Lowenstein v. Dept. of Homeland Sec., No. 09-2225 (2d Cir. 2010)
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09-2225-cv Lowenstein v. Dept. of Homeland Sec. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ------------August Term, 2010 (Argued: August 31, 2010 Decided: November 22, 2010) Docket No. 09-2225-cv - - - - - - - - - - - - - - - - - - - - - - X ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS PROJECT, and JEROME N. FRANK LEGAL SERVICES ORGANIZATION, Plaintiffs-Appellants, - against DEPARTMENT OF HOMELAND SECURITY, and UNITED STATES DEPARTMENT OF JUSTICE, Defendants-Appellees, DEPARTMENT OF STATE, and EXECUTIVE OFFICE OF THE PRESIDENT, Defendants. - - - - - - - - - - - - - - - - - - - - - - X Before: RAGGI and LYNCH, Circuit Judges, and RAKOFF, District Judge.* Appeal from the March 23, 2009 judgment of the United States District Court for the District of Connecticut (Mark R. Kravitz, Judge), granting partial summary judgment to defendants, in Freedom of Information Act action, on the ground that the information at issue is exempt from disclosure under 5 U.S.C. § * The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. -1- 1 2 3 4 5 6 7 8 9 10 11 12 552(b)(7)(E). 13 RAKOFF, District Judge. 14 AFFIRMED. SAURABH SANGHVI, (Michael Wishnie, Hope Metcalf, Daniel Mullkoff, Jennifer Chang, on the brief), for PlaintiffAppellant. IAN J. SAMUEL (Nora R. Dannehy, United States Attorney for the District of Connecticut, Lisa E. Perkins, Sandra S. Glover, Susan Scott, on the brief), for Defendants-Appellees. Plaintiffs-Appellants, the Allard K. Lowenstein 15 International Human Rights Project and the Jerome N. Frank Legal 16 Services Organization (collectively, "the Project"), appeal the 17 district court's partial grant of summary judgment to 18 Defendant-Appellee, the Department of Homeland Security ("DHS"). 19 Having determined that the DHS properly withheld certain portions 20 of a 2004 memorandum under Exemption (b)(7)(E) of the Freedom of 21 Information Act ("FOIA"), 5 U.S.C. § 552(b)(7)(E), the Court 22 hereby affirms the decision of the district court. BACKGROUND 23 24 In the months preceding the 2004 presidential election and 25 2005 inauguration, U.S. Immigration and Customs Enforcement 26 ("ICE"), a division of DHS, undertook "Operation Front Line" for 27 the stated purpose of identifying and preventing potential 28 terrorist activities that were anticipated in connection with 29 those events. 30 Project v. Dep't of Homeland Sec., 603 F. Supp. 2d 354, 360 (D. See Allard K. Lowenstein Int'l Human Rights -2- 1 Conn. 2009). 2 Line, in dragnet fashion, indiscriminately targeted men from 3 Muslim-majority countries and charged them with minor immigration 4 violations. 5 internal government documents that the Project believes may 6 reveal governmental misconduct of this kind. 7 The Project claims, however, that Operation Front The Project has sought through FOIA to obtain This appeal concerns the Project s request under FOIA for 8 one of these documents: a September 2004 memorandum regarding 9 Operation Front Line issued to special agents and deputy 10 assistant directors by Mary Forman, the Acting Director of ICE s 11 Office of Investigations. 12 Memorandum was furnished to the Project, portions of a few 13 paragraphs of the Forman Memorandum that describe three 14 priorities for investigation were redacted.1 15 Although most of this Forman At the outset, it should be noted that these very modest 16 redactions are all that remain in dispute of much broader 17 requests for information that were materially granted, largely on 18 consent. The Project's two initial FOIA requests, submitted to 1 Priority 1 cases, the highest priority, were investigated with the assistance of the FBI and its Joint Terrorism Task Force. Priority 2 cases, the middle priority, consisted of suspected immigration status violators meeting the Front Line threat profile, and were sometimes investigated with the assistance of local FBI agents depending on the potential source recruitment and intelligence value of the targets. Priority 3 cases, the lowest priority, were generally investigated by ICE agents without FBI assistance. -3- 1 DHS in October 2006, broadly sought information related to 2 Operation Front Line, much of which was at first denied; but 3 after the Project filed this action in the district Court on 4 November 21, 2006, the parties entered into two stipulations, 5 pursuant to which DHS released thousands of pages of such 6 documents. 