1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FLETA CHRISTINA C. SABRA, Plaintiff,
v. UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendant. Civil Action No. 20-681 (CKK)

MEMORANDUM OPINION (March 14, 2022) This lawsuit arises from a Freedom of Info rmation Act (“FOIA”) re quest made by Plaintiff Fleta Christina C. Sabra (“Plaintiff”) to Defendant United States Custom s and Border Protection (“CBP” or “Defendant”). Plaintiff sought records regarding an encounter with CBP agents at a port of entry in California in September 2015 an d CBP’s subsequent inve stigation thereof. Before the Court is Defendant’s [24] Moti on for Summary Judgment. Plaintiff opposes Defendant’s motion, but has not fi led a cross-motion for summary j udgment. Upon review of the pleadings, 1 the relevant legal authorities, and the record as a whole, the Court concludes that CBP has not satisfied its burd en of demonstrating that it has conduct ed an adequate se arch for records responsive to Plaintiff’s FOIA reque st. Accordingly, the Court shall DENY without prejudice Defendant’s Motion for Summary Judgment and shall require CBP to provide additional information about its search or c onduct additional searches. In or der to avoid piecemeal litigation, the Court does not address the remaining issues raised in De fendant’s motion.

1 The Court’s consideration has focused on the fo llowing: Defendant’s Motion for Summary Judgment (“Def.’s Mot.”), ECF No. 24; Plaintiff’s Response in Opposition to Defendant’s Motion for Summary Judgment (“Pl.’s Opp’n”), ECF No. 28; and Defenda nt’s Reply Memorandum in Support of Defendant’s Motion for Summary Judgment (“Def.’s Reply”), ECF No. 29. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).2 I. BACKGROUND Plaintiff alleges that on September 11, 2015, sh e was unlawfully detained and physically assaulted by CBP agents at the Otay Mesa or Sa n Ysidro port of entry in Southern California. Compl. ¶¶ 2–3, ECF No. 1. On May 5, 2017, Plainti ff submitted to Defendant a FOIA request seeking: All agency records, including, but not limited to, video, database entries, photographs, communicati ons (including emails, letters, faxes, phone logs, and text mess ages), memoranda, investigative reports, and other things relating to the encounter between [Plaintiff] and U.S. Customs and Border Pr otection officials on or about September 11, 2015 [or] September 12, 2015 at the Otay Mesa OR San Isidro ports-of-entry. Please search specifically for use of force reports, internal affairs compla ints and responses, internal investigations, professional resp onsibility investigations and interviews, video and photographic evidence gathered in response to [Plaintiff’s] complaints, and all other records in the possession, custody, or control of CBP. . . [Plain tiff] filed a complaint with [the Department of Homeland Security ’s Office for Civil Rights and Civil Liberties] on September 23, 2015, and was interviewed by officials she believes worked for CBP regarding that complaint on or about December 21, 2015 in North Carolina. Id. ¶ 75. Plaintiff requested expedite d processing of her FOIA request, id. ¶ 9, which CBP denied,

see Pl.’s 6/9/20 Status Rep. at 5, ECF No. 9. 2 CBP’s search yielded 14,170 pages of records, 3 audio files, and 8 vide o files “potentially responsive” to Plaintiff’s FOIA request. See Def.’s Mot. Ex 1, Declar ation of Patrick A. Howard (“Howard Decl.”) ¶ 8, ECF No. 24-3. CBP dete rmined that 430 pages a nd all audio and video files were responsive to Plaintiff’s request. Id. Of those responsive materials, 24 pages were determined to be already in Plaintiff’s possessi on; 11 pages were withhe ld in full based on FOIA

2 Plaintiff previously filed a [7] Motion for Judgment on the Pleadings on the basis that CBP failed to timely adjudicate her request for expedite d processing and failed to make record s promptly available to her. See Pl.’s Mot. for J. on Pleadings, ECF No. 7. The Court denied Plaintiff’s Motion. See Order, ECF No. 22; Mem. Op., ECF No. 23.3 Exemption 5; and 395 pages, as well as the audi o and video files, were released with partial redactions based on FOIA Exempt ions 6, 7(C), 7(E), and 7(F). Id. CBP has submitted two Declarations of Patrick A. Howa rd, a Branch Chief in the FOIA Division, Privacy and Diversity Office, Office of the Commissioner for CBP and a Vaughn Index. See Howard Decl.; Def.’s Reply Ex. A, [Supplemental] Declarati on of Patrick A. Howard (“Suppl . Howard Decl.”), ECF No. 29- 1; Def.’s Mot. Ex. 1, Vaughn Index, ECF No. 24-3.
