Case 1:08-cv-01046-JDB Document 44 Filed 11/27/09 Page 1 of 4

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, ) Civil Action No. 08-1046 (JDB)
)
v. )
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendant. )
)

DEFENDANT’S NOTICE OF COMPLIANCE WITH COURT'S SEPTEMBER 1, 2009

DISCLOSURE ORDER, DEFENDANT’S STATUS REPORT AS TO APPEAL, AND
DEFENDANT’S NOTICE OF DISCRETIONARY RELEASE OF ADDITIONAL
REDACTED MATERIAL (IN LIEU OF FILING SUPPLEMENTAL VAUGHN INDEX
AND MEMORANDUM REQUIRED BY THE COURT’S NOVEMBER 5, 2009 ORDER)

This case arises under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as

amended. In a Memorandum Opinion and Order dated September 1, 2009 (Docket Entries 35 and

36), the Court ruled on the parties’ cross-motions for summary judgment as to the first part of

Plaintiff’s FOIA request, granting the motions in part and denying them in part. On November 2,

2009, Defendant United States Department of Homeland Security (“DHS”) filed a notice of appeal

(Docket Entry 38) from the Court's September 1, 2009 Order “insofar as it requires disclosure of

certain previously-redacted documents pursuant to FOIA [Exemption 5].” See Court’s November

5, 2009 Order (Docket Entry 42). The appeal has been docketed by the United States Court of

Appeals for the District of Columbia Circuit as No. 09-5382.

On November 5, 2009, the Court granted a partial stay of the September 1, 2009 Order

pending appeal, ordered DHS to file a report of the status of the appeal by November 27, 2009, and

further ordered DHS to file a supplemental Vaughn index and supporting memorandum as to certain
 Case 1:08-cv-01046-JDB Document 44 Filed 11/27/09 Page 2 of 4

additional material withheld under FOIA Exemption 5 by November 27, 2009. See id. By this

notice, DHS reports that it is in full compliance with the requirements of the Court’s September 1,

2009 and November 27, 2009 Orders.

DISCUSSION

Compliance with September 1, 2009 Disclosure Order

DHS has complied with the Court’s September 1, 2009 Order by disclosing those documents

which the Court ordered DHS to release to Plaintiff Citizens for Responsibility and Ethics in

Washington (“CREW”). First, the Court granted CREW’s motion for partial summary judgment

with respect to material withheld under FOIA Exemption 5 that is contained in Documents 10, 11,

13, 14, 17, 19, 20 and 23 (Order at 1). The material was withheld by the United States Customs and

Border Protection (“CPB”), a component of DHS. CPB has released copies of these documents

without any redactions under Exemption 5 (see Ex. A hereto) (November 25, 2009 letter to CREW’s

counsel). The portions of the documents redacted under Exemptions 6 and 7(E) are not subject to

the Court’s disclosure order and have not been released (Order at 2).

Second, the Court granted in part and denied in part CREW’s motion for partial summary

judgment as to Documents 12, 15, 16, 18, 21, 22, 24 and 28 with respect to Exemption 5 material

(Order at 1-2). CPB has released copies of these documents without any redaction of the Exemption

5 material that the Court ordered DHS to release to CREW. Because the Court also granted in part

DHS’s motion for partial summary judgment as to the withholding of certain portions of these

documents under Exemptions 5, 6, and 7(E) (id. at 2), those portions of the documents have not

been released.

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 Case 1:08-cv-01046-JDB Document 44 Filed 11/27/09 Page 3 of 4

Report of Status of the Appeal

DHS’s compliance with the September 1, 2009 disclosure order moots the appeal in No. 09-

5382. DHS expects to file a motion to dismiss the appeal on or before the December 4, 2009

deadline for the filing of appellant’s initial submissions in the appeal.

Compliance with the Court’s November 5, 2009 Order

In its September 1, 2009 Order, the Court denied both parties’ motions for partial summary

judgment as to Documents 1, 9 and 27 and with respect to the relevant attachments within

Documents 22 and 24 (Order at 2). Pursuant to the Court November 5, 2009 Order, DHS is required

to file a supplemental Vaughn index and memorandum of law in support of the agency’s

withholding of any contested Exemption 5 material by November 27, 2009. CPB has authorized the

discretionary release of Exemption 5 material contained in these documents, except for material that

was also withheld under Exemption 7(E). The material withheld under both Exemptions 5 and 7(E)

is limited to a portion of an attachment to Document 24 and remains exempt because the Court

entered judgment in favor of CBP “on all withholdings made pursuant to Exemptions 6 and 7(E)”

(id.). Because CBP has released all material previously withheld exclusively under Exemption 5 that

is contained in these documents and attachments, DHS files this notice in lieu of a supplemental

Vaughn index and supporting memorandum of law.

