Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.511 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, Plaintiff, Case No.: 5:17-cv-11149-JEL-EAS v. U.S. DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND BORDER PROTECTION, Defendants. DEFENDANTS’ RESPONSE TO PLAINTIFF’S SUPPLEMENTAL BRIEF PURSUANT TO COURT ORDER Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.512 Page 2 of 16 INTRODUCTION During the October 26, 2017 telephonic status conference, the Court addressed several “outstanding issues related to plaintiff’s Freedom of Information Act (‘FOIA’) requests.” Order Regarding Production of Documents From Initial Custodians and Supplemental Briefing 1, ECF No. 42. As to two such issues about which the parties disagreed, the Court ordered briefing. Id. at 2-3. With respect to “whether defendants should be required to produce Microsoft Excel files in their original, native format,” id., in the time since the status conference, the parties have been working toward an agreement and Defendants are optimistic that one will be reached shortly. However, should the parties be unable to reach agreement before Plaintiff has filed its reply brief, under FOIA, Defendants have no obligation to provide Excel spreadsheets that contain exempt information in native form and this Court should decline to order the agency to do so. With respect to “whether and how the government should be required to produce individual records from the TECS system database,” id., because U.S. Customs and Border Protection (“CBP” or “the agency”) has reasonably interpreted Plaintiff’s requests as not seeking individual TECS records, under FOIA and the overwhelming body of case law applying it, this Court should uphold the agency’s interpretation. ARGUMENT I. Defendants Have Offered to Provide Responsive, Non-Exempt Large Excel Files in Native Format and to Provide Responsive, NonExempt Small Excel Files Containing No Exempt Information in Native Format Upon Specific Request by Plaintiff. Plaintiff has requested that “Defendants produce documents in their native 1 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.513 Page 3 of 16 format, or in a format capable of manipulation,” and specifically, “that all Excel spreadsheet files be produced in either Native .xls or .xlsx format.” Pl’s Resp. to Defs.’ Proposal for Review & Prod. of Email Records 9-10. Defendants previously objected to Plaintiff’s request on the basis that “produc[ing] . . . Excel spreadsheets in ‘a format capable of manipulation’ . . . creates the unreasonable risk that a member of the public . . . might alter the data in those spreadsheets and represent the data as CBP information.” Joint Status Report (Sept. 29, 2017) 12. On November 8, 2017, counsel for Plaintiff advised counsel for Defendants for the first time that in unrelated litigation involving the parties here, in response to a FOIA request, CBP provided Excel spreadsheets to Plaintiff in “a passwordprotected format that allows . . . the documents to be manipulated.” Pl.’s Supp’l Br., Ex. C. 3. At that time, Plaintiff requested that in response to the instant FOIA requests, Defendants produce Excel spreadsheets in “a password-protected format” as was employed in the unrelated litigation. Id. On November 22, 2017, Defendants made a proposal to Plaintiff regarding production of Excel files in this case. On November 27, 2017, Plaintiff made a counter-proposal to Defendants regarding the production of Excel files in this case. On November 28, 2017, Defendants accepted Plaintiff’s counter-proposal with one modification relating to the time-frame for Defendants to satisfy their obligations under any eventual agreement. Defendants are awaiting Plaintiff’s response to their November 28, 2 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.514 Page 4 of 16 2017 email, and are optimistic that the parties will be able to reach agreement regarding the production of Excel files in this case. Defendants made their proposal and counter-proposal on this issue in the agency’s discretion and in the spirit of cooperation, regardless of Defendant’s position that such production is not required. Defendants note, however, that as to Excel spreadsheets that contain exempt information, the agency has no obligation to provide such spreadsheets in native format. Native format Excel spreadsheets cannot be redacted. Because a native spreadsheet cannot be redacted, shielding exempt information