CLOSED,STANDARD
U.S. District Court District of Maine (Portland) CIVIL DOCKET FOR CASE #: 2:18−cv−00176−JDL

AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION v. US DEPARTMENT OF HOMELAND SECURITY et al Assigned to: JUDGE JON D. LEVY Referred to: MAGISTRATE JUDGE JOHN H. RICH III
related Case: 2:18−cv−00182−JDL
Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 05/01/2018 Date Terminated: 07/15/2019 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION

represented by EMMA EATON BOND AMERICAN CIVIL LIBERTIES UNION OF MAINE 121 MIDDLE STREET SUITE 200 PORTLAND, ME 04101 207−619−8687 Email: ebond@aclumaine.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

ZACHARY L. HEIDEN AMERICAN CIVIL LIBERTIES UNION OF MAINE 121 MIDDLE STREET SUITE 200 PORTLAND, ME 04101 207−774−5444 Fax: 207−774−1103 Email: zheiden@aclumaine.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant US DEPARTMENT OF HOMELAND SECURITY
Defendant

represented by ANDREW K. LIZOTTE U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE 100 MIDDLE STREET PLAZA PORTLAND, ME 04101 (207) 771−3246 Fax: (207) 780−3304 Email: andrew.lizotte@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES D. CONCANNON U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE 100 MIDDLE STREET PLAZA PORTLAND, ME 04101 207−780−3257 Email: james.concannon@usdoj.gov ATTORNEY TO BE NOTICED

US CUSTOMS AND BORDER PROTECTION

represented by ANDREW K. LIZOTTE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES D. CONCANNON (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/01/2018
05/01/2018 05/01/2018 05/14/2018 05/14/2018 05/15/2018 05/16/2018
05/21/2018 05/22/2018 05/22/2018 06/18/2018

# Docket Text
1 COMPLAINT against US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY PAYMENT OF FILING FEE DUE
WITHIN 48 HOURS. IF FILING FEE IS BEING PAID WITH A CREDIT CARD COUNSEL ARE INSTRUCTED TO LOGIN TO CMECF AND DOCKET Case Opening Filing Fee Paid FOUND IN THE Complaints and Other Initiating Documents CATEGORY. CHECK PAYMENTS
DUE WITHIN 48 HOURS., filed by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION. (Service of Process Deadline 7/30/2018) Fee due by 5/3/2018. (Attachments: # 1 Request, # 2 3/21/2018 Letter to Greyhound Lines Inc, # 3 4/19/2018 Letter to Concord Coach Lines, # 4 4/19/2018 Letter to Peter Pan Bus Lines, # 5 Request to CBP offices in Hodgdon, Maine)(sfw) (Entered: 05/01/2018)
2 CIVIL COVER SHEET. (sfw) (Entered: 05/01/2018)
Filing Fee Paid via Credit Card ( Filing fee $ 400 receipt number 0100−1834729.), filed by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION.(BOND, EMMA) (Entered: 05/01/2018)
3 AFFIDAVIT of Service by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION. US CUSTOMS AND BORDER PROTECTION served on 5/1/2018; US DEPARTMENT OF HOMELAND SECURITY served on 5/1/2018. (Attachments: # 1 Exhibit Return Receipt − Certified Mail)(BOND, EMMA) (Entered: 05/14/2018)
4 NOTICE of Appearance by ANDREW K. LIZOTTE on behalf of All Defendants (LIZOTTE, ANDREW) (Entered: 05/14/2018)
5 NOTICE of Appearance by JAMES D. CONCANNON on behalf of US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY (CONCANNON, JAMES) (Entered: 05/15/2018)
6 Summons Issued as to US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY.
Counsel shall print the embossed summons and effect service in the manner in accordance with Fed.R.Civ.P.4.
Note−If you are using Version 6 of Adobe Acrobat, be sure the PRINT WHAT field is set to DOCUMENTS AND COMMENTS (Click File, then Print to check this setting).
(Attachments: # 1 Summons − CBP)(akr) (Entered: 05/16/2018)
7 AFFIDAVIT of Service by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION. All Defendants. (Attachments: # 1 Appendix Return Receipt − Certified Mail)(BOND, EMMA) (Entered: 05/21/2018)
Set Answer Deadline for US DEPARTMENT OF HOMELAND SECURITY and US CUSTOMS AND BORDER PROTECTION : Answer due by 7/17/2018. (akr) (Entered: 05/22/2018)
Reset Answer Deadline for US DEPARTMENT OF HOMELAND SECURITY and US CUSTOMS AND BORDER PROTECTION : Answer due by 6/18/2018 pursuant to 5 U.S.C. § 552(a)(4)(C). (akr) (Entered: 05/22/2018)
8 ANSWER to 1 Complaint,,, by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY.(LIZOTTE, ANDREW) (Entered:

06/19/2018 07/03/2018 07/05/2018
07/05/2018
08/16/2018 08/16/2018 08/17/2018 08/17/2018 10/12/2018 10/12/2018 10/15/2018
10/15/2018 10/16/2018 10/22/2018 11/02/2018

06/18/2018)
9 SCHEDULING ORDER: Discovery due by 11/5/2018. Written Notice of Intent to File Summary Judgment Motion and Request for Pre−Filing Conference due by 11/13/2018. Motions due by 11/26/2018. Ready for Trial on 2/4/2019. By MAGISTRATE JUDGE JOHN H. RICH III. (mjlt) (Entered: 06/19/2018)
10 Joint MOTION to Amend Scheduling Order and Joint Report of 26(f) Conference by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 7/24/2018. (LIZOTTE, ANDREW) (Entered: 07/03/2018)
11 ORDER granting without objection 10 Motion to Amend Scheduling Order. Without objection, the parties are directed to file a written joint status report by August 17, 2018, addressing the status of defendants' search for and production of records responsive to the FOIA request at issue herein, the status of any negotiation on the scope and timing of future productions, and the parties' proposed schedule for future proceedings herein. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 07/05/2018)
Set Deadlines Pursuant to Order #11 entered on July 5, 2018: Status Report due by 8/17/2018− the parties are directed to file a written joint status report addressing the status of defendants' search for and production of records responsive to the FOIA request at issue herein, the status of any negotiation on the scope and timing of future productions, and the parties' proposed schedule for future proceedings herein. (mtm) (Entered: 07/06/2018)
12 STATUS REPORT Submitted by Joint Agreement by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (LIZOTTE, ANDREW) (Entered: 08/16/2018)
13 Joint MOTION for Permission to File Second Joint Status Report (No PDF attached. See ECF #12) by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY (akr) (Entered: 08/17/2018)
14 ORDER granting without objection 13 Joint Motion for leave to file second Joint Status Report. The parties shall file their second Joint Status Report, as requested, by October 12, 2018. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 08/17/2018)
Set Deadlines : Status Report due by 10/12/2018. (akr) (Entered: 08/17/2018)
15 STATUS REPORT and Joint Motion for Permission to File Third Joint Status Report by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (LIZOTTE, ANDREW) (Entered: 10/12/2018)
16 Joint MOTION for Permission to File Third Joint Status Report (No PDF attached. See ECF #15) by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY (akr) (Entered: 10/12/2018)
17 ORDER granting without objection 16 Motion for Leave to File Third Joint Status Report. The parties shall file their third Joint Status Report by November 2, 2018, addressing the parties' proposals for future proceedings, whether further record production, summary judgment briefing, or resolution of the case. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 10/15/2018)
Set Deadlines : Status Report due by 11/2/2018. (akr) (Entered: 10/15/2018)
Set Deadlines : Per Local Rule 7.1 Notice of Interested Parties or Corporate Disclosure Statement due by 10/22/2018 as to AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION. (akr) (Entered: 10/16/2018)
18 NOTICE of Interested Parties by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION (BOND, EMMA) (Entered: 10/22/2018)
19 STATUS REPORT Joint by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION. (BOND, EMMA) (Entered: 11/02/2018)

