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Page 1: Borderfenceruling


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Date Created:March 14, 2014

Date Uploaded to the Library:March 20, 2014

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Civil Action No. 09-0468 (BAH) 
Judge Beryl Howell 

The plaintiff, Denise Gilman, brings this case under the Freedom Information Act (FOIA), U.S.C.  552, seeking release certain U.S. Customs and Border Protection (CBP) records concerning the construction fence the Texas-Mexico border.  Pending before the Court are the parties cross-motions for summary judgment regarding CBPs production email records response the plaintiffs FOIA request, which response withheld landowner names and addresses, under FOIA Exemption and information related CBPs assessments the need for fencing, under FOIA Exemption 7(E), and excluded email attachments from the records produced the plaintiff.1  For the reasons explained below, CBPs motion granted part, with respect portions records withheld pursuant FOIA Exemption 7(E) and the exclusion email attachments from production the plaintiff, and denied part, its redaction landowner names and addresses pursuant FOIA The plaintiff has also named defendants the Army Corps Engineers (ACE) and the Department Homeland Security (DHS), but has settled her claims with defendant ACE, which was dismissed party.  See Stip. Settlement Order Dismissal ACE, ECF No. 24; see also Def.s Mem. Supp. Def. CBPs Mot. Summ. Email Recs. (Def.s Mem.)  Although both DHS and CBP remain parties the action, after DHS referred the request CBP, see July 23, 2009, Joint Status Report (7/23/09 JSR) the parties agree that DHS only nominally defendant [but] has further involvement this action.  Def.s Mem. Pl.s Mem. Oppn Def.s Mot. Summ. Email Recs. Supp. Pl.s Mot. (Pl.s Mem.) ECF No. 35.  Consequently, only CBP records remain issue.  Pl.s Mem. 
Exemption and the plaintiffs motion granted part with respect the redaction landowner names and addresses under FOIA Exemption and otherwise denied.2 November 12, 2013, defendant CBP had completed production all email and non-email records that believed were responsive the plaintiffs request, and challenge has been raised the agencys search.  See Nov. 12, 2013 Joint Status Report 12, ECF No. 48; Def.s Mem. BACKGROUND The Texas-Mexico Border Fence 2006, Congress passed the Secure Fence Act, ordering construction fence wall along specific portions the U.S.-Mexico border, including areas Texas.  See Complaint (Compl.)  ECF No. (citing Secure Fence Act, Pub. No. 109-367,  120 Stat. 2638 (2006)).  The Act was later amended mandate reinforced fencing along not less than 700 miles the southwest border and charged the Secretary Homeland Security with completing 370 miles the reinforced fencing the end 2008.  Consolidated Appropriations Act, 2008, Pub. No. 110-161,  564, 121 Stat. 1844, 209091 (2007).  The precise location the fence, however, was left the U.S. Department Homeland Security (DHS) determine where fencing would most practical and effective, provided that DHS consult with, inter alia, states, local governments, Indian tribes, and property owners minimize the impact those living near the site the future fence.  Id. FOIA Requests 
The plaintiff clinical professor the University Texas School Law.  Decl. Denise Gilman (Gilman Decl.)  ECF No. 35-1. late 2007, the plaintiff spearheaded working group that focused the human rights impact the border fence conduct[ing] research and analysis the legal, historical, property, environmental, indigenous, community, and other impacts the border wall.  Id.  45. part that effort, the plaintiff submitted several FOIA requests the CBP, DHS, and the U.S. Army Corps Engineers (ACE).  See 
Def.s Mem. Supp. Def. CBPs Mot. Summ. Email Recs. (Def.s Mem.) ECF No. 32.  The plaintiffs request CBP asked for: (1) Maps possible locations for segments fence wall along the Texas/Mexico border; (2) files including geographic coordinates for surveyed points along potential routes for segments fence wall along the Texas/Mexico border; (3) Documents identifying the properties possibly affected the construction the border fence wall along the Texas/Mexico border, including documents that provide information regarding the ownership the possibly affected properties and any other information about the characteristics those properties; (4) Documents identifying the properties for which the United States government has sought obtain access through consent/waiver through litigation; (5) Documents reflecting appraisals properties possibly affected the construction the border fence wall along the Texas/Mexico border; (6) Documents reflecting surveys other analyses the areas possibly affected the border fence wall along the Texas/Mexico border; (7) Documents that describe the considerations factors taken into account making decisions regarding potential routes for segments fence wall along the Texas/Mexico border; (8) Communications received from, provided referenced the Department Homeland Security that make recommendations suggestions regarding the route for segments fence wall along the Texas/Mexico Border; and (9) Documents relating potential actual contracts for the execution land surveys construction segments fence wall along the Texas/Mexico border.  Gilman Decl. Ex. 1819 (Plaintiffs FOIA request CBP dated April 11, 2008).  Near-identical requests were also sent DHS and ACE.  See Compl.   
 DHS informed the plaintiff letter that referred her request CBP as the component DHS likely possess the records requested.  See July 23, 2009, Joint Status Report 
(7/23/09 JSR) ECF No.  Before the plaintiff filed suit, she received from CBP two records, from ACE, pages records, and from DHS, records.  See Gilman Decl.  10; Pl.s Mot. Summ. (Pl.s Mem.) ECF No. 35. FOIA LITIGATION 
The plaintiff filed the instant action compel the disclosure responsive records, but subsequently agreed with CBP bifurcate the email production and non-email production records.  See 7/23/09 JSR 23; see also July 27, 2009 Scheduling Order (7/27/09 Sched. Order)  13, ECF No.  The parties submitted joint status report informing the Court that in the interest expediting the release e-mails Plaintiff, CBP could satisfy Plaintiffs FOIA request with respect the processing e-mails providing Plaintiff the e-mails released Crew DHS pursuant the search described the Joint Status Report and Proposed Disclosure Schedule that case.  See 7/23/09 JSR (citing Citizens for Responsibility Ethics Wash. U.S. Dept Homeland Sec. (CREW), No. 08-1046 (D.D.C. filed June 18, 2008)).  The parties further explained that CREW involved search for emails of the CBP officials most directly involved the border fence placement division and was scheduled produce 1,000 pages e-mails per month until there were remaining responsive records.  Id. 23.  This was broader search for records than that which the plaintiff had requested because the plaintiff CREW sought records for the entire Southwest border the United States instead just the Texas-Mexico border.  Def.s Mem. 45.  CBP was already processing email records CREW, id. and the arrangement meant CBP would not have expend its limited resources search for, retrieve and process email records response Plaintiffs FOIA request, id. and allowed Plaintiff receive email records more expeditiously than she otherwise would, id.  CBP agreed release the plaintiff all
mails already released CREW DHS and continue provide the plaintiff with further e-mails they are released rolling basis that case.  7/23/09 JSR  The Court subsequently entered order stating that CBP will release Plaintiff all email records already released [CREW], and, going forward, CBP will release Plaintiff rolling basis all e-mail records released [CREW], the same schedule they are released that case.  7/27/09 Sched. Order  
Two years after the plaintiff filed suit, CBP completed was near completion its production records both the CREW litigation and the instant case.  Gilman Decl.  12.  CBP was ordered produce any remaining responsive email records the plaintiff within month, see March 28, 2011 Order, ECF No. 27, and the plaintiff was ordered raise any disputes with the claimed exemptions within days.  Id.; see also June 27, 2011 Joint Status Report (6/27/2011 JSR), ECF No. 28. total, CBP made productions email records representing all emails produced the CREW DHS case.  Id. n.1.  The plaintiff identified for CBP the 289 emails with redactions and/or withholdings she challenging, Pl.s Mot. Summ. (Pl.s Mem.) and CBP agreed conduct further review the challenged records, 6/27/11 JSR  The parties were aware when the 6/27/11 JSR was filed that the plaintiff challenged the fact that attachments were not part the email production.  Id.  CBP explained that would satisfy its obligation the plaintiff releasing her emails which were identical those released CREW, and, therefore, the extent attachments were not included the email release made CREW DHS, they were not provided Plaintiff.  Id.  This was contrary the plaintiffs understanding that, the extent the CBP withheld portions emails, the plaintiff would still able challenge those redactions.  Id. the plaintiffs view, 
CBPs non-production attachments responsive emails was withholding without any applicable exemption that must therefore disclosed.  Id.   
