Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) C.A. No. 08-1046 (JDB)
)
DEPARTMENT OF HOMELAND SECURITY, )
)
Defendant. )
)

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT IN PART, AND IN SUPPORT OF
PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT IN PART

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

plaintiff Citizens for Ethics and Responsibility in Washington (“CREW”) seeks the disclosure

of records concerning the construction of the U.S.-Mexico border fence created and

maintained by defendant Department of Homeland Security (“DHS”) and its component, U.S.

Customs and Border Protection (“CBP”). Specifically at issue at this stage of the proceedings

are records concerning published allegations that CBP engaged in improper political

favoritism when it made decisions concerning the location of the border fence and the

property owners who would be adversely impacted by the construction project. The agency

has identified 32 documents as responsive to the relevant portion of CREW’s FOIA request,

but has refused to disclose the vast majority of the contents of those records. As we

demonstrate below, the agency has failed to carry its burden of justifying its decision to

withhold this material from disclosure and is thus not entitled to the partial summary

judgment it seeks with respect to the disputed information.

 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 2 of 15

Factual Background

In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Congress directed the Executive Branch to build physical barriers at the U.S.-

Mexico border in order to deter illegal immigration. IIRIRA § 102(a); Pub. L. No. 104-208, 8

U.S.C. § 1103 Note. The first such barrier was to be constructed “along the 14 miles of the

international land border of the United States, starting at the Pacific Ocean and extending

eastward” in the vicinity of San Diego. Id. § 102(b)(1). In October 2006, the IIRIRA was

amended by the Secure Fence Act, which identifies five specific areas where 700 miles of

border fencing is authorized for construction, including portions of the border located in

Texas. Pub. L. No. 109-367 (Oct. 26, 2006).

Decisions concerning the proposed location of the border fence in Texas have been

controversial, and there have been allegations that wealthy and well-connected landowners

have influenced the siting process. On February 18, 2008, an article published in The Texas

Observer asserted that land owned by Ray L. Hunt, a “Dallas billionaire” and “close friend of

President George W. Bush,” will be bypassed by the construction project, amid suspicions of

undue influence. Melissa Del Bosque, Holes in the Wall; Homeland Security Won’t Say Why

the Border Wall is Bypassing the Wealthy and Politically Connected, The Texas Observer,

February 18, 2008 (attached hereto as Exhibit A).

By letters to DHS and CPB dated March 17, 2008, CREW requested under the FOIA

certain records concerning the U.S.-Mexico border fence. Specifically, CREW requested:

a) any and all records dating from January 20, 2001 to the present reflecting
communications concerning Ray L. Hunt, Hunt Consolidated, Inc. and 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;
and

2
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 3 of 15

b) all records discussing or reflecting where fencing should be constructed

along the U.S. border with Mexico.

Defendant’s Exhibit A (attached to Answer) at 1-2.1

Upon the agency’s failure to respond to CREW’s request within the statutory deadline

of 20 working days, 5 U.S.C. § 552(a)(6)(A), CREW initiated this action on June 18, 2008.

Subsequent to the filing of CREW’s complaint, the parties conferred on July 8, 2008, in order

to narrow the terms of the request in response to defendant’s assertion there were likely

“voluminous” records responsive to the request as initially drafted. Answer, ¶ 7. The

following revised request language was 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 decisionmaking process surrounding
where [Secure Border Initiative] fencing should be constructed along the U.S.
border with Mexico. This request excludes any records relating to fencing done
prior to the inception of the Secure Border Initiative (i.e., pre-existing 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.
The parties further agreed to bifurcate the handling of the two parts of CREW’s re-

stated request, and CBP made an initial disclosure of material responsive to the first part of

1
In its letters to DHS and CPB, CREW requested expedited processing of its FOIA requests
and asserted the requests meet the criteria for expedited processing under DHS’s regulations,
6 CFR § 5.5(d)(1)(ii), because they pertain to a matter about which there is an “urgency to
inform the public about an actual or alleged federal government activity,” and the requests are
made by “a person primarily engaged in disseminating information.” Id. at 2-3. The agency
never responded to CREW’s expedition request, and did not complete its processing of the
portion of the FOIA request at issue here until five months after CREW initiated this action.

3
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 4 of 15

CREW’s FOIA request (the “Hunt portion”) on September 2, 2008. The agency released

additional material in supplemental responses dated October 10 and November 17, 2008.

Declaration of Mark Hanson (“Hanson Decl.”), ¶ 9. The vast majority of the contents of the

records identified as responsive to the Hunt portion of CREW’s request has been withheld by

CBP under FOIA Exemptions 5, 6, and 7(E). Hanson Decl., ¶¶ 9&10; Vaughn Index

(attached thereto). On December 3, 2008, defendant moved for summary judgment in part,

asserting it has located and disclosed all non-exempt material responsive to the Hunt portion

of CREW’s request, and has “not improperly withheld any responsive records.”

Memorandum of Points and Authorities in Support of Defendant’s Motion for Summary

Judgment in Part (“Def. Mem.”) at 2.2

ARGUMENT

The Freedom of Information Act is intended to safeguard the right of the American

people to know “what their Government is up to.” Dep’t of Justice v. Reporters Comm. for

Freedom of the Press, 489 U.S. 749, 773 (1989). The central purpose of the statute is “to

ensure an informed citizenry, vital to the functioning of a democratic society, needed to check

against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins

Tire & Rubber Co., 437 U.S. 214, 242 (1978); Maydak v. Dep’t of Justice, 218 F.3d 760

(D.C. Cir. 2000). As this Court recently noted, “Congress enacted FOIA for the purpose of

introducing transparency to government activities.” In Def. of Animals v. NIH, 543 F. Supp.

