1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

________________________________________ ) JESSE SKINNER, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-0725 (PLF) ) UNITED STATES DEPARTMENT ) OF JUSTICE, et al. , ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION This matter is before the Court on the Second Renewed Motion for Summary Judgment filed by the Bureau of Alcohol, Tob acco, Firearms and Explosives (“BATFE”). Having carefully considered the motion, the oppos ition and the reply, and for the reasons stated below, the motion will be granted.

I. BACKGROUND Plaintiff brought this act ion under the Freedom of Information Act (“FOIA”). See 5 U.S.C. § 552. The sole matter remaining for resolution in this case is the decision of the United States Citizenship and Immigration Serv ice (“USCIS”) to withhold certain information from a one-page document. See Skinner v. U.S. Dep’t of Justice , 806 F. Supp. 2d 105, 116 (D.D.C. 2011). 1 The document is described as “a printo ut of information from a Privacy Act

1 Plaintiff initially submitted his FOIA request to the BATFE. Defs.’ Mem. of P. & A. in Supp. of the Mot. to Dismiss In Part, and Altern atively, for Summ. J. [D kt. #18], Decl. of Averill P. Graham (“Graham Decl.”) ¶ 19. In relevant part, the request read:2 system of records commonly referred to as The Enforcement Communications System (formerly, Treasury Enforcement Communications System (TECS)).” Mem. of P. & A. in Supp. of Defs.’ Renewed Mot. for Summ. J. [Dkt. #55] (“Def. ’s Renewed Mot.”), Ex. 4 (Decl. of Jill A. Eggleston (“Eggleston Decl.”)) ¶ 5. A fuller de scription of the document, titled “TECS II – Person/Subject Entry screen print out,” is included in the BATFE’s Vaughn Index: The screen print in questions [sic] displays information maintained by the government on Jesse Ma nuel Skinner in the U.S. Department of Homeland Secur ity DHS/CBP-011 TECS database, such as, name, physical identifier s, social security number, known resident [sic] address and date of birth. Also displayed in the screen print is the strategy for apprehending Skinner; name and duration of posting of the operatio n under which the apprehension was orchestrated and undertaken ; and name of reporting law enforcement officer, individual id entification and contact numbers, and computer access codes. Def. BATFE’s Mem. in Supp. of its Second Re newed Mot. for Summ. J. [Dkt. #73] (“BATFE Mem.”), Vaughn Index at 1. The USCIS initially relied in part on Exemptions 2 and 7(E) to redact from the printout “internal computer codes, an unpubliciz ed investigation technique, and the names and employee identification numbers of federal law enforcement officers involved in the matter.”

______________________ This letter serves as a FOIA request . . . for copies of any and all records created and received by the Biloxi, Mississippi Field Office for the [BATFE] in regards to myself – JESSE SKINNER. In addition, this is a request fo r an index of any and all files maintained by the [BATFE] in reference to me.

Id. , Graham Decl., Ex. Q (Letter from plaintiff to BATFE, Biloxi, Mississippi Fiel d Office, dated July 3, 2007) at 1. The BATFE referred the one -page document to the USCIS from whence it came. Id. , Graham Decl. ¶ 29 & Ex. AA (Letter to Br ian J. Welsh, FOIA Officer, USCIS, from Suzanne Placanica, Disclosure Specia list, BATFE, dated December 13, 2007).3 Def.’s Renewed Mot., Eggleston Decl. ¶ 7; see id. , Ex. D ( Vaughn Index) at 2-3. 2 In light of the Supreme Court’s ruling in Milner v. Dep’t of the Navy , __ U.S. __, __, 131 S. Ct. 1259, 1264-71 (2011), the USCIS now has abandoned its relian ce on Exemption 2. It “has reviewed the redactions and determined that [Exemption 7(E)] is equally applicable.” BATFE Mem. at 2.

II. DISCUSSION A. Summary Judgment in a FOIA Case “FOIA cases typically and appropriate ly 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). The Court grants summary judgment if the movant shows that there is no genuine dispute as to any material fact and that it is en titled to judgment as a matter of la w. Fed. R. Civ. P. 56(a). In a FOIA action to compel production of agency re cords, the agency “i s entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly exempt from the [FOIA = s] inspection requirements.’” Students Against Genocide v. Dep’t of State , 257 F. 3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. Cent. Intelligence Agency , 607 F.2d 339, 352 (D.C. Cir. 1978)). Summary judgment may be based solely on information provided in an agency’s supporting affidavits or declarations if they are relative ly detailed and when they describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically fall s within the claimed exemption, and are not