The plaintiff has substantially narrowed her challenges CBPs production responsive records.  See Pl.s Reply Def.s Opp. Pl.s Mot. Summ. Re. Email Discl. (Pl.s Reply) ECF No. 42.  The plaintiff has expressly stated that she longer challenges (1) CBPs redaction emails under Exemption 5, Pl.s Reply (2) the Exemption 7(E) redactions on Record listed the Vaughn index, id.; (3) the withholding the phone numbers email addresses landowners the withholding names and contact information CBP employees individual employees contractors, Pl.s Mem. and (4) the withholding email attachments beyond those attached the 289 emails issue these cross-motions, id. 25.  Due the plaintiffs decision not challenge these withholdings, summary judgment granted CBP those issues.  The reasons for the plaintiffs remaining challenges are discussed below. 
Congress enacted the FOIA promote transparency across the government.  See U.S.C.  552; Stern FBI, 737 F.2d 84, (D.C. Cir. 1984).  The Supreme Court has explained that the FOIA a means for citizens know what their Government to.  This phrase should not dismissed convenient formalism. defines structural necessity real democracy.  Natl Archives Records Admin. Favish, 541 U.S. 157, 17172 (2004) (citation and internal quotation marks omitted).  The basic purpose FOIA ensure informed citizenry, vital the functioning democratic society, needed check against corruption and hold the governors accountable the governed.  NLRB Robbins Tire Rubber Co., 437 U.S. 214, 242 (1978); see also SEC Am. Intl Grp., 712 F.3d (D.C. Cir. 2013) (The 
public has fundamental interest keeping watchful eye the workings public agencies. (quoting Wash. Legal Found. U.S. Sentencing Commn, F.3d 897, 905 (D.C. Cir.1996))). result, the FOIA requires federal agencies release all nonexempt records responsive request.  See U.S.C.  552(a)(3)(A). protect legitimate governmental and private interests [that] could harmed release certain types information, United Techs. Corp. U.S. Dept Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (internal quotation marks omitted), Congress included nine exemptions permitting agencies withhold information from FOIA disclosure.  See U.S.C.  552(b). These exemptions are explicitly made exclusive, and must narrowly construed.  Milner U.S. Dept the Navy, 131 S.Ct. 1259, 1262 (2011) (citations and internal quotation marks omitted); see also Pub. Citizen, Inc. Office Mgmt. Budget, 598 F.3d 865, 869 (D.C. Cir. 2010) (FOIA allows agencies withhold only those documents that fall under one nine specific exemptions, which are construed narrowly keeping with FOIAs presumption favor disclosure.) (citations omitted).  Upon exhaustion administrative remedies, FOIA requester may file civil action challenging agencys response its request.  See U.S.C.  552(a)(4)(B); Wilbur CIA, 355 F.3d 675, 677 (D.C. Cir. 2004).  Once such action filed, the agency generally has the burden demonstrating that its response the plaintiff's FOIA request was appropriate.  See id. 678.  Federal courts are authorized under the FOIA to enjoin the agency from withholding agency records and order the production any agency records improperly withheld from the complainant.  Id.  552(a)(4)(B). typically appropriate resolve FOIA cases summary judgment.  See Brayton Office the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011) (the vast majority FOIA cases can resolved summary judgment).  When agencys response FOIA request withhold responsive records, either whole part, the agency bears the burden proving the applicability claimed exemptions.  Am. Civil Liberties Union U.S. Dept Def. (ACLU/DOD ), 628 F.3d 612, 619 (D.C. Cir. 2011).  The agency may sustain its burden establishing that requested records were appropriately withheld through the submission declarations detailing the reason that FOIA exemption applies, along with index, necessary, describing the materials withheld.  See, e.g., id. 619; Students Against Genocide U.S. Dept State, 257 F.3d 828, 840 (D.C. Cir. 2001); Vaughn Rosen, 484 F.2d 820, 82728 (D.C. Cir. 1973).  If agencys affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and not contradicted contrary evidence the record evidence the agencys bad faith, then summary judgment warranted the basis the affidavit alone.  ACLU/DOD, 628 F.3d 619. the D.C. Circuit recently explained, FOIA cases [s]ummary judgment may granted the basis agency affidavits they contain reasonable specificity detail rather than merely conclusory statements, and they are not called into question contradictory evidence the record evidence agency bad faith.  Judicial Watch, Inc. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fedn Am. U.S. Dept Agric., 455 F.3d 283, 287 (D.C. Cir. 2006) and Gallant NLRB, F.3d 168, 171 (D.C. Cir. 1994)).  While the burden remains the moving party demonstrate that there absence genuine issue material fact dispute, Celotex Corp. Catrett, 477 U.S. 317, 323 (1986), FOIA cases, an agencys justification for invoking FOIA exemption sufficient appears logical plausible.  ACLU/DOD, 628 F.3d 619 (quoting Larson U.S. Dept State, 565 F.3d 857, 862 (D.C. Cir. 2009)). 
The plaintiff contends that CBP: (1) improperly redacted the names and addresses landowners who would potentially affected the border wall, under FOIA Exemption (2) improperly redacted records containing assessment the need for fencing certain areas, under FOIA Exemption 7(E); and (3) improperly withheld email attachments pursuant specific FOIA exemption.  Pl.s Reply  The plaintiffs challenges are addressed seriatim below. FOIA Exemption 
The plaintiff challenges CBPs withholding, under Exemption the names and addresses private citizen landowners that are referenced emails and from CBP employees.3  Exemption protects personnel and medical files and similar files the disclosure which would constitute clearly unwarranted invasion personal privacy. U.S.C.  552(b)(6).  The information the file need not intimate for the file satisfy the standard, and the threshold for determining whether information applies particular individual minimal.  Milton U.S. Dept Justice, 783 Supp. 55, (D.D.C. 2011) (quoting N.Y. Times Co. Natl Aeronautics Space Admin., 920 F.2d 1002, 1006 (D.C. Cir. 1990) (en banc)).  Once this threshold determination met, the Court next inquires whether disclosure would compromise substantial, opposed minimis, privacy interest, because FOIA demands disclosure [i]f significant privacy interest implicated.  See Multi Media LLC U.S. Dept Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008) (citing Natl Assn Retired Fed. Emps. Horner (Horner), 879 F.2d 873, 874 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990)).  The standard means less than might seem, substantial privacy interest issue the withholding names and addresses private citizen landowners, not commercial landowners, individuals who were points contact for commercial entities, employees the CBP.  See Supplemental Decl. David Wade (Suppl. Wade Decl.)  n.1.   