2d 83, 93 (D.D.C. 2008) (citation omitted); see also Judicial Watch, Inc. v. Dep’t of Justice,

365 F.3d 1108, 1112 (D.C. Cir. 2004) (“The Supreme Court has long recognized that

2
CREW does not challenge the adequacy of defendant’s search for responsive records, nor its
invocation of Exemptions 6 and 7(E) to withhold a relatively small amount of the responsive
material. As such, CBP’s invocation of Exemption 5, which accounts for the vast majority of
the withheld information, is at issue here.

4
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 5 of 15

Congress’ intent in enacting FOIA was to implement ‘a general philosophy of full agency

disclosure.’”).

Agency records requested under the FOIA must be disclosed unless they fall squarely

within one of the statute’s nine enumerated exemptions. The exemptions “must be narrowly

construed,” and “do not obscure the basic policy that disclosure, not secrecy, is the dominant

objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).

In reviewing a motion for summary judgment under the FOIA, the Court must conduct

a de novo review of the record. 5 U.S.C. § 552(a)(4)(B). In the FOIA context, “de novo

review requires the court to ‘ascertain whether the agency has sustained its burden of

demonstrating that the documents requested . . . are exempt from disclosure under the

FOIA.’” Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55,

57 (D.C. Cir. 2003) (quoting Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir.

1998)). Under the FOIA, all underlying facts and inferences are analyzed in the light most

favorable to the FOIA requester; as such, summary judgment is only appropriate where an

agency proves it has fully discharged its FOIA obligations. Moore v. Aspin, 916 F. Supp 32,

35 (D.D.C. 1996) (citing Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).

I. CBP Has Failed to Meet The Procedural Requirements

Necessary to Sustain Its Burden Under The FOIA

In Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973), the D.C. Circuit established

the “procedural requirements” that “an agency seeking to avoid disclosure” must follow in

order to carry its burden. Vaughn requires that “when an agency seeks to withhold

information it must provide a relatively detailed justification, specifically identifying the

reasons why a particular exemption is relevant and correlating those claims with the particular

5
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 6 of 15

part of a withheld document to which they apply.” Mead Data Cent., Inc. v. U.S. Dep’t of the

Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) (citations omitted).3

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

appeals reviewed the caselaw applying Vaughn and emphasized that

[s]pecificity is the defining requirement of the Vaughn index and affidavit;

affidavits cannot support summary judgment if they are “conclusory, merely
reciting statutory standards, or if they are too vague or sweeping.” To accept
an inadequately supported exemption claim “would constitute an abandonment
of the trial court’s obligation under the FOIA to conduct a de novo review.”

(footnotes omitted). See also Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (“[t]he

court has provided repeated instruction on the specificity required of a Vaughn index”). As

the court concluded in King, “[c]ategorical description of redacted material coupled with

categorical indication of anticipated consequences of disclosure is clearly inadequate.” 830

F.2d at 224 (footnote omitted). See also Ctr. for Medicare Advocacy, Inc. v. Dep't of Health

& Human Serv., 577 F. Supp. 2d 221, 238 (D.D.C. 2008) (Vaughn submission “‘must be

sufficiently detailed’ so as to permit the FOIA requester and the court to review the

applicability of the claimed FOIA exemptions on a document by document basis”).

Here, as we discuss more fully below in the context of CBP’s invocation of

Exemption 5, the agency has proffered a classic example of the kind of “conclusory”

declaration the D.C. Circuit has long rejected. The declaration of Mr. Hanson is wholly

lacking in the requisite “specificity” and, at best, merely attempts to offer a “categorical

indication of anticipated consequences of disclosure.” Thus, for instance, Mr. Hanson’s

attempt to justify the agency’s invocation of Exemption 5, which accounts for the vast

3
The Vaughn requirements are typically satisfied through an agency’s submission of an
affidavit describing the basis for its withholdings, and providing justifications for redactions,
accompanied by an index listing responsive records and indicating the precise redactions
made to the records. We refer to the affidavit and index collectively herein as a “Vaughn
submission.”

6
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 7 of 15

majority of the withheld material, consists almost entirely of a discussion of “[t]he general

purpose of this privilege,” which appears to reflect his understanding of the governing

caselaw. Hanson Decl., ¶ 12. Mr. Hanson’s only reference to the specific information at

issue here is as follows:

In this case, Exemption (b)(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.

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. These messages reflect
the normal back-and-forth that precedes an agency decision, in this case the
agency response to allegations of improper preferential treatment being
afforded to Ray L. Hunt.

Exemption (b)(5) was also applied to draft documents that reflect the
agency’s deliberative process. 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). Release of draft documents
would reveal deliberations of what should, and should not, have been included
in the final version of the document.

Id., ¶¶ 13-15.

Similarly, the agency’s proffered Vaughn Index repeatedly states, without any further

elaboration, variations of the following formulation: “Information that illustrates the

deliberative process within CBP is redacted pursuant to 5 U.S.C. § 552(b)(5) because [the]

information contains deliberations on how to respond to allegations raised in the media.” See,

e.g., Vaughn Index (attached to Hanson Decl.) entries for Documents 1, 10-24, 28. These

categorical and conclusory assertions are the kind of representations long rejected by the

courts. The inadequacy of CBP’s Vaughn submission is apparent, and that shortcoming –

standing alone – compels the Court to find that the agency has failed to carry its burden. See,

e.g., Defenders of Wildlife v. U.S. Dep’t of Agric., 311 F. Supp. 2d 44 (D.D.C. 2004)

7
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 8 of 15

(summary judgment denied where agency declarations are “inadequate” because they “do not

afford the plaintiffs ‘a meaningful opportunity to contest, and the district court an adequate

foundation to review, the soundness of the withholding.’”).

