Border Wall RFP

Dave Maass
411A Highland Avenue Somerville MA 02144

Dear Dave Maass:

This automated notice acknowledges receipt of your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP) received on 05/03/2017. Please use the following unique FOIA tracking number CBP-2017-055620 to track the status of your request.  If you have not already done so, you must create a FOIAonline account at https://foiaonline.regulations.gov.  This is the only method available to check the status of your pending FOIA request. (https://foiaonline.regulations.gov/)

Provisions of the Act allow us to recover part of the cost of complying with your request.  We shall charge you for records in accordance with the DHS FOIA regulations outlined on the DHS website, http://www.dhs.gov/xfoia/editorial_0579.shtm. By submitting your request, you have agreed to pay up to $25.00 in applicable processing fees, if any fees associated with your request exceed this amount, CBP shall contact you; however, the first 100 pages are free. (http://www.dhs.gov/xfoia/editorial_0579.shtm)

CBP’s FOIA Division is working hard to reduce the amount of time necessary to respond to FOIA requests.  Currently, the average time to process a FOIA request related to "travel/border incidents" is a minimum of 3-6 months. We truly appreciate your continued patience.

For additional information please consult CBP FOIA website please click on FOIA Act Resources or visit (http://www.cbp.gov/site-policy-notices/foia) http://www.cbp.gov/site-policy-notices/foia. (http://www.cbp.gov/site-policy-notices/foia)

This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: (https://foiaonline.regulations.gov:443/foia/action/public/view/request?objectId=090004d2812ee8ce)
* Tracking Number: CBP-2017-055620
* Requester Name: Dave Maass
* Date Submitted: 05/03/2017
* Request Status: Submitted
* Description: Request for all emails sent or received from BorderWallDesignBuild@cbp.dhs.gov. *See attachment

Dave Maass
411A Highland Avenue
Somerville, MA 02144

Subject: Freedom of Information Act (FOIA) Request No. CBP-2017-055620

Dear Mr. Maass:

This is a final response to your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP), in which you are seeking emails sent to BorderWallDesignBuild@cbp.dhs.gov.

A search produced 5,672 pages of responsive documents. After reviewing the 5,672 pages of responsive documents, we have determined that 5,490 of the pages will be withheld from disclosure pursuant to FOIA Exemptions (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E) (5 U.S.C.§§ 552 (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C) and (b)(7)(E)). The 5,490 pages of documents that are being withheld from disclosure consist primarily of unsuccessful contractor bid and proposal submission documents that were submitted to BorderWallDesignBuild@cbp.dhs.gov. In addition, we have determined that 110 pages of documents will be released to you with redactions made pursuant to FOIA Exemptions (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). The remaining 72 pages of documents under consideration in this case are being released to you without redaction. The 182 pages of documents that are being released to you consist of various general emails and attachments that were submitted to BorderWallDesignBuild@cbp.dhs.gov and include general questions and answers pertaining to the RFP 's, internal CBP discussions, suggestions concerning the wall, and other similar information. Certain information from the successful proposal submissions is also being released with this decision. However, certain information on the successful proposals remains protected from disclosure under FOIA Exemptions (b)(4), (b)(6), (b)(7)(C), and (b)(7)(E). Below is a discussion of how we applied the FOIA Exemptions to make our determination in this case.

Exemption (b)(3) of the FOIA protects information specifically exempted from
disclosure by another statute, if the statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) established particular criteria for withholding or refers to particular types of matters to be withheld. In applying Exemption (b )(3), we initially note that The Court of Appeals for the District of Columbia Circuit has held that records may be withheld under the authority of another statute pursuant to Exemption (b)(3) "if- and only if - that statute meets the requirements of Exemption 3, including the threshold requirement that it specifically exempt matters from disclosure. "Reporters Comm. for Freedom of the Press v. DOJ, 816 F.2d 730, 734 (D.C. Cir. 1987), modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987), rev' d on other grounds, 489 U.S.749 (1989). In Reporters Committee, the D.C. Circuit further stated that "[a] statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure. [The court] must find a congressional purpose to exempt matters from disclosure in the actual words or the statute (or at least in the legislative history of FOIA) not in the legislative history of the claimed withholding statute, nor in an agency's interpretation of the statute." Reporters Comm., 816 F.2d at 735; see also, Pub. Citizen, 533 F.3d at 813-14; Nat'l Ass'n of Home Builders, 309 F.3d at 37 (finding that statute failed to qualify as withholding statute under Exemption (b)(3)).

Proposals in the possession or control of a Federal agency were specifically prohibited
from being disclosed to any person under the FOIA pursuant to The National Defense
Authorization Act of 1997 (codified at 41 U.S.C . § 253b(m) and currently located at 41
U.S.C . § 4702(b)). Under 41 U.S.C. § 4702(c), Federal agencies are prohibited from
releasing any such proposals unless a proposal is set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal.
"Proposal" is defined under the statute as a proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal. 41 U.S.C. § 4702(a). In this case, most of the emails that were sent to BorderWallDesignBuild@cbp.dhs.gov were submitted in response to the RFP's for prototype builds of the border wall and are considered to be proposals as defined under 41 U.S.C. § 4702(a). In this respect, the submissions contain concept papers, proposed contracts, financial information, technical diagrams, and other related information. We also note that most of the proposals that were submitted to this email account were not selected by CBP for inclusion in a contract or otherwise incorporated into a contract by reference. As noted above, any such proposals are clearly prohibited from release by statute. See also, Hornbostel v U.S. Dep't of the Interior, 305 F. Supp. 2d 21, 30 (D.D.C. 2003), summary affirmance granted, No. 03-5257, 2004 WL 1900562 (D .C. Cir. Aug. 25, 2004). Therefore, we have applied Exemption (b)(3) to withhold 5,318 pages of these documents from release.

Exemption (b)(4) of the FOIA protects trade secrets and commercial or financial
information obtained from a person [that is] privileged and confidential. Redactions have
been made pursuant to Exemption (b)(4) in this case to withhold information pertaining to contractor resources that are dedicated to construction, contractor border security capabilities, financial data, and other contract management information that is unique to each submitter such as specific measures undertaken to enhance overall contract performance. We note that Exemption (b)(4) has been applied to portions of the documents that are being released to you as well as to 4,999 pages of the documents that are being withheld in their entirety. Because the information that is being withheld does not relate to trade secrets, Exemption (b)(4) will only apply to: "(1) commercial and financial information, (2) obtained from a person or by the government, (3) that is privileged and confidential. " Watkins v. Customs & Border Protection, 2011 U.S. App. LEXIS 9443 at 9 (9th Cir. May 6, 2011).

As applied to the instant case, the information redacted pursuant to Exemption (b)(4)
is clearly commercial. Although not all information submitted to the government by a
commercial entity will be protected by Exemption (b)(4), the courts interpret the term broadly and extend the exemption to cover any information in which a third party has a "commercial interest." Baker & Hostetler LLP v. Department of Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006). Similarly, the information at issue was obtained by a "person," satisfying the second prong of Exemption (b)(4) ' s requirements. Courts also interpret this prong broadly so as to include any information submitted by "an individual, partnership, corporation, association or public or private organization other than the agency." Nadler v. FDIC, 92 F. 3d 93, 95 (2d Cir. 1996). Here, the redacted information was provided to CBP by private parties which each clearly fit the description of "person'' within the meaning of Exemption (b)(4).

We must next determine whether the redacted information is considered to be "privileged and confidential" within the meaning of Exemption (b)( 4). Whether information submitted to a federal agency is considered "confidential" under Exemption (b)(4) depends on whether the information was a required or voluntary submission to the government. If the government required submission of the information, the exemption will only protect commercial or financial material that is likely to: "(1) impair the government's ability to obtain necessary information in the future ; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained." National Parks and Conservation Association v. Morton, 498 F .2d 765, 770 (D.C. Cir 1974). In contrast, Exemption (b)(4) offers broader protection for any financial or commercial information provided to the government on a voluntary basis. In such situations, information will be protected in all cases so long as " it is of a kind that a provider would not customarily release to the public." Critical Mass Energy Project v. Nuclear Regulatory Commission, en bane. 975 F.2d 871 , 872 (D.C. Cir. 1992).

Here, each party voluntarily submitted a proposal in response to the RFP's in order to
be awarded a contract by CBP to build a prototype of the border wall. However, CBP
required the submission of the information at issue in order to adequately evaluate the
proposals and ultimately award the contracts to build the prototypes of the wall. Therefore, because CBP required the submissions, in order to qualify for protection under Exemption (b)(4), disclosure of the information must be likely to (1) impair the government's ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained.
In this case, we have determined that release of the information that is being withheld
would cause substantial harm to the competitive positions of the submitters. In this regard, release of the information would clearly reveal the competitive vulnerabilities and operational capabilities of various firms. Releasing the information that is being withheld would enable competitors to exploit this information for their benefit by enhancing their ability to obtain future government contracts by formulating and altering their business strategies. This would thereby substantially harm the competitive positions of the CBP contractors by undercutting their ability to obtain future contracts. Accordingly, we determine that this information is exempt from disclosure pursuant to Exemption (b)(4).

Exemption (b)(5) of the FOIA protects inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in litigation with the agency. The statutory language unequivocally incorporates all civil discovery rules into FOIA Exemption (b)(5). The three primary, most frequently invoked privileges that have been held to be incorporated into Exemption (b)(5) are the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege.
The most commonly invoked privilege incorporated within Exemption 5 is the
deliberative process privilege, the general purpose of which is to "prevent injury to the quality of agency decisions." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).
Specifically, three policy purposes consistently have been held to constitute the basis for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's actions. See , ~. Russell v. Dep't of the Air Force , 682 F .2d 1045 , 1048 (D.C. Cir. 1982) ; Coastal States Gas Corp. v . Dep' t of Energy, 617 F.2d 854 , 866 (D.C. Cir. 1980). Traditionally, the courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked. Petroleum Info. Com. v. United States Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992). First, the communication must be predecisional, and second, the communication must be deliberative in that it makes recommendations or expresses opinions on legal or policy matters. Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).

As applied, we initially note that the information withheld pursuant to the Exemption
(b)(5) deliberative process privilege includes internal CBP emails. In determining that this information is properly withheld from disclosure pursuant to Exemption (b)(5), we note that the initial consideration that must be made is whether the information being withheld is of the type intended to be covered by the phrase "inter-agency" or "intra-agency memorandums." The information being withheld pursuant to Exemption (b)(5) in this case was created by CBP employees in order to develop, examine, or propose CBP policies relating to the border wall RFP ' s. Therefore, the initial threshold requirement of Exemption (b )(5) is met in this case.