requires altering the native file with deletions or modifications and saving the altered document as a new file. This is creating a new record, which FOIA does not require an agency to do. Ctr. for Pub. Integrity v. FCC, 505 F. Supp. 2d 106, 114 (D.D.C. 2007) (concluding that plaintiff's suggestion that agency delete some data and replace it with data suggested by plaintiff amounts to creation of new records, something not required under FOIA).1 II. The Agency’s Interpretation of Plaintiff’s FOIA Request As Not Seeking TECS Records is Reasonable. Unless exempt, an agency must provide records in response to a FOIA request that “reasonably describes such records.” 5 U.S.C. § 552(a)(3)(A)(i). 1 While occasionally, on an individual case basis, the agency has in the past created a new record for a FOIA requestor from an Excel spreadsheet that was altered to protect exempt information, the agency was not required to do so under FOIA. See Ctr. for Pub. Integrity, 505 F. Supp. 2d at 114. 3 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.515 Page 5 of 16 Courts thus assess the adequacy of an agency’s interpretation of a FOIA request based on a reasonableness standard and will uphold an agency’s reasonable interpretation of FOIA requests. See, e.g., Mogenhan v. Dep't of Homeland Security, No. 06-2045, 2007 WL 2007502, at *3 (D.D.C. July 10, 2007); Adamowicz v. IRS, 552 F. Supp. 2d 355, 362 (S.D.N.Y. 2008). As described below and in the Declaration of Patrick Howard, the agency’s interpretation of Plaintiff’s requests was plainly reasonable. Plaintiff’s requests seek three broad categories of records: (1) “[r]ecords created on or after January 27, 2017 concerning CBP’s interpretation, enforcement, and implementation . . . at Local International Airports” of 13 listed items, which include “President Trump’s Executive Order, signed on January 27, 2017 and titled “Protecting the Nation From Foreign Terrorist Entry Into the United States” (“EO 13,769”), guidance provided after the issuance of EO 13,769, and a number of other “judicial order[s and] executive directive[s] issued regarding the Executive Order” (“Item 1”); (2) “[r]ecords containing the guidance that was ‘provided to DHS field personnel shortly’ after President Trump signed [EO 13,769]” (“Item 5”); and (3) “[r]ecords concerning the number of individuals” who received particular treatment “pursuant to [EO 13,769]” or arrived in the United States “with valid visas or green cards who subsequently agreed voluntarily to” leave due to EC 13,769 (“Items 2-4”). Compl. Ex. 1 at 5-7, Ex. 2 at 5-7. Relying upon a 4 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.516 Page 6 of 16 natural reading of the text of Plaintiff’s requests, the agency interpreted the scope of Plaintiff’s requests as seeking, in Items 2 through 4, records containing the aggregate numbers of the various categories of individuals listed in Items 2 through 4. Howard Decl. ¶ 11. This determination is supported by the plain language of Plaintiff’s requests, and any alternate interpretation would read the words “the number of” and “the total number of” out of Plaintiff’s requests. See Compl. Ex. 1 at 6-7, Ex. 2 at 6-7; see also Pl.’s Supp’l Br. 11 (acknowledging that “several of the requests specifically seek aggregate data”). Whenever Items 2 through 4 mention “individuals” they do so in the context of requests for “[r]ecords concerning the number of individuals” or “[t]he total number of individuals.” Compl. Ex. 1 at 6-7, Ex. 2 at 6-7. Similarly, the agency did not interpret the scope of Plaintiff’s requests for records showing “interpretation, enforcement, and implementation of EO 13,769” (Item 1) as seeking TECS or other records concerning specific individual travelers. Howard Decl. ¶¶ 11, 11a-b.2 This determination, too, is supported by the plain language of Plaintiff’s requests, as Item 1 nowhere mentions individuals.3 2 To the extent that the agency identifies a TECS record that is an attachment to an email that is responsive to Plaintiff’s requests, the agency will, of course, process that record as part of the responsive email record. 3 As to the final item listed in the requests (Item 5), Plaintiff does not argue that this portion of its requests should be construed as a “broad request” encompassing a request for TECS records regarding individuals. See Pl.’s Supp’l Br. 11. 