11/02/2018 11/04/2018 11/04/2018 12/17/2018 12/17/2018 01/07/2019
01/07/2019 02/15/2019 02/20/2019
02/20/2019 03/08/2019
03/08/2019

20 Joint MOTION for Permission to File Fourth Joint Status Report (No PDF attached. See ECF #19) by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION (akr) (Entered: 11/02/2018)
21 ORDER granting without objection 20 Joint Motion for Leave to File Fourth Joint Status Report. The parties shall file their fourth Joint Status Report by December 17, 2018, addressing the proposed schedule for future proceedings, if any. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 11/04/2018)
Set Deadlines : Status Report due by 12/17/2018. (akr) (Entered: 11/05/2018)
22 STATUS REPORT and Joint Motion for Briefing Schedule by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION. (BOND, EMMA) (Entered: 12/17/2018)
23 Joint MOTION for Briefing Schedule by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION. No PDF attached − See ECF #22 (akr) Modified on 12/17/2018 to add referenced to ECF #22 (akr). (Entered: 12/17/2018)
24 ORDER granting without objection 23 Joint Motion for briefing schedule re redacted documents. The plaintiff shall designate the challenged redacted documents by February 1, 2019; the plaintiff shall file the challenged redacted documents and its memorandum opposing the claimed exemptions (no longer than 10 pages) by February 22, 2019, and the defendants shall submit the unredacted documents for in camera review and shall file their simultaneous memorandum in support of the claimed exemptions (no longer than 10 pages), also by February 22, 2019; the parties shall file simultaneous response briefs (no longer than 7 pages) by March 8, 2019; and the court may thereafter schedule oral argument as it deems necessary. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 01/07/2019)
Set Deadlines pursuant to the Order at ECF #24 : Redacted Document Designation (1) due by 2/1/2019. Challenged Redacted Documents Filing (2) due by 2/22/2019. Memo Opposing Claimed Exemptions due by 2/22/2019. Memorandum in Support of Claimed Exemptions (1) due by 2/22/2019. Simultaneous Response Brief (2) due by 3/8/2019. (akr) (Entered: 01/07/2019)
25 Consent MOTION to Extend Time to file briefs regarding redaction by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION Responses due by 3/8/2019. (BOND, EMMA) (Entered: 02/15/2019)
26 ORDER granting without objection 25 Motion to Extend Time. The plaintiff shall file the challenged redacted documents and its memorandum opposing the claimed exemptions (no longer than 10 pages) by March 8, 2019, and the defendants shall submit the unredacted documents for in camera review and shall file their simultaneous memorandum in support of the claimed exemptions (no longer than 10 pages), also by March 8, 2019; the parties shall file simultaneous response briefs (no longer than 7 pages) by March 22, 2019; and the court may thereafter schedule oral argument as it deems necessary. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 02/20/2019)
Reset Deadlines : Challenged Redacted Documents Filing (1) due by 3/8/2019. Memorandum Opposing Claimed Exemptions (1) due by 3/8/2019. Memorandum in Support of Claimed Exemptions(2) due by 3/8/2019. Simultaneous Response Briefs (3) due by 3/22/2019. (akr) (Entered: 02/20/2019)
27 AFFIDAVIT of USBP FOIA Coordinator Robert M. Lewandowski filed by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Attachment 1, REDACTED Trans check Presentation, # 2 Attachment 2, REDACTED TCB Bangor 481s, # 3 Attachment 3, REDACTED Bangor TCB emails, # 4 Attachment 4, REDACTED FW_ Bus Check, # 5 Attachment 5, REDACTED Bangor Bus Check, # 6 Attachment 6, REDACTED FW_ Checkpoint)(LIZOTTE, ANDREW) (Entered: 03/08/2019)
28 BRIEF re 27 Affidavit, in Support of Defendants' Redactions by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (LIZOTTE, ANDREW) (Entered: 03/08/2019)

03/08/2019 03/21/2019 03/22/2019 05/08/2019 05/09/2019 05/14/2019 05/14/2019
05/14/2019 06/03/2019 06/04/2019
06/05/2019 07/15/2019