Having satisfied the threshold requirement of Exemption (b)(5), we must next consider whether the information that is being withheld is considered both predecisional and deliberative in nature. In considering this issue, we note that the Supreme Court has held that" (a)gencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions .. . ''. Sears, 421 U. S. at 151 n. 18. As such, courts have held that Exemption (b)(5) can be applicable if documents are generated as part of such a continuing process of decision making. See, ~. Cassad v HHS, 301 F .3d 124 7 , 1252 (1 0 1h Cir. 2002). Categories of documents that are routinely protected by the deliberative process privilege are "advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." Sears, 421 U.S. at 150. They are protected because, by their very nature, their release would likely "stifle honest and frank communication within the agency." Coastal States, 617 F.2d at 866. To this end, it has been recognized that "[t]he deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news." See, Dep't of the Interior v. Klamath Water Users Protective Ass ' n, 532 U.S. 1, 8-9 (2001).

In the instant case, we find that the information that is being withheld pursuant t o
Exemption (b )(5) is predecisional and deliberative in that it consists of evaluations, opinions, observations, and other findings CBP employees deemed critical as part of administering the border wall RFP process. Release of this information would reveal how CBP employees prioritized different facts, what facts they considered to be important, and considerations deliberated during the decision-making process. The authors of the various emails selected specific facts out of a larger group of facts to create their emails and this very act is deliberative in nature. In this respect, the emails contain evaluations, opinions, observations, potential challenges and concerns, and proposals that CBP employees involved in the border wall RFP process deemed significant. The act of distilling the evidence, which involves separating the significant facts from the insignificant facts, constitutes an exercise of judgment by agency personnel. Such selective facts are therefore entitled to the same protection as afforded to purely deliberative materials, as their release would permit indirect inquiry into the mental processes of employees and expose agency deliberations. If disclosed, this information could result in confusion regarding reasons and rationales that are not ultimately the grounds for the agency's actions and would chill open and frank discussions among those CBP employees that are involved in the border wall RFP process. This deliberative and pre-decisional information is precisely the type of material that the exemption was intended to cover as the information reflects agency deliberations. Therefore, Exemption (b)(5) has been applied throughout the documents to withhold this information from disclosure.

Exemption (b)(6) permits the Government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." Once the threshold requirement is met, Exemption (b)(6) requires a balancing of the public's right to know against an individual's right to privacy to determine whether disclosure of the records at issue would constitute a clearly unwarranted invasion of a person's privacy. Dep't of the Air Force v. Rose, 425 U.S. 352 (1976). It must be ascertained whether a protectable privacy interest exists that would be threatened by disclosure. In order to compel release of materials, there must be a public interest because "something, even a modest privacy interest outweighs nothing every time." Cappabianca v. Comm' r, U.S. Customs Serv., 847 F. Supp. 1558 (M.D. Fla. 1994).

In this case, we have determined that you have no genuine and significant interest in
the names and other identifying information of the Federal employees and other third-parties that are located in the documents and proposals, nor have you asserted any public interest in the disclosure of this information. Further, we find that the individual's right to privacy outweighs whatever public interest, if any, might exist in knowing information such as their identity. Accordingly, Exemption (b)(6) has been applied to withhold this information from disclosure in the documents and proposals that are being released to you as well as in the documents that are being withheld from disclosure.

In addition to Exemption (b)(6), the information identifying the Federal employees
and other third parties is also withheld under Exemption (b )(7)(C). Exemption (b)(7)(C)
provides protection for personal information in law enforcement records, the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal
privacy." The names of Federal employees as well as third-party individuals mentioned in
law enforcement records are exempt from disclosure pursuant to Exemption (b )(7)(C). This exemption is designed to protect, among other interests, the interests of law enforcement personnel from "harassment and annoyance in the conduct of their official duties and in their private lives" which could conceivably result from public disclosure of their identity. Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978). In addition, the exemption is also intended to protect third-parties whose identities are revealed in law enforcement files from comment, speculations, and stigmatizing connotation associated with being identified in a law enforcement record. Lesar v. United States, 636 F.2d 472 (D.C. Cir. 1980).

The documents under consideration in this case relate to construction of a border wall
which is meant to deter illegal crossings into the United States. Therefore, the records are
considered law enforcement records compiled in furtherance of CBP's law enforcement
mission. Moreover, the individuals whose privacy would be subject to invasion are identified in the various documents and proposals and such invasion of privacy is unwarranted. There is no public interest to be served by placing the identities or personally identifying information of the individuals before the public. Therefore, Exemption (b)(7)(C) has also been properly applied throughout the records to withhold this information from disclosure.

Exemption (b)(7)(E) exempts from disclosure information that would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law. See, Fisher v. U.S. Dep't of Justice, 772 F. Supp. 7 (D.D.C. 1991) (explicitly recognizing categorical protection for law enforcement techniques and procedures), affd, 968 F.2d 92 (1992); and, Hammes v. U.S. Customs Service, 1994 WL 693717 (S.D.N.Y. 1994) (protecting criteria used to determine which passengers to stop and examine). Exemption (b)(7)(E) is designed to provide categorical protection for law enforcement techniques and procedures. See, Beck v. U.S. Dep't of the Treasury, No. 88-493 (D.D.C. 1989), affd, 949 F.2d 1563 (D.C. Cir. 1992) (approving nondisclosure of certain documents because disclosure would reveal surveillance techniques used by Customs, as well as why certain individuals were contacted with regard to investigations).

In this case, Exemption (b)(7)(E) has been applied to withhold from disclosure sensitive law enforcement information. Examples of information redacted pursuant to FOIA
Exemption (b)(7)(E) includes information relating to detection and surveillance technologies, construction plans that could reveal potential border fence strengths or vulnerabilities to violators, and other sensitive information relating to U.S. Government border facilities and operations. This information has been withheld from disclosure in order to protect sensitive law enforcement information relating to CBP border plans, CBP operations, and U.S. Government facilities. In this respect, we note that the redacted information contains detailed security information and release of this data would enable individuals to develop countermeasures to evade border security, thereby circumventing the law. In making this determination, we additionally note that the border fence is a law enforcement tool that CBP utilizes to enforce the immigration and narcotics laws of the United States as well as to perform its homeland security mission. Therefore, this information is properly withheld from disclosure pursuant to FOIA Exemption (b)(7)(E).
This completes the CBP response to your request. You may contact a FOIA Public Liaison by sending an email via your FOIAonline account, or call 202-325-0150.

If you are not satisfied with the response to this request, you have a right to appeal the final disposition. Should you wish to do so, you must file your appeal within 90 days of the date of this letter following the procedures outlined in the DHS regulations at Title 6 C.F.R. §5.9. Please include as much information as possible to help us understand the grounds for your appeal. You should submit your appeal via FOIAonline by clicking on the "Create Appeal" button that appears when you view your initial request. If you do not have computer access, you may send your appeal and a copy of this letter to: FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection, 90 K Street, NE, 10th Floor, Washington, DC 20229-1177. Your envelope and letter should be marked "FOIA Appeal." Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia.

Additionally, you have a right to seek dispute resolution services from the Office of Government Information Services (OGIS) which mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. You may contact OGIS as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769.

Please notate file number CBP-2017-055620 on any future correspondence to CBP related to this request.

File 0001 - BW9 FOIA CBP 000001 - 000182_Part3 is attached to this email.

Thank you,
[signature for e-mail]
Jodi Drengson
Gov't Information Specialist
Office of Privacy and Diversity
jodi.drengson@dhs.gov

P Please consider the environment before printing this email.

Dave Maass 411A Highland Avenue
Somerville, MA  02144

Subject:  Freedom of Information Act (FOIA) Request No. CBP-2017-055620
Dear Mr. Maass:
This is a final response to your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP), in which you are seeking emails sent to BorderWallDesignBuild@cbp.dhs.gov. (mailto:BorderWallDesignBuild@cbp.dhs.gov)
A search produced 5,672 pages of responsive documents. After reviewing the 5,672 pages of responsive documents, we have determined that 5,490 of the pages will be withheld from disclosure pursuant to FOIA Exemptions (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E) (5 U.S.C.§§ 552 (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C) and (b)(7)(E)). The 5,490 pages of documents that are being withheld from disclosure consist primarily of unsuccessful contractor bid and proposal submission documents that were submitted to BorderWallDesignBuild@cbp.dhs.gov. In addition, we have determined that 110 pages of documents will be released to you with redactions made pursuant to FOIA Exemptions (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). The remaining 72 pages of documents under consideration in this case are being released to you without redaction. The 182 pages of documents that are being released to you consist of various general emails and attachments that were submitted to (mailto:BorderWallDesignBuild@cbp.dhs.gov) BorderWallDesignBuild@cbp.dhs.gov and include general questions and answers pertaining to the RFP 's, internal CBP discussions, suggestions concerning the wall, and other similar information. Certain information from the successful proposal submissions is also being released with this decision. However, certain information on the successful proposals remains protected from disclosure under FOIA Exemptions (b)(4), (b)(6), (b)(7)(C), and (b)(7)(E). Below is a discussion of how we applied the FOIA Exemptions to make our determination in this case. (mailto:BorderWallDesignBuild@cbp.dhs.gov)
Exemption (b)(3) of the FOIA protects information specifically exempted from disclosure by another statute, if the statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) established particular criteria for withholding or refers to particular types of matters to be withheld. In applying Exemption (b )(3), we initially note that The Court of Appeals for the District of Columbia Circuit has held that records may be withheld under the authority of another statute pursuant to Exemption (b)(3) "if- and only if - that statute meets the requirements of Exemption 3, including the threshold requirement that it specifically exempt matters from disclosure. "Reporters Comm. for Freedom of the Press v. DOJ, 816 F.2d 730, 734 (D.C. Cir. 1987), modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987), rev' d on other grounds, 489 U.S.749 (1989). In Reporters Committee, the D.C. Circuit further stated that "[a] statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure. [The court] must find a congressional purpose to exempt matters from disclosure in the actual words or the statute (or at least in the legislative history of FOIA) not in the legislative history of the claimed withholding statute, nor in an agency's interpretation of the statute." Reporters Comm., 816 F.2d at 735; see also, Pub. Citizen, 533 F.3d at 813-14; Nat'l Ass'n of Home Builders, 309 F.3d at 37 (finding that statute failed to qualify as withholding statute under Exemption (b)(3)).