5 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.517 Page 7 of 16 Additionally, in formulating its requests, Plaintiff reasonably could have researched the TECS and the individual traveler records, as evidenced by the document on which Plaintiff relies defining TECS. See U.S. Dep’t of Homeland Security, Privacy Impact Assessment for the TECS System: CBP Primary and Secondary Processing (December 22, 2010), available at https://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_cbp_tecs.pdf (cited by Defendants in the September 29, 2017 Joint Status Report). This document was publicly available and published six years before Plaintiff drafted its requests. Moreover, the primary System of Records Notice for TECS, available at https://www.gpo.gov/fdsys/pkg/FR-2008-12-19/html/E8-29807.htm, was published in the Federal Register eight years before Plaintiff drafted its requests. Yet, Plaintiff did not include it in its FOIA request, preferring instead to seek documents reflecting the collective numbers. An alternate interpretation of Item 1’s “interpretation, enforcement, and implementation of EO 13,769” language would have been unreasonably burdensome and overly broad because of the way TECS records are maintained. Howard Decl. ¶ 11b. As explained in the Howard Declaration, unlike a search through other types of record systems, such as email record systems, searching TECS records for Executive Order specific search terms is unlikely to identify responsive documents with any precision. Id. This is because information linking 6 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.518 Page 8 of 16 a particular TECS record to the Executive Order would not be systemically created or tracked in the record based on the enumerated fields; such information would only exist if the officer who created a particular TECS record included in the TECS record’s free form comments section information linking the event to the Executive Order. Id. Therefore, to identify TECS records concerning individual travelers who received some treatment “pursuant to [EO 13,769]” or arrived in the United States “with valid visas or green cards who subsequently agreed voluntarily to” leave due to EO 13,769, the agency would have to individually query the name of each person who received any manner of treatment due to EO 13,769, search for all files relating to those persons, and then individually redact virtually all of the information in each separate field from each file. Id. Further, interpreting the requests as Plaintiff’s now urge would pose an unreasonable burden on the agency that is particularly undue. Even if the Agency individually queried each person’s name and searched for related files, all of the substantive information from any of those records would be exempt under FOIA. Additionally, pursuant to the agency’s policy, see Privacy Policy Guidance Memorandum 2017-01, at 8, available at https://www.dhs.gov/sites/default/files/publications/PPGM%20201701%20Signed_0.pdf, when responding to a third-party FOIA request seeking an individual’s TECS records that is not accompanied by a statement from the 7 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.519 Page 9 of 16 individual verifying his or her identity and certifying that individual’s agreement that records concerning him or her may be accessed, analyzed, and released to a third party of the records, the agency analyzes whether such information is appropriate for release to the public. Howard Decl. ¶¶ 10. This analysis seeks to balance the public’s right to know about the functions and operations of the Government against an individual’s private interest in keeping his or her identity and activities private. Id. In this instance, the agency would have denied these third-party requests for TECS records based on the individual’s privacy concerns outweighing the public benefit of knowing their identities. Id. ¶¶10, 11a-b. Moreover, other than the field headings, all of the reasonably segregable substantive information in TECS records concerning travelers who received any manner of treatment due to EO 13,769 has already been released to Plaintiff in the records appearing at Bates stamped pages EO FOIA CBP 29-56. Id. ¶ 8, 11b. Thus, a process that would be extremely burdensome for the Agency would yield no additional substantive information for Plaintiffs. 