29 BRIEF Objecting to Redactions of Public Records by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION. (Attachments: # 1 Exhibit A − Redacted Public Records)(BOND, EMMA) (Entered: 03/08/2019)
30 RESPONSE re 29 Brief Objecting to Redactions of Public Records by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (LIZOTTE, ANDREW) Modified on 3/21/2019 to replace "Brief" with "Response"(akr). (Entered: 03/21/2019)
31 RESPONSE re 28 Brief Replying in Opposition to Redactions of Public Records by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION. (BOND, EMMA) Modified on 3/22/2019 to replace "Brief" with "Response" (akr). (Entered: 03/22/2019)
32 ORDER ADJUDICATING DISPUTED REDACTIONS By JUDGE JON D. LEVY. (akr) (Entered: 05/08/2019)
33 NOTICE of Hearing: Telephone Conference re scheduling order deadlines set for 5/14/2019 11:30 AM with MAGISTRATE JUDGE JOHN H. RICH III. Counsel shall coordinate the call and contact chambers once both sides are on the line. (nrg) (Entered: 05/09/2019)
34 Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H. RICH III: Conference of Counsel held re: case status; docket order to issue. (Court Reporter: FTR) (RICH III, JOHN) (Entered: 05/14/2019)
35 ORDER re 33 Notice of Hearing. Following the court's Order Adjudicating Disputed Redactions, ECF No. 32, and at the request of Chief Judge Levy, I held a telephonic status conference on May 14, 2019, with Attorneys Bond and Lizotte for the plaintiff and defendants respectively. Counsel reported that the defendants served an updated production of documents on May 14, 2019, and that, accordingly, no further dispute exists between the parties on the merits, although the issue of the plaintiff's reasonable attorney fees remains to be negotiated. After discussion and at the parties' joint suggestion, I SET the following remaining schedule: the parties shall attempt to reach agreement on attorney fees by June 7, 2019; absent agreement, the plaintiff shall file its fee petition by June 28, 2019, the defendants their opposition by July 29, 2019, and the plaintiff its reply by August 13, 2019. Counsel agreed to notify the court in writing promptly if agreement is reached; I told counsel that, in that event, it was likely that the case would be administratively closed, pending settlement being finalized and a stipulation of dismissal being filed. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 05/14/2019)
Set Deadlines per Order No. 35: If no agreement re: attorney fess is reached by 6/7/2019, then plaintiff shall file its fee petition by 6/28/2019; response due by 7/29/2019; reply due by 8/13/2019. (lrc) (Entered: 05/15/2019)
36 Consent MOTION to Extend Time to Reach Agreement on Attorney Fees and Associated Deadlines by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 6/24/2019. (LIZOTTE, ANDREW) (Entered: 06/03/2019)
37 ORDER granting without objection 36 Motion to Extend Time. The court's order dated May 14, 2019, ECF No. 35, is hereby amended as follows: the parties shall attempt to reach agreement on attorney fees by July 8, 2019; absent agreement, the plaintiff shall file its fee petition by July 29, 2019, the defendants their opposition by August 28, 2019, and the plaintiff its reply by September 12, 2019. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 06/04/2019)
reset Deadlines Pursuant to Order No. 37: If no agreement re: Attorney Fees is reached by 7/8/2019, then the Plaintiff shall file its Fee Petition by 7/29/2019; responses due by 8/28/2019; reply due by 9/12/2019 (tcs) (Entered: 06/05/2019)
38 STIPULATION of Dismissal by AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION. (BOND, EMMA) (Entered: 07/15/2019)

 
 Case 2:18-cv-00176-JDL Document 1 Filed 05/01/18 Page 1 of 11 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION,
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, and U.S. CUSTOMS AND BORDER PROTECTION,
Defendants.

) Case No. ________ ) ) ) ) ) COMPLAINT FOR DECLARATORY ) AND INJUNCTIVE RELIEF FOR ) VIOLATION OF THE FREEDOM OF ) INFORMATION ACT, 5 U.S.C. § 552 ) et seq. ) ) )

INTRODUCTION 1. The American Civil Liberties Union of Maine Foundation (“Plaintiff” or “ACLU of Maine”) brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., as amended, to obtain injunctive and other appropriate relief requiring Defendants U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”) (collectively, “Defendants”) to respond to a FOIA request sent by Plaintiffs on January 18, 2018 (“Request”), and to promptly disclose the requested records. 2. Across the country, there have been increasing reports of Defendant CBP stopping bus passengers to check their citizenship status, without a warrant, reasonable suspicion, or probable cause. Consistent with this trend, there have been multiple reports of CBP imposing random immigration checkpoints in Maine. In one example, on January 14, 2018, CBP agents targeted a Concord Coach bus at the Bangor Transportation Center, stopping all passengers to ask about their citizenship status—without a warrant or any suspicion of immigration violations.1

1 Megan Doyle, Citizenship Screening at Maine Bus Station Stirs Mixed Feelings, Legal Questions, Portland Press Herald (Jan. 29, 2018), https://www.pressherald.com/2018/01/26/citizenship-screening-at-maine-bus-station-stirsmixed-feelings-legal-questions/.

Case 2:18-cv-00176-JDL Document 1 Filed 05/01/18 Page 2 of 11 PageID #: 2
3. This Request seeks records concerning CBP’s citizenship checkpoints and other operations in Maine, and CBP’s coordination with federal, state, and local law enforcement. A true and correct copy of the Request is attached as Exhibit A.
4. There is significant public interest in these records, as demonstrated by passengers and members of the public who have spoken up about CBP’s intrusive operations. Disclosure of the requested records would facilitate the public’s understanding of citizenship checks and other CBP operations in Maine. Such information is critical to the public’s ability to hold the government accountable.
5. This action is necessary because, months after receiving the Request, Defendants have failed to provide any response at all. Defendants have failed to comply with their legal obligations to timely determine whether to provide expedited processing or to comply with the Request.
JURISDICTION 6. This Court has subject-matter jurisdiction over this action and personal jurisdiction over the parties under 5 U.S.C. § 552(a)(4)(B), 5 U.S.C. §§ 701–706, and 28 U.S.C. § 1331.
VENUE 7. Venue in the District of Maine is proper under 5 U.S.C. § 552(a)(4)(B) because Plaintiff’s principal place of business is in the District of Maine and because the withheld records at issue in this litigation relate to Defendants’ operations in the District of Maine. For the same reasons, venue also is proper under 28 U.S.C. § 1391(e).
PARTIES 8. Plaintiff ACLU of Maine is a non-profit 26 U.S.C. § 501(c)(3) organization that provides legal representation free of charge to individuals and organizations in civil rights and civil liberties cases and educates the public about civil rights and civil liberties issues across the country.
2

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9. Defendant Department of Homeland Security (“DHS”) is a department of the executive branch of the U.S. government and is an agency within the meaning of 5 U.S.C. § 552(f)(1).
10. Defendant U.S. Customs and Border Protection (“CBP”) is a component of DHS and is a federal agency within the meaning of 5 U.S.C. § 552(f)(1). Border Patrol agents operate under the umbrella of CBP.
11. Plaintiffs are informed and therefore believe that Defendants have possession, custody, or control of the requested records.
FACTS I. Public Concern with Defendants’ Citizenship Interdiction 12. This lawsuit arises from nationwide reports of U.S. Border Patrol agents stopping bus passengers to check their immigration status. In one incident, a video of a “routine” security checkpoint in Florida showed Border Patrol agents boarding a bus and asking passengers to present U.S. identification or passports.2 The agents later arrested a female passenger and turned her over to Immigration and Customs Enforcement for removal proceedings.3 13. Closer to home, there have been reports of CBP engaging in random immigration checkpoints in Maine. For example, on January 14, 2018, U.S. Border Patrol agents targeted a Concord Coach bus at the Bangor Transportation Center, stopping passengers to ask about their citizenship status.4
2 Samantha Schmidt, Video Shows Border Patrol Officers Asking Greyhound Passengers for IDs, Taking Woman into Custody, Washington Post, (Jan. 23, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/01/23/video-shows-border-patrolofficers-asking-greyhound-passengers-for-ids-taking-woman-intocustody/?utm_term=.60fbe3f47acf. 3 Id. 4 Megan Doyle, Citizenship Screening at Maine Bus Station Stirs Mixed Feelings, Legal Questions, Portland Press Herald (Jan. 29, 2018), https://www.pressherald.com/2018/01/26/citizenship-screening-at-maine-bus-station-stirsmixed-feelings-legal-questions/.
3