Proposals in the possession or control of a Federal agency were specifically prohibited from being disclosed to any person under the FOIA pursuant to The National Defense
Authorization Act of 1997 (codified at 41 U.S.C . § 253b(m) and currently located at 41
U.S.C . § 4702(b)). Under 41 U.S.C. § 4702(c), Federal agencies are prohibited from
releasing any such proposals unless a proposal is set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal.
"Proposal" is defined under the statute as a proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal. 41 U.S.C. § 4702(a).  In this case, most of the emails that were sent to
BorderWallDesignBuild@cbp.dhs.gov were submitted in response to the RFP's for prototype builds of the border wall and are considered to be proposals as defined under 41 U.S.C. § 4702(a). In this respect, the submissions contain concept papers, proposed contracts, financial information, technical diagrams, and other related information. We also note that most of the proposals that were submitted to this email account were not selected by CBP for inclusion in a contract or otherwise incorporated into a contract by reference. As noted above, any such proposals are clearly prohibited from release by statute. See also, Hornbostel v U.S. Dep't of the Interior, 305 F. Supp. 2d 21, 30 (D.D.C. 2003), summary affirmance granted, No. 03-5257, 2004 WL 1900562 (D .C. Cir. Aug. 25, 2004). Therefore, we have applied Exemption (b)(3) to withhold 5,318 pages of these documents from release. (mailto:BorderWallDesignBuild@cbp.dhs.gov)
Exemption (b)(4) of the FOIA protects trade secrets and commercial or financial information obtained from a person [that is] privileged and confidential. Redactions have
been made pursuant to Exemption (b)(4) in this case to withhold information pertaining to contractor resources that are dedicated to construction, contractor border security capabilities, financial data, and other contract management information that is unique to each submitter such as specific measures undertaken to enhance overall contract performance. We note that Exemption (b)(4) has been applied to portions of the documents that are being released to you as well as to 4,999 pages of the documents that are being withheld in their entirety. Because the information that is being withheld does not relate to trade secrets, Exemption (b)(4) will only apply to: "(1) commercial and financial information, (2) obtained from a person or by the government, (3) that is privileged and confidential. " Watkins v. Customs & Border Protection, 2011 U.S. App. LEXIS 9443 at 9 (9th Cir. May 6, 2011).

As applied to the instant case, the information redacted pursuant to Exemption (b)(4) is clearly commercial. Although not all information submitted to the government by a
commercial entity will be protected by Exemption (b)(4), the courts interpret the term broadly and extend the exemption to cover any information in which a third party has a "commercial interest." Baker & Hostetler LLP v. Department of Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006).  Similarly, the information at issue was obtained by a "person," satisfying the second prong of Exemption (b)(4) ' s requirements. Courts also interpret this prong broadly so as to include any information submitted by "an individual, partnership, corporation, association or public or private organization other than the agency." Nadler v. FDIC, 92 F. 3d 93, 95 (2d Cir. 1996). Here, the redacted information was provided to CBP by private parties which each clearly fit the description of "person'' within the meaning of Exemption (b)(4).

We must next determine whether the redacted information is considered to be "privileged and confidential" within the meaning of Exemption (b)( 4). Whether information submitted to a federal agency is considered "confidential" under Exemption (b)(4) depends on whether the information was a required or voluntary submission to the government. If the government required submission of the information, the exemption will only protect commercial or financial material that is likely to: "(1) impair the government's ability to obtain necessary information in the future ; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained." National Parks and Conservation Association v. Morton, 498 F .2d 765, 770 (D.C. Cir 1974). In contrast, Exemption (b)(4) offers broader protection for any financial or commercial information provided to the government on a voluntary basis. In such situations, information will be protected in all cases so long as " it is of a kind that a provider would not customarily release to the public." Critical Mass Energy Project v. Nuclear Regulatory Commission, en bane. 975 F.2d 871 , 872 (D.C. Cir. 1992).
Here, each party voluntarily submitted a proposal in response to the RFP's in order to be awarded a contract by CBP to build a prototype of the border wall. However, CBP
required the submission of the information at issue in order to adequately evaluate the
proposals and ultimately award the contracts to build the prototypes of the wall. Therefore, because CBP required the submissions, in order to qualify for protection under Exemption (b)(4), disclosure of the information must be likely to (1) impair the government's ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained.
In this case, we have determined that release of the information that is being withheld
would cause substantial harm to the competitive positions of the submitters. In this regard, release of the information would clearly reveal the competitive vulnerabilities and operational capabilities of various firms. Releasing the information that is being withheld would enable competitors to exploit this information for their benefit by enhancing their ability to obtain future government contracts by formulating and altering their business strategies. This would thereby substantially harm the competitive positions of the CBP contractors by undercutting their ability to obtain future contracts. Accordingly, we determine that this information is exempt from disclosure pursuant to Exemption (b)(4).

Exemption (b)(5) of the FOIA protects inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. The statutory language unequivocally incorporates all civil discovery rules into FOIA Exemption (b)(5). The three primary, most frequently invoked privileges that have been held to be incorporated into Exemption (b)(5) are the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege.
The most commonly invoked privilege incorporated within Exemption 5 is the
deliberative process privilege, the general purpose of which is to "prevent injury to the quality of agency decisions." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).
Specifically, three policy purposes consistently have been held to constitute the basis for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's actions.  See , ~. Russell v. Dep't of the Air Force , 682 F .2d 1045 , 1048 (D.C. Cir. 1982) ; Coastal States Gas Corp. v . Dep' t of Energy, 617 F.2d 854 , 866 (D.C. Cir. 1980). Traditionally, the courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked. Petroleum Info. Com. v. United States Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992). First, the communication must be predecisional, and second, the communication must be deliberative in that it makes recommendations or expresses opinions on legal or policy matters. Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).

As applied, we initially note that the information withheld pursuant to the Exemption (b)(5) deliberative process privilege includes internal CBP emails. In determining that this information is properly withheld from disclosure pursuant to Exemption (b)(5), we note that the initial consideration that must be made is whether the information being withheld is of the type intended to be covered by the phrase "inter-agency" or "intra-agency memorandums."  The information being withheld pursuant to Exemption (b)(5) in this case was created by CBP employees in order to develop, examine, or propose CBP policies relating to the border wall RFP ' s. Therefore, the initial threshold requirement of Exemption (b )(5) is met in this case.

Having satisfied the threshold requirement of Exemption (b)(5), we must next consider whether the information that is being withheld is considered both predecisional and deliberative in nature. In considering this issue, we note that the Supreme Court has held that" (a)gencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions .. . ''. Sears, 421 U. S. at 151 n. 18. As such, courts have held that Exemption (b)(5) can be applicable if documents are generated as part of such a continuing process of decision making. See, ~. Cassad v HHS, 301 F .3d 124 7 , 1252 (1 0 1h Cir. 2002).  Categories of documents that are routinely protected by the deliberative process privilege are "advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." Sears, 421 U.S. at 150. They are protected because, by their very nature, their release would likely "stifle honest and frank communication within the agency.”  Coastal States, 617 F.2d at 866. To this end, it has been recognized that "[t]he deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news." See, Dep't of the Interior v. Klamath Water Users Protective Ass ' n, 532 U.S. 1, 8-9 (2001).
In the instant case, we find that the information that is being withheld pursuant t o Exemption (b )(5) is predecisional and deliberative in that it consists of evaluations, opinions, observations, and other findings CBP employees deemed critical as part of administering the border wall RFP process. Release of this information would reveal how CBP employees prioritized different facts, what facts they considered to be important, and considerations deliberated during the decision-making process. The authors of the various emails selected specific facts out of a larger group of facts to create their emails and this very act is deliberative in nature. In this respect, the emails contain evaluations, opinions, observations, potential challenges and concerns, and proposals that CBP employees involved in the border wall RFP process deemed significant. The act of distilling the evidence, which involves separating the significant facts from the insignificant facts, constitutes an exercise of judgment by agency personnel. Such selective facts are therefore entitled to the same protection as afforded to purely deliberative materials, as their release would permit indirect inquiry into the mental processes of employees and expose agency deliberations. If disclosed, this information could result in confusion regarding reasons and rationales that are not ultimately the grounds for the agency's actions and would chill open and frank discussions among those CBP employees that are involved in the border wall RFP process. This deliberative and pre-decisional information is precisely the type of material that the exemption was intended to cover as the information reflects agency deliberations. Therefore, Exemption (b)(5) has been applied throughout the documents to withhold this information from disclosure.

Exemption (b)(6) permits the Government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." Once the threshold requirement is met, Exemption (b)(6) requires a balancing of the public's right to know against an individual's right to privacy to determine whether disclosure of the records at issue would constitute a clearly unwarranted invasion of a person's privacy. Dep't of the Air Force v. Rose, 425 U.S. 352 (1976). It must be ascertained whether a protectable privacy interest exists that would be threatened by disclosure. In order to compel release of materials, there must be a public interest because "something, even a modest privacy interest outweighs nothing every time." Cappabianca v. Comm' r, U.S. Customs Serv., 847 F. Supp. 1558 (M.D. Fla. 1994).
In this case, we have determined that you have no genuine and significant interest in the names and other identifying information of the Federal employees and other third-parties that are located in the documents and proposals, nor have you asserted any public interest in the disclosure of this information. Further, we find that the individual's right to privacy outweighs whatever public interest, if any, might exist in knowing information such as their identity. Accordingly, Exemption (b)(6) has been applied to withhold this information from disclosure in the documents and proposals that are being released to you as well as in the documents that are being withheld from disclosure.

In addition to Exemption (b)(6), the information identifying the Federal employees and other third parties is also withheld under Exemption (b )(7)(C). Exemption (b)(7)(C)
provides protection for personal information in law enforcement records, the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal
privacy." The names of Federal employees as well as third-party individuals mentioned in
law enforcement records are exempt from disclosure pursuant to Exemption (b )(7)(C). This exemption is designed to protect, among other interests, the interests of law enforcement personnel from "harassment and annoyance in the conduct of their official duties and in their private lives" which could conceivably result from public disclosure of their identity. Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978). In addition, the exemption is also intended to protect third-parties whose identities are revealed in law enforcement files from comment, speculations, and stigmatizing connotation associated with being identified in a law enforcement record. Lesar v. United States, 636 F.2d 472 (D.C. Cir. 1980).

The documents under consideration in this case relate to construction of a border wall which is meant to deter illegal crossings into the United States. Therefore, the records are
considered law enforcement records compiled in furtherance of CBP's law enforcement
mission. Moreover, the individuals whose privacy would be subject to invasion are identified in the various documents and proposals and such invasion of privacy is unwarranted. There is no public interest to be served by placing the identities or personally identifying information of the individuals before the public. Therefore, Exemption (b)(7)(C) has also been properly applied throughout the records to withhold this information from disclosure.