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 Case 1:08-cv-01046-JDB Document 44 Filed 11/27/09 Page 4 of 4

Respectfully submitted,

/s/
CHANNING D. PHILLIPS, DC BAR #415793
Acting United States Attorney

/s/
RUDOLPH CONTRERAS, D.C. Bar # 434122
Assistant United States Attorney

/s/
JOHN G. INTERRANTE
PA Bar # 61373
Assistant United States Attorney
Civil Division, Room E-4806
555 4th Street, N.W.
Washington, D.C. 20530
(202) 514-7220
(202) 514-8780 (fax)
John.Interrante@usdoj.gov

Of Counsel:

Simon Fisherow
Susan Shama
Attorneys
Office of Chief Counsel
U.S. Customs and Border Protection

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U.S. Department of Justice

Channing D. Phillips
Acting United States Attorney

District of Columbia

Judiciary Center
555 Fourth St., N.W.
Washington, D.C. 20530

November 25, 2009

By Electronic Mail

David L. Sobel, Esquire

Attorney at Law
1818 N Street, N.W., Suite 410
Washington, DC 20036

RE: Citizens for Responsibility and Ethics in Washington v.

U.S. Department of Homeland Security, Civil Action No. 08-1046 (JDB)

Dear David:

On behalf of the United States Customs and Border Protection (“CPB”), a component of
United States Department of Homeland Security (“DHS”), I write to disclose the material
withheld under FOIA Exemption 5 that the Court ordered DHS to release in its Memorandum
Opinion and Order entered on September 1, 2009 (Docket Entries 35, 36). DHS has also
authorized the discretionary release of additional Exemption 5 material, as discussed below.

First, the Court granted the motion for partial summary judgment filed by Citizens for
Responsibility and Ethics in Washington (“CREW”) with respect to material withheld under
Exemption 5 that is contained in Documents 10, 11, 13, 14, 17, 19, 20 and 23 (Order at 1). I
enclose copies of these documents without any redactions under Exemption 5. The portions of
the documents redacted under Exemptions 6 and 7(E) are not subject to the Court’s disclosure
order and are not being released (id. at 2).

Second, the Court granted in part and denied in part CREW’s motion for partial summary
judgment as to Documents 12, 15, 16, 18, 21, 22, 24 and 28 with respect to Exemption 5 material
(Order at 1-2). The Court also granted in part and denied in part DHS’s motion for partial
summary judgment with respect to the same exemption and the same documents. Accordingly, I
enclose copies of these documents without any redaction of the Exemption 5 material that the
Court ordered DHS to release to CREW. The enclosed documents are redacted under
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-2-

Exemptions 5, 6, and 7(E) to the extent the Court granted DHS’s motion for partial summary
judgment as to the withholding of this material (id. at 2).

The release of the above-referenced information moots defendant’s appeal of the

September 1, 2009 disclosure order. I will prepare a motion to dismiss the appeal next week.
DHS requests CREW’s consent to the dismissal motion.

Third, the Court denied both parties’ motions for partial summary judgment as to
Documents 1, 9 and 27 and with respect to the relevant attachments within Documents 22 and 24
(Order at 2). CPB authorized the discretionary release of Exemption 5 material contained in
these documents, except for material that was also withheld under Exemption 7(E). As you are
aware, the Court entered judgment in favor of CBP “on all withholdings made pursuant to
Exemptions 6 and 7(E)” (id.). The material withheld under both Exemption 5 and 7(E) is limited
to a portion of an attachment to Document 24. Accordingly, I enclose copies of these documents
without any redaction of the material previously withheld exclusively under Exemption 5.

Finally, by Order dated November 5, 2009, the Court ordered CBP to file a supplemental
Vaughn index and supplemental memorandum of law in support of the agency’s withholding of
the contested Exemption 5 material contained in Documents 1, 9 and 27 and with respect to the
relevant attachments within Documents 22 and 24. These filings are due by November 27, 2009.
Because the remaining contested Exemption 5 material is being released as part of this letter, no
additional briefing will be necessary.

If you have any questions about the disclosures discussed above, or about the case in
general, please call me at 202-514-7220.

Sincerely yours,

/s/
John G. Interrante
Assistant United States Attorney

cc: Ann L. Weismann, Esquire

Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W.
Suite 450
Washington, D.C. 20005