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14. One bus passenger, Peter Homer, stated that he rode the Concord Coach from Bangor to Boston approximately once a month, and that January 14, 2018, was the first time that he saw CBP officials present and questioning passengers about their citizenship status. According to Mr. Homer, the Border Patrol agents blocked the front door to the bus to ask passengers whether they were United States citizens.5
15. There is ongoing interest in the issue of CBP’s random immigration checkpoints. For example, on March 21, 2018, the ACLU of Maine joined other ACLU affiliates nationwide in signing a letter urging Greyhound Lines Inc. (“Greyhound”) to change its policies of allowing CBP to conduct warrantless raids on its buses.6 The letter is attached as Exhibit B.
16. On April 19, 2018, the ACLU of Maine and other ACLU affiliates in New England sent letters to regional bus companies Concord Coach Lines and Peter Pan Bus Lines, asking them to cease providing consent to CBP’s warrantless bus raids. The letters to Concord Coach Lines and Peter Pan Bus Lines are attached as Exhibit C and Exhibit D, respectively.
II. Plaintiffs’ FOIA Request 17. On January 24, 2018, the ACLU of Maine sent the Request via United States Certified Mail to CBP Headquarters in Washington, D.C., and to the CBP offices in Hodgdon, Maine. Exhs. A, E. 18. The Request seeks all records relating to Defendants’ security checkpoints in Maine and related cooperation with local, state, and federal law enforcement, from January 1, 2017, to the present. Because no adequate search has yet been completed, the period covered by the Request is ongoing.
19. Specifically, the Request seeks:
5 Megan Doyle, Citizenship Screening at Maine Bus Station Stirs Mixed Feelings, Legal Questions, Portland Press Herald (Jan. 26, 2018), https://www.pressherald.com/2018/01/26/citizenship-screening-at-maine-bus-station-stirsmixed-feelings-legal-questions/. 6 ACLU of Maine Joints ACLU Affiliates Around the Nation on Letter to Bus Company, ACLU of Maine (Mar. 21, 2018), https://www.aclumaine.org/en/press-releases/aclu-greyhound-muststop-giving-border-patrol-permission-conduct-bus-raids.
4

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A. Records containing descriptions of CBP operations at Bangor Transportation Center or Portland Transportation Center, including the dates, times, and exact locations at which CBP agents were deployed; and the number, titles, and job ranks of CBP officers involved on each date and at each location;
B. Records from CBP or other federal agencies authorizing the operations at Bangor Transportation Center or Portland Transportation Center, or addressing the legality of stops, questioning, seizures, or searches conducted by CBP;
C. Records of Maine State or local law enforcement agency involvement with CBP, including, but not limited to, participating in any secondary screening of bus passengers;
D. Records sent by CBP to any federal, state, or local government agencies, including but not limited to U.S. Immigration and Customs Enforcement, the Federal Bureau of Investigation, U.S. Department of Homeland Security, and Maine State Police, relating to the purpose, methods, conduct, or results from the citizenship inquiries;
E. With regard to persons subjected to additional questioning beyond the initial citizenship inquiry, records showing: a) the total number of people questioned; b) the country of origin of people questioned; c) the race and/or ethnicity of people questioned; d) the criminal or immigration charges filed against the person questioned, if applicable; e) the location and duration of the person’s detention, if applicable; f) the date of the person’s voluntary departure from the United States, if applicable; g) the date of the person’s removal from the United States, if applicable. Exh. A at 2.
20. The Request includes an application for expedited processing based upon a “compelling need” for the requested records under 5 U.S.C. § 552(a)(6)(E)(v)(II), because the ACLU of Maine is an organization “primarily engaged in disseminating information,” and because of the urgency “to inform the public concerning actual or alleged government activity.” Exh. A at 3-4.
21. The Request explains that the ACLU is primarily engaged in disseminating information within the meaning of 5 U.S.C. § 552(a)(6)(E)(v), given that a critical and substantial aspect of the ACLU’s mission is to obtain information about government activity, analyze that information, and publish and disseminate it widely to the press and public. Exh. A at 3-4.
5

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22. The Request described examples of the ACLU’s information-dissemination function, including publishing blogs, newsletters, news briefings, “Know Your Rights” documents, and other educational and informational materials. Exh. A at 3-4.
23. The Request also includes an application for a fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii) on the grounds that disclosure of the requested records is in the public interest and is “likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” Exh. A at 4-5.
24. Finally, the Request applied for a waiver of search fees under 5 U.S.C. § 552(a)(4)(A)(ii)(II) for the additional reason that Plaintiffs qualify as “representatives of the news media” and the records are not sought for commercial use, given the ACLU’s non-profit mission and substantial activities to publish information for dissemination to the public, as discussed in greater detail in ¶¶ 21-22 above. Exh. A at 4-6.
III. Agency’s Response 25. Defendants have a legal duty under FOIA to determine whether to comply with a request within 20 days (excepting Saturdays, Sundays, and legal public holidays) after receiving the request, and also have a legal duty to notify a requester of the agency’s determination and the reasons therefor within the same 20 days. 5 U.S.C. § 552(a)(6)(A)(i). 26. In other words, “[t]he statute requires that, within the relevant time period, an agency must determine whether to comply with a request—that is, whether a requester will receive all the documents the requester seeks.” Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 711 F.3d 180, 186 (D.C. Cir. 2013) (emphasis added). 27. Additionally, Defendants also have a legal duty under FOIA to determine whether to provide expedited processing, and to provide notice of that determination to the requester, within 10 days after the request. 5 U.S.C. § 552(6)(E)(ii)(I). 28. As of the date of this Complaint, Defendants have failed to provide any response to the Request. Defendants have failed to provide any determination with respect to expedited
6