2 The names and identification and contact num bers of law enforcement officers properly have been withheld under Exemption 7(C). See Skinner v. U.S. Dep’t of Justice , 806 F. Supp. 2d at 114-15. In addition, the USCIS “properly ha s redacted from the TECS screen printout information pertaining to the techniques, pro cedures and guidelines for action in an ongoing criminal law enforcement operation,” se t forth in an all-points bulletin. Id. at 116.4 controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981); see Beltranena v. Clinton , 770 F. Supp. 2d 175, 182 (D.D.C. 2011). Plaintiff’s opposition to the BATFE’s pe nding motion discusses only his desire to

obtain trial exhibits which had b een filed in the United States District Court for the Southern District of Mississippi. See generally Pl.’s Resp. in Opp’n to Def. ’s Mot. for Summ. J. [Dkt. #76] (“Pl.’s Opp’n”) ¶¶ 3, 5-7, 12- 25. According to plaintiff, defendant is “not being forthcoming with all information relevant to this instant case at bar,” id. ¶ 12, because an employee of the Drug Enforcement Administration (“ DEA”) allegedly obtained the trial exhibits from the district court, id. ¶ 12, at a time when plaintiff’s mo tions for release of these exhibits were pending both in the Di strict of Mississippi and th e District of Columbia. Id. ¶ 14. All FOIA issues regarding the DEA’ s response to plaintiff’s FOIA request have been resolved. See generally Skinner v. U .S. Dep’t of Justice , 744 F. Supp. 2d 185 (D.D.C. 2010). Furthermore, this Court already has ruled that the United States District Court for the Southern District of Mississippi is not subject to the FOIA, and that any trial exhibits kept there are not agency records responsive to plaintiff’s FOIA request to the BATFE. See Order, Skinner v. U.S. Dep’t of Justice , No. 09-0725 (D.D.C. filed Jan. 18, 2011). W holly absent from plaintiff’s opposition to the pending motion is any discussion of the BATFE’s argu ment that the USCIS properly withheld TECS access codes under Exemption 7(E). Ordinarily, the Court may treat as co nceded any argument raised in a motion which the opposing party fails to address. See, e.g., Augustus v. McHugh , __ F. Supp. 2d __, __, 2012 WL 2512930, at *4 (D.D.C. July 2, 2012) (where plaintiff’s “oppositi on did not challenge the Secretary’s proffered jus tifications under FOIA for havi ng redacted [information,]” the5 arguments were “deemed conceded, and summary judgment [was] entered in favor of the Secretary”); People for the Ethical Treatment of Animals v. Nat’l Inst. of Health, 853 F. Supp. 2d 146, 151 (D.D.C. Apr. 10, 2012) (“Plaintiff also di d not respond to defendant’s arguments with respect to Count I or Count III in its opposition to defendant’s motion for summary judgment,” and, accordingly, “the Court . . . treat[ed] Count I and II as conceded and . . . dismiss[ed] these claims without prejudice”); see also LCvR7(h) In these circumstan ces, however, the Court will discuss briefly the applicability of Exemption 7( E) to USCIS’s redactions from the TECS screen printout at issue.

B. Exemption 7(E) Exemption 7(E) protects from disclosure law enforcement records “to the extent that the production of such . . . information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclo sure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7 )(E). There is no dis pute that the records responsive to plaintiff’s FOIA request, including the one-page document at issue, were compiled for law enforcement purposes. See Skinner v. U.S. Dep’t of Justice , 744 F. Supp. 2d at 206. Courts have held that information pe rtaining to law enforcement techniques and procedures properly is withheld under Exemption 7(E) where disclosure r easonably could lead to circumvention of laws or regulations. See, e.g., Morley v. Cent. Intelligence Agency, 453 F. Supp. 2d 137, 157 (D.D.C. 2006) (approving the wit hholding of information pertaining to security clearances and background investigations on the ground that “disclosure . . . would risk circumvention of those processes in the future”), rev’d on other grounds, 508 F.3d 1108 (D.C. Cir. 2007).6 1. TECS Database It is helpful first to review defendant’s description of TECS: TECS is a comprehensive computerized law enforcement and communications information system . . . designed to identify individuals and organizations suspected of involvement in violations of federal law. TECS is principally owned and managed by DHS’s U.S. Customs and Bord er Protection (CBP), and is CBP’s principal law enforcement and anti-terrorism information system. This system is comprised of several modules designed to collect, maintain, screen, analyze, and share information via secure links to telecommunications de vices and computers of law enforcement agencies. For exam ple, TECS provides direct access to other major law enforcement systems of records, including the U.S. Department of Justice’s National Crime Information Center (NCIC), the National Law Enforcement Telecommunications System (NLETS), and the Canadian Police Information Centre (CPIC). In addition to CBP, TEC S has users from other federal agencies, including U.S. Immigration and Customs Enforcement (ICE); the Bureau of Alcohol, To bacco, Firearms and Explosives (BATFE); Federal Bureau of Investigation (FBI); the Internal Revenue Service (IRS); and the Dr ug Enforcement Administration (DEA), to name a few. BATFE’s Mem., Vaughn Index at 1 (page numbers desi gnated by the Court). Records maintained in TECS include those “pertaining to known or suspected violators, wanted persons, persons of interest for law enforcement and c ounterterrorism purposes, reference information, [and] regulatory and compliance data.” Id. , Vaughn Index at 1. Access to TECS is strictly