II. LEGAL STANDARD Congress enacted the Freedom of Information Act, 5 U.S.C. § 552, to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of Air
Force v. Rose , 425 U.S. 352, 361 (1976) (citation omitted) . Congress remained sensitive to the need to achieve balance between these objectives and the potential that “legitimate governmental and private interests could be harmed by re lease of certain types of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n , 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (citation omitted), cert. denied , 507 U.S. 984 (1993). To that end, FOIA “requires fe deral agencies to make Government records available to the public , subject to nine exemp tions for categories of material.” Milner v. Dep’t of Navy , 131 S. Ct. 1259, 1261–62 (2011). U ltimately, “disclosure, not secrecy, is the dominant objective of the act.” Rose , 425 U.S. at 361. For this reason, the “exemptions are explicitly made exclusiv e, and must be narrowly construed.” Milner , 131 S. Ct. at 1262 (citations omitted). “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol , 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v. U.S. Agency for Int’l Dev. , 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). “The agency is entitled to summary judgment if no material facts are genuinel y in dispute and the agen cy demonstrates that4 its search for responsive records was adequate, that any exem ptions claimed actually apply, and that any reasonably segregable non- exempt parts of records have b een disclosed after redaction of exempt information.” Prop. of the People, Inc. v. Off. of Mgmt. & Budget , 330 F. Supp. 3d 373, 380 (D.D.C. 2018) (citation omitted). The burden is on the agency to justify its res ponse to the plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency may su stain its burden by mean s of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory stat ements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Multi Ag Media LLC v. Dep’t of Agric. , 515 F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). “If an agency’s affidavit describes the justifications fo r withholding the informati on with specific detail, demonstrates that the information withheld logicallyfalls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v. Dep’t of Defense , 628 F.3d 612, 619 (D.C. Cir. 2011) (cita tions omitted). “Uncontradicted, plausible affidavits showing reas onable specificity and a logical relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. Dep’t of State , 641 F.3d 504, 509 (D.C. Cir. 2011) (citation omitted).