Exemption (b)(7)(E) exempts from disclosure information that would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law. See, Fisher v. U.S. Dep't of Justice, 772 F. Supp. 7 (D.D.C. 1991) (explicitly recognizing categorical protection for law enforcement techniques and procedures), affd, 968 F.2d 92 (1992); and, Hammes v. U.S. Customs Service, 1994 WL 693717 (S.D.N.Y. 1994) (protecting criteria used to determine which passengers to stop and examine). Exemption (b)(7)(E) is designed to provide categorical protection for law enforcement techniques and procedures. See, Beck v. U.S. Dep't of the Treasury, No. 88-493 (D.D.C. 1989), affd, 949 F.2d 1563 (D.C. Cir. 1992) (approving nondisclosure of certain documents because disclosure would reveal surveillance techniques used by Customs, as well as why certain individuals were contacted with regard to investigations).
In this case, Exemption (b)(7)(E) has been applied to withhold from disclosure sensitive law enforcement information. Examples of information redacted pursuant to FOIA Exemption (b)(7)(E) includes information relating to detection and surveillance technologies, construction plans that could reveal potential border fence strengths or vulnerabilities to violators, and other sensitive information relating to U.S. Government border facilities and operations. This information has been withheld from disclosure in order to protect sensitive law enforcement information relating to CBP border plans, CBP operations, and U.S. Government facilities. In this respect, we note that the redacted information contains detailed security information and release of this data would enable individuals to develop countermeasures to evade border security, thereby circumventing the law. In making this determination, we additionally note that the border fence is a law enforcement tool that CBP utilizes to enforce the immigration and narcotics laws of the United States as well as to perform its homeland security mission. Therefore, this information is properly withheld from disclosure pursuant to FOIA Exemption (b)(7)(E).
This completes the CBP response to your request.  You may contact a FOIA Public Liaison by sending an email via your FOIAonline account, or call 202-325-0150.

If you are not satisfied with the response to this request, you have a right to appeal the final disposition.  Should you wish to do so, you must file your appeal within 90 days of the date of this letter following the procedures outlined in the DHS regulations at Title 6 C.F.R. §5.9.  Please include as much information as possible to help us understand the grounds for your appeal.  You should submit your appeal via FOIAonline by clicking on the “Create Appeal” button that appears when you view your initial request.  If you do not have computer access, you may send your appeal and a copy of this letter to:  FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection, 90 K Street, NE, 10th Floor, Washington, DC 20229-1177.  Your envelope and letter should be marked "FOIA Appeal." Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia. (http://www.dhs.gov/foia)
Additionally, you have a right to seek dispute resolution services from the Office of Government Information Services (OGIS) which mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation.  If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974.  You may contact OGIS as follows:  Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769. (mailto:ogis@nara.gov)
Please notate file number CBP-2017-055620 on any future correspondence to CBP related to this request.
Records were released to the public as a result of this request. You may retrieve these records immediately using the following link: View Records.Over the next 2 hours, these records are also being added to FOIAonline's search pages, further enabling you to retrieve these documents associated with your FOIA request at any time. (https://foiaonline.regulations.gov:443/foia/action/public/view/request?objectId=090004d2812ee8ce)

Dave Maass
411A Highland Avenue
Somerville, MA 02144

Subject: Freedom of Information Act (FOIA) Request No. CBP-2017-055620

Dear Mr. Maass:

This is a final response to your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP), in which you are seeking emails sent to BorderWallDesignBuild@cbp.dhs.gov.

A search produced 5,672 pages of responsive documents. After reviewing the 5,672 pages of responsive documents, we have determined that 5,490 of the pages will be withheld from disclosure pursuant to FOIA Exemptions (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E) (5 U.S.C.§§ 552 (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C) and (b)(7)(E)). The 5,490 pages of documents that are being withheld from disclosure consist primarily of unsuccessful contractor bid and proposal submission documents that were submitted to BorderWallDesignBuild@cbp.dhs.gov. In addition, we have determined that 110 pages of documents will be released to you with redactions made pursuant to FOIA Exemptions (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). The remaining 72 pages of documents under consideration in this case are being released to you without redaction. The 182 pages of documents that are being released to you consist of various general emails and attachments that were submitted to BorderWallDesignBuild@cbp.dhs.gov and include general questions and answers pertaining to the RFP 's, internal CBP discussions, suggestions concerning the wall, and other similar information. Certain information from the successful proposal submissions is also being released with this decision. However, certain information on the successful proposals remains protected from disclosure under FOIA Exemptions (b)(4), (b)(6), (b)(7)(C), and (b)(7)(E). Below is a discussion of how we applied the FOIA Exemptions to make our determination in this case.

Exemption (b)(3) of the FOIA protects information specifically exempted from
disclosure by another statute, if the statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) established particular criteria for withholding or refers to particular types of matters to be withheld. In applying Exemption (b )(3), we initially note that The Court of Appeals for the District of Columbia Circuit has held that records may be withheld under the authority of another statute pursuant to Exemption (b)(3) "if- and only if - that statute meets the requirements of Exemption 3, including the threshold requirement that it specifically exempt matters from disclosure. "Reporters Comm. for Freedom of the Press v. DOJ, 816 F.2d 730, 734 (D.C. Cir. 1987), modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987), rev' d on other grounds, 489 U.S.749 (1989). In Reporters Committee, the D.C. Circuit further stated that "[a] statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure. [The court] must find a congressional purpose to exempt matters from disclosure in the actual words or the statute (or at least in the legislative history of FOIA) not in the legislative history of the claimed withholding statute, nor in an agency's interpretation of the statute." Reporters Comm., 816 F.2d at 735; see also, Pub. Citizen, 533 F.3d at 813-14; Nat'l Ass'n of Home Builders, 309 F.3d at 37 (finding that statute failed to qualify as withholding statute under Exemption (b)(3)).

Proposals in the possession or control of a Federal agency were specifically prohibited
from being disclosed to any person under the FOIA pursuant to The National Defense
Authorization Act of 1997 (codified at 41 U.S.C . § 253b(m) and currently located at 41
U.S.C . § 4702(b)). Under 41 U.S.C. § 4702(c), Federal agencies are prohibited from
releasing any such proposals unless a proposal is set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal.
"Proposal" is defined under the statute as a proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal. 41 U.S.C. § 4702(a). In this case, most of the emails that were sent to BorderWallDesignBuild@cbp.dhs.gov were submitted in response to the RFP's for prototype builds of the border wall and are considered to be proposals as defined under 41 U.S.C. § 4702(a). In this respect, the submissions contain concept papers, proposed contracts, financial information, technical diagrams, and other related information. We also note that most of the proposals that were submitted to this email account were not selected by CBP for inclusion in a contract or otherwise incorporated into a contract by reference. As noted above, any such proposals are clearly prohibited from release by statute. See also, Hornbostel v U.S. Dep't of the Interior, 305 F. Supp. 2d 21, 30 (D.D.C. 2003), summary affirmance granted, No. 03-5257, 2004 WL 1900562 (D .C. Cir. Aug. 25, 2004). Therefore, we have applied Exemption (b)(3) to withhold 5,318 pages of these documents from release.

Exemption (b)(4) of the FOIA protects trade secrets and commercial or financial
information obtained from a person [that is] privileged and confidential. Redactions have
been made pursuant to Exemption (b)(4) in this case to withhold information pertaining to contractor resources that are dedicated to construction, contractor border security capabilities, financial data, and other contract management information that is unique to each submitter such as specific measures undertaken to enhance overall contract performance. We note that Exemption (b)(4) has been applied to portions of the documents that are being released to you as well as to 4,999 pages of the documents that are being withheld in their entirety. Because the information that is being withheld does not relate to trade secrets, Exemption (b)(4) will only apply to: "(1) commercial and financial information, (2) obtained from a person or by the government, (3) that is privileged and confidential. " Watkins v. Customs & Border Protection, 2011 U.S. App. LEXIS 9443 at 9 (9th Cir. May 6, 2011).

As applied to the instant case, the information redacted pursuant to Exemption (b)(4)
is clearly commercial. Although not all information submitted to the government by a
commercial entity will be protected by Exemption (b)(4), the courts interpret the term broadly and extend the exemption to cover any information in which a third party has a "commercial interest." Baker & Hostetler LLP v. Department of Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006). Similarly, the information at issue was obtained by a "person," satisfying the second prong of Exemption (b)(4) ' s requirements. Courts also interpret this prong broadly so as to include any information submitted by "an individual, partnership, corporation, association or public or private organization other than the agency." Nadler v. FDIC, 92 F. 3d 93, 95 (2d Cir. 1996). Here, the redacted information was provided to CBP by private parties which each clearly fit the description of "person'' within the meaning of Exemption (b)(4).

We must next determine whether the redacted information is considered to be "privileged and confidential" within the meaning of Exemption (b)( 4). Whether information submitted to a federal agency is considered "confidential" under Exemption (b)(4) depends on whether the information was a required or voluntary submission to the government. If the government required submission of the information, the exemption will only protect commercial or financial material that is likely to: "(1) impair the government's ability to obtain necessary information in the future ; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained." National Parks and Conservation Association v. Morton, 498 F .2d 765, 770 (D.C. Cir 1974). In contrast, Exemption (b)(4) offers broader protection for any financial or commercial information provided to the government on a voluntary basis. In such situations, information will be protected in all cases so long as " it is of a kind that a provider would not customarily release to the public." Critical Mass Energy Project v. Nuclear Regulatory Commission, en bane. 975 F.2d 871 , 872 (D.C. Cir. 1992).

Here, each party voluntarily submitted a proposal in response to the RFP's in order to
be awarded a contract by CBP to build a prototype of the border wall. However, CBP
required the submission of the information at issue in order to adequately evaluate the
proposals and ultimately award the contracts to build the prototypes of the wall. Therefore, because CBP required the submissions, in order to qualify for protection under Exemption (b)(4), disclosure of the information must be likely to (1) impair the government's ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained.
In this case, we have determined that release of the information that is being withheld
would cause substantial harm to the competitive positions of the submitters. In this regard, release of the information would clearly reveal the competitive vulnerabilities and operational capabilities of various firms. Releasing the information that is being withheld would enable competitors to exploit this information for their benefit by enhancing their ability to obtain future government contracts by formulating and altering their business strategies. This would thereby substantially harm the competitive positions of the CBP contractors by undercutting their ability to obtain future contracts. Accordingly, we determine that this information is exempt from disclosure pursuant to Exemption (b)(4).