Case 2:18-cv-00176-JDL Document 1 Filed 05/01/18 Page 7 of 11 PageID #: 7 processing. They have also failed to provide any determination with respect to whether to comply with the request. Accordingly, they have violated their statutory deadlines under FOIA.
29. Defendants’ own records confirm that they have failed to comply with the applicable statutory deadlines. According to a CBP employee contacted by phone, the internal tracking number associated with the Request is CBP-2018-026398. The government’s FOIA website states that the tracking number CBP-2018-026398 was submitted on January 26, 2018.7
30. The deadline for Defendants to determine whether to provide expedited processing was 10 days after the Request. Accordingly, even using the January 26, 2018 date listed on the FOIA website, the 10-day deadline passed on February 15, 2018. 7 FOIA Online, Request Details, https://foiaonline.regulations.gov/foia/action/public/view/request?objectId=090004d2817c9c64.
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31. The deadline for Defendants to determine whether to comply with the Request was 20 days after the Request. Accordingly, even using the January 26, 2018 date listed on the FOIA website, the 20 day deadline passed on February 15, 2018, without any response from Defendants.
32. The government FOIA website further states that the estimated date of completion for tracking number CBP-2018-026398 was February 26, 2018.8 That deadline also passed without any response from Defendants.
33. In short, Defendants have provided no response or determination with respect to expedited processing or whether to comply with the FOIA request. Accordingly, Defendants have violated FOIA’s requirements and failed to comply with the applicable statutory deadlines.
34. Because Defendants failed to comply with the 20-business-day time limit provision of FOIA, 5 U.S.C. § 552(a)(6)(A)(i), Plaintiffs are deemed to have exhausted their administrative remedies with respect to the Request under 5 U.S.C. § 552(a)(6)(C)(i).
FIRST CAUSE OF ACTION Violation of FOIA for Failure
to Provide a Determination Within 20 Business Days (DHS, CBP)
35. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 34 above, inclusive.
36. Defendants have a legal duty under FOIA to determine whether to comply with a request within 20 days (excepting Saturdays, Sundays, and legal public holidays) after receiving the request, and also have a legal duty to immediately notify a requester of the agency’s determination and the reasons therefor. 5 U.S.C. § 552(a)(6)(A)(i).
8 FOIA Online, Request Details, https://foiaonline.regulations.gov/foia/action/public/view/request?objectId=090004d2817c9c64.
8

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37. In violation of 5 U.S.C. § 552(a)(6)(A)(i), and applicable regulations promulgated thereunder, Defendants DHS and CBP failed to determine whether to comply with the Request within 20 business days after receiving the Request.
SECOND CAUSE OF ACTION Violation of FOIA for Failure To Make Records Promptly Available
(DHS, CBP) 38. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 34 above, inclusive. 39. Plaintiffs have a legal right under FOIA to obtain the specific agency records requested on February 24, 2018, and there exists no legal basis for Defendants’ failure to make the requested records “promptly available” to Plaintiffs, their members, and the public. 5 U.S.C. § 552(a)(3)(A). 40. On information and belief, Defendants currently have possession, custody, or control of the requested records. 41. In violation of 5 U.S.C. § 552(a)(3)(A), Defendants failed to promptly make available the records sought in the Request.
THIRD CAUSE OF ACTION Violation of FOIA for Improperly Denying Plaintiffs’ Request for Expedited Processing
(DHS, CBP) 42. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 34 above, inclusive. 43. Plaintiffs have a legal right under FOIA and agency regulations to expedited processing because their Request involves “[a]n urgency to inform the public about an actual or alleged federal government activity, if made by a person who is primarily engaged in disseminating information.” 6 C.F.R. § 5.5(e)(1)(ii).
9

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44. Defendants have a legal duty under FOIA to determine whether to provide expedited processing, and to provide notice of that determination to Plaintiffs, within 10 days after the date of the Request. 5 U.S.C. § 552(a)(6)(E)(ii)(I).
45. By failing to determine whether to provide expedited processing and to provide notice of that determination to Plaintiffs within 10 days after the date of the Request, Defendants violated FOIA, 5 U.S.C. § 552(a)(6)(E)(ii)(I), and applicable regulations promulgated thereunder.
46. Because Defendants have not provided any response to the Request, this Court has jurisdiction under FOIA, 5 U.S.C. § 552(a)(6)(E)(iv), to review Defendants’ failure to make a determination concerning Plaintiffs’ request for expedited processing.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court award them the following relief: 1. Declare that Defendants DHS and CBP violated FOIA by failing to make a determination whether to comply with the Request within 20 business days; 2. Declare that Defendants violated FOIA by unlawfully withholding the requested records; 3. Declare that Defendants DHS and CBP violated FOIA by failing to provide expedited processing; 4. Order Defendants to immediately disclose the requested records to the public and make copies immediately available to Plaintiffs without charge for any search or duplication fees, or, in the alternative, provide for expedited proceedings to adjudicate Plaintiffs’ rights under FOIA; 5. Award Plaintiffs their reasonable costs and attorneys’ fees; and 6. Grant such other relief as the Court may deem just and proper.
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DATED this 1st day of May, 2018.

Respectfully submitted, /s/ Zachary L. Heiden Zachary L. Heiden American Civil Liberties Union of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04101 (207) 619-6224 heiden@aclumaine.org
/s/ Emma E. Bond Emma E. Bond American Civil Liberties Union of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04101 (207) 619-8687 ebond@aclumaine.org
Attorneys for Plaintiffs American Civil Liberties Union of Maine, American Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont

11

 
 Case 2:18-cv-00176-JDL Document 19 Filed 11/02/18 Page 1 of 6 PageID #: 88

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION )

OF MAINE FOUNDATION,

)

)

Plaintiff,

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY, and U.S. CUSTOMS AND )

BORDER PROTECTION,

)

)

Defendants.

)

Case No. 2:18-cv-00176-JDL

THIRD JOINT STATUS REPORT AND JOINT MOTION FOR PERMISSION TO FILE A FOURTH JOINT STATUS REPORT

Pursuant to the Court’s minute Order dated October 15, 2018 (the “Order,” ECF No. 17),

the American Civil Liberties Union of Maine (“Plaintiff”), and the U.S. Department of

Homeland Security and U.S. Customs and Border Protection (collectively, “Defendants”),

hereby file this Third Joint Status Report and Joint Motion for Permission to File a Fourth Joint

Status Report addressing the status of Defendants’ search for and production of records

responsive to the FOIA request at issue herein, the status of any negotiation on the scope and

timing of future productions, and the parties’ proposed schedule for future proceedings. In the

period since the parties filed the Second Joint Status Report, ECF No. 15, Defendants have

provided Plaintiff with further information regarding searches, productions, and redactions, and

the parties have conferred about future proceedings. The Plaintiff has raised disputes regarding

some of the redactions in Defendants’ production, and Defendant has reconsidered some

(although not all) of those redactions, and will re-produce relevant documents. The parties

believe they can narrow any issues for future summary judgment briefings through further

negotiation. For the reasons stated herein, the parties jointly request that the Court grant

1

Case 2:18-cv-00176-JDL Document 19 Filed 11/02/18 Page 2 of 6 PageID #: 89
permission for the parties to file a Fourth Joint Status Report on or before December 17, 2018, addressing the parties’ proposals for future proceedings—such as further record production, summary judgment briefing, or resolution of the case.
1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, in which Plaintiff seeks to compel the release of records in Defendants’ possession.
2. The FOIA request at issue in this case was filed on January 24, 2018 (the “Request”). The Complaint was filed on May 1, 2018 (ECF No. 1). Defendants’ Answer was filed on June 18, 2018 (ECF No. 8).
3. Plaintiff claims that Defendants have in their possession documents that are responsive to the Request and that are not properly subject to withholding based on any exemption. Defendants claim that FOIA has not been violated and that there may be appropriate exemptions applicable to any responsive records in their possession. See ECF Nos. 1 & 8.
4. Following the Court’s Order, Defendants collected documents responsive to the Request and reviewed such documents to determine whether any exemption(s) applied to the same.
5. On July 27, 2018, Defendants produced to Plaintiff four documents, totaling 34 pages, responsive to the Request (the “July 2018 Production”). The first three documents were partially redacted on the basis of Defendants’ assertions of FOIA Exemptions 6, 7C, and 7E. The fourth document was released in full.
6. Thereafter, the parties agreed that additional responsiveness review of Houlton Station CBP personnel would be completed on or before September 14; to the extent additional responsive documents existed, a supplemental release of documents to Plaintiff would occur on or before September 28; and jointly requested that they be permitted to file a second Joint Status
2