4 4 Exhibits A-D to the Howard Declaration are representative examples of blank TECS records showing the field headings. There is thus no need for the Court to “order[] [Defendants] to produce a randomized selection of 10 individual TECS records (e.g. 10 at the land border and 10 at the airport),” Pl.’s Supp’l Br. 13, for Plaintiff to “know what individual TECS records look like” and to see “that they contain no releasable information beyond that which is in the spreadsheets [already released to Plaintiff at EO FOIA 29-58].” Id.; see also Howard Decl. ¶ 8, 11b. Plaintiff’s request for such an order therefore should be denied. 8 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.520 Page 10 of 16 Plaintiff advances two arguments for why its request should be construed to encompass a request for TECS records. First, Plaintiff asserts that, “[g]iven the role the TECS System [sic] plays in tracking enforcement activities at the border, it is obvious that such records are responsive to Plaintiff’s FOIA requests which seek ‘information regarding CBP’s local implementation of the Executive Order at [Michigan ports of entry].” Pl’s Supp’l Br. 10 (quoting Compl. Ex. 1 at 1, Ex. 2 at 1) (emphasis and alteration in original). But the quoted language is not from the “Requested Records” section of Plaintiff’s 16-page FOIA requests; it is from the broad introductory paragraph of Plaintiff’s requests. More importantly, like the language in the “Requested Records” section of Plaintiff’s requests, this language does not refer in any way to specific treatment of individual travelers. Plaintiff’s second argument is that in its requests, “Plaintiff included both a broad request, but also included specific items to ensure that those would not be omitted in response,” and that, accordingly, “Plaintiff’s FOIA requests are not limited to aggregate data only but instead seek documents of any kind related to Defendants’ ‘interpretation, enforcement, and implementation,’ a category in which TECS System [sic] records clearly fall.” Pl.’s Supp’l Br. 11-12. But the specific items Plaintiff sought are nothing like TECS records; they are records containing “aggregate data,” see id. at 11, and “guidance.” Compl. Ex. 1 at 7, Ex. 2 at 7. And, as explained supra, none of the types of “[r]ecords” listed in 9 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.521 Page 11 of 16 Plaintiff’s definition of “Records” describes a record pertaining to an individual traveler or refers to TECS records or the system of records in any way. Moreover, Plaintiff’s arguments misunderstand the nature of an agency’s role in interpreting FOIA requests: An agency is required to read a FOIA request as drafted, “not as either agency officials or [the requester] might wish it was drafted.” See Miller v. Casey, 730 F.2d 773, 777 (D.C. Cir. 1984). While the D.C. Circuit has explained that “an agency also has a duty to construe a FOIA request liberally,” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995), “the agency is not obligated to rewrite the request to ask for more than the requester did.” Canning v. Dep’t of State, 134 F. Supp. 3d 490, 517 (D.D.C. 2015). Indeed, an agency is obligated to release only those records that a particular request “reasonably describes,” 5 U.S.C. § 552(a)(3)(A). See also LaCedra v. Exec. Office for U.S. Att’ys, 317 F.3d 345, 347-48 (D.C. Cir. 2003). For instance, in Canning v. Department of State, the court concluded that the agency’s “reading of the FOIA request [wa]s reasonable” where Plaintiff, “who has some experience filing FOIA requests” “could have drafted the request broadly to encompass other documents . . . but chose not to do so.” 134 F. Supp. 3d at 517. Like the plaintiff in Canning, Plaintiff is a seasoned FOIA requester and litigant— including requests and litigation against the Defendants here, see Michigan Immigration Rights Center v. Department of Homeland Security, No. 16-14192 10 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.522 Page 12 of 16 (E.D. Mich., filed Nov. 30, 2016)—that could have elected to write its requests to specifically encompass records concerning individual travelers (e.g., seeking “records concerning individuals and the number of individuals,” or defining “[r]ecords” to include “TECS records” or “documents containing information about individual travelers”),5 but chose not to do so. Accordingly, the agency took Plaintiff at its word and reasonably interpreted the requests on the basis of the plain language Plaintiff provided. An agency is not required to speculate, see Kowalczyk