(b) (5)

(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 4 of 60

(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 5 of 60

(b) (6)

(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 6 of 60

(b) (6)

(b) (6)

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 7 of 60

Vaughn Index
Document:
Twenty-One (Redacted)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 8 of 60
(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6)

(b) (6)
(b) (6)
(b) (6)
(b) (6)
(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (6)

(b) (6)

(b) (5)

(b) (6)

(b) (6)

(b) (6) (b) (6)

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 9 of 60
(b) (6) (b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) ( (b) (5)

(b) (5)

(b) (6)

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 10 of 60

Vaughn Index
Document:
Twenty-Two (Redacted)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 11 of 60
(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)

(b) (6) (b) (6)


(b)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6)

(b) (6)

(b) (5)
(b) (5) Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 12 of 60

(b) (6)

(b) (6)

(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (5)

(b) (6)

(b) (6)

(b) (6) (b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 13 of 60

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (5)

(b) (5)

(b) (6)

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 14 of 60

(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 15 of 60

(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 16 of 60

Vaughn Index
Document:
Twenty-Three (Redacted)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 17 of 60
(b) (6)

(b) (6)

(b) (6)

(b) (6) (b) (6) (b) (6)


(b) (6)

(b) (5)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 18 of 60
(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (5)

(b) (6)

(b) (6)
(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 19 of 60

(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 20 of 60
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 21 of 60
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 22 of 60

Vaughn Index
Document:
Twenty-Four (Redacted)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 23 of 60

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (6)

(b) (6)
(b) (6)

(b) (6)

(b) (5)

(b) (6)

(b) (6)

(b) (6) (b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)

(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 24 of 60

(b) (5)

(b) (6)

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 25 of 60

(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 26 of 60

(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 27 of 60

(b) (6)

(b)(5); (b)(7)(e)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 28 of 60

(b)(5); (b)(7)(e)

(b)(5); (b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 29 of 60

(b)(5); (b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 30 of 60

(b)(5); (b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 31 of 60

(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 32 of 60

(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 33 of 60

(b) (5)
(
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 34 of 60

(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 35 of 60

Vaughn Index
Document:
Twenty-Five (Redacted)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 36 of 60

(b) (6)

(b) (6)

(b) (6)
(b) (6)

(b) (6)

(b) (6) (b) (6)


(b) (6)
(b) (6)

(b) (6)

(b) (6)
(b) (6)

(b) (6)

(b) (6)

(b) (6)
(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 37 of 60
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 38 of 60

(b) (7)(E)

(b)(5); (b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 39 of 60

(b)(5); (b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 40 of 60

(b)(5); (b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 41 of 60

(b)(5); (b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 42 of 60

(b)(5); (b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 43 of 60

(b)(5); (b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 44 of 60

(b)(5); (b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 45 of 60

(b)(5); (b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 46 of 60

(b)(5); (b)(7)(e)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 47 of 60

(b) (7)(E)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 48 of 60

Vaughn Index
Document:
Twenty-Six (Redacted)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 49 of 60

(b) (6)

(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 50 of 60
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 51 of 60

(b) (6)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 52 of 60
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 53 of 60
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 54 of 60

Vaughn Index
Document:
Twenty-Seven (Redacted)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 55 of 60

(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 56 of 60

(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 57 of 60

Vaughn Index
Document:
Twenty-Eight (Redacted)
Supplemental Release #1 (October
10, 2008)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 58 of 60

(b) (6)

(b) (6)

(b) (6)
(b) (6)
(b) (6)

(b) (5)

(b) (5)

(b) (6)
(b) (6) (b) (6)
(b) (5)

(b) (6)
(b) (6)
(b) (6)

(b) (5)
(b) (5)

(b) (6)

(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 59 of 60

(b) (6)

(b) (6)
(b) (6) (b) (6)
(b) (5)

(b) (5)
Case 1:08-cv-01046-JDB Document 23-5 Filed 12/03/2008 Page 60 of 60

(b) (6)
Case 1:08-cv-01046-JDB Document 23-6 Filed 12/03/2008 Page 1 of 11

Vaughn Index
Document:
Fence Justification Response to
Texas Observer _ 2-21-08
(edited on 4-08-08) (Redacted)
Supplemental Release #2
(November 17, 2008)
Case 1:08-cv-01046-JDB Document 23-6 Filed 12/03/2008 Page 2 of 11

GRANJENO AND SHARYLAND PLANTATION (O-5)

The McAllen Border Patrol Station (MCS) Area of Responsibility (AOR) consists of
approximately 887 square miles and 53 Rio Grande River miles. Through the PF225
project, MCS was allotted approximately 11.8 miles of fencing. MCS management was
afforded the discretionary authority to recommend the most suitable locations for fencing
based on operational necessity within the MCS AOR.