Exemption (b)(5) of the FOIA protects inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in litigation with the agency. The statutory language unequivocally incorporates all civil discovery rules into FOIA Exemption (b)(5). The three primary, most frequently invoked privileges that have been held to be incorporated into Exemption (b)(5) are the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege.
The most commonly invoked privilege incorporated within Exemption 5 is the
deliberative process privilege, the general purpose of which is to "prevent injury to the quality of agency decisions." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).
Specifically, three policy purposes consistently have been held to constitute the basis for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's actions. See , ~. Russell v. Dep't of the Air Force , 682 F .2d 1045 , 1048 (D.C. Cir. 1982) ; Coastal States Gas Corp. v . Dep' t of Energy, 617 F.2d 854 , 866 (D.C. Cir. 1980). Traditionally, the courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked. Petroleum Info. Com. v. United States Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992). First, the communication must be predecisional, and second, the communication must be deliberative in that it makes recommendations or expresses opinions on legal or policy matters. Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).

As applied, we initially note that the information withheld pursuant to the Exemption
(b)(5) deliberative process privilege includes internal CBP emails. In determining that this information is properly withheld from disclosure pursuant to Exemption (b)(5), we note that the initial consideration that must be made is whether the information being withheld is of the type intended to be covered by the phrase "inter-agency" or "intra-agency memorandums." The information being withheld pursuant to Exemption (b)(5) in this case was created by CBP employees in order to develop, examine, or propose CBP policies relating to the border wall RFP ' s. Therefore, the initial threshold requirement of Exemption (b )(5) is met in this case.

Having satisfied the threshold requirement of Exemption (b)(5), we must next consider whether the information that is being withheld is considered both predecisional and deliberative in nature. In considering this issue, we note that the Supreme Court has held that" (a)gencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions .. . ''. Sears, 421 U. S. at 151 n. 18. As such, courts have held that Exemption (b)(5) can be applicable if documents are generated as part of such a continuing process of decision making. See, ~. Cassad v HHS, 301 F .3d 124 7 , 1252 (1 0 1h Cir. 2002). Categories of documents that are routinely protected by the deliberative process privilege are "advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." Sears, 421 U.S. at 150. They are protected because, by their very nature, their release would likely "stifle honest and frank communication within the agency." Coastal States, 617 F.2d at 866. To this end, it has been recognized that "[t]he deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news." See, Dep't of the Interior v. Klamath Water Users Protective Ass ' n, 532 U.S. 1, 8-9 (2001).

In the instant case, we find that the information that is being withheld pursuant t o
Exemption (b )(5) is predecisional and deliberative in that it consists of evaluations, opinions, observations, and other findings CBP employees deemed critical as part of administering the border wall RFP process. Release of this information would reveal how CBP employees prioritized different facts, what facts they considered to be important, and considerations deliberated during the decision-making process. The authors of the various emails selected specific facts out of a larger group of facts to create their emails and this very act is deliberative in nature. In this respect, the emails contain evaluations, opinions, observations, potential challenges and concerns, and proposals that CBP employees involved in the border wall RFP process deemed significant. The act of distilling the evidence, which involves separating the significant facts from the insignificant facts, constitutes an exercise of judgment by agency personnel. Such selective facts are therefore entitled to the same protection as afforded to purely deliberative materials, as their release would permit indirect inquiry into the mental processes of employees and expose agency deliberations. If disclosed, this information could result in confusion regarding reasons and rationales that are not ultimately the grounds for the agency's actions and would chill open and frank discussions among those CBP employees that are involved in the border wall RFP process. This deliberative and pre-decisional information is precisely the type of material that the exemption was intended to cover as the information reflects agency deliberations. Therefore, Exemption (b)(5) has been applied throughout the documents to withhold this information from disclosure.

Exemption (b)(6) permits the Government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." Once the threshold requirement is met, Exemption (b)(6) requires a balancing of the public's right to know against an individual's right to privacy to determine whether disclosure of the records at issue would constitute a clearly unwarranted invasion of a person's privacy. Dep't of the Air Force v. Rose, 425 U.S. 352 (1976). It must be ascertained whether a protectable privacy interest exists that would be threatened by disclosure. In order to compel release of materials, there must be a public interest because "something, even a modest privacy interest outweighs nothing every time." Cappabianca v. Comm' r, U.S. Customs Serv., 847 F. Supp. 1558 (M.D. Fla. 1994).

In this case, we have determined that you have no genuine and significant interest in
the names and other identifying information of the Federal employees and other third-parties that are located in the documents and proposals, nor have you asserted any public interest in the disclosure of this information. Further, we find that the individual's right to privacy outweighs whatever public interest, if any, might exist in knowing information such as their identity. Accordingly, Exemption (b)(6) has been applied to withhold this information from disclosure in the documents and proposals that are being released to you as well as in the documents that are being withheld from disclosure.

In addition to Exemption (b)(6), the information identifying the Federal employees
and other third parties is also withheld under Exemption (b )(7)(C). Exemption (b)(7)(C)
provides protection for personal information in law enforcement records, the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal
privacy." The names of Federal employees as well as third-party individuals mentioned in
law enforcement records are exempt from disclosure pursuant to Exemption (b )(7)(C). This exemption is designed to protect, among other interests, the interests of law enforcement personnel from "harassment and annoyance in the conduct of their official duties and in their private lives" which could conceivably result from public disclosure of their identity. Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978). In addition, the exemption is also intended to protect third-parties whose identities are revealed in law enforcement files from comment, speculations, and stigmatizing connotation associated with being identified in a law enforcement record. Lesar v. United States, 636 F.2d 472 (D.C. Cir. 1980).

The documents under consideration in this case relate to construction of a border wall
which is meant to deter illegal crossings into the United States. Therefore, the records are
considered law enforcement records compiled in furtherance of CBP's law enforcement
mission. Moreover, the individuals whose privacy would be subject to invasion are identified in the various documents and proposals and such invasion of privacy is unwarranted. There is no public interest to be served by placing the identities or personally identifying information of the individuals before the public. Therefore, Exemption (b)(7)(C) has also been properly applied throughout the records to withhold this information from disclosure.

Exemption (b)(7)(E) exempts from disclosure information that would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law. See, Fisher v. U.S. Dep't of Justice, 772 F. Supp. 7 (D.D.C. 1991) (explicitly recognizing categorical protection for law enforcement techniques and procedures), affd, 968 F.2d 92 (1992); and, Hammes v. U.S. Customs Service, 1994 WL 693717 (S.D.N.Y. 1994) (protecting criteria used to determine which passengers to stop and examine). Exemption (b)(7)(E) is designed to provide categorical protection for law enforcement techniques and procedures. See, Beck v. U.S. Dep't of the Treasury, No. 88-493 (D.D.C. 1989), affd, 949 F.2d 1563 (D.C. Cir. 1992) (approving nondisclosure of certain documents because disclosure would reveal surveillance techniques used by Customs, as well as why certain individuals were contacted with regard to investigations).

In this case, Exemption (b)(7)(E) has been applied to withhold from disclosure sensitive law enforcement information. Examples of information redacted pursuant to FOIA
Exemption (b)(7)(E) includes information relating to detection and surveillance technologies, construction plans that could reveal potential border fence strengths or vulnerabilities to violators, and other sensitive information relating to U.S. Government border facilities and operations. This information has been withheld from disclosure in order to protect sensitive law enforcement information relating to CBP border plans, CBP operations, and U.S. Government facilities. In this respect, we note that the redacted information contains detailed security information and release of this data would enable individuals to develop countermeasures to evade border security, thereby circumventing the law. In making this determination, we additionally note that the border fence is a law enforcement tool that CBP utilizes to enforce the immigration and narcotics laws of the United States as well as to perform its homeland security mission. Therefore, this information is properly withheld from disclosure pursuant to FOIA Exemption (b)(7)(E).
This completes the CBP response to your request. You may contact a FOIA Public Liaison by sending an email via your FOIAonline account, or call 202-325-0150.

If you are not satisfied with the response to this request, you have a right to appeal the final disposition. Should you wish to do so, you must file your appeal within 90 days of the date of this letter following the procedures outlined in the DHS regulations at Title 6 C.F.R. §5.9. Please include as much information as possible to help us understand the grounds for your appeal. You should submit your appeal via FOIAonline by clicking on the "Create Appeal" button that appears when you view your initial request. If you do not have computer access, you may send your appeal and a copy of this letter to: FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection, 90 K Street, NE, 10th Floor, Washington, DC 20229-1177. Your envelope and letter should be marked "FOIA Appeal." Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia.

Additionally, you have a right to seek dispute resolution services from the Office of Government Information Services (OGIS) which mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. You may contact OGIS as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769.

Please notate file number CBP-2017-055620 on any future correspondence to CBP related to this request.

File 0001 - BW9 FOIA CBP 000001 - 000182_Part2 is attached to this email.

Thank you,
[signature for e-mail]
Jodi Drengson
Gov't Information Specialist
Office of Privacy and Diversity
jodi.drengson@dhs.gov

P Please consider the environment before printing this email.

Dave Maass
411A Highland Avenue
Somerville, MA 02144

Subject: Freedom of Information Act (FOIA) Request No. CBP-2017-055620

Dear Mr. Maass:

This is a final response to your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP), in which you are seeking emails sent to BorderWallDesignBuild@cbp.dhs.gov.

A search produced 5,672 pages of responsive documents. After reviewing the 5,672 pages of responsive documents, we have determined that 5,490 of the pages will be withheld from disclosure pursuant to FOIA Exemptions (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E) (5 U.S.C.§§ 552 (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C) and (b)(7)(E)). The 5,490 pages of documents that are being withheld from disclosure consist primarily of unsuccessful contractor bid and proposal submission documents that were submitted to BorderWallDesignBuild@cbp.dhs.gov. In addition, we have determined that 110 pages of documents will be released to you with redactions made pursuant to FOIA Exemptions (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). The remaining 72 pages of documents under consideration in this case are being released to you without redaction. The 182 pages of documents that are being released to you consist of various general emails and attachments that were submitted to BorderWallDesignBuild@cbp.dhs.gov and include general questions and answers pertaining to the RFP 's, internal CBP discussions, suggestions concerning the wall, and other similar information. Certain information from the successful proposal submissions is also being released with this decision. However, certain information on the successful proposals remains protected from disclosure under FOIA Exemptions (b)(4), (b)(6), (b)(7)(C), and (b)(7)(E). Below is a discussion of how we applied the FOIA Exemptions to make our determination in this case.