v. Dep’t. of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996), or divine Plaintiff’s thoughts in forming a FOIA request, see Mogenhan, 2007 WL 2007502 at * 3 (“an agency processing a FOIA request is not required to divine a requester’s intent”) (citation omitted), 730 F.2d at 777; it is obligated only to reasonably interpret the scope of the written request before it. That is precisely what the agency did here. Even putting to one side the fact that Plaintiff’s interpretation is divorced from the text of the request, the broad reading Plaintiff advances is unreasonable for yet another reason: Courts assessing the scope of FOIA requests have generally held that agencies are not required to answer questions posed as FOIA requests, 5 A search formulated in this manner would result, of course, in the unreasonably burdensome or impermissibly broad sort of request that is not permitted under FOIA. See Am. Fed’n of Gov’t Employees, Local 2782 v. U.S. Dep’t of Commerce, 907 F.2d 203, 228 (D.C. Cir. 1990) (“An agency need not honor a request that requires ‘an unreasonably burdensome search.’”). Plaintiff’s focus on records seeking aggregate data may have been designed to avoid such a result. 11 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.523 Page 13 of 16 see, e.g., Amnesty Int’l v. CIA, No. 07-5435, 2008 WL 2519908, at *12-13 (S.D.N.Y June 19, 2008) (rejecting claim that agency has duty to compile a list of persons it deems subjects of “secret detention” and search for records related to them in order to respond to request for “secret detention” records because, in essence, request seeks answer to question), nor are they required to create records, see, e.g., Poll v. U.S. Office of Special Counsel, No. 99-4021, 2000 WL 14422, at *5 n.2 (10th Cir. Jan. 10, 2000) (recognizing that FOIA does not require an agency “to create documents or opinions in response to an individual’s request for information” (quoting Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985)); Krohn v. Dep’t of Justice, 628 F.2d 195, 197-98 (D.C. Cir. 1980) (finding that agency “cannot be compelled to create the [intermediary records] necessary to produce” information sought). As in Amnesty International, Plaintiff’s interpretation in effect would require the agency to search for and compile a database of records concerning each person who received any manner of treatment due to EO 13,769. FOIA does not require such a Herculean task. At bottom, the alternate interpretation of the requests Plaintiff advances is impermissibly broad and unreasonably burdensome: Constructing a search designed to target results to such a request would necessitate individually querying the name of each person who received any manner of treatment due to EO 13,769 and searching for all files relating to those persons. Howard Decl. ¶ 11b. And 12 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.524 Page 14 of 16 even if the agency undertook these steps, all of the substantive information from those records would be exempt under FOIA and the records would be withheld in full, thereby yielding no substantive information for Plaintiffs. Accordingly this extremely burdensome process would be particularly undue and not required under FOIA. In general, “[a]n agency need not honor a request that requires ‘an unreasonably burdensome search.’” Am. Fed’n of Gov’t Employees, Local 2782, 907 F.2d at 209; Freedom Watch v. CIA, 895 F. Supp. 2d 221, 228 (D.D.C. 2012). Indeed, “it is the requestor’s responsibility to frame requests with sufficient particularity to ensure that searches are not unreasonably burdensome.” Am. Fed’n of Gov’t Employees, 907 F.2d at 209. And the alternate interpretation of the request cannot be understood to “reasonably describe[]” records, 5 U.S.C. § 552(a)(3)(A), as required by the language of FOIA, making it invalid on its face. See Freedom Watch, Inc., 895 F. Supp. 2d at 228 (“[R]ecords are reasonably described ‘if a professional employee of the agency familiar with the subject matter can locate the records with a ‘reasonable amount of effort.’” ); see also Truitt v. Dep’t of State, 897 F.2d 540, 545 n.36 (D.C. Cir. 1990). Accordingly, the agency adopted the only reasonable interpretation of the requests based upon the language of the requests’ text. