09-2225-cv Lowenstein v. Dept. of Homeland Sec.

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 ------------- 6 7 August Term, 2010 8 9 (Argued: August 31, 2010 Decided: November 22, 2010) 10 11 Docket No. 09-2225-cv 12 13 - - - - - - - - - - - - - - - - - - - - - - X 14 15 ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS PROJECT, and 16 JEROME N. FRANK LEGAL SERVICES ORGANIZATION, 17 18 Plaintiffs-Appellants, 19 20 - against - 21 22 DEPARTMENT OF HOMELAND SECURITY, and 23 UNITED STATES DEPARTMENT OF JUSTICE, 24 25 Defendants-Appellees, 26 27 DEPARTMENT OF STATE, and 28 EXECUTIVE OFFICE OF THE PRESIDENT, 29 30 Defendants. 31 32 - - - - - - - - - - - - - - - - - - - - - - X 33 34 Before: RAGGI and LYNCH, Circuit Judges, and 35 RAKOFF, District Judge.* 36 37 Appeal from the March 23, 2009 judgment of the United States 38 District Court for the District of Connecticut (Mark R. Kravitz, 39 Judge), granting partial summary judgment to defendants, in 40 Freedom of Information Act action, on the ground that the 41 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- 1 552(b)(7)(E). AFFIRMED. 2 3 SAURABH SANGHVI, (Michael Wishnie, Hope 4 Metcalf, Daniel Mullkoff, Jennifer 5 Chang, on the brief), for Plaintiff- 6 Appellant. 7 8 IAN J. SAMUEL (Nora R. Dannehy, United States 9 Attorney for the District of 10 Connecticut, Lisa E. Perkins, Sandra S. 11 Glover, Susan Scott, on the brief), for 12 Defendants-Appellees.

13 RAKOFF, District Judge.

14 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"),

(b)(7)(E), the Court

22 hereby affirms the decision of the district court.

23 BACKGROUND

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. See Allard K. Lowenstein Int'l Human Rights

30 Project v. Dep't of Homeland Sec.,

(D.

-2- 1

). The Project claims, however, that Operation Front

2 Line, in dragnet fashion, indiscriminately targeted men from

3 Muslim-majority countries and charged them with minor immigration

4 violations. The Project has sought through FOIA to obtain

5 internal government documents that the Project believes may

6 reveal governmental misconduct of this kind.

7 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. Although most of this “Forman

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 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. The Project then moved for release of the remaining

7 requested documents. After reviewing unredacted documents in

8 camera, the district court ordered the release of many but not

9 all of the remaining documents. Then, after the Project filed

10 this appeal, DHS voluntarily released most of the information

11 that remained in dispute. Accordingly, the information the

12 Project now seeks consists simply of a paragraph describing

13 "Priority 1" and several redacted lines under “Priority 2.”2

14 DISCUSSION

15 We review a district court's grant of summary judgment in a

16 FOIA action de novo. Wood v. FBI,

(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). Exemption (b)(7)(E)

3 exempts from disclosure:

4 records or information compiled for law enforcement 5 purposes, but only to the extent that the production of such 6 law enforcement records or information . . . (E) would 7 disclose techniques and procedures for law enforcement 8 investigations or prosecutions, or would disclose guidelines 9 for law enforcement investigations or prosecutions if such 10 disclosure could reasonably be expected to risk 11 circumvention of the law . . . . 12 13

(b)(7)(E).

14 The Project first argues that the redacted information in

15 the Forman Memorandum constitutes "guidelines" rather than

16 "techniques and procedures." Since Exemption (b)(7)(E) provides

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.

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,

.

-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. See Dobrova v. Holder,

(2d Cir.

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)). 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.” This is because the two alternative

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. Thus,

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. See Barnhart v. Thomas,

, 26

21 (2003) (citing “the grammatical ‘rule of the last antecedent’”).

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.,

(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.”). Prior to 1986, the second clause did not exist and

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.

(b)(7)(E) (1976). When

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. See

(a),

13

, 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.,

, 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.

-7- 1 Ct. 777 (2009); Keys v. Dep’t of Homeland Sec.,

(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

, 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,

(D.C. Cir. 1992). The fact

9 that the two clauses of the statute were introduced at different

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. While difficulties may

21 arise in unusual cases, the basic distinction is apparent. The

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- 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.” The phrase

5 "techniques and procedures," however, refers to how law

6 enforcement officials go about investigating a crime. See

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

10 about the accomplishment of something”). For instance, if the

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. Our in camera review of the entire

16 Forman Memorandum leads us to conclude that the redacted portions

17 constitute "techniques and procedures" for law enforcement

18 investigation.

19 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. Accordingly, the judgment of

22 the district court granting partial summary in favor of DHS is

23 hereby AFFIRMED.

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