Exemption (b)(3) of the FOIA protects information specifically exempted from
disclosure by another statute, if the statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) established particular criteria for withholding or refers to particular types of matters to be withheld. In applying Exemption (b )(3), we initially note that The Court of Appeals for the District of Columbia Circuit has held that records may be withheld under the authority of another statute pursuant to Exemption (b)(3) "if- and only if - that statute meets the requirements of Exemption 3, including the threshold requirement that it specifically exempt matters from disclosure. "Reporters Comm. for Freedom of the Press v. DOJ, 816 F.2d 730, 734 (D.C. Cir. 1987), modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987), rev' d on other grounds, 489 U.S.749 (1989). In Reporters Committee, the D.C. Circuit further stated that "[a] statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure. [The court] must find a congressional purpose to exempt matters from disclosure in the actual words or the statute (or at least in the legislative history of FOIA) not in the legislative history of the claimed withholding statute, nor in an agency's interpretation of the statute." Reporters Comm., 816 F.2d at 735; see also, Pub. Citizen, 533 F.3d at 813-14; Nat'l Ass'n of Home Builders, 309 F.3d at 37 (finding that statute failed to qualify as withholding statute under Exemption (b)(3)).

Proposals in the possession or control of a Federal agency were specifically prohibited
from being disclosed to any person under the FOIA pursuant to The National Defense
Authorization Act of 1997 (codified at 41 U.S.C . § 253b(m) and currently located at 41
U.S.C . § 4702(b)). Under 41 U.S.C. § 4702(c), Federal agencies are prohibited from
releasing any such proposals unless a proposal is set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal.
"Proposal" is defined under the statute as a proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal. 41 U.S.C. § 4702(a). In this case, most of the emails that were sent to BorderWallDesignBuild@cbp.dhs.gov were submitted in response to the RFP's for prototype builds of the border wall and are considered to be proposals as defined under 41 U.S.C. § 4702(a). In this respect, the submissions contain concept papers, proposed contracts, financial information, technical diagrams, and other related information. We also note that most of the proposals that were submitted to this email account were not selected by CBP for inclusion in a contract or otherwise incorporated into a contract by reference. As noted above, any such proposals are clearly prohibited from release by statute. See also, Hornbostel v U.S. Dep't of the Interior, 305 F. Supp. 2d 21, 30 (D.D.C. 2003), summary affirmance granted, No. 03-5257, 2004 WL 1900562 (D .C. Cir. Aug. 25, 2004). Therefore, we have applied Exemption (b)(3) to withhold 5,318 pages of these documents from release.

Exemption (b)(4) of the FOIA protects trade secrets and commercial or financial
information obtained from a person [that is] privileged and confidential. Redactions have
been made pursuant to Exemption (b)(4) in this case to withhold information pertaining to contractor resources that are dedicated to construction, contractor border security capabilities, financial data, and other contract management information that is unique to each submitter such as specific measures undertaken to enhance overall contract performance. We note that Exemption (b)(4) has been applied to portions of the documents that are being released to you as well as to 4,999 pages of the documents that are being withheld in their entirety. Because the information that is being withheld does not relate to trade secrets, Exemption (b)(4) will only apply to: "(1) commercial and financial information, (2) obtained from a person or by the government, (3) that is privileged and confidential. " Watkins v. Customs & Border Protection, 2011 U.S. App. LEXIS 9443 at 9 (9th Cir. May 6, 2011).

As applied to the instant case, the information redacted pursuant to Exemption (b)(4)
is clearly commercial. Although not all information submitted to the government by a
commercial entity will be protected by Exemption (b)(4), the courts interpret the term broadly and extend the exemption to cover any information in which a third party has a "commercial interest." Baker & Hostetler LLP v. Department of Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006). Similarly, the information at issue was obtained by a "person," satisfying the second prong of Exemption (b)(4) ' s requirements. Courts also interpret this prong broadly so as to include any information submitted by "an individual, partnership, corporation, association or public or private organization other than the agency." Nadler v. FDIC, 92 F. 3d 93, 95 (2d Cir. 1996). Here, the redacted information was provided to CBP by private parties which each clearly fit the description of "person'' within the meaning of Exemption (b)(4).

We must next determine whether the redacted information is considered to be "privileged and confidential" within the meaning of Exemption (b)( 4). Whether information submitted to a federal agency is considered "confidential" under Exemption (b)(4) depends on whether the information was a required or voluntary submission to the government. If the government required submission of the information, the exemption will only protect commercial or financial material that is likely to: "(1) impair the government's ability to obtain necessary information in the future ; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained." National Parks and Conservation Association v. Morton, 498 F .2d 765, 770 (D.C. Cir 1974). In contrast, Exemption (b)(4) offers broader protection for any financial or commercial information provided to the government on a voluntary basis. In such situations, information will be protected in all cases so long as " it is of a kind that a provider would not customarily release to the public." Critical Mass Energy Project v. Nuclear Regulatory Commission, en bane. 975 F.2d 871 , 872 (D.C. Cir. 1992).

Here, each party voluntarily submitted a proposal in response to the RFP's in order to
be awarded a contract by CBP to build a prototype of the border wall. However, CBP
required the submission of the information at issue in order to adequately evaluate the
proposals and ultimately award the contracts to build the prototypes of the wall. Therefore, because CBP required the submissions, in order to qualify for protection under Exemption (b)(4), disclosure of the information must be likely to (1) impair the government's ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained.
In this case, we have determined that release of the information that is being withheld
would cause substantial harm to the competitive positions of the submitters. In this regard, release of the information would clearly reveal the competitive vulnerabilities and operational capabilities of various firms. Releasing the information that is being withheld would enable competitors to exploit this information for their benefit by enhancing their ability to obtain future government contracts by formulating and altering their business strategies. This would thereby substantially harm the competitive positions of the CBP contractors by undercutting their ability to obtain future contracts. Accordingly, we determine that this information is exempt from disclosure pursuant to Exemption (b)(4).

Exemption (b)(5) of the FOIA protects inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in litigation with the agency. The statutory language unequivocally incorporates all civil discovery rules into FOIA Exemption (b)(5). The three primary, most frequently invoked privileges that have been held to be incorporated into Exemption (b)(5) are the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege.
The most commonly invoked privilege incorporated within Exemption 5 is the
deliberative process privilege, the general purpose of which is to "prevent injury to the quality of agency decisions." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).
Specifically, three policy purposes consistently have been held to constitute the basis for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's actions. See , ~. Russell v. Dep't of the Air Force , 682 F .2d 1045 , 1048 (D.C. Cir. 1982) ; Coastal States Gas Corp. v . Dep' t of Energy, 617 F.2d 854 , 866 (D.C. Cir. 1980). Traditionally, the courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked. Petroleum Info. Com. v. United States Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992). First, the communication must be predecisional, and second, the communication must be deliberative in that it makes recommendations or expresses opinions on legal or policy matters. Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).

As applied, we initially note that the information withheld pursuant to the Exemption
(b)(5) deliberative process privilege includes internal CBP emails. In determining that this information is properly withheld from disclosure pursuant to Exemption (b)(5), we note that the initial consideration that must be made is whether the information being withheld is of the type intended to be covered by the phrase "inter-agency" or "intra-agency memorandums." The information being withheld pursuant to Exemption (b)(5) in this case was created by CBP employees in order to develop, examine, or propose CBP policies relating to the border wall RFP ' s. Therefore, the initial threshold requirement of Exemption (b )(5) is met in this case.

Having satisfied the threshold requirement of Exemption (b)(5), we must next consider whether the information that is being withheld is considered both predecisional and deliberative in nature. In considering this issue, we note that the Supreme Court has held that" (a)gencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions .. . ''. Sears, 421 U. S. at 151 n. 18. As such, courts have held that Exemption (b)(5) can be applicable if documents are generated as part of such a continuing process of decision making. See, ~. Cassad v HHS, 301 F .3d 124 7 , 1252 (1 0 1h Cir. 2002). Categories of documents that are routinely protected by the deliberative process privilege are "advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." Sears, 421 U.S. at 150. They are protected because, by their very nature, their release would likely "stifle honest and frank communication within the agency." Coastal States, 617 F.2d at 866. To this end, it has been recognized that "[t]he deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news." See, Dep't of the Interior v. Klamath Water Users Protective Ass ' n, 532 U.S. 1, 8-9 (2001).

In the instant case, we find that the information that is being withheld pursuant t o
Exemption (b )(5) is predecisional and deliberative in that it consists of evaluations, opinions, observations, and other findings CBP employees deemed critical as part of administering the border wall RFP process. Release of this information would reveal how CBP employees prioritized different facts, what facts they considered to be important, and considerations deliberated during the decision-making process. The authors of the various emails selected specific facts out of a larger group of facts to create their emails and this very act is deliberative in nature. In this respect, the emails contain evaluations, opinions, observations, potential challenges and concerns, and proposals that CBP employees involved in the border wall RFP process deemed significant. The act of distilling the evidence, which involves separating the significant facts from the insignificant facts, constitutes an exercise of judgment by agency personnel. Such selective facts are therefore entitled to the same protection as afforded to purely deliberative materials, as their release would permit indirect inquiry into the mental processes of employees and expose agency deliberations. If disclosed, this information could result in confusion regarding reasons and rationales that are not ultimately the grounds for the agency's actions and would chill open and frank discussions among those CBP employees that are involved in the border wall RFP process. This deliberative and pre-decisional information is precisely the type of material that the exemption was intended to cover as the information reflects agency deliberations. Therefore, Exemption (b)(5) has been applied throughout the documents to withhold this information from disclosure.

Exemption (b)(6) permits the Government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." Once the threshold requirement is met, Exemption (b)(6) requires a balancing of the public's right to know against an individual's right to privacy to determine whether disclosure of the records at issue would constitute a clearly unwarranted invasion of a person's privacy. Dep't of the Air Force v. Rose, 425 U.S. 352 (1976). It must be ascertained whether a protectable privacy interest exists that would be threatened by disclosure. In order to compel release of materials, there must be a public interest because "something, even a modest privacy interest outweighs nothing every time." Cappabianca v. Comm' r, U.S. Customs Serv., 847 F. Supp. 1558 (M.D. Fla. 1994).

In this case, we have determined that you have no genuine and significant interest in
the names and other identifying information of the Federal employees and other third-parties that are located in the documents and proposals, nor have you asserted any public interest in the disclosure of this information. Further, we find that the individual's right to privacy outweighs whatever public interest, if any, might exist in knowing information such as their identity. Accordingly, Exemption (b)(6) has been applied to withhold this information from disclosure in the documents and proposals that are being released to you as well as in the documents that are being withheld from disclosure.