II. CBP Has Not Met Its Burden of Showing The Records
Are Exempt From Disclosure Under Exemption 5

The utter inadequacy of CBP’s purported Vaughn submission becomes all the more

apparent when the agency’s vague representations are measured against the specific

requirements of Exemption 5. The agency invokes the exemption on three distinct grounds:

1) deliberative process privilege, premised on the argument that withheld material reveals

“deliberations on how to respond to allegations raised in the media” (Documents 1, 10-24, 28

and “Issue Paper_2-21-08 Newspaper Article”); 2) deliberative process privilege, premised on

the argument that “the document is a draft that reflects internal discussions and is not in final

form” (Document 9); and 3) material redacted “because it contains confidential communi-

cations between attorney and client” (Document 28). As we explain below, CBP has failed to

establish the propriety of its exemption claims.

A. The Records Are Not Properly Withheld

Under The Deliberative Process Privilege

In conducting a de novo review and deciding whether a document should be protected

under the deliberative process privilege, courts “look to whether the document is

‘predecisional’ – whether it was generated before the adoption of an agency policy – and

whether the document is ‘deliberative’ – whether it reflects the give-and-take of the

consultative process.” Nat’l Sec. Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211, 217

(D.D.C. 2005) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.

Cir. 1980)) (internal quotation marks omitted). To establish that a document is predecisional,

the agency must “establish what deliberative process is involved, and the role . . . that the

8
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 9 of 15

documents at issue played in that process.” Id. (emphasis added; citation omitted). See also

Formaldehyde Inst. v. Dep’t of Health & Human Serv., 889 F.2d 1118, 1123 (D.C. Cir. 1989)

(“the pertinent element is the role, if any, that the document plays in the process of agency

deliberations”) (citation and internal quotation marks omitted); Senate of Puerto Rico ex rel.

Judiciary Comm. v. U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (“the

deliberative process privilege is so dependent upon the individual document and the role it

plays in the administrative process”) (citation omitted). As this Court has explained, “because

the applicability of the deliberative process privilege is dependent on the content of each

document and the role it plays in the decisionmaking process, an agency’s affidavit describing

the withheld documents must be specific enough so that the elements of the privilege can be

identified.” Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252, 257 (D.D.C. 2004)

(citations omitted); see also id. at 259 (“[t]he agency must identify the role of a contested

document in a specific deliberative process”) (citation omitted).4

Here, CBP has identified, in the most general terms, the “process” involved –

“deliberations on how to respond to allegations raised in the media” – but has not even

attempted to identify the “role” the disputed documents “played in that process.” That failure

4
The D.C. Circuit has observed that

the word “deliberative” as used in the law of Exemption 5 is considerably

narrower than the colloquial meaning; as a consequence, the “deliberative” and
“predecisional” requirements tend to merge. Both terms have come to apply
only to documents that contribute to an ongoing deliberative process within an
agency. . . . In Senate of Puerto Rico, we told the agency that it “must
establish ‘what deliberative process is involved, and the role played by the
documents in issue in the course of that process’” to fulfill the deliberative
requirement, but we were quoting a portion of the Coastal States opinion
discussing the predecisional label.

Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991) (emphasis in
original; citation omitted).

9
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 10 of 15

is particularly significant given the nature of the disputed material – the agency’s response to

news media allegations of improper conduct. It is a fundamental tenet of Exemption 5

caselaw that “even if [a] document is predecisional at the time it is prepared, it can lose that

status if it is adopted, formally or informally, as the agency position on an issue or is used by

the agency in its dealings with the public.” Coastal States, 617 F.2d at 866; see also Tax

Analysts v. Internal Revenue Serv., 483 F. Supp. 2d 8, 13 (D.D.C. 2007). Significantly, CBP

identifies several of the withheld documents as “talking points.” Vaughn Index, Documents

1, 9, 22 and 24. As this Court recently held, “the likelihood” that withheld materials “have

been relied upon or adopted as official positions after their preparation . . . is particularly high

in the case of ‘talking points’ . . . .” Elec. Privacy Info. Ctr. v. Dep’t of Justice, 511 F. Supp.

2d 56, 71 (D.D.C. 2007). See also N.Y. Times Co. v. U.S. Dep’t of Defense, 499 F. Supp. 2d

501, 514-515 (S.D.N.Y. 2007) (“talking points and the formulation of responses to possible

questions” prepared “to aid in briefing officials and preparing them to answer questions,” and

“for the Attorney General so that he can be prepared to answer inquiries from the press” held

not properly withheld under Exemption 5); Judicial Watch, Inc. v. U.S. Dep’t of Energy, 310

F. Supp. 2d 271, 327 (D.D.C. 2004), affirmed in part and reversed in part on other grounds,

412 F.3d 125 (D.C. Cir. 2005) (“documents [that] consist of talking points . . . appear to be

improperly withheld”); Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. at 265-266

(“draft talking points” not properly withheld where agency “identifies nothing more specific

about the content of this document, does not specify its place in a particular decisionmaking

context, and does not indicate whether, as a draft, these talking points were actually used in a

communication with the public”).