anything greater than minimis privacy interest.  Id. 122930. there substantial privacy interest the information, the Court employs balancing test determine whether release such information constitutes clearly unwarranted invasion personal privacy,  Wash. Post Co. U.S. Dept Health Human Servs., 690 F.2d 252, 260 (D.C. Cir. 1982); U.S. Dept the Air Force Rose, 425 U.S. 352, 372 (1976); see also U.S. Dept Justice Reporters Comm. for Freedom the Press, 489 U.S. 749, 756 (1989), weighing the privacy interest that would compromised disclosure against any public interest the requested information.  Multi Media LLC, 515 F.3d 1228.  Exemption 6s requirement that disclosure clearly unwarranted instructs tilt the balance (of disclosure interests against privacy interest) favor disclosure.  Morley, 508 F.3d 1108, 1127 (D.C. Cir. 2007) (quoting Wash. Post Co. U.S. Dept Health Human Servs., 690 F.2d 261). threshold matter, the Court must determine whether the withheld information constitutes similar files personnel and medical files that are subject exemption U.S.C.  552(b)(6).  The terms [sic] similar files construed broadly and is intended cover detailed Government records individual which can identified applying that individual.  Govt Accountability Project, 699 Supp. 10506 (quoting U.S. Dept State Wash. Post Co., 456 U.S. 595, 602 (1982)).  Courts look the nature the information issue, not necessarily the nature the files.  See Skybridge Spectrum Found. FCC, 842 Supp. 65, (D.D.C. 2012) (quoting N.Y. Times Co. Natl Aeronautics Space Admin., 920 F.2d 1006 (quotation marks omitted)); see also Judicial Watch, Inc. FDA, 449 F.3d 141, 15253 (D.C. Cir. 2006) (similar files encompasses not just files, but also bits personal information, such names and addresses, the release which would create[] palpable threat privacy.) (quoting Carter U.S. Dept Commerce, 830 F.2d 
388, 391 (D.C. Cir. 1987)).  The plaintiff does not dispute that the requested information similar file, see Pl.s Mem. 712, and because the names and addresses landowners are bits personal information, Judicial Watch, 449 F.3d 152, that applies particular individual[s], see Wash. Post Co., 690 F.2d 260, Exemption may triggered.  The Court must next examine whether the requested information implicates substantial privacy interest and, so, whether release the information would clearly unwarranted view the public interest, any, the requested documents. Substantial Privacy Interest Exists The Withheld Name And Address Information construing Exemption the D.C. Circuit has held that the disclosure names and addresses not inherently and always significant threat the privacy those listed; whether significant minimis threat depends upon the characteristic(s) revealed virtue being the particular list, and the consequences likely ensue.  Horner, 879 F.2d 877; see also United States Dept State Ray, 502 U.S. 164, 176 n.12 (1991) (noting that disclosure list names and other identifying information not inherently and always significant threat the privacy the individuals the list.).  In the context individual residence, the court has recognized that the privacy interest individual avoiding the unlimited disclosure his her name and address significant.  Natl Assn Home Builders Norton (Norton), 309 F.3d 26, (D.C. Cir. 2002) (quoting Horner, 879 F.2d 875); see also Skybridge Spectrum Found., 842 Supp. (same).  CBP supports its position that there are substantial privacy interests the names and addresses private citizens referenced the 289 challenged emails for three reasons. 
First, CBP asserts that there potential [for] unwanted contact that might ensue from such disclosure, and this risk creates heightened privacy interest.  Def.s Combined Reply 
Supp. Mot. Summ. Email Records Oppn Pl.s Cross-Mot. Summ. (Def.s Reply) ECF No. 40.  According the CBP, the unwanted contact which the landowners could exposed may come from the media, other members the public, including other landowners involved similar process, and potential harassment.  Supplemental Decl. David Wade (Suppl. Wade Decl.)  15; see also Def.s Reply (explaining that disclosure would risk exposing landowners unwanted media attention because the border fence touched nerve among many groups.).  CBP correct that a justified and articulable risk media harassment implicates substantial privacy interest.  Judicial Watch, Inc. U.S. Dept State, 875 Supp. 37, (D.D.C. 2012) (citing Elec. Privacy Info. Ctr. U.S. Dept Homeland Sec., 384 Supp. 100, 118 (D.D.C. 2005) (withholding employee names upheld where media scrutiny and harassment were likely)).  Given that the plaintiff herself admits that the construction the wall received significant public interest and attention, and extensive coverage the national, international and state and local press, see Gilman Decl.  (citing articles), there sufficient evidence support CBPs claim that disclosure may expose the landowners unwanted contact from the media.  See Judicial Watch, Inc., 875 Supp. (court found government employees had substantial privacy interest withholding names from emails discussing meeting the Keystone Alaska pipeline because could lead possible harassment and undesired contact media.).   
Second, CBP argues that disclosure implicates substantial privacy interest because the email threads discussing the landowners also discuss details specific negotiations between landowners and the government, sometimes including discussion the particular terms landowner was willing accept permit access purchase, Suppl. Wade Decl.  15, whether land was subject pending condemnations for right entry.  Def.s Reply  
CBP contends that disclosure the names would, many instances, provide information about the landowners discussions with the CBP about their valuation the use sale their land. Def.s Reply see, e.g., Suppl. Wade Decl. Ex. (email dated November 26, 2007, recounting one landowners extended negotiations with CBP officials seeking $10,000 and fence structure agreement); Suppl. Wade Decl. (email dated November 21, 2007, stating that landowner is agreeable allowing complete our survey [and] very pleased with the progress thus far and looks forward working together, but does have some requests (fence type)); id. (email dated December 2007, commenting that [name redacted] not going relent [and] absolutely sure that has the upper hand and wants money and fence structure agreement from CBP).  This information, disclosed, would allow for inference drawn about the financial situation individual, see Multi Media LLC, 515 F.3d 1230, which creates amplified privacy interest the names and addresses.  See Horner, 879 F.2d 87677; Consumers Checkbook Ctr. for the Study Servs. U.S. Dept Health Human Servs., 554 F.3d 1046, 1050 (D.C. Cir. 2009) (recognizing that the D.C. Circuit has consistently held that individual has substantial privacy interest under FOIA his financial information, including income); Jurewicz U.S. Dept Agric., 741 F.3d 1326, 1332 (D.C. Cir. 2014) (affirming district courts finding that there non-negligible, limited privacy interest information related dog breeders gross sales under Exemption privacy interest analysis); Multi Media LLC, 515 F.3d 1230 (finding substantial privacy interest disclosure farms reported acreage and the number and width rows tobacco because may provide snapshot farms financial circumstances and shed[] light the financial condition the farmer) (citation omitted).   
Third, CBP contends that the names implicate substantial privacy interest because the names are referenced part discussions between CBP employees that reveal the landowners personal relationships and specific statements that the landowners have made regarding their views about the border fence.  See Suppl. Wade Decl.  15; Def.s Mem. see, e.g., Supplemental Gilman Decl. (Suppl. Gilman Decl.) Ex. (email dated February 25, 2008, stated that [redacted name] admitted that could not see the controversy after looking into the maps available the internet); Gilman Decl. Ex. (email dated April 30, 2007, that references area along the proposed fence belong[ing] one owner [name redacted] who friend the President and staunch supporter the Border Patrol [but] adamantly opposed the fence concept).   