In addition to Exemption (b)(6), the information identifying the Federal employees
and other third parties is also withheld under Exemption (b )(7)(C). Exemption (b)(7)(C)
provides protection for personal information in law enforcement records, the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal
privacy." The names of Federal employees as well as third-party individuals mentioned in
law enforcement records are exempt from disclosure pursuant to Exemption (b )(7)(C). This exemption is designed to protect, among other interests, the interests of law enforcement personnel from "harassment and annoyance in the conduct of their official duties and in their private lives" which could conceivably result from public disclosure of their identity. Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978). In addition, the exemption is also intended to protect third-parties whose identities are revealed in law enforcement files from comment, speculations, and stigmatizing connotation associated with being identified in a law enforcement record. Lesar v. United States, 636 F.2d 472 (D.C. Cir. 1980).

The documents under consideration in this case relate to construction of a border wall
which is meant to deter illegal crossings into the United States. Therefore, the records are
considered law enforcement records compiled in furtherance of CBP's law enforcement
mission. Moreover, the individuals whose privacy would be subject to invasion are identified in the various documents and proposals and such invasion of privacy is unwarranted. There is no public interest to be served by placing the identities or personally identifying information of the individuals before the public. Therefore, Exemption (b)(7)(C) has also been properly applied throughout the records to withhold this information from disclosure.

Exemption (b)(7)(E) exempts from disclosure information that would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law. See, Fisher v. U.S. Dep't of Justice, 772 F. Supp. 7 (D.D.C. 1991) (explicitly recognizing categorical protection for law enforcement techniques and procedures), affd, 968 F.2d 92 (1992); and, Hammes v. U.S. Customs Service, 1994 WL 693717 (S.D.N.Y. 1994) (protecting criteria used to determine which passengers to stop and examine). Exemption (b)(7)(E) is designed to provide categorical protection for law enforcement techniques and procedures. See, Beck v. U.S. Dep't of the Treasury, No. 88-493 (D.D.C. 1989), affd, 949 F.2d 1563 (D.C. Cir. 1992) (approving nondisclosure of certain documents because disclosure would reveal surveillance techniques used by Customs, as well as why certain individuals were contacted with regard to investigations).

In this case, Exemption (b)(7)(E) has been applied to withhold from disclosure sensitive law enforcement information. Examples of information redacted pursuant to FOIA
Exemption (b)(7)(E) includes information relating to detection and surveillance technologies, construction plans that could reveal potential border fence strengths or vulnerabilities to violators, and other sensitive information relating to U.S. Government border facilities and operations. This information has been withheld from disclosure in order to protect sensitive law enforcement information relating to CBP border plans, CBP operations, and U.S. Government facilities. In this respect, we note that the redacted information contains detailed security information and release of this data would enable individuals to develop countermeasures to evade border security, thereby circumventing the law. In making this determination, we additionally note that the border fence is a law enforcement tool that CBP utilizes to enforce the immigration and narcotics laws of the United States as well as to perform its homeland security mission. Therefore, this information is properly withheld from disclosure pursuant to FOIA Exemption (b)(7)(E).
This completes the CBP response to your request. You may contact a FOIA Public Liaison by sending an email via your FOIAonline account, or call 202-325-0150.

If you are not satisfied with the response to this request, you have a right to appeal the final disposition. Should you wish to do so, you must file your appeal within 90 days of the date of this letter following the procedures outlined in the DHS regulations at Title 6 C.F.R. §5.9. Please include as much information as possible to help us understand the grounds for your appeal. You should submit your appeal via FOIAonline by clicking on the "Create Appeal" button that appears when you view your initial request. If you do not have computer access, you may send your appeal and a copy of this letter to: FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection, 90 K Street, NE, 10th Floor, Washington, DC 20229-1177. Your envelope and letter should be marked "FOIA Appeal." Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia.

Additionally, you have a right to seek dispute resolution services from the Office of Government Information Services (OGIS) which mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. You may contact OGIS as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769.

Please notate file number CBP-2017-055620 on any future correspondence to CBP related to this request.

File 0001 - BW9 FOIA CBP 000001 - 000182_Part1 is attached to this email.

Thank you,
[signature for e-mail]
Jodi Drengson
Gov't Information Specialist
Office of Privacy and Diversity
jodi.drengson@dhs.gov

P Please consider the environment before printing this email.

Dave Maass
411A Highland Avenue
Somerville, MA 02144

Subject: Freedom of Information Act (FOIA) Request No. CBP-2017-055620

Dear Mr. Maass:

This is a final response to your Freedom of Information Act (FOIA) request to U.S. Customs and Border Protection (CBP), in which you are seeking emails sent to BorderWallDesignBuild@cbp.dhs.gov.

A search produced 5,672 pages of responsive documents. After reviewing the 5,672 pages of responsive documents, we have determined that 5,490 of the pages will be withheld from disclosure pursuant to FOIA Exemptions (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E) (5 U.S.C.§§ 552 (b)(3), (b)(4), (b)(5), (b)(6), (b)(7)(C) and (b)(7)(E)). The 5,490 pages of documents that are being withheld from disclosure consist primarily of unsuccessful contractor bid and proposal submission documents that were submitted to BorderWallDesignBuild@cbp.dhs.gov. In addition, we have determined that 110 pages of documents will be released to you with redactions made pursuant to FOIA Exemptions (b)(4), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). The remaining 72 pages of documents under consideration in this case are being released to you without redaction. The 182 pages of documents that are being released to you consist of various general emails and attachments that were submitted to BorderWallDesignBuild@cbp.dhs.gov and include general questions and answers pertaining to the RFP 's, internal CBP discussions, suggestions concerning the wall, and other similar information. Certain information from the successful proposal submissions is also being released with this decision. However, certain information on the successful proposals remains protected from disclosure under FOIA Exemptions (b)(4), (b)(6), (b)(7)(C), and (b)(7)(E). Below is a discussion of how we applied the FOIA Exemptions to make our determination in this case.

Exemption (b)(3) of the FOIA protects information specifically exempted from
disclosure by another statute, if the statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) established particular criteria for withholding or refers to particular types of matters to be withheld. In applying Exemption (b )(3), we initially note that The Court of Appeals for the District of Columbia Circuit has held that records may be withheld under the authority of another statute pursuant to Exemption (b)(3) "if- and only if - that statute meets the requirements of Exemption 3, including the threshold requirement that it specifically exempt matters from disclosure. "Reporters Comm. for Freedom of the Press v. DOJ, 816 F.2d 730, 734 (D.C. Cir. 1987), modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987), rev' d on other grounds, 489 U.S.749 (1989). In Reporters Committee, the D.C. Circuit further stated that "[a] statute that is claimed to qualify as an Exemption 3 withholding statute must, on its face, exempt matters from disclosure. [The court] must find a congressional purpose to exempt matters from disclosure in the actual words or the statute (or at least in the legislative history of FOIA) not in the legislative history of the claimed withholding statute, nor in an agency's interpretation of the statute." Reporters Comm., 816 F.2d at 735; see also, Pub. Citizen, 533 F.3d at 813-14; Nat'l Ass'n of Home Builders, 309 F.3d at 37 (finding that statute failed to qualify as withholding statute under Exemption (b)(3)).

Proposals in the possession or control of a Federal agency were specifically prohibited
from being disclosed to any person under the FOIA pursuant to The National Defense
Authorization Act of 1997 (codified at 41 U.S.C . § 253b(m) and currently located at 41
U.S.C . § 4702(b)). Under 41 U.S.C. § 4702(c), Federal agencies are prohibited from
releasing any such proposals unless a proposal is set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal.
"Proposal" is defined under the statute as a proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal. 41 U.S.C. § 4702(a). In this case, most of the emails that were sent to BorderWallDesignBuild@cbp.dhs.gov were submitted in response to the RFP's for prototype builds of the border wall and are considered to be proposals as defined under 41 U.S.C. § 4702(a). In this respect, the submissions contain concept papers, proposed contracts, financial information, technical diagrams, and other related information. We also note that most of the proposals that were submitted to this email account were not selected by CBP for inclusion in a contract or otherwise incorporated into a contract by reference. As noted above, any such proposals are clearly prohibited from release by statute. See also, Hornbostel v U.S. Dep't of the Interior, 305 F. Supp. 2d 21, 30 (D.D.C. 2003), summary affirmance granted, No. 03-5257, 2004 WL 1900562 (D .C. Cir. Aug. 25, 2004). Therefore, we have applied Exemption (b)(3) to withhold 5,318 pages of these documents from release.

Exemption (b)(4) of the FOIA protects trade secrets and commercial or financial
information obtained from a person [that is] privileged and confidential. Redactions have
been made pursuant to Exemption (b)(4) in this case to withhold information pertaining to contractor resources that are dedicated to construction, contractor border security capabilities, financial data, and other contract management information that is unique to each submitter such as specific measures undertaken to enhance overall contract performance. We note that Exemption (b)(4) has been applied to portions of the documents that are being released to you as well as to 4,999 pages of the documents that are being withheld in their entirety. Because the information that is being withheld does not relate to trade secrets, Exemption (b)(4) will only apply to: "(1) commercial and financial information, (2) obtained from a person or by the government, (3) that is privileged and confidential. " Watkins v. Customs & Border Protection, 2011 U.S. App. LEXIS 9443 at 9 (9th Cir. May 6, 2011).

As applied to the instant case, the information redacted pursuant to Exemption (b)(4)
is clearly commercial. Although not all information submitted to the government by a
commercial entity will be protected by Exemption (b)(4), the courts interpret the term broadly and extend the exemption to cover any information in which a third party has a "commercial interest." Baker & Hostetler LLP v. Department of Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006). Similarly, the information at issue was obtained by a "person," satisfying the second prong of Exemption (b)(4) ' s requirements. Courts also interpret this prong broadly so as to include any information submitted by "an individual, partnership, corporation, association or public or private organization other than the agency." Nadler v. FDIC, 92 F. 3d 93, 95 (2d Cir. 1996). Here, the redacted information was provided to CBP by private parties which each clearly fit the description of "person'' within the meaning of Exemption (b)(4).