When CBP’s vague and generic assertion that the disputed material reflects

“deliberations on how to respond to allegations raised in the media” is weighed against the

10
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 11 of 15

relevant caselaw, it is apparent that the agency has failed to carry its burden of demonstrating

the information is properly withheld under the deliberative process privilege.5 CPB is not

entitled to judgment based on its “media response” rationale, which forms the basis for the

withholding of the vast majority of the information at issue.6

The agency seeks to withhold one record “because the document is a draft that reflects

internal discussions and is not in final form.” Vaughn Index, Document 9 (“Draft Talking

Points related to Texas Border Coalition Lawsuit”). Again, the agency’s failure to provide

plaintiff and the Court with even the most basic information about the document compels a

finding the agency has not met its burden of proof. As this Court has held, “the defendants’

designation of a document as a ‘draft’ does not automatically trigger proper withholding

under Exemption 5.” Defenders of Wildlife v. U.S. Dep’t of Agric., 311 F. Supp. 2d 44, 58

(D.D.C. 2004), citing Arthur Andersen & Co. v. Internal Revenue Serv., 679 F.2d 254, 257

(D.C. Cir. 1982). As the D.C. Circuit explained in Arthur Andersen,

5
The only authority the agency cites in support of its assertion that it “properly withheld
records relating to internal agency discussions about how to respond to allegations of
improper preferential treatment being afforded to Ray L. Hunt” is Nielson v. BLM, 252 F.R.D.
499 (D. Minn. 2008). Def. Mem. at 16. In that case, a magistrate found, without extensive
analysis, that a “single redacted paragraph” in which the author “recommends actions the
BLM should take to clarify to the public the issues raised” in a newspaper article was properly
withheld under Exemption 5. 252 F.R.D. at 519. We respectfully submit that this Court’s
relevant authority, cited above, is better-reasoned and more analogous to the facts present
here.
6
The agency’s failure to provide any meaningful information concerning the withheld
material renders the Court unable to consider various factors that would normally inform its
application of Exemption 5. While, as we have shown, the “adoption” issue is the most
apparent in light of the circumstances present here, other critical questions remain
unaddressed. For instance, it is well-established that “a document from a subordinate to a
superior official is more likely to be predecisional,” Tax Analysts v. Internal Revenue Serv.,
294 F.3d 71, 81 (D.C. Cir. 2002), quoting Coastal States, 617 F.2d at 868, but CBP has failed
to identify the authors and recipients of the withheld records.

11
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 12 of 15

Coastal States forecloses the Agency’s argument that any document identified
as a “draft” is per se exempt. Even if a document is a “draft of what will
become a final document,” the court must also ascertain “whether the
document is deliberative in nature.” Further, “even if the document is
predecisional at the time it is prepared, it can lose that status if it is adopted,
formally or informally, as the agency position on an issue or is used by the
agency in its dealings with the public.”

679 F.2d at 257-258 (citations omitted). Like its “media response” assertions, CBP’s bare

claim that one document may be withheld merely because it is a “draft” falls far short of the

showing the agency must make to sustain its withholding decision. The Court should order

the document disclosed.

Finally, we note the deliberative process privilege may not be invoked to “protect

material that is purely factual.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d at 1113,

quoting In re Sealed Case (“Espy”), 121 F.3d 729, 737 (D.C. Cir. 1997); see also Petroleum

Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (“[u]nder the

deliberative process privilege, factual information generally must be disclosed”).

Given that the information at issue here was created in reaction “to allegations of

improper preferential treatment being afforded to Ray L. Hunt” and as part of the process of

developing “the agency’s response to the media account,” Def. Mem. at 16, it is obvious that

a substantial portion of the redacted information is factual. Indeed, it is difficult to imagine

how the information marshaled by the agency in order to respond to the allegations could be

anything but “purely factual.” This conclusion is supported by unredacted portions of the

disputed records; for instance, several email messages instruct their recipients to “fact check,”

see, e.g., Vaughn Index, Documents 10 and 11, and to “review . . . for correctness,” see, e.g.,

id., Documents 15 and 24, documents that are attached to the email. It is thus clear that a

substantial amount of the disputed information is “purely factual” and may not properly be

withheld.

12
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 13 of 15

B. One Record Is Improperly Withheld In Part

Under The Attorney/Client Privilege

CBP has withheld one record (Document 28) in part based upon a claim that it

“include[s] a reference to a confidential attorney-client communication relating to the

agency’s response [to the media allegations of political favoritism].” Def. Mem. at 16-17.

Once again, the agency’s attempt to withhold this material is unsupported by the requisite

showing. In fact, Mr. Hanson does not even address the basis for this privilege claim in his

declaration; it is merely mentioned in defendant’s brief and noted in its Vaughn Index

(“Information is redacted . . . because it contains confidential communications between

attorney and client.”). Such a meager showing is clearly inadequate; as this Court has noted,

an agency must “identif[y] the source and recipient of [such] communications,” because that

information “is critical to the Court’s assessment of whether the communications are between

an attorney and a client.” Ctr. for Medicare Advocacy, 577 F. Supp. 2d at 238. CBP’s

assertion of attorney/client privilege cannot be sustained.

III. CBP Has Failed to Comply With The FOIA’s Segregability Requirement

The FOIA requires that “[a]ny reasonably segregable portion of a record shall be

provided . . . after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). The D.C.

Circuit has made clear “[t]he ‘segregability’ requirement applies to all documents and all

exemptions in the FOIA.” Ctr. for Auto Safety v. EPA, 731 F.2d 16, 21 (D.C. Cir. 1984); see

also Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992). This comports with the policy

of disclosure and prevents the withholding of entire documents, see Billington v. U.S. Dep’t of

Justice, 233 F.3d 581, 586 (D.C. Cir. 2000), unless the agency can demonstrate that the non-

exempt portions of a document are “inextricably intertwined with exempt portions.” Trans-

Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999)

13
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 14 of 15

(quoting Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir.