The plaintiff responds that there substantial privacy interest because the main information that would revealed would that the named people owned land that was potentially going affected the building the border wall.  Pl.s Mem. see, e.g.,  Suppl. Wade Decl. Ex. (email dated November 26, 2007, which CBP employee asks, [w]ill [name redacted] sell the property needed for the fence alignment well the ROE for survey?).  She contends that other emails with redactions only reference names with respect information that already publicly disclosed.  Pl.s Mem. see, e.g., Suppl. Gilman Decl. Ex. (email dated February 2008, referencing news article that attached the email about lawsuit filed the Mennonite Brethren Church and private landowner [name redacted]).  Other emails mention names shorthand way identify property.  Pl.s Mem. (citing Gilman Decl. Ex. (email dated February 26, 2008, stating that [w]e actually just drove [name redacted] house segment O-15); id. Ex. (email dated February 2008, stating that CBP was granted possession investigate list properties that are all 
identified redacted names)); see also Suppl. Gilman Decl. Ex. (email dated February 22, 2008, referring property owned the [name redacted]). 
The Court agrees with the CBP.  Contrary the plaintiffs claims, the information issue here comprises more than just publicly available names and addresses.  Notably, even these names and addresses were publicly available, finding substantial privacy interest would not precluded.  See Am. Civil Liberties Union U.S. Dept Justice (ACLU), 655 F.3d (D.C. Cir. 2011) (finding minimal but more than minimis privacy interest docket numbers and names defendants when information was already publicly available and readily accessible and disclosure would simply provide one more place which computerized search will find the same persons name and conviction). any event, the context which these names appear the CBP emails not publicly accessible information, which creates heightened privacy interest.  Indeed, some the names and addresses are part discussions revealing, least limited extent, the property owners financial information, opinions, the substance their conversations with the CBP.  See Suppl. Wade Decl. Ex. see also Def.s Mem.  Cf. Columbia Riverkeeper Fed. Energy Regulatory Commn, 650 Supp. 1121, 1129 (D. Or. 2009) (finding that agency failed establish sufficient privacy interest mailing list landowners the path proposed pipeline part because the names and addresses themselves [did not] reveal private decisions those individuals and agency had released names similar lists the past). this case, because CBP has demonstrated that disclosure would create a justified and articulable risk media harassment for all the landowners, Judicial Watch, Inc., 875 Supp. 47, and that disclosure would reveal financial information, opinions and views some landowners, there more than minimis privacy interest. noted, the standard for demonstrating substantial privacy interest not high one, see Horner, 879 F.2d 874 (substantial privacy interest anything greater than minimis), and CBP has demonstrated that the privacy interest more than minimis. The Public Interest Outweighs The Private Interest 
The public interest weighed against the privacy interest this balancing test the extent which disclosure would serve the core purposes the FOIA contribut[ing] significantly public understanding the operations activities the government.  Norton, 309 F.3d 3334 (citing U.S.  Dept Def. Fed. Labor Relations Authority (Dept Def.), 510 U.S. 487, 495 (1994)). making the requisite balancing analysis here, the Court finds that CBP has failed demonstrate that the public interest outweighs the landowners privacy interest.   
The plaintiff claims that the public interest significant because will help the public understand the actual dimensions and location the wall well allow the public analyze whether the government was treating property owners equally and fairly whether CBP built the wall such way that disadvantaged minority property owners.  Pl.s Mem. 1011; see also Pl.s Reply ([T]he public has significant interest understanding which properties were affected the placement the wall, and how those property owners were affected.).  CBP responds that the public interest the disclosure landowner names and addresses sharply limited, Def.s Mem. 15, because the names and contact information for these individuals does not shed light CBPs operations activities.  Def.s Mem. 17. CBP adds that information the personal impact the wall individual landowners families not matter public concern but personal issue unique the particular landowner.  Def.s Reply  Notwithstanding the fact that disclosure the names the plaintiff seeks will, least some instances, reveal information about the landowners personal opinions and 
negotiations with the government, the plaintiff correct that, balance, the public interest outweighs the landowners privacy interest.   
CBP fails adequately consider the extent which the release the landowners names the aggregate will further public understanding. cites several cases for support, all which are inapposite.  CBP relies U.S. Department Justice Reporters Committee for Freedom the Press, 489 U.S. 749, 775 (1989), support its contention that [i]nformation that does not directly reveal the operation activities the federal government falls outside the ambit the public interest that the FOIA was enacted serve.  Def.s Mem. 1516.  More precisely, the Supreme Court held that where the request sought only private information and would reveal official information about government agency, the invasion privacy is unwarranted.  Id. 780.  Reporters Comm. Freedom the Press, 489 U.S. 780.  Based upon this holding, CBP makes the unremarkable observation that even modest privacy interest outweighs nothing every time.  Def.s Mem. (citing Horner, 879 F.2d 87475).  This holding does not, CBP asserts, foreclose request that indirectly reveals information about the operations government agency through the disclosure private information.  Contrary CBPs argument, the public interest this case significant and does not amount nothing.  Id. 
The D.C. Circuits decision ACLU, 655 F.3d particularly instructive.  There, the Circuit considered the balancing privacy and public interests under Exemption 7(C), but the ambit Exemption 7(C) relevant this discussion.  Exemption 7(C) somewhat broader than Exemption Roth U.S. Dept Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011) (quoting Reporters Comm. Freedom the Press, 489 U.S. 756), because, although the cognizable harm under both exemptions unwarranted invasion personal privacy, this harm must 
clear[ ] under Exemption yet need only reasonably expected under Exemption 7(C).  See U.S.C.  552(b)(6), 552(b)(7)(C).  Consequently, Exemption 7(C) more protective privacy than Exemption 6 and thus establishes lower bar for withholding material.  ACLU, 655 F.3d (citations omitted). ACLU, advocacy organization sought the disclosure docket numbers and names defendants who had been the targets warrantless cell phone tracking.  Id. 12.  The Circuit found that there was more than minimis privacy interest, but not much more because the information was already readily available the public, which reduces the incursion privacy resulting from disclosure.  Id. 12.  The agency argued that despite the minimal private interest, disclosure was not required because the case names and docket numbers standing alone generate public benefit.  Id. 15.  The Court disagreed, holding that the public benefit was significant because the requested information could used derivatively order shed light government conduct a topic considerable public interest.  Id. 12.  The information, when compiled, would inform [an] ongoing public policy discussion shedding light the scope and effectiveness cell phone tracking law enforcement tool.  Id. 13.  Even under the more stringent 7(C) privacy protection standard, the Circuit held that this public interest outweighed the minimal privacy interest the publicly available information, and ordered disclosure the withheld information.  Id. 16. 
Similarly here, although the names and addresses the land owners implicates stronger privacy interest than ACLU because the information reveals more than just publicly available information, see Part III.A.1., supra, there great public benefit learning the social impact CBPs construction the wall.  Revealing the identities landowners the walls planned construction site may shed light on, inter alia, the impact indigenous communities, the 
disparate impact lower-income minority communities, and the practices private contractors.  See Gilman Decl.   The information, after appropriate analysis, could reveal CBPs decisionmaking and conduct relates the Texas-Mexico border wall planning and construction, thus helps the public learn something directly about the workings the Government.  Horner, 879 F.2d 879 (emphasis original).  Although the privacy interest the requested information not insubstantial, does not outweigh the strong public interest releasing the names and addresses. 