7 requested documents. 8 camera, the district court ordered the release of many but not 9 all of the remaining documents. The Project then moved for release of the remaining After reviewing unredacted documents in Then, after the Project filed 10 this appeal, DHS voluntarily released most of the information 11 that remained in dispute. 12 Project now seeks consists simply of a paragraph describing 13 "Priority 1" and several redacted lines under Priority 2. 2 DISCUSSION 14 15 Accordingly, the information the We review a district court's grant of summary judgment in a 16 FOIA action de novo. Wood v. FBI, 432 F.3d 78, 82 (2d Cir. 2005). 17 The district court determined that DHS properly withheld the 18 redacted portions of the Forman Memorandum under FOIA Exemptions 19 (b)(2) and (b)(7)(E).3 We need not here consider whether 2 At the beginning of this appeal, the Project also disputed the withholding of two other words indicating the numbers of Priority 2 and 3 cases. However, during oral argument before this Court, the Project stated that it no longer disputed DHS s right to withhold this information. 3 Although the district court did not specifically cite the exemptions it applied, its conclusion that DHS properly withheld th[e] specific information because it is either predominantly -4- 1 Exemption (b)(2) applies because we conclude that the district 2 court properly applied Exemption (b)(7)(E). 3 exempts from disclosure: 4 5 6 7 8 9 10 11 12 13 14 Exemption (b)(7)(E) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law . . . . 5 U.S.C. § 552(b)(7)(E). The Project first argues that the redacted information in 15 the Forman Memorandum constitutes "guidelines" rather than 16 "techniques and procedures." 17 that law enforcement guidelines may only be withheld if their 18 disclosure "could reasonably be expected to risk circumvention of 19 the law," the Project contends that the information at issue 20 could not reasonably be expected to engender such a risk and 21 therefore must be released to the Project. Since Exemption (b)(7)(E) provides 22 In the alternative, the Project argues that even if the 23 redacted information relates to techniques and procedures, the 24 qualifier at the end of the clause allowing non-disclosure only 25 if such disclosure could reasonably be expected to risk internal or compiled for law enforcement purposes and its disclosure could risk circumvention of the law indicates that it applied Exemption (b)(2) and Exemption (b)(7)(E). See Lowenstein, 603 F. Supp. 2d at 364. -5- 1 circumvention of the law" applies not just to "guidelines" but 2 also to "techniques and procedures," and, accordingly, DHS still 3 must release the information. 4 We reject these arguments. Beginning, as we must, with the 5 plain meaning of the statute s text and structure, we see no 6 ambiguity. 7 2010) ( Statutory analysis necessarily begins with the plain 8 meaning of the law s text, and, absent ambiguity, will generally 9 end there. (internal quotation marks omitted)). See Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. The sentence 10 structure of Exemption (b)(7)(E) indicates that the qualifying 11 phrase ( if such disclosure could reasonably be expected to risk 12 circumvention of the law ) modifies only guidelines and not 13 techniques and procedures. 14 clauses that make up Exemption 7(E) are separated by a comma, 15 whereas the modifying condition at the end of the second clause 16 is not separated from its reference by anything at all. 17 basic rules of grammar and punctuation dictate that the 18 qualifying phrase modifies only the immediately antecedent 19 guidelines clause and not the more remote techniques and 20 procedures clause. 21 (2003) (citing the grammatical rule of the last antecedent ). This is because the two alternative Thus, See Barnhart v. Thomas, 540 U.S. 20, 26 22 Any potential ambiguity in the statute s plain meaning is 23 removed, moreover, by the history of the statute s amendments. 24 See, e.g., Slayton v. Am. Express Co., 604 F.3d 758, 770-71 (2d -6- 1 Cir. 2010) ( [W]here we find ambiguity we may delve into other 2 sources, including the legislative history, to discern Congress s 3 meaning. ). 