1976)).

So important is the segregability requirement to FOIA’s broad disclosure mandate that

trial courts have an affirmative duty to consider the issue of segregability sua sponte. Trans-

Pacific Policing Agreement, 177 F.3d at 1028; see also Billington, 233 F.3d at 586. In fact,

“[i]t is error for a district court to simply approve the withholding of an entire document

without entering a finding on segregability, or the lack thereof.” Schiller, 964 F.2d at 1210

(citations and internal quotation marks omitted); see also Billington, 233 F.3d at 586.

In this case, the agency has not conducted any segregation analysis. Instead,

defendant’s brief invites the Court simply to assume “all reasonably segregable non-exempt

material has been released.” Def. Mem. at 25 (citations omitted). But Mr. Hanson – the

agency’s declarant – does not address the question of segregability anywhere in his

declaration. Such a glaring omission is particularly significant in a case such as this one

where, as we have noted, a substantial amount of the withheld material appears to be “purely

factual” and thus not properly subject to withholding under Exemption 5. CBP’s failure to

address the segregability of non-exempt material precludes entry of judgment in the agency’s

favor.

CONCLUSION

As we have shown, CBP has improperly withheld virtually all of the information

responsive to the Hunt portion of CREW’s FOIA request, relying upon the vague assertion

that disclosure of the material would reveal the agency’s deliberations on how to respond to

published allegations of political favoritism. Under that sweeping rationale, the agency

appears to have withheld a substantial amount of factual material – precisely the kind of

information “needed to check against corruption and to hold the governors accountable to the

14
 Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page 15 of 15

governed.” Robbins Tire & Rubber Co., 437 U.S. at 242. Because the agency has so clearly

failed to meet its burden of justifying its actions, the Court should deny defendant’s motion

for summary judgment in part, and grant plaintiff’s cross-motion for summary judgment in

part.

Respectfully submitted,

/s/ David L. Sobel

DAVID L. SOBEL, D.C. Bar No. 360418
1875 Connecticut Avenue, N.W.
Suite 650
Washington, DC 20009
(202) 246-6180

ANNE L. WEISMANN, D.C. Bar No. 298190

MELANIE SLOAN, D.C. Bar No. 434584
Citizens for Responsibility and
Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
(202) 408-5565

Counsel for Plaintiff

15
Case 1:08-cv-01046-JDB Document 25-2 Filed 01/05/2009 Page 1 of 9

EXHIBIT A
Citizens for Responsibility and Ethics in Washington v. Dep’t of Homeland Security,
C.A. No. 08-1046 (JDB)

Plaintiff’s Cross-Motion for Summary Judgment in Part

 Case 1:08-cv-01046-JDB
Holes in the Wall by Melissa del Bosque - The Texas Observer Document 25-2 Filed 01/05/2009 Page 2 of 9 6/10/08 3:31 PM

Printed from http://www.texasobserver.org/article.php?aid=2688

Video Interviews

Video Traveloque

LOVE THE OBSERVER?

SPREAD THE WORD!

Contact us and we'll send a free Observer to your friends! For your referral you'll get the option
to extend your Observersubscription for one year at a discounted rate!

Refer a FriendDonate

Holes in the Wall

HOMELAND SECURITY WON’T SAY WHY THE BORDER WALL IS BYPASSING
THE WEALTHY AND POLITICALLY CONNECTED.

Melissa del Bosque | February 22, 2008 | Features

This article has been updated. Last update: February 22, 2008.

As the U.S. Department of Homeland Security marches down the Texas border serving
condemnation lawsuits to frightened landowners, Brownsville resident Eloisa Tamez, 72, has one
simple question. She would like to know why her land is being targeted for destruction by a
border wall, while a nearby golf course and resort remain untouched.

Tamez, a nursing director at the University of Texas at Brownsville, is one of the last of the
Spanish land grant heirs in Cameron County. Her ancestors once owned 12,000 acres. In the
1930s, the federal government took more than half of her inherited land, without paying a cent, to
build flood levees.

Now Homeland Security wants to put an 18-foot steel and concrete wall through what remains.

http://www.texasobserver.org/article.php?aid=2688&print=true Page 1 of 8
 Case 1:08-cv-01046-JDB
Holes in the Wall by Melissa del Bosque - The Texas Observer Document 25-2 Filed 01/05/2009 Page 3 of 9 6/10/08 3:31 PM

While the border wall will go through her backyard and effectively destroy her home, it will stop
at the edge of the River Bend Resort and golf course, a popular Winter Texan retreat two miles
down the road. The wall starts up again on the other side of the resort.

“It has a golf course and all of the amenities,” Tamez says. “There are no plans to build a wall
there. If the wall is so important for security, then why are we skipping parts?”

Along the border, preliminary plans for fencing seem to target landowners of modest means and
cities and public institutions such as the University of Texas at Brownsville, which rely on the
federal government to pay their bills.

A visit to the River Bend Resort in late January reveals row after row of RVs and trailers with
license plates from chilly northern U.S. states and Canadian provinces. At the edge of a lush,

http://www.texasobserver.org/article.php?aid=2688&print=true Page 2 of 8
 Case 1:08-cv-01046-JDB
Holes in the Wall by Melissa del Bosque - The Texas Observer Document 25-2 Filed 01/05/2009 Page 4 of 9 6/10/08 3:31 PM

green golf course, a Winter Texan from Canada enjoys the mild, South Texas winter and the
landscaped ponds, where white egrets pause to contemplate golf carts whizzing past. The woman,
who declines to give her name, recounts that illegal immigrants had crossed the golf course once
while she was teeing off. They were promptly detained by Border Patrol agents, she says, adding
that agents often park their SUVs at the edge of the golf course.