[W]ith regard the applicability Exemption names and home addresses, federal courts have differed their conclusions when employing the private interest/public interest balancing test.  People for the Am. Way Found. Natl Park Serv., 503 Supp. 284, 30405 (D.D.C. 2007). survey these cases shows that, balance, when the disclosed information would she[d] light agencys performance its statutory duties otherwise let citizens know what their government to, Dept Def., 510 U.S. 497 (citations omitted), disclosure appropriate, even the Court has recognized significant privacy interest. other words, even when significant privacy interest stake, Exemption require[s] balance tilted emphatically favor disclosure.  Stern, 737 F.2d 91; see also News-Press U.S. Dept Homeland Sec., 489 F.3d 1173, 1198 (11th Cir. 2007) (The federal courts, including this one, have therefore generally concluded that agencys burden under Exemption showing that disclosure would constitute clearly unwarranted invasion personal privacy onerous one.). considering disclosure names and addresses private citizens when such information associated with citizens financial information, such receipt government benefits, the value property and acreage, courts have scrutinized the precise public interest the information.  Upon articulation requester legitimate public interest disclosure names and addresses, courts have required disclosure.  See Multi Media LLC, 515 F.3d 123233 (holding that Farm Service Agencys database revealing field acreage and ownership land was not properly withheld, even though there was privacy interest the financial information, because there was strong public interest enabling the public [to] more easily determine whether USDA is monitoring noncompliance); News-Press, 489 F.3d 1196, 1205 (ordering disclosure street addresses recipients FEMA aid because there was a powerful public interest determining where FEMA distributed billions taxpayer dollars that outweighed any privacy interest, but disclosure recipients names because the names [were] not necessary determine the extent fraud against FEMA); Watersheds Project Bureau Land Mgmt., 09-482-CWD, 2010 3735710, *10 (D. Idaho Sept. 13, 2010) (finding that name, address, email, phone number, and other details about grazing permittees permit allotments constituted minimal, but non-trivial privacy interest, which was ultimately outweighed the public interest determining whether permits were properly issued); Columbia Riverkeeper, 650 Supp. 1130 (holding that the public interest disclosing mailing list names and addresses people path proposed pipeline outweighed any privacy interest the information because disclosure would help public oversee whether agency was complying with public notice mandate). contrast, where courts have found public interest the release the information whatsoever, Exemption has been applied withhold names and addresses associated with financial information.  See Consumers Checkbook Ctr. for the Study Servs., 554 F.3d 1051 (finding strong privacy interest in the total payments [physicians] receive from Medicare for covered services that prevented 
disclosure only because revealing the physicians names did not serve any FOIA-related public interest) (emphasis added). 
Some the challenged emails here also reveal the views private citizens. analogous circumstances, courts have required the disclosure names and addresses connection with private citizens statements views when the private citizen voluntarily relayed this information the government and the requester identified public interest.  See Elec. Frontier Found. Office the Dir. Natl Intelligence, 639 F.3d 876, 887 (9th Cir. 2010) (holding that Exemption did not cover names corporate lobbyists petitioning the government behalf corporate clients because there is clear public interest the public knowledge the methods through which well-connected corporate lobbyists wield their influence); People for the Am. Way Found., 503 Supp. 30506 (finding that agency improperly withheld under Exemption names and addresses, phone numbers, and email addresses citizens who submitted unsolicited email comments concerning the proposed change the video display the Lincoln Memorial because there little privacy interest contact information when someone petitions the government and the public interest knowing who convinced the agency to change the video outweighs any privacy interest ones name); Alliance for Wild Rockies U.S. Dept Interior, Supp. 32, (D.D.C. 1999) (holding that Exemption did not cover withholding names and addresses rulemaking commenters because there was little privacy interest since information was voluntarily submitted and the public has much learn about defendants rulemaking process including whose comments the defendants give greater weight to).4 Consistent with CBPs observation that disclosure not warranted when public interest the information identified, courts have applied Exemption protect names and addresses associated with citizens views where they have found public interest the disclosure.  See, e.g., Govt Accountability Project U.S. Dept State, 699 Supp. 97, 106 (D.D.C. 2010) (finding that names and emails were properly withheld under Exemption 
where there was clear privacy interest avoiding disclosure emails and such disclosure would serve public purpose); Voinche F.B.I., 940 Supp. 323, 330 (D.D.C. 1996) affd, No. 96-5304, 1997 411685 (D.C. Cir. June 19, 1997) (finding that Exemption protects from disclosure names private citizens who wrote government officials because there was no reason believe that the public will obtain better understanding the workings various agencies learning the[ir] identities); Prudential Locations LLC U.S. Dept Hous. Urban Dev., 739 F.3d 424, 426, 434 (9th Cir. 2013) (per curiam) (finding that agency properly withheld names people who reported illegal activity because the privacy interest was great and the plaintiff presented evidence that disclosure the names would shed light agencys investigations activities); Lakin Law Firm, P.C. FTC, 352 F.3d 1122, 1125 (7th Cir. 2003) (holding that names people who complained agency billing scams were properly withheld under Exemption even though they submitted complaints via website that warned that comments could publicly disclosed because the information would reveal nothing about agency workings and there was public interest). 
The outcome the D.C. Circuit cases the parties rely only provides further support that disclosure here appropriate.  Both parties extensively discuss Norton and Horner, which reach opposite conclusions their consideration the balancing the privacy and public interests stake with the disclosure names and addresses.  See Def.s Reply 57, Pl.s Reply 23; see also Horner, 879 F.2d 87477; Norton, 309 F.3d 30. Norton, the U.S. Fish and Wildlife Service withheld the addresses private landowners who had voluntarily reported pygmy owl sightings due fear that lawless birdwatchers would trespass the landowners properties.  Norton, 309 F.3d 30, 34.  Although the requester only sought the addresses the landowners, id. 30, the D.C. Circuit still found substantial privacy interest the information because knowledge individual address was only step from being able identify from state records the name the individual property owner, id. 35.  Nevertheless, the Court held that this privacy interest was insufficient overcome the significant public interest reviewing the agencys use the information designate areas critical habitat under the Endangered Species Act.  Id. 36.  
CBP responds arguing that the facts issue are closer Horner, where the D.C. Circuit found that the Office Personnel Management properly withheld list names and addresses retired disabled federal employees.  Horner, 879 F.2d 87980.  The Circuit recognized that there was modest personal privacy interest that weighed against revealing the 
names only because there was no public interest disclosure where the only stated public benefit was inform[ing] the public where its money going.  Id. 879 (emphasis added).  The Circuit found that this public interest insufficient because say[s] nothing significance about the inner workings the government.  Id.   
Horner and Norton are consistent with the cases discussed above.  While there was public benefit found Horner, the Norton court identified strong public interest, which warranted the intrusion into the privacy interest identified and compelled the Circuit order disclosure.  The sum these cases establish that where the requester has articulated legitimate public interest the information, courts have ordered disclosure names and addresses, even such information associated with financial information, views held the landowner, would risk unwanted contact. 
Similarly here, noted, the public interest learning how CBP negotiated with private citizens regarding the planning and construction the border wall significant.  This public interest outweighs the privacy interest landowners names and addresses CBP emails.  Accordingly, for the reasons set forth above, the Court holds that the public interest disclosing the names and addresses landowners outweighs the implicated privacy interest and CBPs withholding the information under Exemption improper. FOIA Exemption 7(E) 
CBP has withheld under exemption 7(E) information relating its assessment the need for fencing.  Exemption 7(E) covers records information compiled for law enforcement purposes that would disclose techniques and procedures for law enforcement investigations prosecutions, would disclose guidelines for law enforcement investigations prosecutions such disclosure could reasonably expected risk circumvention the law. U.S.C.  