III. DISCUSSION Defendant seeks summary judgment as to the adequacy of its search and its claimed exemptions. Plaintiff opposes Defendant’s mo tion, but has not filed any cross-motion for summary judgment. For the reasons below, the C ourt concludes that CBP has failed to carry its burden of demonstrating that it has conducted anadequate search for records responsive to Plaintiff’s FOIA request. Accordingly, the Cour t shall deny without prej udice Defendant’s motion5 for summary judgment and direct CBP to provide additional in formation regarding its search for responsive records, or, if appropriate , to conduct additional searches. “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all rele vant documents.” Valencia-Lucena v. U.S. Coast Guard , 180 F.3d 321, 325 (D.C. Cir. 1999) (internal citation and quotation marks omitted). “At the summary judgment stage, where the agency has the burden to show that it acted in accordance with the statute, the court may rely on ‘[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched .’” Id. at 326 (emphasis added) (quoting Oglesby v. U.S. Dep’t of Army , 920 F.2d 57, 68 (D.C. Cir. 1990)); see also DiBacco v. U.S. Army , 795 F.3d 178, 188 (D.C. Cir. 2015) (same). Summary judgment must be denied “if a review of the record raises substantial doubt , particularly in view of we ll defined requests and positive indications of overl ooked materials[.]” DiBacco , 795 F.3d at 188 (internal citation and quotation marks omitted). In his two declarations, Mr. Howard attests that he is “familiar with [Defendant’s] procedure for responding to FOIA re quests,” that he is familiar withthe FOIA request at issue in this case. Howard Decl. ¶¶ 1–4, 5. Mr. Howard explains that, upon review of Pl aintiff’s FOIA request, CBP identified four internal CBP offices th at would “likely” have records related to “(1) a traveler encounter at th e Otay Mesa or San Ysidro ports of entry and (2) the investigation of a complaint alleging misconduct in connection with such an encount er.” Suppl. Howard Decl. ¶ 8. According to Mr. Howard, those offices include the “CBP’s Office Professional Responsibility, Office of Field Operations, U.S. Border Patrol , Office of Information Technology, and Office of Chief Counsel.” Id. Mr. Howard’s Declarations then describe the searches conducted by these6 internal CBP units and the results of those searches. See Howard Decl. ¶ 7; Suppl. Howard Dec. ¶ 8. Although Mr. Howard’s declarations indicate that particular offices within CBP were selected because they were “likely” to have responsive records, Suppl. Howard Decl. ¶ 8, they do

not contain any averment that all lo cations “likely to contain respons ive materials” were searched. Valencia-Lucena , 180 F.3d at 325. To be sure, an agency “n eed not search every one of its record systems.” Huntington v. U.S. Dep’t of Commerce , 234 F. Supp. 3d 94, 103 (D.D.C. 2017). But it must provide a “reasonably detailed affidavit . . . averri ng that all files likelyto contain responsive materials . . . were searched[ ]” to “afford a FOIA requester an opportunity to challenge the adequacy of the search and to a llow the district court to determin e if the search was adequate in order to grant summary judgment.” Oglesby , 920 F.2d at 68. “Where the government has not made such an a ttestation, courts have typically found that an issue of material fact exists as to the adequacy of the search.” Am. Immigration Council v. Dep’t of Homeland Sec. , 21 F. Supp. 3d 60, 71 (D.D.C. 2014) (internal quotation marks and citation omitted). Courts in this jurisdiction have consistently denied summary judgment to an agency when its supporting affidavit fails to “ave r[ ] that all locations lik ely to contain responsive records were searched.” New Orleans Workers’ Center for Racial Justice v. USCIS , 373 F. Supp. 3d 16, 36 (D.D.C. 2019); see also, e.g. , Huntington , 234 F. Supp. 3d at 103; Am. Immigration Council , 21 F. Supp. 3d at 71; Jefferson v. Bur. of Prisons , No. 05-848, 2006 WL 3208666, at * 6 (D.D.C. Nov. 7, 2005). For example, in New Orleans’ Workers Center , the court found insufficient the agency affiant’s assertion that “three offices likely to have responsive records” were identified and “instructed . . . to conduct a comprehensive search for respons ive records.” 