River Bend Resort is owned by John Allburg, who incorporated the business in 1983 as River
Bend Resort, Inc. Allburg refused to comment for this article. A scan of the Federal Election
Commission and Texas Ethics Commission databases did not find any political contributions
linked to Allburg.

Just 69 miles north, Daniel Garza, 76, faces a similar situation with a neighbor who has political
connections that reach the White House. In the small town of Granjeno, population 313, Garza

http://www.texasobserver.org/article.php?aid=2688&print=true Page 3 of 8
 Case 1:08-cv-01046-JDB
Holes in the Wall by Melissa del Bosque - The Texas Observer Document 25-2 Filed 01/05/2009 Page 5 of 9 6/10/08 3:31 PM

points to a field across the street where a segment of the proposed 18-foot high border wall
would abruptly end after passing through his brick home and a small, yellow house he gave his
son. “All that land over there is owned by the Hunts,” he says, waving a hand toward the horizon.
“The wall doesn’t go there.”

In this area everyone knows the Hunts. Dallas billionaire Ray L. Hunt and his relatives are one of
the wealthiest oil and gas dynasties in the world. Hunt, a close friend of President George W.
Bush, recently donated $35 million to Southern Methodist University to help build Bush’s
presidential library. In 2001, Bush made him a member of the Foreign Intelligence Advisory
Board, where Hunt received a security clearance and access to classified intelligence.

Over the years, Hunt has transformed his 6,000-acre property, called the Sharyland Plantation,
from acres of onions and vegetables into swathes of exclusive, gated communities where houses
sell from $650,000 to $1 million and residents enjoy golf courses, elementary schools, and a
sports park. The plantation contains an 1,800-acre business park and Sharyland Utilities, run by
Hunt’s son Hunter, which delivers electricity to plantation residents and Mexican factories.

The development’s Web site touts its proximity to the international border and the new
Anzalduas International Bridge now under construction, built on land Hunt donated. Hunt has
also formed Hunt Mexico with a wealthy Mexican business partner to develop both sides of the
border into a lucrative trade corridor the size of Manhattan.

Jeanne Phillips, a spokesperson for Hunt Consolidated Inc., says that since the company is
private, it doesn’t have to identify the Mexican partner. Phillips says, however, that no one from
the company has been directly involved in siting the fence. “We, like other citizens in the Valley,
have waited for the federal government to designate the location of the wall,” she says.

Garza stands in front of his modest brick home, which he built for his retirement after 50 years as
a migrant farmworker. For the past five months, he has stayed awake nights trying to find a way
to stop the gears of bureaucracy from grinding over his home.

A February 8 announcement by Homeland Security Secretary Michael Chertoff said the agency
would settle for building the fence atop the levee behind Garza’s house instead of through it,
which has given Garza some hope. Like Tamez, he wonders why his home and small town were
targeted by Homeland Security in the first place.

“I don’t see why they have to destroy my home, my land, and let the wall end there.” He points
across the street to Hunt’s land. “How will that stop illegal immigration?”

Most border residents couldn’t believe the fence would ever be built through their homes and
communities. They expected it to run along the banks of the Rio Grande, not north of the flood
levees—in some cases like Tamez’s, as far as a mile north of the river. So it came as a shock last
summer when residents were approached by uniformed Border Patrol agents. They asked people
to sign waivers allowing Homeland Security to survey their properties for construction of the
wall. When they declined, Homeland Security filed condemnation suits.

In time, local landowners realized that the fence’s location had everything to do with politics and
private profit, and nothing to do with stopping illegal immigration.

http://www.texasobserver.org/article.php?aid=2688&print=true Page 4 of 8
 Case 1:08-cv-01046-JDB
Holes in the Wall by Melissa del Bosque - The Texas Observer Document 25-2 Filed 01/05/2009 Page 6 of 9 6/10/08 3:31 PM

In 2006, Congress passed the Secure Fence Act, authored by Republican Congressman Peter King
from New York. The legislation mandated that 700 miles of double-fencing be built along the
southern border from California to Texas. The bill detailed where the fencing, or, as many people
along the border call it, “the wall,” would be built. After a year of inflamed rhetoric about the
plague of illegal immigration and Congress’s failure to pass comprehensive immigration reform,
the bill passed with overwhelming support from Republicans and a few Democrats. All the Texas
border members of the U.S. House of Representatives, except San Antonio Republican Henry
Bonilla, voted against it. Texas Sens. Kay Bailey Hutchison and John Cornyn voted for the bill.

On August 10, 2007, Chertoff announced his agency would scale back the initial 700 miles of
fencing to 370 miles, to be built in segments across the southern border. Chertoff cited budget
shortages and technological difficulties as justifications for not complying with the bill.

How did his agency decide where to build the segments? Chad Foster, the mayor of Eagle Pass,
says he thought it was a simple enough question and that the answer would be based on data and
facts. Foster chairs the Texas Border Coalition. TBC, as Foster calls it, is a group of border
mayors and business leaders who have repeatedly traveled to Washington for the past 18 months
to try to get federal officials to listen to them.

Foster says he has never received any logical answers from Homeland Security as to why certain
areas in his city had been targeted for fencing over other areas. “I puzzled a while over why the
fence would bypass the industrial park and go through the city park,” he says.