552(b)(7)(E).  The requirement that disclosure risk circumvention the law sets relatively low bar for the agency justify withholding.  See Pub. Employees for Envtl. Responsibility U.S. Section, Intl Boundary Water Commn, U.S.-Mexico, 740 F.3d 195, 20405 (D.C. Cir. 2014) (quoting Blackwell FBI, 646 F.3d 37, (D.C. Cir. 2011)).  The agency must demonstrate only that release document might increase the risk that law will violated that past violators will escape legal consequences.  Id. 205 (quoting Mayer Brown LLP IRS (Mayer Brown), 562 F.3d 1190, 1193 (D.C. Cir. 2009)).  Rather than requiring highly specific burden showing how the law will circumvented, exemption 7(E) only requires that the [agency] demonstrate logically how the release the requested information might create risk circumvention the law.  Blackwell, 646 F.3d (quoting Mayer Brown, 562 F.3d 1194 (internal quotation marks and alterations omitted)).   
The plaintiff challenges the CBPs withholdings under exemption 7(E) three grounds. First, the plaintiff argues that the records are not compiled for law enforcement purposes, U.S.C. 552(b)(7), because they not relate enforcement proceeding.  Pl.s Mem. 20.  The Court disagrees. the D.C. Circuit recently pointed out, Law enforcement entails more than just investigating and prosecuting individuals after violation the law the ordinary understanding law enforcement includes proactive steps designed prevent criminal activity and maintain security.  See Pub. Empls. for Envtl. Responsibility, 740 F.3d 203 (citing Milner, 131 S.Ct. 1272 (Alito, J., concurring)).  This Circuit has long employed two-part test, first set forth Pratt Webster, 673 F.2d 408 (D.C. Cir. 1982), determine whether records are law enforcement records.  Id. record used for law enforcement where: the investigatory activity that gave rise the documents related the enforcement federal laws, and there rational nexus between the investigation issue and the agencys law 
enforcement duties.  Tax Analysts IRS, 294 F.3d 71, (D.C. Cir. 2002) (citing Pratt, 673 F.2d 42021).  Moreover, courts are more deferential the agencys claimed purpose for the particular records where the agencys principal function law enforcement.  Pub-Employees for Envtl. Responsibility, 740 F.3d 203 (quoting Tax Analysts, 294 F.3d 77).  
Here, CBP indisputably law enforcement agency and entitled deference its determination that the records were compiled for law enforcement purpose.  CBP contends that the challenged redactions relate its risk and vulnerabilities assessment illicit cross-border activity order assess fencing needs, which includes information such terrain, floodplain, waterways migration patterns, well areas that are difficult for Border Patrol access and areas patrolled fewer agents, and urban areas where illegal traffic has greater chance blending quickly without being apprehended.  Wade Decl.  15.  This information inform[s CBPs] decisions relating fence placement.  Suppl. Wade Decl.  18.  Furthermore, some emails contain references specific Border Patrol Station border zones, which are designations used internally for assignment coverage, and knowledge these border zones could used parse law enforcement radio discussions referencing them.  Wade Decl.  15.  CBP contends that release this information would essentially provide roadmap those attempting cross the border.  Wade Decl.  15.   
CBPs declarations sufficiently demonstrate that the redacted information related the enforcement federal laws, the assessment border vulnerabilities directly related the potential violation federal immigration laws and the CBPs duty deter illegal immigration and apprehend illegal immigrants.  See Tax Analysts, 294 F.3d 78.  Thus, the CBP has demonstrated that the records were created for law enforcement purpose. 
Second, the plaintiff asserts that Exemption 7(E) does not apply because the CBP has not shown that the challenged emails qualify techniques, procedures, guidelines.  Pl.s Mem. (citing Wade Decl.  15).  According the plaintiff, the challenged emails contain assessments the operational need for fencing, not information relating investigations prosecutions.  Id.  The plaintiffs interpretation the statutory language overly restrictive.  The D.C. Circuit has held that an agency may seek block the disclosure internal agency materials relating guidelines, techniques, sources, and procedures for law enforcement investigations and prosecutions, even when the materials have not been compiled the course specific investigation.  Tax Analysts, 294 F.3d 79.  Even withheld documents are not how-to manuals for law-breakers, the exemption broader than that.  See Mayer Brown, 562 F.3d 119293.  Information that relates law enforcement techniques, policies, and procedures properly withheld under this exemption.  Showing Animals Respect Kindness U.S. Dept Interior, 730 Supp. 180, 199 (D.D.C. 2010) (citing Boyd Bureau Alcohol, Tobacco, Firearms, and Explosives, 570 Supp. 156, 158 (D.D.C. 2008)). Mayer Brown, the D.C. Circuit held that records relating settlement strategies and objectives, assessments litigating hazards, [and] acceptable ranges percentages for settlement were exempt under 7(E) because, although not blueprint for tax shelter schemes, could encourage decisions violate the law evade punishment.  Mayer Brown, 562 F.3d 119293 (citing Mayer Brown LLP IRS, No. 042187, slip op. (D.D.C. Nov. 28, 2006)).  Here, although the information the challenged records are not styled formal guidelines procedures for CBP officials, the records refer information, including how CBP officials assess vulnerable areas along the border, that could used encourage decisions violate the law evade punishment.  Id. 1193; see also Showing Animals Respect Kindness, 730 Supp. 199200 (finding that files revealing specific details surveillance techniques, including equipment used and location and timing use, was exempt under 7(E) because could compromise [the agencys] ability conduct future investigations); Strunk U.S. Dept State, 905 Supp. 142, 148 (D.D.C. 2012) (concluding that release computer screen transaction codes, computer transaction codes and computer function codes, although not themselves techniques and procedures for law enforcement investigations prosecutions are exempt under 7(E) because could reasonably expected risk circumvention the law (internal quotation marks omitted)).  Accordingly, while the emails question not reveal formal guidelines, CBP has demonstrated that the information contained the emails could used the same manner technique, procedure, guideline. 
Finally, the plaintiff claims that CBP has not logically shown that release the records could reasonably expected risk circumvention the law.  Pl.s Mem. 19.5 the plaintiffs view, details such terrain and geographic location are identifiable sight, and therefore the challenged records will not add criminals knowledge the conditions along the border wall.  Id. 1920.  The plaintiff argues further that since Border Patrol operations may have changed since the emails were drafted, Pl.s Mem. 20, the information longer provide[s] roadmap where would currently best cross the border, and, thus, does not risk circumvention the law.  Pl.s Reply 11.  The Court disagrees. [C]ourts have disagreed over whether the qualifying clause requiring that disclosure reasonably expected risk circumvention the law, U.S.C.  552(b)(7)(E), applies techniques and procedures for law enforcement investigations prosecutions.  Pub. Empls. for Envtl. Responsibility, 740 F.3d 205 n.4.  This Circuit has applied the qualifying clause techniques and procedures, id. (citing Blackwell, 646 F.3d 4142), but given the low bar posed the risk circumvention the law requirement, not clear that the difference matters much practice.  Id.  CBP argues that the final clause does not apply techniques and procedures, and that the exemption thus afford[s] categorical protection for techniques and procedures.  See Def.s Mem. (citing Smith Bureau Alcohol, Tobacco and Firearms, 977 Supp. 496, 501 (D.D.C. 1997)). discussed below, CBP has demonstrated through its declarations that disclosure could reasonably expected risk circumvention the law.  Thus the exemption applicable any event and the Court need not decide the scope the qualifying clause Exemption 7(E). 