4 the exemption consisted of "investigatory records compiled for 5 law enforcement purposes" to the extent that their production 6 would "disclose investigative techniques and procedures," without 7 any further qualification. 8 Congress enacted the current version of the statute in 1986, it 9 expanded the scope of Exemption 7(E) by adding the entire second 10 clause (including the modifier), thereby exempting "guidelines" 11 from disclosure only if public access to such guidelines would 12 risk circumvention of the law. 13 100 Stat. 3207, 3207-48 to -49 (1986); see also S. Rep. No. 98- 14 221, at 25 (1983) ( The amendment also expands (b)(7)(E) to 15 permit withholding of guidelines for law enforcement 16 investigations or prosecutions if such disclosure could 17 reasonably be expected to risk circumvention of the law. ); 18 American Civil Liberties Union v. Dep t of Def., 543 F.3d 59, 79 19 (2d Cir. 2008) ( Exemption 7(E) was expanded to allow agencies to 20 withhold information that would disclose law enforcement 21 guidelines - in addition to the already protected techniques and 22 procedures - if disclosure of the guidelines could reasonably be 23 expected to risk circumvention of the law. (internal quotation 24 marks omitted)), vacated on other grounds and remanded, 130 S. Prior to 1986, the second clause did not exist and 5 U.S.C. § 552(b)(7)(E) (1976). When See Pub. L. No. 99-570 § 1802(a), -7- 1 Ct. 777 (2009); Keys v. Dep t of Homeland Sec., 510 F. Supp. 2d 2 121, 129 (D.D.C. 2007) (concluding that first clause of 3 Exemption 7(E) provides categorical protection for techniques and 4 procedures without need for demonstration of harm (internal 5 quotation marks omitted)); Fischer v. U.S. Dep t of Justice, 772 6 F. Supp. 7, 12 n.9 (D.D.C. 1991) (noting that amendment to 7 Exemption (7)(E) provided categorical protection to techniques 8 and procedures), aff d, 968 F.2d 92 (D.C. Cir. 1992). 9 that the two clauses of the statute were introduced at different The fact 10 times (the first clause in 1974 and the second clause in 1986) 11 and that the modifying language (requiring disclosure unless 12 such disclosure could reasonably be expected to risk 13 circumvention of the law ) was not part of the first clause as it 14 was originally enacted reinforces the conclusion that the 15 modifying language should be read as attaching only to the new 16 basis for exemption that was created along with it. 17 The argument that the redacted information constitutes 18 guidelines information, instead of information about 19 techniques and procedures, requires us to address the 20 difference between the two categories. 21 arise in unusual cases, the basic distinction is apparent. 22 term "guidelines" - meaning, according to Webster s Third New 23 International Dictionary (1986), an indication or outline of 24 future policy or conduct - generally refers in the context of -8- While difficulties may The 1 Exemption 7(E) to resource allocation. For example, if a law 2 enforcement agency concerned with tax evasion directs its staff 3 to bring charges only against those who evade more than $100,000 4 in taxes, that direction constitutes a guideline. 5 "techniques and procedures," however, refers to how law 6 enforcement officials go about investigating a crime. 7 Webster s Third New International Dictionary (1986) (defining 8 technique as a technical method of accomplishing a desired 9 aim ; and procedure as a particular way of doing or of going The phrase See 10 about the accomplishment of something ). 11 same agency informs tax investigators that cash-based businesses 12 are more likely to commit tax evasion than other businesses, and 13 therefore should be audited with particular care, focusing on 14 such targets constitutes a "technique or procedure" for 15 investigating tax evasion. 16 Forman Memorandum leads us to conclude that the redacted portions 17 constitute "techniques and procedures" for law enforcement 18 investigation. 19 For instance, if the Our in camera review of the entire Because we find that DHS properly withheld the information 20 under Exemption (b)(7)(E), we need not consider the other 21 arguments put forth by the Project. 22 the district court granting partial summary in favor of DHS is 23 hereby AFFIRMED. -9- Accordingly, the judgment of
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