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American Civil Liberties Union v. United States Department of Homeland Security

September 15, 2011

AMERICAN CIVIL LIBERTIES UNION, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The present case arises from a request for records that the plaintiff, the American Civil Liberties Union ("ACLU"), submitted to the defendants, the Department of Homeland Security (the "Department") and several of its component divisions-the Office for Civil Rights and Civil Liberties ("Civil Rights Office"), the Office of Inspector General ("OIG"), and Immigration and Customs Enforcement ("ICE"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006). Complaint ("Compl.") ¶ 1. Not satisfied with the defendants' production of records responsive to its request, the plaintiff filed its Complaint in this Court. See id. The parties then filed cross-motions for summary judgment, which the Court granted in part and denied in part. ACLU v. U.S. Dep't of Homeland Security, 738 F. Supp. 2d 93, 97 (D.D.C. 2010). The plaintiff now moves for an award of $223,469.09 in attorneys' fees and costs incurred during the course of the litigation pursuant to 5 U.S.C. § 552(a)(4)(E), Plaintiff's Motion for an Award of Attorneys' Fees and Costs ("Mot.") at 1, which the defendants oppose,*fn1

Defendants' Opposition to Plaintiff's Motion for Attorneys' Fees and Costs ("Defs.' Opp'n") at 1.*fn2

For the following reason, the Court must grant the plaintiff's motion, minus deductions totaling $8,087.50 ($7,758.00 329.50).

I.BACKGROUND

On June 27, 2007, the plaintiff submitted a FOIA request to the Department, "seeking, inter alia, records pertaining to the deaths of immigrants [while] in [the Department's] custody." Compl. ¶ 2. According to the plaintiff, "[s]everal of these deaths had been attributed to deficient medical care provided to those detainees despite the Government's duty to supply adequate medical care and treatment to them," and the OIG subsequently found "serious problems with the delivery of health care at four [out] of five detention facilities reviewed." Id. ¶ 3. Because the plaintiff perceived an "ongoing risk of death or serious bodily injury to the hundreds of thousands of people detained by ICE each year," and that the public had "[an] urgent need to be informed of the federal government's activities in this area," the plaintiff sought expedited processing of its request pursuant to 5 U.S.C. § 552(a)(6)(E) and the applicable regulations. Id. ¶ 4. On July 11, 2007, the Department acknowledged receipt of the request, denied the plaintiff's request for expedited processing, and referred the request to the OIG and ICE. Defs.' Opp'n, Exhibit ("Ex.") 1 (Declaration of Katherine R. Gallo ("Gallo Decl.")) ¶¶ 5-6; Compl., Ex. 2 (July 11, 2007 letter from Vania T. Lockett to Tom Jawetz) at 2-3.

1. The OIG's Response

The OIG acknowledged receipt of the plaintiff's FOIA request on July 18, 2007, and denied the plaintiff's request for expedited processing because, inter alia, it had failed to "adequately demonstrate[] a particular urgency to inform the public regarding the subject matter of [its] request." Compl., Ex. 4 (July 18, 2007 letter from Katherine R. Gallo to Tom Jawetz) at 1. On November 5, 2007, the plaintiff sent a letter to the OIG seeking reconsideration of the OIG's refusal to grant expedited processing. Compl., Ex. 8 (November 5, 2007 letter from Tom Jawetz to Nikki Gramian) at 1. The OIG did not act on the letter because it interpreted the plaintiff's letter as "an appeal," which "should have been directed to" the Associate General Counsel for General Law at the Department. Id., Ex. 24 (December 7, 2007 e-mail from Nikki Gramian to Tom Jawetz) at 1. The plaintiff then lodged an appeal with the Associate General Counsel, id., Ex. 26 (December 7, 2007 letter from Tom Jawetz to the Associate General Counsel (General Law), Department of Homeland Security) at 1, which was denied on January 4, 2008, because the request was filed "well past the 60[-]day filing requirement" under 6 C.F.R. § 5.9(a), id., Ex. 27 (January 4, 2008 letter from Victoria Newhouse to Tom Jawetz) at 1.

On May 5, 2008, the plaintiff once again requested that the OIG reconsider its denial of expedited processing. Defs.' Opp'n, Ex. 1 (Gallo Decl.), Ex. C (May 5, 2008 e-mail exchange between Tom Jawetz to Stephanie Kuehn) at 1. The impetus behind the plaintiff's renewed request for reconsideration was a New York Times article "that highlight[ed] the problem of deaths in ICE custody," which the plaintiff believed "demonstrate[d] that the government's efforts to investigate deaths in custody are of special importance to the public." Id. At the time the plaintiff filed its request for reconsideration, the OIG had only released a single page of responsive records. See Pl.'s Mot. Summ. J., Ex. 1 (Declaration of Benjamin R. Walker ("Walker Decl.")), Ex. 1 (September 27, 2007 letter from Katherine R. Gallo to Tom Jawetz) at 1. On May 12, 2008, the OIG informed the plaintiff that it would not reconsider its decision, and that it had already begun processing the plaintiff's request. Compl., Ex. 28 (May 12, 2008 e-mail exchange between Tom Jawetz and Stephanie Kuehn).