Case 2:18-cv-00176-JDL Document 19 Filed 11/02/18 Page 3 of 6 PageID #: 90
Report with the Court on or before October 12, 2018. ECF Nos. 12-13, Aug. 16, 2018. The Court granted the parties’ request. See Order.
7. Defendants performed additional searches for, and collected, responsive records across the personal email accounts and personal drives of nearly 20 Houlton Station CBP personnel potentially involved in the underlying activity at issue in the Request. On September 26, 2018, Defendants produced to Plaintiff eleven documents, totaling 43 pages, responsive to the Request (the “September 2018 Production”). The September 2018 Production was partially redacted on the basis of Defendants’ assertions of FOIA Exemptions 6, 7C, and 7E.
8. After reviewing the document production, Plaintiff identified several areas of follow-up it believed might be necessary for Defendants’ production to comply with the FOIA, such as: (i) additional information about the search terms and types of documents searched, to determine whether Defendants’ search is complete; (ii) the time-frame of the search; and (iii) the bases for Defendants’ assertion of certain FOIA Exemptions and Defendants’ related redactions of documents.
9. Accordingly, in an attempt to streamline any issues before the Court, the Parties jointly requested permission to file a third Joint Status Report with the Court on or before November 2, 2018 (see ECF Nos. 15-16, Oct. 12, 2018) and were granted such relief (see Order). Since that time, the parties have had several meaningful meet and confers and made substantial progress in determining what, if any, issues remain in the case.
10. On October 22, 2018, counsel for Defendants provided counsel for Plaintiff with additional information regarding the searches performed of Government shared drives, email accounts, cell phones, and personal drives; custodians; search terms; and time frame. At this
3

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point, Plaintiff does not anticipate moving for judicial relief with respect to these issues,

however, expressly reserves and does not waive its rights to do so.

11. On October 30 and 31, 2018, the Parties also met and conferred regarding

Defendants’ redactions on the basis of FOIA Exemptions. Defendants have agreed to remove

certain redactions and re-produce certain documents. Defendants expect that a re-production can

occur within 30 days. Plaintiff seeks sufficient time to review the re-production and assess to

what extent it may seek a briefing schedule on issues pertaining to the remaining redactions.

12. Accordingly, the Parties submit it would be helpful to allow for additional time,

with another deadline set for a Fourth Joint Status Report to request any future proceedings that

may be necessary regarding the redactions. Specifically, additional time would permit

Defendants to re-produce documents with less redactions, provide Plaintiff time to review the re-

production, and allow the Parties to meet and confer regarding a potential briefing schedule

regarding the same.

WHEREFORE, the Parties jointly request that they be permitted to file a Fourth Joint

Status Report with the Court on or before December 17, 2018, addressing the proposed schedule

for future proceedings, if any.

Dated: November 2, 2018 Portland, Maine

Respectfully submitted,
HALSEY B. FRANK United States Attorney

/s/ Andrew K. Lizotte Andrew K. Lizotte, AUSA U.S. Attorney’s Office 100 Middle St., East Tower Portland, ME 04101 (207) 771-3246 Andrew.Lizotte@usdoj.gov

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Case 2:18-cv-00176-JDL Document 19 Filed 11/02/18 Page 5 of 6 PageID #: 92

Dated: November 2, 2018 Portland, Maine

/s/ Emma E. Bond, Esq. Emma E. Bond, Esq. Zachary L. Heiden, Esq. AMERICAN CIVIL LIBERTIES UNION OF MAINE 121 Middle St., Suite 200 Portland, ME 04101 (207) 774-5444 ebond@aclumaine.org zheiden@aclumaine.org

5

Case 2:18-cv-00176-JDL Document 19 Filed 11/02/18 Page 6 of 6 PageID #: 93 CERTIFICATE OF SERVICE
I hereby certify that on November 2, 2018, I electronically filed the foregoing using the CM/ECF system, which will send electronic notifications of such filing(s) to all counsel of record.
/s/ Emma E. Bond, Esq. Emma E. Bond, Esq. AMERICAN CIVIL LIBERTIES UNION OF MAINE 121 Middle St., Suite 200 Portland, ME 04101 (207) 774-5444 ebond@aclumaine.org
6

 
 Case 2:18-cv-00176-JDL Document 22 Filed 12/17/18 Page 1 of 4 PageID #: 94

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION )

OF MAINE FOUNDATION,

)

)

Plaintiff,

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY, and U.S. CUSTOMS AND )

BORDER PROTECTION,

)

)

Defendants.

)

Case No. 2:18-cv-00176-JDL

FOURTH JOINT STATUS REPORT AND JOINT MOTION FOR BRIEFING SCHEDULE

Pursuant to the Court’s minute Order dated November 4, 2018 (the “Order,” ECF No.

21), the American Civil Liberties Union of Maine (“Plaintiff”), and the U.S. Department of

Homeland Security and U.S. Customs and Border Protection (collectively, “Defendants”),

hereby file this Fourth Joint Status Report and Joint Motion for Briefing Schedule addressing the

status of production in this case under the Freedom of Information Act (“FOIA”) and the parties’

proposed schedule for future proceedings.

Since the last status report, the Defendants have re-produced several responsive

documents with fewer redactions. However, even after this updated production, there remain

numerous redactions that the Plaintiff contends are unsupported by the FOIA statute.

Accordingly, the parties request the Court’s adjudication of the legal question of whether FOIA

exemptions apply to the redacted material. In furtherance of the Court’s decision on these issues,

the parties propose to submit the redacted and the un-redacted records for the Court’s in camera

review, along with simultaneous letter briefs addressing the claimed exemptions. The parties

believe this would be the most efficient resolution of the dispute, as there is only a small quantity

1

Case 2:18-cv-00176-JDL Document 22 Filed 12/17/18 Page 2 of 4 PageID #: 95

of challenged documents, lending the case to non-burdensome in camera review. Specifically,

the parties propose the following briefing schedule:

 February 1, 2019: ACLU of Maine will designate the challenged redacted documents.