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court 13 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.525 Page 15 of 16 deny Plaintiff’s request for an order compelling Defendants to produce Excel files in native format and to produce 20 randomized TECS records by a date certain, and further respectfully request that the Court enter an order providing that Defendants have no obligation, in responding to Plaintiff’s FOIA requests, to search for, process, or release TECS records (except to the extent attached to otherwise responsive email records). Dated: November 28, 2017 Respectfully submitted, CHAD A. READLER Principal Deputy Assistant Attorney General   ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch /s/ Julie Straus Harris JULIE STRAUS HARRIS (DC 1021858) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 Tel.: (202) 353-7633 Fax: (202) 616-8460 Email: julie.strausharris@usdoj.gov Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection 14 Case 5:17-cv-11149-JEL-EAS ECF No. 44 filed 11/28/17 PageID.526 Page 16 of 16 CERTIFICATE OF SERVICE I hereby certify that on November 28, 2017, I electronically filed a copy of the foregoing. Notice of this filing will be sent via email to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System. /s/ Julie Straus Harris JULIE STRAUS HARRIS Case 5:17-cv-11149-JEL-EAS ECF No. 44-1 filed 11/28/17 PageID.527 Page 1 of 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION American Civil Liberties Union of Michigan, Case No. 17-CV-11149 Plaintiff, Judith E. Levy United States District Court Judge v. U.S. Department of Homeland Security and United States Customs and Border Protection, Defendants. DECLARATION OF PATRICK HOWARD 1. I am a Branch Chief within the Freedom of Information Act Division (FOIA Division) at U.S. Customs and Border Protection (CBP or the Agency), U.S. Department of Homeland Security (DHS). I have been a Branch Chief in the FOIA Division since February 8, 2015. In this capacity, I oversee a staff of Government Information Specialists, the processing of requests for records submitted to CBP pursuant to FOIA, 5 U.S.C. § 552, the Privacy Act (PA), 5 U.S.C. § 552a, and other activities conducted pursuant to applicable records access provisions. 2. I am familiar with CBP’s procedures for responding to FOIA requests. I provide technical and administrative supervision and direction to a group of FOIA specialists in processing FOIA requests and assist with FOIA/PA litigation Case 5:17-cv-11149-JEL-EAS ECF No. 44-1 filed 11/28/17 PageID.528 Page 2 of 17 matters, and I am personally familiar with the processing of FOIA/PA responses, including, at times, by directly reviewing for adequacy and compliance to federal laws and regulations. I am familiar with the February 2, 2017, and February 10, 2017, FOIA requests submitted by various affiliates of the American Civil Liberties Union (ACLU) to CBP. 3. The statements I make in this declaration are based upon my personal knowledge, which includes knowledge acquired through information furnished to me in the course of my official duties and agency files that I personally reviewed in the course of my official duties. 4. I submit this declaration in support of Defendants’ Response to Plaintiff’s Supplemental Brief, ECF No. 43. 5. TECS is owned and managed by CBP and is an overarching law enforcement information sharing platform composed of multiple modules or databases that centrally and securely link telecommunications devices and personal computers. These databases collect and maintain information, and facilitate the screening, analysis and sharing of such data. Simply put, the databases collect and maintain information about persons and goods crossing the border and that information is accessible through the centralized TECS platform. See System of Records Notice (SORN) for TECS, 73 Fed. Reg. 245, 77779 (2008), available at https://www.gpo.gov/fdsys/pkg/FR-2008-12-19/html/E8-29807.htm. See also The 2 Case 5:17-cv-11149-JEL-EAS ECF No. 44-1 filed 11/28/17 PageID.529 Page 3 of 17 Privacy Impact Assessment (PIA) for TECS System, https://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_cbp_tecs.pdf, at 2-3. 6. The purposes of TECS include tracking individuals who have or are suspected of violating a law and/or regulation enforced or administered by CBP, providing a record of any inspection conducted at the border by CBP, determining admissibility, and recording information regarding individuals and organizations to whom CBP has issued warnings or detentions. See SORN for TECS, at 77780-81; PIA for TECS System, at 12-13. 