The MCS management team was responsible for identifying all proposed fencing
placement within the MCS AOR based on the fencing length parameters set by RGV
Sector. The primary objective was to provide an additional security measure in areas
experiencing significant illegal cross-border activities. The areas chosen for fencing were
based on traditional, historical and common illicit trafficking trends. The main
consideration for fence placement was strictly operational for border patrol purposes. The
areas selected for fence placement require actual physical barriers if MCS Agents are
expected to maintain an advantage against illegal incursions.

There was no influence on fence placement dictated by parties outside the Border Patrol.
At the time the assessment was conducted within the MCS AOR, the current proposal for
tactical infrastructure was recommended by the MCS management team. As a result,
only the most significant problematic areas were designated for fence placement. After
the initial fence placement was submitted for approval, changes have been made to
accommodate certain circumstances. For the most part, these changes have been minor
and have not altered the McAllen Station's goals for implementing tactical infrastructure.
The process of identifying and contacting affected landowners was not initiated until after
the initial proposed fence locations were identified.

A recent proposal introduced by the Hidalgo County Drainage District would replace
fencing with a concrete levee wall that would support the levee on the south side. This
proposal was recommended for areas in Hidalgo County where there is an existing levee
system in place. Should this proposal replace the need for fencing, the impact on
landowners is greatly reduced. This effort demonstrates willingness by the Border Patrol
to remain objective and consider viable alternatives to fencing, while maintaining our
stance in installing physical border infrastructure.
Case 1:08-cv-01046-JDB Document 23-6 Filed 12/03/2008 Page 3 of 11

Vaughn Index
Document:
Fence Justification Response to
Texas Observer _ 2-21-08
(Redacted) Supplemental Release
#2 (November 17, 2008)
Case 1:08-cv-01046-JDB Document 23-6 Filed 12/03/2008 Page 4 of 11

GRANJENO AND SHARYLAND PLANTATION (O-5)

The McAllen Border Patrol Station (MCS) area of responsibility (AOR) consists of
approximately 887 square miles and 53 Rio Grande River miles. Through the PF225
project, MCS was allotted approximately 11.8 miles of fencing. MCS management was
afforded the discretionary authority to recommend the most suitable locations for fencing
based on operational necessity within the MCS AOR.

The MCS management team was responsible for identifying all proposed fencing
placement within the MCS area of responsibility (AOR) based on the fencing length
parameters set by RGV Sector. The primary objective was to provide an additional
security measure in areas experiencing significant illegal incursions. The areas chosen
for fencing were based on traditional, historical and common illicit trafficking trends.
The main consideration for fence placement was strictly operational for border patrol
purposes. The areas selected for fence placement require actual physical barriers if MCS
Agents are expected to maintain an advantage against illegal incursions.

There was no influence on fence placement dictated by parties outside the Border Patrol.
Due to the limited number of miles of fencing allocated to the McAllen Station, we were
unable to provide fencing for all areas where fencing was deemed necessary. As a result,
only the most significant problematic areas were designated for fence placement. After
the initial fence placement was submitted for approval, changes have been made to
accommodate certain circumstances. For the most part, these changes have been minor
and have not altered the McAllen Station's goals for implementing tactical infrastructure.
The process of identifying and contacting affected landowners was not initiated until after
the proposed fence locations were identified.

A recent proposal introduced by the Hidalgo County Drainage District would replace
fencing with a concrete levee wall that would support the levee on the south side. This
proposal was recommended for areas in Hidalgo County where there is an existing levee
system in place. Should this proposal replace the need for fencing, the impact on
landowners is greatly reduced. This effort demonstrates willingness by the Border Patrol
to remain objective and consider viable alternatives to fencing, while maintaining our
stance in installing physical border infrastructure.