373 F. Supp. 3d at 36–37 (cleaned up). The court noted that suchstatements “fail[ed]t o invoke the magic words7 concerning the adequacy of the search—namely the assertion that [the agency] searched all locations likely to contai n responsive records.” Id. at 37 (quoting Huntington , 234 F. Supp. 3d at 103). This deficiency “p reclude[d] summary judgmen t for the defendant.” Id. Similarly, in Huntington , the court found that the agen cy’s affidavit “d[id] not pa ss muster” when it indicated only that the agency had “identified offices reason ably likely to have responsive information and those offices conducted a reasonable search fo r responsive records.” 234 F. Supp. 3d at 104. Based on the “absence of an affidavit containing th e specific assertion that [the agency] searched all locations likely to contai n responsive records,” th e court concluded that the agency’s affidavit was “facially flawed” and that a “genuine issue of material fact remain[ed] as to whether the agency’s efforts were sufficient.” Id. at 104. Similar to the affidavits at issue in New Orleans Workers and Huntington , Mr. Howard’s Supplemental Declaration indicate s only that certain offices with in CBP would “likely” have responsive records, see Suppl. Howard Decl. ¶ 8, but neithe r declaration indicates that CBP searched “all files likely to c ontain responsive materials[.]” Oglesby , 920 F.2d at 68. This deficiency precludes the Court from granting summary judgment in CBP’s favor as to the adequacy of its search for records responsive to Plaintiff’s FOIA request. In addition, Plaintiff conte nds in her Opposition that CBP failed to consider “obvious leads” for additional email custodians. See Pl.’s Opp’n at 6. Mr. Howard attests that CBP searched the emails of the five CBP officials “identified in a report of investigation prepared in response to Plaintiff’s complaint to CBP.” Def.’s Reply at 4; see Suppl. Howard Decl. ¶ 8(a) (explaining that CBP conducted a search of the “email accounts of five CBP employees identified as potential witnesses to the encounter between Plaintiff an d CBP,” and that these “five employees were identified based on a review of the report of investig ation prepared in re sponse to Plaintiff’s8 complaint to CBP”). In response to Plaintiff’s FOIA request, CBP produced to her an email from a CBP Branch Chief, requesting that another offici al “prepare and forward the requested Incident Report for Supervisor [Redacted ].” Pl.’s Opp’n Ex. 1, ECF No. 28-2. In response, the CBP employee indicated, “Attached you will find the memo.” Id. As Plaintiff observes, the “to” and “from” fields in this email chain appear to contain far more than five addresses.” 3 Pl.’s Opp’n at 7. Plaintiff suggests that any ad ditional recipients were “obvious leads” as potential custodians for responsive records, which CBP “ignor e[d]” by not conduc ting searches of those employees’ emails. Id. CBP is correct that FOIA does not obligate it to “search every si ngle individual who may be on an electronic mail message.” Def.’s Reply at 5. However, in light of its failur e to aver that it searched all locations likely to have responsiv e records, the Court cannot determine whether its decision not to consider these potential email custodians was reasonable. The Court reaches no conclusion as to whether CBP’s decision not to search the emails of those recipients was reasonable or not; it merely concludes that CBP ha s offered insufficient information to sustain its burden. Based on these deficienci es, the Court shall not grant summary judgment in CBP’s favor at this time. Although the Court finds that CBP has not carried its burden as to the adequacy of its search, it shall briefly address Plaintiff’s claims that CBP failed to comply with Federal Rule of Civil Procedure 56 and Local Civi l Rule 7. Although the Court does not rely on either argument in denying CBP’s summary judgmen t motion, it briefly addresses both arguments to avoid repetition in any subsequent briefing in this case.