Despite terse meetings with Chertoff, Foster and other coalition members say the conversation
has been one-sided.

“I think we have a government within a government,” Foster says. “[This is] a tremendous
bureaucracy—DHS is just a monster.”

The Observer called Homeland Security in Washington to find out how it had decided where to
build the fence. The voice mail system sputtered through a dizzying array of acronyms: DOJ,
USACE, CBP, and USCIS. On the second call a media spokesperson with a weary voice directed
queries to Michael Friel, the fence spokesman for Customs and Border Protection. Six calls and
two e-mails later, Friel responded with a curt e-mail: “Got your message. Working on
answers…” it said. Days passed, and Friel’s answers never came.

Since Homeland Security wasn’t providing answers, perhaps Congress would. Phone
conversations with congressional offices ranged from “but they aren’t even building a wall” to “I
don’t know. That’s a good question.” At the sixth congressional office contacted, a GOP staffer
who asked not to be identified, but who is familiar with the fence, says the fencing locations
stemmed from statistics showing high apprehension and narcotic seizure rates. This seems
questionable, since maps released by the U.S. Army Corps of Engineers showed the wall going
through such properties as the University of Texas at Brownsville—hardly a hotbed for drug
smugglers and immigrant trafficking.

Questioned more about where the data came from, the staffer said she would enquire further. The
next day she called back. “The border fence is being handled by Greg Giddens at the Secure
Border Initiative Office within the U.S. Customs and Border Protection office,” she said.

http://www.texasobserver.org/article.php?aid=2688&print=true Page 5 of 8
 Case 1:08-cv-01046-JDB
Holes in the Wall by Melissa del Bosque - The Texas Observer Document 25-2 Filed 01/05/2009 Page 7 of 9 6/10/08 3:31 PM

Giddens is executive director of the SBI, as it is called, which is in charge of SBInet, a

consortium of private contractors led by Boeing Co. The group received a multibillion dollar
contract in 2006 to secure the northern and southern borders with a network of vehicle barriers,
fencing, and surveillance systems. Companies Boeing chose to secure the southern border from
terrorists include DRS Technologies Inc., Kollsman Inc., L-3 Communications Inc., Perot
Systems Corp., and a unit of Unisys Corp.

A February 2007 audit by the U.S. Government Accountability Office cited Homeland Security
and the SBInet project for poor fiscal oversight and a lack of demonstrable objectives. The GAO
audit team recommended that Homeland Security place a spending limit on the Boeing contract
for SBInet since the company had been awarded an “indefinite delivery/indefinite quantity
contract for 3 years with three 1-year options.”

The agency rejected the auditors’ recommendation, saying 6,000 miles of border is limitation
enough.

In a February 2007 hearing, Congressman Henry Waxman, a California Democrat and the
chairman of the Oversight and Government Reform Committee, had more scathing remarks for
Giddens and the SBInet project. “As of December, the Department of Homeland Security had
hired a staff of 98 to oversee the new SBInet contract. This may seem like progress until you ask
who these overseers are. More than half are private contractors. Some of these private contractors
even work for companies that are business partners of Boeing, the company they are supposed to
be overseeing. And from what we are now learning from the department, this may be just the tip
of the iceberg.”

Waxman said of SBInet that “virtually every detail is being outsourced from the government to
private contractors. The government is relying on private contractors to design the programs,
build them, and even conduct oversight over them.”

A phone call to Giddens at SBI is referred to Loren Flossman, who’s in charge of tactical
infrastructure for the office. Flossman says all data regarding the placement of the fence is
classified because “you don’t want to tell the very people you’re trying to keep from coming
across the methodology used to deter them.”

Flossman also calls the University of Texas at Brownsville campus a problem area for illegal
immigration. “I wouldn’t assume that these are folks that aren’t intelligent enough that if they
dress a certain way, they’re gonna fit in,” he says.

Chief John Cardoza, head of the UT-Brownsville police, says the Border Patrol would have to
advise his police force of any immigrant smuggling or narcotic seizures that happen on campus.
“If it’s happening on my campus, I’m not being told about it,” he says. Cardoza says he has never
come across illegal immigrants dressed as students.

Flossman goes on to say that Boeing isn’t building the fence, but is providing steel for it. Eric
Mazzacone, a spokesman for Boeing, refers the Observer to Michael Friel at Customs and
Border Protection, and intercedes to get him on the phone. Friel confirms that Boeing has just
finished building a 30-mile stretch of fence in Arizona, but insists other questions be submitted

http://www.texasobserver.org/article.php?aid=2688&print=true Page 6 of 8
 Case 1:08-cv-01046-JDB
Holes in the Wall by Melissa del Bosque - The Texas Observer Document 25-2 Filed 01/05/2009 Page 8 of 9 6/10/08 3:31 PM

in writing.

Boeing, a multibillion dollar aero-defense company, is the second-largest defense contractor in

the nation. The company has powerful board members, such as William M. Daley, former U.S.
secretary of commerce; retired Gen. James L. Jones, former supreme allied commander in
Europe; and Kenneth M. Duberstein, a former White House chief of staff. The corporation is also
one of the biggest political contributors in Washington, giving more than $9 million to
Democratic and Republican members of Congress in the last decade. In 2006, the year the Secure
Fence Act was passed, Boeing gave more than $1.4 million to Democrats and Republicans,
according to the Center for Responsive Politics.