limited: All government law enforcem ent officers and employees authorized to execute TECS i nquiries have had a full field background investigation, database training, and are given access to information on a need-to-know basis only. DHS relies on strict access controls, passwords and background checks for individuals accessing the data, and regular system audits that monitor, track and report on all access to system data to ensure that TECS data is being handled consistent with al l applicable federal laws and regulations regarding privacy, data integrity and national security. Id. , Vaughn Index at 2.7 2. Computer Access Codes Withheld Under Exemption 7(E) The USCIS invokes Exemption 7(E) “to pr otect internal computer access codes associated with a hyper-sensitive law enfor cement database containing homeland security information, i.e. , TECS.” BATFE Mem., Vaughn Index at 3. These code s “not only facilitate access to and navigation through TECS, but are also tied to the means to identify, monitor, track, audit and, when necessary, block, pursue, appreh end and/or prosecute unauthorized users.” Id. Each access code is assigned to an individual user, and for this reason, public disclosure of a user’s access code would (1) perm it unauthorized users to avoid recognition, instant detection and apprehension, (2) give them “near-unfettere d access to one of the nation’s most critical electronic law enforcement infrastructures”, and (3) “arm these intruders with the ability to irreparably corrupt the integrity” of TEC S data by altering or manipulating it. Id. Dissemination

of user codes also would allow the intruders to evade detection of their criminal activity by “alter[ing] their patterns of conduct, adopt[ing] new methods of operation, relocat[ing],” or “effectuat[ing] other countermeasures,” such that ongoing investigations are affected. Id. Further, the declarant states that unauthorized access to TECS by computer hackers endangers ongoing investigations “by exposing informants , witnesses, and other highly sensitive information,” leading, for example, to witne ss intimidation and destru ction of evidence. Id. Lastly, because the CBP’s law enforcement databa ses are connected to databases maintained by other federal agencies, the declaran t explains that any “distortion of . . . information contained in [TECS] could . . . impair[] other agencies’ law enforcement operations and missions.” Id. D.C. Circuit precedent “sets a relatively low bar for the agency to justify withholding” information under Exemption 7(E). Blackwell v. Fed. Bureau of Investigation , 646 F.3d 37, 42 (D.C. Cir. 2011). The exemption allows for withholding “not just for circumvention8 of the law, but for a risk of circumvention; not ju st for an actual or certain risk of circumvention, but for an expected risk; not ju st for an undeniably or univers ally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk.” Mayer Brown LLP v. Internal Revenue Serv., 562 F.3d 1190, 1193 (D.C .Cir. 2009). Here, the declarant not only describes the TECS database in detail, but also explains the link between disclosure of authorized users’ access codes and the many ways individuals could exploit th e information to circumvent the law or to corrupt the database itself. Although the computer access codes are not themselves “guidelines for law enforcement investigations or prosecutions” entitled to categorical protection under Exemption 7(E), the declarant adequately demonstrates that release of the codes “would disclose guidelines for law enforcement investigations or prosecutions[, a nd that] such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E).

The Court concludes that the USCIS’s decision to redact the TECS access codes is appropriate under Exemption 7(E). See, e.g., Miller v. U.S. Dep’t of Justice , __ F. Supp. 2d __. __, 2012 WL 2552538, at *13 (D. D.C. July 3, 2012) (withholding TECS numbers relating to procedures concerning use of law enforcement resources and databases and TECS case program and access codes on the ground that “disclosi ng [them] would expose a law enforcement technique, promote circumvention of the law by allowing criminals to conceal their activity, or allow fraudulent access to DEA's databases.”); McRae v. U.S. Dep’t of Justice , __ F. Supp. 2d __, __, 2012 WL 2428281, at *14 (D.D.C. June 27, 2012) (redacting “codes, case numbers, and other computer information pertaining to th e TECS, NCIC, and databases maintained by the North Carolina authorities are techniques and pr ocedures for law enfor cement investigation”); Bloomer v. U.S. Dep’t of Homeland Sec ., __ F. Supp. 2d __, __, 2012 WL 1574468, at *8 (D. Vt.9 May 3, 2012) (redacting “various codes and cas e numbers,” including the TECS Record ID, because disclosure of “internal instructions, codes, and guidance would reveal both a law enforcement technique and an internal investig ative practice,” which, in turn, “could endanger future investigations”).

III. CONCLUSION The Court concludes that the USCIS prope rly has withheld information from the one-page TECS screen printout, and its second renewed motion for summar y judgment therefore will be granted. Now that the Court has ruled on all motions and no matters are outstanding, and because each agency has demonstrated its co mpliance with the FOIA and entitlement to judgment as a matter of law, final judgment will be entered in favor of the defendants. An Order consistent with this Memorandum Opinion and with prior opinions and orders of this Court will be issued this same day.

/s/____________________________ PAUL L. FRIEDMAN DATE: September 28, 2012 United States District Judge