3 Plaintiff has submitted this email with her Oppositio n, which redacts the email addresses and names in the email “to”/“cc” and “from” lines. At this tim e, the Court is not addressing the propriety of these redactions. However, the Court observes that Plaintif f appears to be correct that each of the fields is multiple lines long.9 First, Plaintiff argues that Mr. Howard’s decl aration does not comply with Federal Rule of Civil Procedure 56 because he fails to “allege pe rsonal knowledge about the records and offices in this case,” but instead asserts only “personal kno wledge of CBP’s FOIA pr ocedures for searching and processing [records].” Pl.’s Opp’n at 4, 5; see also id. at 5 (contending that Mr. Howard “fails to allege familiarity with the responsive records or agency offices and systems of records at issue in this case”). The same case cited by Plaintiff in support of this argument summarizes its flaw: “Plaintiff misconstrues what Rule 56 requires in the FOIA context.” Wisdom v. U.S. Trustee Prog. , 232 F. Supp. 3d 97, 115 (D.D.C. 20 17). A “FOIA declarant may sa tisfy that rule’s personalknowledge requirement if in his declaration, [h e] attest[s] to his personal knowledge of the procedures used in handling [a FOIA] request and hi s familiarity with the do cuments in question.” Id. (internal citations and quot ation marks omitted). In Wisdom , for example, the court concluded that the agency’s affiant satisfied Rule 56’s personal knowledge requirement by attesting that he is “responsible for agency compli ance with FOIA,” has “direct i nvolvement in the processing of responses and requests for access to [the agency’s] records an d information,” and that his statements are “based upon my personal knowledge, upon information provided to me in my official capacity[.]” 232 F. S upp. 3d at 115 (interna l quotation mark s omitted). Mr. Howard’s declaration contains substantia lly similar representations. See, e.g. , Howard Decl. ¶ 1 (“I oversee . . . processing of requests for records submitted to CBP pursuant to the FOIA[.]”); id. ¶ 2 (“I . . . assist with FOIA litigation matters and I am pe rsonally familiar with the processing of FOIA responses[.]”); id. ¶ 3 (“All information cont ained herein is based upon information furnished to me in my official capacity and the statements I ma ke in this declaration are based on my personal knowledge, which includes knowledge acquired through, and agency files reviewed in, the course of my official duties as Branch Chief in CBP’s FOIA Division.”); id. ¶ 5 (“I am familiar with the10 FOIA request submitted by [Plaintiff][.]”). Mr. Howard’s decl aration satisfies Rule 56’s personal knowledge requirement, as applied to the FOIA context. Next, Plaintiff contends that CBP has failed to comply with Local Civil Rule 7(h)(1), which requires a summary judgment movant to file a “statement of material facts as to which the moving party contends there is not issue

. ” LCvR 7(h)(1) (emphasis ad ded). Plaintiff contends that CBP’s Statement of Undisputed Material Facts “neglects to identify which material facts cited in the Howard Declaration” are undisputed. Pl.’s Opp’n at 2. But that is not required by the local rule, which directs the party opposing a motion for summary judgment to set forth the facts as to which it contends “there exists a genuine issue[.]” 4 LCvR 7(h)(1). Plaintif f also argues that CBP’s Statement of Undisputed Material Facts is not suffic iently detailed as to the adequacy of the search because it indicates only that CBP conducted a search for responsive records, with a citation to the portion of Mr. Howard’s Declara tion describing the scope and met hodology of the search in more detail. See Pl.’s Opp’n at 3–4. Although Pl aintiff contends that CBP’s Statement fails to “delineate which facts support its contention th at the search was adequate,” id. at 4, the Court finds that the citation to Mr. Howard’s affidavit is sufficient for this purpose. In other words, it is clear to the Court which facts in Mr. Howard’s affidavit support its claim that the search was adequate.
IV. CONCLUSION Because the Court concludes that CBP has fail ed to sustain its burden of demonstrating that its searches were adequate, the Court DENIES WITHOUT PREJUDICE Defendant’s Motion for Summary Judgment. Atthis time, the Cour t will not address the remaining issues

4 In this jurisdiction, a party moving for summary judgment to file a “statement of material facts as to which the moving party contends there is no genuine issue .” LCvR 7(h)(1) (emphasis added). The party opposing the motion must then file a “separate concis e statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated .” LCvR 7(h)(1) (emphasis added) .11 pertaining to withholdings and red actions. Instead, the Court shall order CBP shall file a Status Report by no later than MARCH 31, 2022 , indicating how it intends to proceed with either (1) conducting additional searches and a proposed date for their completion; or (2) supplementing the information provided to the Court and renewing its motion for summary judgment. Following Defendant’s additional searches, if necessary, the parties can file renewed motions for summary judgment addressing all disputed withholdings and redactions in order to avoid piecemeal litigation. An appropriate Order acco mpanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge
Date : March 14, 2022