RIVERBEND RESORT GOLF COURSE (O-17)

The area identified by the Brownsville Station as Zone 28 includes the Riverbend Resort
typically inhabited by retired citizens or winter Texans. This area typically does not see a
large influx of incursions. Citizens residing in this small community have a great
relationship with the service as a whole and report any criminal activity occurring within
the resort. There is currently only one entrance and exit into the Resort area.
Case 1:08-cv-01046-JDB Document 23-6 Filed 12/03/2008 Page 5 of 11

The Riverbend Golf Course, like the Fort Brown Golf Course, also is currently situated in
a flood plain. No fence alignment was planned at this location due to the flood plain and
the fact that if the alignment of the fence will cut directly through the course. From an
operational standpoint, fence alignment at the Riverbend Resort area was deemed
unfeasible.

Incursions, where the fence alignment currently exists, have used the areas that have
heavy or thick brush to avoid detection and apprehension by field agents.

Future projects such as the Railway Port of Entry, expansion of U.S. Highway 281, and a
new high school directly across the Riverbend Resort area will definitely increase
incursions through the rural areas due to an increase in population growth. The rural area
at this location is where the projected fence alignment has been placed and deemed
operationally feasible.

UTB AND FORT BROWN GOLF COURSE (O-19)


Currently, the Brownsville Border Patrol Station shares the same areas of responsibility
with the University of Texas/Texas Southmost College in Brownsville, Texas near the
Fort Brown Golf Course. The area identified by the Brownsville Station as Zone 32 and
Zone 31 includes three ports of entry, Veterans, Gateway, and Brownsville & Matamoros
Ports of Entry. The area west of Veterans, along University Drive up to Highway 77 is
patrolled by both Border Patrol and UTB campus police. This area includes federal
wildlife preserves south of the United States International and Boundaries Water
Commission (USIBWC) levee and a public golf course. Due to its terrain and proximity
to Mexico, this area presents a challenge to control. This area is notorious for illegal
entries, re-entry of undocumented aliens and aggravated criminal aliens and felons.

Another factor to consider is that, the Gateway International Port of Entry is the primary
port of entry for the repatriation of Mexican Nationals from the interior of United States,
by ICE/Deportations. These repatriations occur on a consistent basis and thus this area in
and around the Gateway Port of Entry has the highest concentrations of aggravated
criminal aliens and felons that attempt re-entry.

The Fort Brown Golf Course is currently situated on the south end of the current
USIBWC levee. This levee was initially relocated to its current location due to the
construction of Brownsville’s third port of entry, Veterans (aka: Los Tomates). The
initial licenses and permits for the relocation of the levee at that time were initiated on
June 30, 1997, with project completion occurring in 1997 or 1998.

The U. S. Fish and Wildlife Service had filed a lawsuit against USIBWC to remove the
existing levee at that time, around the golf course. That lawsuit stated USIBWC was not
to remove any vegetation from the area adjacent the river because of it being designated
Case 1:08-cv-01046-JDB Document 23-6 Filed 12/03/2008 Page 6 of 11

as an animal corridor. Erecting the proposed fence at this location was taken under
consideration during the planning stages but was deemed unfeasible due to the lawsuit.

The Fort Brown Golf Course is currently situated on a flood plain. Less than half of the
original levee currently exists. As per the treaties that the United States Government
signed with Mexico involving USIBWC and MXIBWC, no structures were to be built
south of the levee in the existing flood plain. The current fence alignment location,
which is just north of the current USIBWC levee, was deemed a more feasible site
operationally. The security of the University staff, alumni and public were also taken
into consideration for the current fence alignment.
Case 1:08-cv-01046-JDB Document 23-6 Filed 12/03/2008 Page 7 of 11

Vaughn Index
Document:
Issue Paper _ 2-21-08 Newspaper
Article (Redacted) Supplemental
Release #2 (November 17, 2008)
Case 1:08-cv-01046-JDB Document 23-6 Filed 12/03/2008 Page 8 of 11