Although some geological factors may readily identifiable sight through publicly available information, CBP has also attested that the emails reveal areas that are difficult for Border Patrol access and areas patrolled fewer agents.  Wade Decl.  15.  Such information discloses the CBPs operations and vulnerabilities, which are not readily-accessible public information, the disclosure which could risk appropriation circumvent the law.  See Showing Animals Respect Kindness, 730 Supp. 200 (finding that documents detailing surveillance techniques logically risked circumvention the law because, although trespassers and poachers likely know that they are subject surveillance, the details the surveillance techniques are unknown them); Blanton U.S. Dept Justice, Supp. 35, 4950 (D.D.C. 1999) (holding that Exemption 7(E) applies documents revealing FBI polygraph techniques because although general information the polygraph test often depicted and discussed, the specific methods employed the FBI are not generally known).  Moreover, the discussion publicly available information, itself, reveals what information CBP considers when analyzing its vulnerabilities the border, and this analysis, itself, not publicly known and may risk circumvention the law.  See Blackwell, 646 F.3d (manner which FBI data searched, organized, and reported the FBI internal technique, not known the public therefore subject exemption 7(E)).  Although the plaintiff claims that vulnerabilities the border may have changed since the emails were drafted, making this information ineffectual, the plaintiff has put forth evidence prove that the information longer current and lacks all value would-be violators.  See Pl.s Mem. 20; Pl.s Reply 11.  Here, CBP has submitted two declarations declaring that release this information would aid those attempting cross the border well smugglers and criminal elements their determination CBPs vulnerabilities along the border.  See Wade Decl.  15; Suppl. Wade 
Decl.  18. FOIA cases, agency declarations are viewed with a presumption good faith, Ground Saucer Watch CIA, 692 F.2d 770, 771 (D.C. Cir. 1981), and since the plaintiff has presented counter-evidence and evidence the agencys bad faith its declarations, the Court finds that CBP has shown that the challenged withholding under Exemption 7(E) would risk circumvention the law.  Id.  
The plaintiff has failed present sufficient evidence contradicting the CBPs contention that the redacted information falls under Exemption 7(E) techniques procedures that are reasonably shown risk circumvention the law.  Accordingly, the Court finds that CBP has shown that the challenged withholdings detailing the operational need determine fencing are appropriately withheld under FOIA exemption 7(E). Email Attachments 
The plaintiff and CBP dispute whether CBP improperly withholding the attachments responsive emails pursuant the parties agreement limit the scope CBPs production emails.  The crux the parties dispute the interpretation the language their joint status report, which embodies the parties agreement the scope the agencys obligations fulfilling the plaintiffs FOIA request.  See generally 7/23/09 JSR. described below, the plain meaning the parties joint status report and the language this Courts order ratifying the parties agreement make apparent that CBP was only obliged produce the plaintiff the same records that CBP produced the CREW litigation.   
The parties fundamentally disagree over the terms the agreement governing the CBPs production records the plaintiff.  The parties submitted joint status report the Court advising that:  
[I]n the interest expediting the release emails Plaintiff, CBP may satisfy Plaintiffs FOIA request with respect the processing emails providing 
Plaintiff the emails released CREW DHS pursuant the search described the Joint Status Report and Proposed Disclosure Schedule that case follows: (1) providing Plaintiff, within days the entry the accompanying order, all emails already released CREW DHS and (2) going forward, providing Plaintiff further emails they are released rolling basis that case. 
7/23/09 JSR (emphasis added).  The Court entered Scheduling Order effectuating this agreement based the proposed order submitted the parties with their joint status report.  See Proposed Order  ECF No. 6-1; 7/27/09 Sched. Order  Def.s Reply n.6.  The Order required CBP to, inter alia, release Plaintiff all email records already released [CREW], and, going forward, CBP will release Plaintiff rolling basis all email records released CREW DHS, the same schedule they are released that case.  See 7/27/09 Sched. Order    
Both parties construe the phrase as released the joint status report impose different requirements CBP with respect the production records.  CBP contends that this wording limits the scope the plaintiffs FOIA request and reflects the parties agreement that CBP would only produce the plaintiff the documents that were actually released CREW and nothing else and that any email related records not released CREW because the parties CREW did not consider them responsive were not responsive Plaintiffs FOIA request.  See Def.s Reply 23.  Thus, CBP contends that satisfied its FOIA obligation the plaintiff undertak[ing] the administrative act forwarding emails released CREW Plaintiff.  Def.s Reply 21. 
The plaintiff responds that CBPs agreement produce documents as released CREW refers merely the timing the release the records.  Pl.s Mem. 22.  The plaintiff asserts that under the agreement, CBP agreed release the documents the plaintiff according the scheduled release documents CREW.  Id.  The plaintiff further explains that the 
language the joint status report stating that CBP would release records pursuant the search described CREW, indicates that the parties agreed limit the scope the search for records only, and not the scope the documents that CBP was obliged produce.  Id. (emphasis added).  The plaintiff reasons that the agreement relieved CBP retrieving and processing additional records, but did not permit CBP withhold portions records that were deemed responsive, even these portions records were not released the plaintiff CREW.  Pl.s Reply (emphasis original).  Consequently, the plaintiff claims that CBP improperly withholding the attachments the responsive emails because the attachments are portion the records.  Pl.s Mem. 21.   
The plain meaning the joint status report makes clear that the plaintiff narrowed her FOIA request require CBP produce only emails that the CBP actually produced the CREW plaintiff on rolling basis that case.  7/23/09 JSR  The phrase as released plainly refers the records actually released the plaintiff CREW, rather than the timing the releases, the plaintiff contends.  Thus, CBP correct that may satisfy Plaintiffs FOIA request providing the plaintiff the same emails that the CBP produced CREW.  The attachments, therefore, are not being withheld, but, memorialized the parties joint status report, are not responsive the plaintiffs amended FOIA request.   
Even the joint status report were ambiguous this point, the Courts subsequent Scheduling Order based the parties proposed order supports CBPs interpretation the joint status report.  See Act Now Stop War End Racism Coal. D.C., 286 F.R.D. 117, 129 (D.D.C. 2012) (explaining that scheduling orders should read being specific and comprehensive and that [w]hen Order details the scope permissible discovery, party should not read into the gaps permission propound whatever discovery wishes).  The 
Order states that CBP will release Plaintiff rolling basis all email records released CREW, the same schedule they are released that case.  7/27/09 Sched. Order   The Order clarifies CBPs two separate obligations: the first phrase requires CBP release the plaintiff the same records released CREW, while the latter phrase requires that CBP release the responsive email records the plaintiff the same time that the records are released the plaintiff CREW.  See Pl.s Mem. 2125; Def.s Mem. 49.  The plain meaning both the parties joint status report and this Courts subsequent Order are clear that CBP had release the plaintiff the same records released CREW the same time that they were released CREW.  The plaintiffs post hoc effort re-write the agreement with CBP limiting her FOIA request only the same search conducted but not the same production CREW simply not sustainable.  The agreement limited both CBPs search and production obligation the agencys efforts CREW.  Thus, contrary the plaintiffs contention, the responsive documents which the plaintiff entitled are defined both the search conducted CBP, and also the documents actually produced CREW.  Since the email attachments were not actually produced CREW because they were deemed nonresponsive, they correspondingly need not produced the plaintiff.6 CBP further argues that the challenged email attachments are not required disclosed, first, because the plaintiff did not challenge the withholding the email attachments while CBP was making its rolling productions, Def.s Mem. (It was not until late May 2011nearly months after the first release email recordsthat Plaintiff first raised any issue regarding the lack attachments the emails released CREW), and, second, because producing the attachments would frustrate the parties purpose expediting disclosure, id. 89.  Since the Court finds CBPs favor, the Court need not address these arguments. 