A majority of this money has gone to legislators such as Congressman Duncan Hunter, the
California Republican who championed the Secure Fence Act. In 2006, Hunter received at least
$10,000 from Boeing and more than $93,000 from defense companies bidding for the SBInet
contract, according to the center. During his failed bid this year for the White House, Hunter
made illegal immigration and building a border fence the major themes of his campaign.

In early February 2008, Chertoff asked Congress for $12 billion for border security. He included
$775 million for the SBInet program, despite the fact that congressional leaders still can’t get
straight answers from Homeland Security about the program. As recently as January 31, Senate
Homeland Security and Governmental Affairs Committee members sent a letter to Chertoff
asking for “greater clarity on [the Customs and Border Protection office’s] operational objectives
for SBInet and the projected milestones and anticipated costs for the project.” They have yet to
receive a response.

Boeing continues to hire companies for the SBInet project. And the congressional districts of
backers of the border fence continue to benefit. A recent Long Island Business News article
trumpeted the success of Telephonics Corp., a local business, in Congressman King’s
congressional district that won a $14.5 million bid to provide a mobile surveillance system under
SBInet to protect the southern border.

While Garza and Tamez wait for answers, they say they are being asked to sacrifice something
that can’t be replaced by money. They are giving up their land, their homes, their heritage, and
the few remaining acres left to them that they hoped to pass on to their children and
grandchildren.

“I am an old man. I have colon cancer, and I am 76 years old,” Garza says, resting against a tree
in front of his home. “All I do is worry about whether they will take my home. My wife keeps
asking me, ‘What are we going to do?’”

Besides these personal tragedies, Eagle Pass Mayor Foster says there is another tragedy in store
for the American taxpayer. A 2006 congressional report estimates the cost of maintaining and
building the fence could be as much as $49 billion over its expected 25-year life span.

“They are just going to push this problem on the next administration, and nobody is going to talk
about immigration reform, and that’s the illness,” Foster says. “The wall is a Band-Aid on the
problem. And to blow $49 billion and not walk away with a secure border—that’s a travesty.”

http://www.texasobserver.org/article.php?aid=2688&print=true Page 7 of 8
 Case 1:08-cv-01046-JDB
Holes in the Wall by Melissa del Bosque - The Texas Observer Document 25-2 Filed 01/05/2009 Page 9 of 9 6/10/08 3:31 PM

What did you think?

Read comments on this article and share your own.

Do you subscribe?
If you enjoyed this article and are not a subscriber, we hope you’ll become one. Support
independent progressive journalism—subscribe today!

Back to Top

http://www.texasobserver.org/article.php?aid=2688&print=true Page 8 of 8
 Case 1:08-cv-01046-JDB Document 25-3 Filed 01/05/2009 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) C.A. No. 08-1046 (JDB)
)
DEPARTMENT OF HOMELAND SECURITY, )
)
Defendant. )
)

PLAINTIFF’S RESPONSE TO DEFENDANTS’ STATEMENT OF MATERIAL

FACTS NOT IN DISPUTE, AND PLAINTIFF’S STATEMENT OF MATERIAL
FACTS NOT IN DISPUTE

Pursuant to Local Civil Rules 7(h) and 56.1, plaintiff respectfully submits this

response to defendant’s statement of material facts, and statement of material facts as to

which plaintiff contends there is no genuine issue or dispute.

Response to Defendants’s Statement of Material Facts

1. This paragraph is not disputed.

2. This paragraph is not disputed.

3. This paragraph is not disputed.

4. This paragraph is not disputed.

5. This paragraph is not disputed, except to the extent that it suggests that all

information not properly exempt from disclosure has “been produced to Plaintiff.”

6. This paragraph is not disputed, except to the extent that it suggests that all

information not properly exempt from disclosure has “been produced to Plaintiff.”

7. This paragraph is not disputed, except to the extent that it suggests that responsive
 Case 1:08-cv-01046-JDB Document 25-3 Filed 01/05/2009 Page 2 of 3

documents were properly “redacted in accordance with 5 U.S.C. § 552.”

8. This paragraph is not disputed, except to the extent that it suggests that defendant’s

Vaughn Index and Declaration are legally sufficient and that only properly exempt responsive

information has been withheld from disclosure.

9. This paragraph states a legal conclusion, rather than a material fact, and that legal

conclusion is disputed.

Plaintiff’s Statement of Material Facts Not in Dispute

Plaintiff submits that the following material fact, in addition to those presented by

defendant and not disputed by plaintiff, as set forth above, is not in dispute:

1. Decisions concerning the proposed location of the border fence in Texas have been

controversial, and there have been allegations that wealthy and well-connected landowners

have influenced the siting process. On February 18, 2008, an article published in The Texas

Observer asserted that land owned by Ray L. Hunt, a “Dallas billionaire” and “close friend of

President George W. Bush,” will be bypassed by the construction project, amid suspicions of

undue influence. Melissa Del Bosque, Holes in the Wall; Homeland Security Won’t Say Why

the Border Wall is Bypassing the Wealthy and Politically Connected, The Texas Observer,

February 18, 2008 (filed herewith as Exhibit A).

Respectfully submitted,

__/s/ David L. Sobel__________________

DAVID L. SOBEL, D.C. Bar No. 360418
1875 Connecticut Avenue, N.W.
Suite 650
Washington, DC 20009
(202) 246-6180

2
Case 1:08-cv-01046-JDB Document 25-3 Filed 01/05/2009 Page 3 of 3

ANNE L. WEISMANN, D.C. Bar No. 298190

MELANIE SLOAN, D.C. Bar No. 434584
Citizens for Responsibility and
Ethics in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
(202) 408-5565

Counsel for Plaintiff