 February 22, 2019:

o ACLU of Maine will file the challenged redacted documents and its memorandum opposing the claimed exemptions (no longer than 10 pages).

o Defendants will submit the un-redacted documents for in camera review and will file their memorandum in support of the claimed exemptions (no longer than 10 pages).

 March 8, 2019: The parties will submit response briefs (no longer than 7 pages).

 The parties are amenable to the review of the subject documents and adjudication of their dispute regarding all redactions proceeding before the assigned Magistrate Judge.

The Court could then schedule oral argument as it deems necessary.

WHEREFORE, the Parties jointly request that they be permitted to file simultaneous

briefs addressing the legal adequacy of the challenged redactions in the Defendants’ FOIA

production, under the proposed schedule set forth above.

Dated: December 17, 2018 Portland, Maine

Respectfully submitted,
HALSEY B. FRANK United States Attorney

/s/ Andrew K. Lizotte Andrew K. Lizotte, AUSA U.S. Attorney’s Office 100 Middle St., East Tower Portland, ME 04101 (207) 771-3246 Andrew.Lizotte@usdoj.gov

2

Case 2:18-cv-00176-JDL Document 22 Filed 12/17/18 Page 3 of 4 PageID #: 96

Dated: December 17, 2018 Portland, Maine

/s/ Emma E. Bond, Esq. Emma E. Bond, Esq. Zachary L. Heiden, Esq. AMERICAN CIVIL LIBERTIES UNION OF MAINE 121 Middle St., Suite 200 Portland, ME 04101 (207) 774-5444 ebond@aclumaine.org zheiden@aclumaine.org

3

Case 2:18-cv-00176-JDL Document 22 Filed 12/17/18 Page 4 of 4 PageID #: 97 CERTIFICATE OF SERVICE
I hereby certify that on December 17, 2018, I electronically filed the foregoing using the CM/ECF system, which will send electronic notifications of such filing(s) to all counsel of record in this case.
/s/ Emma E. Bond, Esq. Emma E. Bond, Esq. AMERICAN CIVIL LIBERTIES UNION OF MAINE 121 Middle St., Suite 200 Portland, ME 04101 (207) 774-5444 ebond@aclumaine.org
4

 
 Case 2:18-cv-00176-JDL Document 32 Filed 05/08/19 Page 1 of 8 PageID #: 239

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION,
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, and U.S. CUSTOMS AND BORDER PROTECTION,
Defendants.

) ) ) ) ) ) ) ) 2:18-cv-00176-JDL ) ) ) ) ) )

ORDER ADJUDICATING DISPUTED REDACTIONS

This matter arises from a request under the Freedom of Information Act (“FOIA”), 5 U.S.C.A. § 552 (West 2019), made by the American Civil Liberties Union of Maine Foundation (“ACLU”) to the U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”) (collectively, the “Government”) for certain records about immigration investigations in which Government officers have stopped bus passengers to ask whether they are United States citizens. The Government has subsequently produced responsive records but the ACLU objects to certain redactions made to those records by the Government. The Government contends that the redactions are supported by § 552(b)(7)(E) (“Exemption 7(E)”), which concerns law enforcement techniques and procedures. After an in camera review of the disputed records, and as explained below, I conclude that some, but not all, of the redactions qualify under Exemption 7(E) and are properly redacted.

Case 2:18-cv-00176-JDL Document 32 Filed 05/08/19 Page 2 of 8 PageID #: 240
I. ANALYSIS “The basic purpose of FOIA 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.” N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). As a result, FOIA requires federal agencies to promptly release records in response to a request for production, § 552(a)(3)(A), and authorizes federal courts “to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” § 552(a)(4)(B). However, to “safeguard[] the efficient administration of the government, the FOIA provides that certain categories of materials are exempted from the general requirements of disclosure.” Carpenter v. U.S. Dep’t of Justice, 470 F.3d 434, 438 (1st Cir. 2006). Nonetheless, FOIA exemptions are construed narrowly, and any doubts are resolved in favor of disclosure. Id. (citing U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)). The Government asserts that all of the contested redactions are subject to Exemption 7(E), which shields from disclosure: records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . 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[.] § 552(b)(7)(E). Exemption 7(E) “sets a relatively low bar for [an] agency to justify withholding, requiring only that the agency demonstrate logically how the release of the requested information might create a risk of circumvention of the law.” Widi v. McNeil, No. 2:12-cv-00188-JAW, 2016 WL 4394724, at *28 (D. Me. Aug. 16, 2016)
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(quoting Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 2011)). However, the Government bears the burden of proving that the withheld materials fall within an enumerated exemption, § 552(a)(4)(B), and a “district court must make a de novo determination as to the validity of [an] agency’s exemption claim.” Providence Journal Co. v. U.S. Dep’t of Army, 981 F.2d 552, 556-57 (1st Cir. 1992).
The records at issue here can be sorted into three broad categories: (1) an officer training presentation (the “Trans Check Presentation”), see ECF No. 27-1; (2) daily unit assignment log summaries (the “Shift Logs”), see ECF No. 27-2; and (3) agency e-mail correspondence (the “Bus Check E-Mails”), see ECF Nos. 27-3, 27-4, 27-5, 27-6. I address each in order. 1. The Trans Check Presentation
The Trans Check Presentation contains “agent instruction and guidance pursuant to agency policy, discussing mandatory tactics and techniques used by U.S. Border Protection during transportation checks.” ECF No. 28 at 2. The Government argues that the disputed redactions are appropriate under Exemption 7(E) because “if made public, such information could potentially be used to circumvent the law and/or make agents jobs more difficult[,]” and because “the guidance at issue pertains directly to how the agency’s law enforcement personnel are required to interact with bus passengers.” Id. at 2-3 (internal citations omitted). After reviewing the unredacted document in camera, I conclude that the redactions appearing in ECF No. 27-1 at pages 7, 8, and 11 ¶¶ 10-11, which relate to the Supreme Court’s holding in United States v. Drayton, 536 U.S. 194 (2002), do not fall within the ambit of Exemption 7(E) because they do not implicate “investigative techniques not generally
3

Case 2:18-cv-00176-JDL Document 32 Filed 05/08/19 Page 4 of 8 PageID #: 242
known to the public.” Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995). 2. The Shift Logs
The Shift Logs contain information “covering [agency] staffing levels, shift hours, zone assignments, zone boundaries, and vehicle numbers[.]” ECF No. 28 at 3. The Government argues that the disputed redactions are appropriate under Exemption 7(E) because:
[D]isclosing this information to the public would provide an outline of the Houlton Sector’s enforcement capabilities and the number of agents patrolling certain sections at certain hours. This information is especially sensitive because it represents locations where U.S. Border Patrol is present and the areas of its concentrated patrolling and enforcement activities. Making this information publically available, whether in Houlton Sector alone, or nationwide, would give an advantage to those seeking to avoid encounters with U.S. Border Patrol; aid individuals who seek to cross the border illegally, or who seek to remain in the country illegally, to develop countermeasures to evade detection, inspection and examination; and reveal the locations of U.S. Border Patrol agents, which could put them in jeopardy due to individuals who would bring harm to the agents once they know where the agents are deployed. ECF No. 27 ¶ 4. After reviewing the unredacted documents in camera, I conclude that the redactions to ECF No. 27-2 concern detailed and recent agent assignment information, which constitutes “techniques and procedures” under Exemption 7(E). See Families for Freedom v. U.S. Customs & Border Prot., 837 F. Supp. 2d 287, 299 (S.D.N.Y. 2011) (“Techniques and procedures include how, where, and when agents board Buffalo-region trains and buses, talk to passengers, and make arrests[.]”). In Families for Freedom, the court found that historical staffing statistics did not warrant protection under Exemption 7(E) because the exemption does not apply to
4