The plaintiff argues that the Order ratifies her interpretation the language the joint status report because omits the phrase as released from the Order.  Pl.s Mem. 22; see 7/27/09 Sched. Order  (requiring that going forward, CBP will release Plaintiff rolling basis all email records released CREW DHS).  The omission this phrase the 
Order does not support the plaintiffs interpretation.  Indeed, the language the Order lends stronger support CBPs claim because the Order states, two separate clauses, that (1) CBP must release Plaintiff all email records already released [CREW] and that they must continue release the plaintiff on rolling basis all email records released in CREW, and (2) this production must occur on the same schedule they are released that case.  7/27/09 Sched. Order   See also Def.s Reply n.6.  The schedule which CBP was required release records the plaintiff set out the second clause and was thus separate requirement from the scope the responsive records set out the first clause.  The plaintiffs interpretation conflates both clauses refer the timing the releases, but this inconsistent with the canon statutory interpretation against surplusage.  Courts have used canons statutory interpretation clarify court orders.  See Act Now Stop War End Racism Coal., 286 F.R.D. 129 (interpreting courts standing order); see also Bhd. Locomotive Engrs Trainmen Burlington Santa Ry. Co., 925 Supp. 1252, 1256 (D. Wyo. 2013), affd sub nom., Bhd. Locomotive Engrs Trainmen BNSF Ry. Co., 13-8025, 2013 6404962 (10th Cir. Dec. 2013) (interpreting order railroad adjustment board).  Accordingly, applying the canon against surplusage the Courts order dictates interpretation that none the phrases are inoperative superfluous, void insignificant.  See Corley United States, 129 S.Ct. 1558, 1566 (2009) ([O]ne the most basic interpretive canons [is] that [a] statute should construed that effect given all its provisions (quoting Hibbs Winn, 542 U.S. 88, 101, 124 (2004))); Jones United States, 529 U.S. 848, 849 (2000) (Judges should hesitate treat statutory terms any setting surplusage (citing Ratzlaf United States, 510 U.S. 135, 14041 (1994))). short, the inclusion the Order the second clause requiring CBP release the emails on the same schedule they are released that case, the relevant phrase 
control the timing disclosure, while the scope the responsive records defined the records released CREW.  7/27/09 Sched. Order.   
Although CBPs interpretation the parties agreement correct, this classic Pyrrhic victory.  The plaintiff may simply file new FOIA request seeking these same email attachments.  See Spannaus U.S. Dept Justice, 824 F.2d 52, (D.C. Cir. 1987) (discussing plaintiffs ability resurrect FOIA claim for statute limitations purposes because requester could simply refile his FOIA request tomorrow and restart the process because nothing prevents him from requesting the same withheld documents decade after decade) (cited Aftergood CIA, 225 Supp. 27, 3031 (D.D.C. 2002)).  Nevertheless, for the purposes the plaintiffs present FOIA request, narrowed pursuant the parties joint status report and this Courts Order, this Court holds that CBP not required produce the email attachments responsive records the plaintiff. Segregability 
The FOIA requires that [a]ny reasonably segregable portion record shall provided any person requesting such record after deletion the portions which are exempt. U.S.C.  552(b).  The plaintiff has not challenged CBPs failure release all reasonably segregable information the plaintiff pursuant its obligation under the FOIA.  See id.  Nevertheless, even when plaintiff does not challenge the segregability efforts agency, the Court has an affirmative duty consider the segregability issue sua sponte.  Trans-Pac. Policing Agreement U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999); see also Juarez U.S. Dept Justice, 518 F.3d 54, (D.C. Cir. 2008) (Under this Circuits law, the district courts failure address segregability its memorandum opinion reversible error.).  The D.C. Circuit has acknowledged that establishing the non-segregability non-exempt 
material presents problems for the agency since ... segregability depends entirely what information document and how presented.  Mead Data Inc. U.S. Dept the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977).  Therefore, although agencies should not forced provide such detailed justification that would itself compromise the secret nature potentially exempt information, agencies must required provide the reasons behind their conclusions order that they may challenged FOIA plaintiffs and reviewed the courts.  Id. this end, the Circuit has said that [i]n addition statement its reasons, agency should also describe what proportion the information document non-exempt and how that material dispersed throughout the document.  Id.  Under Mead Data, small proportion the information non-exempt, the agencys explanatory burden less, and larger proportion the information non-exempt, the courts should require high standard proof for agency claim that the burden separation justifies nondisclosure that disclosure the non-exempt material would indirectly reveal the exempt information.  Id.  Since Mead Data, the Circuit has relaxed this standard, holding that [a]gencies are entitled presumption that they complied with the obligation disclose reasonably segregable material, which must overcome some quantum evidence the requester.  Sussman U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007).  Indeed, more recent decisions from the D.C. Circuit have held that agency may satisfy its segregability obligations (1) providing Vaughn index that adequately describes each withheld document and the exemption under which was withheld; and (2) submitting declaration attesting that the agency released all segregable material.  See, e.g., Loving U.S. Dept Def., 550 F.3d 32, (D.C. Cir. 2008) (stating that the description the document set forth the Vaughn index and the agencys declaration that released all 
segregable material are sufficient for [the segregability] determination); Johnson Exec. Office for U.S. Attys, 310 F.3d 771, 776 (D.C. Cir. 2002) (upholding agencys segregation efforts based comprehensive Vaughn index and the affidavits of agency officials). the instant case, CBP has provided the plaintiff with Vaughn index the 289 challenged records listing the justification for withholding information.  See Wade Decl. 15.  CBP has also submitted two declarations David Wade, the Operations Officer with the Office Border Patrol within the Department Homeland Security, which attest that CBP has processed and released all reasonably segregable information within the disputed email documents after carefully evaluat[ing] each email document.  Wade Decl.  16.  Moreover, CBP reviewed the challenged records for segregability throughout the course the litigation, releasing the plaintiff new copies challenged records with fewer redactions when the CBP filed its summary judgment motion, Gilman Decl.  12, and after the plaintiff filed her cross-motion for summary judgment.  Suppl. Wade Decl.  1213. sum, there ample evidence that CBP fulfilled its segregability obligation, which the plaintiff does not challenge her briefs.  Accordingly, the Court finds that CBP has satisfied its burden demonstrating that the challenged records were examined and portions the records were withheld only after considering whether CBP could disclose any reasonably segregable portion[s] the records pursuant its obligation under U.S.C.  552(b). 
For the foregoing reasons, CBPs Motion for Summary Judgment, ECF No. 32, GRANTED part and DENIED part and the plaintiffs Motion for Summary Judgment, ECF No. 35, GRANTED part and DENIED part.  CBPs motion for summary judgment granted, conceded, with respect the redaction emails under Exemption the redaction 
Record the Vaughn index under Exemption 7(E), the redaction phone numbers email addresses landowners, the redaction names and contact information CBP employees individual employees contractors, and the withholding attachments emails other than the 289 emails challenged this suit.  CBP further entitled summary judgment its withholding information under FOIA Exemption 7(E) and the non-production email attachments for the 289 challenged emails.  The plaintiff entitled summary judgment CBPs withholding information under FOIA Exemption  CBP shall release, May 15, 2014, the plaintiff portions the challenged email records that were previously withheld under Exemption 
Date: March 14, 2014 
United States District Judge