ISSUE / BRIEFING TOPIC:


• Addressing newspaper article claiming biases relevant to fence selection
locations in RGV

DESIRED OUTCOME:
• Show that current fence selection locations are based on operational need
• Explain why certain locations are not feasible locations for fence footprint

BACKGROUND:
• Texas Observer newspaper article (2/19/08) implied that CBP/USBP had
purposely stopped the fence footprint short of locations where affluent
people or people who were politically connected had a vested interest
such as golf courses and an industrial park
• RGV Field Commanders (PAICs) analyzed historic data and current
trends in terms of cross-border activities
o Intel reports
o Enforce statistics
o Field knowledge
• Geographic layout was taken into account (open fields vs. congested
urban development)
o Article claimed that an industrial park in the Mission, Texas area
was also spared the fence (east of fence footprint)
o Industrial park has wide open agricultural fields south of their
location, making cross-border activity vulnerable to apprehension
o Project O-5: Proposed POE in general area as well as established
housing community (west of industrial park)
o Article claimed that River Bend Resort enjoys no fence going
through its property, while the fence footprint falls on both their
sides
o Project O-17: Proposed RR POE in general area (west of River
Bend Resort)
o Project O-17: Housing community (River Bend Resort) east of the
proposed fence location on the south side of the levee
(floodplain)—did not want to cut them off
o Project O-19: UTB golf course on south side of levee (floodplain)—
cannot build in the floodplain
• Access to routes of egress once in the U.S. were considered

CHALLENGES / CONCERNS:
• Newspaper article claimed that the affluent and the politically connected
were spared being included in the fence footprint
• Well detailed and written article tends to lead the average reader to
believe that such claims are true

Drafted by: (b) (6)


Date: February 22, 2008
Case 1:08-cv-01046-JDB Document 23-6 Filed 12/03/2008 Page 9 of 11

OPTIONS:
(b) (5)

RECOMMENDATION:
• Based on the information briefed, it is recommended that CBP, in
conjunction with SBInet, continue to update the public through periodic
responses to inquiries.

Drafted by: (b) (6)


Date: February 22, 2008
Case 1:08-cv-01046-JDB Document 23-6 Filed 12/03/2008 Page 10 of 11

Vaughn Index
Document:
Issue Paper _ 5-19-08 Affluent vs.
Non-Affluent (HL) (Redacted)
Supplemental Release #2
(November 17, 2008)
Case 1:08-cv-01046-JDB Document 23-6 Filed 12/03/2008 Page 11 of 11

ISSUE / BRIEFING TOPIC:


• Allegation of PF fencing in RGV was based on affluent/non-affluent status
of individual landowners

BACKGROUND/WHERE WE WERE:
• On February 19, 2008, the Texas Observer claimed biases in determining
fence location
• Mr. Garza: Insinuated relationship between Hunt Development
Corporation / President Bush was a major factor for fence location
nd
• Dr. Eloisa Tamez: 2 person claiming affluence was factor (River Bend
Resort area)

CURRENT STATUS/WHERE WE ARE:


• Response was drafted to address article inaccuracies
o Reference to historical apprehension data
o Intel based discussions
o Current technology being used to address activity
o Anticipated levels of activity with new POE
• OBP Senior Leadership briefed CBP Commissioner on Texas Observer
article and on overall circumstances surrounding issue
• Secretary Chertoff to respond to Chairman in letter regarding allegation
and inaccuracies

CHALLENGES & CONCERNS/ WHERE WE’RE GOING:


• Barring further inquiries from Chairman, CBP will proceed forward with
plans to build fence
Case 1:08-cv-01046-JDB Document 23-7 Filed 12/03/2008 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 Defendant United States Department of Homeland Security’s

Motion for Summary Judgment in Part, supporting memorandum of points and authorities,

statement of material facts as to which there is no genuine issue, Plaintiff’s response thereto, and

the entire record herein, it is hereby ORDERED that the motion is GRANTED.

It is further ORDERED that judgment shall be entered in favor of Defendant United

States Department of Homeland Security on the first part of Plaintiff’s March 17, 2008 FOIA

request.

It is SO ORDERED this day of , 2008.

John D. Bates
United States District Judge