We must next determine whether the redacted information is considered to be "privileged and confidential" within the meaning of Exemption (b)( 4). Whether information submitted to a federal agency is considered "confidential" under Exemption (b)(4) depends on whether the information was a required or voluntary submission to the government. If the government required submission of the information, the exemption will only protect commercial or financial material that is likely to: "(1) impair the government's ability to obtain necessary information in the future ; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained." National Parks and Conservation Association v. Morton, 498 F .2d 765, 770 (D.C. Cir 1974). In contrast, Exemption (b)(4) offers broader protection for any financial or commercial information provided to the government on a voluntary basis. In such situations, information will be protected in all cases so long as " it is of a kind that a provider would not customarily release to the public." Critical Mass Energy Project v. Nuclear Regulatory Commission, en bane. 975 F.2d 871 , 872 (D.C. Cir. 1992).

Here, each party voluntarily submitted a proposal in response to the RFP's in order to
be awarded a contract by CBP to build a prototype of the border wall. However, CBP
required the submission of the information at issue in order to adequately evaluate the
proposals and ultimately award the contracts to build the prototypes of the wall. Therefore, because CBP required the submissions, in order to qualify for protection under Exemption (b)(4), disclosure of the information must be likely to (1) impair the government's ability to obtain necessary information in the future; or (2) cause substantial harm to the competitive position of the person from whom the information was obtained.
In this case, we have determined that release of the information that is being withheld
would cause substantial harm to the competitive positions of the submitters. In this regard, release of the information would clearly reveal the competitive vulnerabilities and operational capabilities of various firms. Releasing the information that is being withheld would enable competitors to exploit this information for their benefit by enhancing their ability to obtain future government contracts by formulating and altering their business strategies. This would thereby substantially harm the competitive positions of the CBP contractors by undercutting their ability to obtain future contracts. Accordingly, we determine that this information is exempt from disclosure pursuant to Exemption (b)(4).

Exemption (b)(5) of the FOIA protects inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in litigation with the agency. The statutory language unequivocally incorporates all civil discovery rules into FOIA Exemption (b)(5). The three primary, most frequently invoked privileges that have been held to be incorporated into Exemption (b)(5) are the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege.
The most commonly invoked privilege incorporated within Exemption 5 is the
deliberative process privilege, the general purpose of which is to "prevent injury to the quality of agency decisions." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).
Specifically, three policy purposes consistently have been held to constitute the basis for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's actions. See , ~. Russell v. Dep't of the Air Force , 682 F .2d 1045 , 1048 (D.C. Cir. 1982) ; Coastal States Gas Corp. v . Dep' t of Energy, 617 F.2d 854 , 866 (D.C. Cir. 1980). Traditionally, the courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked. Petroleum Info. Com. v. United States Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992). First, the communication must be predecisional, and second, the communication must be deliberative in that it makes recommendations or expresses opinions on legal or policy matters. Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).

As applied, we initially note that the information withheld pursuant to the Exemption
(b)(5) deliberative process privilege includes internal CBP emails. In determining that this information is properly withheld from disclosure pursuant to Exemption (b)(5), we note that the initial consideration that must be made is whether the information being withheld is of the type intended to be covered by the phrase "inter-agency" or "intra-agency memorandums." The information being withheld pursuant to Exemption (b)(5) in this case was created by CBP employees in order to develop, examine, or propose CBP policies relating to the border wall RFP ' s. Therefore, the initial threshold requirement of Exemption (b )(5) is met in this case.

Having satisfied the threshold requirement of Exemption (b)(5), we must next consider whether the information that is being withheld is considered both predecisional and deliberative in nature. In considering this issue, we note that the Supreme Court has held that" (a)gencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions .. . ''. Sears, 421 U. S. at 151 n. 18. As such, courts have held that Exemption (b)(5) can be applicable if documents are generated as part of such a continuing process of decision making. See, ~. Cassad v HHS, 301 F .3d 124 7 , 1252 (1 0 1h Cir. 2002). Categories of documents that are routinely protected by the deliberative process privilege are "advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." Sears, 421 U.S. at 150. They are protected because, by their very nature, their release would likely "stifle honest and frank communication within the agency." Coastal States, 617 F.2d at 866. To this end, it has been recognized that "[t]he deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news." See, Dep't of the Interior v. Klamath Water Users Protective Ass ' n, 532 U.S. 1, 8-9 (2001).

In the instant case, we find that the information that is being withheld pursuant t o
Exemption (b )(5) is predecisional and deliberative in that it consists of evaluations, opinions, observations, and other findings CBP employees deemed critical as part of administering the border wall RFP process. Release of this information would reveal how CBP employees prioritized different facts, what facts they considered to be important, and considerations deliberated during the decision-making process. The authors of the various emails selected specific facts out of a larger group of facts to create their emails and this very act is deliberative in nature. In this respect, the emails contain evaluations, opinions, observations, potential challenges and concerns, and proposals that CBP employees involved in the border wall RFP process deemed significant. The act of distilling the evidence, which involves separating the significant facts from the insignificant facts, constitutes an exercise of judgment by agency personnel. Such selective facts are therefore entitled to the same protection as afforded to purely deliberative materials, as their release would permit indirect inquiry into the mental processes of employees and expose agency deliberations. If disclosed, this information could result in confusion regarding reasons and rationales that are not ultimately the grounds for the agency's actions and would chill open and frank discussions among those CBP employees that are involved in the border wall RFP process. This deliberative and pre-decisional information is precisely the type of material that the exemption was intended to cover as the information reflects agency deliberations. Therefore, Exemption (b)(5) has been applied throughout the documents to withhold this information from disclosure.

Exemption (b)(6) permits the Government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." Once the threshold requirement is met, Exemption (b)(6) requires a balancing of the public's right to know against an individual's right to privacy to determine whether disclosure of the records at issue would constitute a clearly unwarranted invasion of a person's privacy. Dep't of the Air Force v. Rose, 425 U.S. 352 (1976). It must be ascertained whether a protectable privacy interest exists that would be threatened by disclosure. In order to compel release of materials, there must be a public interest because "something, even a modest privacy interest outweighs nothing every time." Cappabianca v. Comm' r, U.S. Customs Serv., 847 F. Supp. 1558 (M.D. Fla. 1994).

In this case, we have determined that you have no genuine and significant interest in
the names and other identifying information of the Federal employees and other third-parties that are located in the documents and proposals, nor have you asserted any public interest in the disclosure of this information. Further, we find that the individual's right to privacy outweighs whatever public interest, if any, might exist in knowing information such as their identity. Accordingly, Exemption (b)(6) has been applied to withhold this information from disclosure in the documents and proposals that are being released to you as well as in the documents that are being withheld from disclosure.

In addition to Exemption (b)(6), the information identifying the Federal employees
and other third parties is also withheld under Exemption (b )(7)(C). Exemption (b)(7)(C)
provides protection for personal information in law enforcement records, the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal
privacy." The names of Federal employees as well as third-party individuals mentioned in
law enforcement records are exempt from disclosure pursuant to Exemption (b )(7)(C). This exemption is designed to protect, among other interests, the interests of law enforcement personnel from "harassment and annoyance in the conduct of their official duties and in their private lives" which could conceivably result from public disclosure of their identity. Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978). In addition, the exemption is also intended to protect third-parties whose identities are revealed in law enforcement files from comment, speculations, and stigmatizing connotation associated with being identified in a law enforcement record. Lesar v. United States, 636 F.2d 472 (D.C. Cir. 1980).

The documents under consideration in this case relate to construction of a border wall
which is meant to deter illegal crossings into the United States. Therefore, the records are
considered law enforcement records compiled in furtherance of CBP's law enforcement
mission. Moreover, the individuals whose privacy would be subject to invasion are identified in the various documents and proposals and such invasion of privacy is unwarranted. There is no public interest to be served by placing the identities or personally identifying information of the individuals before the public. Therefore, Exemption (b)(7)(C) has also been properly applied throughout the records to withhold this information from disclosure.

Exemption (b)(7)(E) exempts from disclosure information that would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law. See, Fisher v. U.S. Dep't of Justice, 772 F. Supp. 7 (D.D.C. 1991) (explicitly recognizing categorical protection for law enforcement techniques and procedures), affd, 968 F.2d 92 (1992); and, Hammes v. U.S. Customs Service, 1994 WL 693717 (S.D.N.Y. 1994) (protecting criteria used to determine which passengers to stop and examine). Exemption (b)(7)(E) is designed to provide categorical protection for law enforcement techniques and procedures. See, Beck v. U.S. Dep't of the Treasury, No. 88-493 (D.D.C. 1989), affd, 949 F.2d 1563 (D.C. Cir. 1992) (approving nondisclosure of certain documents because disclosure would reveal surveillance techniques used by Customs, as well as why certain individuals were contacted with regard to investigations).

In this case, Exemption (b)(7)(E) has been applied to withhold from disclosure sensitive law enforcement information. Examples of information redacted pursuant to FOIA
Exemption (b)(7)(E) includes information relating to detection and surveillance technologies, construction plans that could reveal potential border fence strengths or vulnerabilities to violators, and other sensitive information relating to U.S. Government border facilities and operations. This information has been withheld from disclosure in order to protect sensitive law enforcement information relating to CBP border plans, CBP operations, and U.S. Government facilities. In this respect, we note that the redacted information contains detailed security information and release of this data would enable individuals to develop countermeasures to evade border security, thereby circumventing the law. In making this determination, we additionally note that the border fence is a law enforcement tool that CBP utilizes to enforce the immigration and narcotics laws of the United States as well as to perform its homeland security mission. Therefore, this information is properly withheld from disclosure pursuant to FOIA Exemption (b)(7)(E).
This completes the CBP response to your request. You may contact a FOIA Public Liaison by sending an email via your FOIAonline account, or call 202-325-0150.

If you are not satisfied with the response to this request, you have a right to appeal the final disposition. Should you wish to do so, you must file your appeal within 90 days of the date of this letter following the procedures outlined in the DHS regulations at Title 6 C.F.R. §5.9. Please include as much information as possible to help us understand the grounds for your appeal. You should submit your appeal via FOIAonline by clicking on the "Create Appeal" button that appears when you view your initial request. If you do not have computer access, you may send your appeal and a copy of this letter to: FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection, 90 K Street, NE, 10th Floor, Washington, DC 20229-1177. Your envelope and letter should be marked "FOIA Appeal." Copies of the FOIA and DHS regulations are available at www.dhs.gov/foia.

Additionally, you have a right to seek dispute resolution services from the Office of Government Information Services (OGIS) which mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. You may contact OGIS as follows: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769.

Please notate file number CBP-2017-055620 on any future correspondence to CBP related to this request.

File 0001 - BW9 FOIA CBP 000001 - 000182_Part4 is attached to this email.

Thank you,
[signature for e-mail]
Jodi Drengson
Gov't Information Specialist
Office of Privacy and Diversity
jodi.drengson@dhs.gov

P Please consider the environment before printing this email.