7. The types of information about an individual that may be maintained in TECS includes: full name, alias, date of birth, address, physical description, any number of various identification numbers (including social security numbers or alien numbers), and the details and circumstances describing a search, seizure, or arrest. Additionally, TECS may collect and maintain various types of records including, but not limited to: records relating to known or suspected violators, wanted persons, persons of interest for law enforcement and counterterrorism purposes, reference information, and regulatory and compliance data. This information is culled from a variety of federal, state, local, and foreign sources. See SORN for TECS, at 77780; PIA for TECS System, at 8-10. 8. The vast majority of the substantive information in a TECS record is exempt from disclosure under the FOIA because it is either personally identifiable 3   Case 5:17-cv-11149-JEL-EAS ECF No. 44-1 filed 11/28/17 PageID.530 Page 4 of 17 information (5 U.S.C. §§ 552(b)(6)) or law enforcement information (5 U.S.C. §§ 552(b)(3), (4), (7(A), (C) and/or (E)). Attached hereto as Exhibits A-D are examples of blank TECS records showing the field headings. Other than the field headings, the only reasonably segregable substantive information in TECS records concerning travelers who received any manner of treatment due to Executive Order 13,769 has already been released to Plaintiff in the records appearing at Bates stamped pages EO FOIA CBP 29-56. 9. Consistent with the DHS PA regulations, individuals may request access to their own records that are maintained in a system of records in the possession or under the control of CBP. See 6 C.F.R. § 5.21(a), (d); 19 C.F.R. § 103.3. 10. Additionally, consistent with DHS’s Privacy Policy Guidance Memorandum of April 25, 2017, when responding to a third-party FOIA request seeking an individual’s TECS records that is not accompanied by a statement from the subject of the records verifying his or her identity and certifying that individual’s agreement that records may be released to a third-party, it is the policy of the Agency to analyze whether such information is appropriate for release to the public. This analysis seeks to balance the public’s right to know about the functions and operations of the Government against an individual’s private interest 4   Case 5:17-cv-11149-JEL-EAS ECF No. 44-1 filed 11/28/17 PageID.531 Page 5 of 17 in keeping his or her identity and activities private.1 See Privacy Policy Guidance Memorandum 2017-01, at 8, available at https://www.dhs.gov/sites/default/files/publications/PPGM%20201701%20Signed_0.pdf. Plaintiff’s FOIA requests were not accompanied by any such statement from any relevant subjects whose privacy interests may be implicated by this request. 11. The Agency determined that the only reasonable interpretation of Plaintiff’s requests was a natural reading of their requests for “[r]ecords concerning the number of individuals” who received particular categories of treatment “pursuant to [EO 13,769]” or arrived in the United States “with valid visas or green cards who subsequently agreed voluntarily to” leave (“Items 2-4”) as seeking records containing the aggregate numbers of the various categories of individuals. a. Had the Agency interpreted Plaintiff’s requests for records showing “interpretation, enforcement, and implementation of EO 13,769” as seeking TECS records concerning specific individual travelers, it would have denied the requests based upon the analysis described supra ¶ 10, where the                                                              1 Historically, prior to Executive Order 13,768, Enhancing Public Safety in the Interior of the United States, DHS had afforded all persons’ personally identifiable information, regardless of citizenship, the same protections under the Privacy Act. Consistent with that policy and the DHS PA regulations, the Agency required a waiver from any third-party seeking TECS records of any individual. See 6 C.F.R. § 5.21(f). 