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“staffing decisions defendants made years ago.” Id. Here, however, the Government indicates that the staffing information in the Shift Logs has continuing relevance to its present patrolling and enforcement activities. See ECF No. 27 ¶ 7. I therefore uphold the Government’s redactions to ECF No. 27-2 as valid under Exemption 7(E). 3. The Bus Check E-Mails
The Bus Check E-Mails consist of four documents: the “Bangor TCB E-Mails” (ECF No. 27-3), “Bus Check” (ECF No. 27-4), “Bangor Bus Check” (ECF No. 27-5), and “Checkpoint” (ECF No. 27-6).
a. Bangor TCB E-Mails The redactions to the “Bangor TCB E-Mails” “withhold an operations order, which is an internal, law enforcement-sensitive document containing specifics of a U.S. Border Patrol operation, or other references to the when and where of the underlying transportation checks.” ECF No. 27 ¶ 8. The ACLU objects to Exemption 7(E) redactions on multiple pages: ECF No. 27-3 at 2, 4, 7, 9-11, 14-16. I evaluate the redactions based on the type of information they withhold. The redactions to ECF No. 27-3 at 2, 4, and 7 shield “which scheduled shift was responsible for certain activities related to [an] operation.” ECF No. 27 ¶ 1(a). Although these redactions pertain to operations that occurred on discrete days in the past, I conclude that the disclosure of this information could produce a “reasonable increased risk of circumvention of the law.” Families for Freedom, 837 F. Supp. 2d at 300. Therefore, Exemption 7(E) does apply because the records indicate that “the current distribution of agents is similar to the distribution of agents” discussed in the redacted materials. Id. at 299. For the same reasons, the redactions to ECF No. 27-
5

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3 at pages 11 (second paragraph) and 15 (first Exemption 7(E) redaction to the body of the e-mail) are also valid under Exemption 7(E).
The redactions to ECF No. 27-3 at 9 “cover[] sensitive information regarding the [agency’s] collection, maintenance, consideration, and utilization of intelligence information in furtherance of its law enforcement mandate. Numerous intelligence sources are identified by name.” ECF No. 27 ¶ 8(d). Unlike the cases cited by the Government, these redactions do not protect “non-public investigative techniques and procedures utilized by the [agency] to pursue its law enforcement and intelligence gathering missions,” but rather show general cooperation with other law enforcement agencies. Yagman v. U.S. Dep’t of Justice, No. CV 13-0354 PA (Ex), 2014 WL 1245305, at *10 (C.D. Cal. Mar. 22, 2014), aff’d sub nom. Yagman v. U.S. Bureau of Prisons, 605 F. App’x 666 (9th Cir. 2015). I therefore find that the Government has not met its burden to show that this information is properly withheld pursuant to Exemption 7(E). The Government has similarly failed to meet its burden for the redaction to the first paragraph of the e-mail at ECF No. 27-3 on page 11, the second Exemption 7(E) redaction to the body of the e-mail on page 15, and the Exemption 7(E) redaction to the body of the e-mail on page 16.
The Exemption 7(E) redactions to the body of the e-mail on page 14 of ECF No. 27-3, as well as the subject and/or attachment lines of the e-mails on pages 14-16, comprise only the name of an operations order, which does not constitute “law enforcement techniques and procedures.” These redactions, therefore, do not fall within the scope of Exemption 7(E) and are not justified.
6

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b. Bus Check The Exemption 7(E) redactions to “Bus Check” (ECF No. 27-4) “withhold the location and which scheduled shift was responsible for certain activities related to [an] operation.” ECF No. 27 ¶ 9. These redactions pertain to operations that occurred on a discrete day in the past. I conclude that Exemption 7(E) does not apply because the unredacted records do not indicate that the shift information contained in ECF No. 27-4 has continued relevance to current enforcement capabilities. See Families for Freedom, 837 F. Supp. 2d at 299. c. Bangor Bus Check The Exemption 7(E) redactions to “Bangor Bus Check” (ECF No. 27-5) “withhold the location and which scheduled shift was responsible for certain activities related to [an] operation, as well as other operations details concerning the frequency with which such operations were to occur.” ECF No. 27 ¶ 10. I conclude that the unredacted records indicate that the redacted information in ECF No. 27-5 bears on continuing law enforcement activities and is therefore appropriately redacted pursuant to Exemption 7(E). See Families for Freedom, 837 F. Supp. 2d at 299. d. Checkpoint The Exemption 7(E) redactions to “Checkpoint” (ECF No. 27-6) “concern details such as when, where and how long a checkpoint operation will take place.” ECF No. 27 ¶ 11. I conclude that the redacted information concerns a discrete operation that occurred on June 20, 2018, see ECF No. 27-6 at 2, and has no bearing on current law enforcement capabilities. Redaction is therefore inappropriate under Exemption 7(E). See Families for Freedom, 837 F. Supp. 2d at 299.
7

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II. CONCLUSION For the reasons explained above, the Government is ORDERED to revise documents ECF No. 27-1, ECF No. 27-3, ECF No. 27-4, and ECF No. 27-6 so that:  ECF No. 27-1: The redactions made pursuant to Exemption 7(E) at pages 7,
8, and 11 ¶¶ 10-11 are unredacted.  ECF No. 27-3: The Exemption 7(E) redactions to page 9, the first paragraph
of page 11, the second Exemption 7(E) redaction to the body of the e-mail on page 15, the Exemption 7(E) redaction to the body of the e-mail of page 16, the Exemption 7(E) redactions to page 14, and the subject and/or attachment lines at pages 14-16 are unredacted.  ECF No. 27-4: All redactions made pursuant to Exemption 7(E) are unredacted.  ECF No. 27-6: All redactions made pursuant to Exemption 7(E) are unredacted. No changes are required for ECF Nos. 27-2 and 27-5. The Government shall send the revised documents, as described above, to the Plaintiff within seven (7) days of the date this Order is entered on the docket. SO ORDERED. Dated this 8th day of May, 2019.
/s/ JON D. LEVY CHIEF U.S. DISTRICT JUDGE
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