5   Case 5:17-cv-11149-JEL-EAS ECF No. 44-1 filed 11/28/17 PageID.532 Page 6 of 17 individual’s rights to privacy in their identities outweighs any public benefit in the release of their personal identifiable information. b. An interpretation of the requests for records showing “interpretation, enforcement, and implementation of EO 13,769” as seeking TECS records concerning specific individual travelers also would have been unreasonably burdensome and overly broad. To search for TECS records showing “interpretation, enforcement, and implementation of EO 13,769” would be unreasonably burdensome and overly broad because of the way TECS records are created and maintained. Indeed, it would be incumbent upon the officer creating the TECS record to have included in the TECS record’s free form comments section information linking the event to the Executive Order, as that information would not be systemically created or tracked in the record based on the enumerated fields. Therefore, searching TECS records for Executive Order specific search terms is unlikely to identify responsive documents with any precision. Instead, the Agency would have to individually query the name of each person who received any manner of treatment due to Executive Order 13,769 and then search for all files relating to those persons. However, pursuant the analysis described supra ¶ 10, the Agency would deny such third-party requests based on the individual’s privacy concerns outweighing the public benefit of knowing their identities. 6   Case 5:17-cv-11149-JEL-EAS ECF No. 44-1 filed 11/28/17 PageID.533 Page 7 of 17 Critically, even if the Agency individually queried each person’s name and searched for related files, all of the substantive information from any of those records would be exempt under FOIA and withheld as described in ¶ 8. Thus, the process would be unduly burdensome for the Agency and yield no additional substantive information for Plaintiffs. I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge. Executed on this 28th day of November, 2017, Washington, D.C. Patrick A Howard ________________________________ Patrick A. Howard 7 EXHIBIT A Transmitted By Carrier Code Primary Query Result Flight/Vessel Number Manifest Data Encounter Time Encounter Person Detail Document Country Middle Initial Encounter Person Detail Generated By: Terminal Lane Arrival Location Class of Admission Gender For Official Use Only / Law Enforcement Sensitive Passenger Status Manifest Indicator Encounter Date Encounter Line Type Inspector Document Type Document Number Inbound/Outbound First Name Last Name 11/16/2017 09:58 EST Case 5:17-cv-11149-JEL-EAS ECF No. 44-1 filed 11/28/17 PageID.535 U.S. Customs and Border Protection U.S. Department of Homeland Security Person Encounter Detail Departure Location Referred To Agency Site/Encounter Location Admit Until Date Date of Birth Page 9 of 17 Page 1 of 1 EXHIBIT Total Number of Records Last Name First Name DOB 11/16/2017 09:50 EST Date Time Carrier Num. I/O Site Insp Type For Official Use Only / Law Enforcement Sensitive Carrier Code Generated By: Case 5:17-cv-11149-JEL-EAS ECF No. 44-1 filed 11/28/17 PageID.537 U.S. Customs and Border Protection U.S. Department of Homeland Security TECS - Person Encounter List Status Ref Page 11 of 17 - - Dep Loc - Arr Loc Page 1 of 1 EXHIBIT 11/16/2017 09:54 EST U.S. Customs and Border Protection U.S. Department of Homeland Security TECS - Secondary Inspection Report Father?s Iliddie Rune Mother's Hidde Name End Date Tune StatedLastN-ne Refe??COth Comments Entered Created Date/1' ime Referral Reason Generated By:? Page 1 of 2 Referred Tune Doc City of Birth Father?s ?rst Mane Iother's First Name SM Date Time Stated First Name Mnit Until Date Referred Referred Date/Time: Referred From: MM 93? TECS - Secondary Inspection Report U.S. Customs and Border Protection U.S. Department of Homeland Security 11/16/2017 09:54 EST Generated By:? Page 2 of 2 Street Nunbet Stl?eetName I Waiver INS File INS FCO Petition/SEVIS EXHIBIT U.S. Customs and Border Protection U.S. Department of Homeland Security TECS - Secondary Inspection Report 11/16/2017 09:55 EST Generated By:? Page 1 of 2 Referred Tune I Vessel Nunber Travel Document Presented Country of B'I'th Father?s First Father?s Middle Mane ?oaters First Name ?oaters Iidtle Name Stat Date and Time End Date and line I Vessel Crew Inbound IOutbomd Utiiled for this Violation Code. Related Document Number Comments Entered By:? Created Date/Time: Referral Reason Referred By?l Referred Date/1' ime: Referred From: Case 5:17-cv-11149-JEL-EAS ECF No. 44-1 filed 11/28/17 PageID.543 Page 17 of 17 U.S. Customs and Border Protection U.S. Department of Homeland Security TECS - Secondary Inspection Report 11/16/2017 09:55 EST Generated By: For Official Use Only / Law Enforcement Sensitive Page 2 of 2