2. ICE's Response

On July 24, 1997, ICE, similar to the OIG, also denied the plaintiff's initial response for expedited processing of its FOIA request because ICE concluded that the plaintiff "failed to demonstrate a particular urgency to inform the public about the government activity involved in the request beyond the public's right to know about government activity generally." Id., Ex. 5 (July 24, 2007 Letter from Catrina M. Pavlik-Keenan to Tom Jawetz) at 1. On November 5, 2007, the plaintiff requested that ICE reconsider its denial of the plaintiff's request for expedited processing of the plaintiff's FOIA request, and ICE reconsidered and granted the request on November 15, 2007. Defs. Opp'n, Ex. 11 (Declaration of Ryan Law ("Law Decl.")) ¶ 5. ICE then provided a "final response" to the plaintiff on January 4, 2008, in which it produced 856 pages of records to the plaintiff, with only thirty-three documents containing no redactions. Compl., Ex. 11 (January 4, 2008 letter from Catrina M. Pavlik-Keenan to Tom Jawetz ("January 4, 2008 letter")) at 1-4. ICE also withheld numerous documents under the various FOIA exemptions delineated in 5 U.S.C. § 552(b); see generally id., Ex. 11 (January 4, 2008 letter) (explaining the FOIA exemptions that justify ICE's decision to withhold certain records).

Believing the search and ultimate production of responsive documents inadequate, the plaintiff requested on February 15, 2008, that ICE provide a Vaughn index describing the FOIA exemptions relied upon by ICE to withhold documents. See id., Ex. 12 (February 15, 2008 e-mails between Tom Jawetz and Catrina M. Pavlik-Keenan ("February 15, 2008 e-mails")) at 1. ICE refused to supply the index, however, because of its policy of not creating "Vaughn Indexes for FOIA requests that are not in litigation." Id. The plaintiffs then filed an appeal with the Office of General Counsel on March 3, 2008, "challeng[ing] the thoroughness of the search, as well as the decision to withhold, in part and in full, various records." Compl., Ex. 22 (March 3, 2008 FOIA appeal from Tom Jawetz to ICE) at 1. Because of the pending litigation in this Court, ICE informed the plaintiff on July 30, 2008, that it was "administratively closing this appeal."

Pl.'s Mot. Summ. J., Ex. 1 (Walker Decl.), Ex. 6 (July 30, 2008 Letter from Victoria Newhouse to Tom Jawetz) at 1.

3. The Current Litigation "Frustrated" by the defendants' response to its FOIA request, the plaintiff filed its Complaint in this Court on June 25, 2008. Pl.'s Mem. at 5. In the Complaint, the plaintiff requested that the Court issue an order (1) directing the defendants "to expedite the proceedings in this action," Compl. ¶ 83, (2) "[e]njoin[ing the d]efendants from withholding the requested [r]ecords," id. ¶ 84, (3) directing the "[d]efendants to produce the [r]ecords," id. ¶ 85, and (4) "[a]ward[ing the p]laintiff its costs and reasonable attorney[s'] fees in this action," id. ¶ 86. Soon after the filing of the Complaint, in approximately July and August of 2008, the OIG provided two "interim responses" to the plaintiff's FOIA request, releasing approximately 1,400 pages of records and referring more than 4,000 pages to other entities. Defs.' Mem. Summ. J., Ex. 1 (First Declaration of Katherine R. Gallo ("First Gallo Decl."), Exs. 10-11 (July 23 and August 21, 2008 letters from Katherine R. Gallo to Tom Jawetz) at 1-2.

On October 30, 2008, the parties filed a Joint Report with the Court, stating that the OIG and ICE would complete the processing of the plaintiff's request by November 14, 2008, and that the Department would search for records within its Civil Rights Office. October 30, 2008 Joint Report to the Court ("First Joint Report") at 2. The OIG then provided its "third[] and final response" on November 13, 2008, producing 321 additional pages of documents. Defs.' Mem. Summ. J., Ex. 1 (First Gallo Decl.), Ex. 12 (November 13, 2008, letter from Katherine R. Gallo to Tom Jawetz) at 1-2. Shortly thereafter, ICE produced its second "final response" on November 17, 2008, releasing 2,600 pages of additional documents, many of which were referrals from the OIG. Defs.' Mem. Summ. J., Declaration of Catrina Pavlik-Keenan ("First Pavlik-Keenan Decl."), Ex. 14 (November 17, 2008 letter from Catrina M. Pavlik to Tom Jawetz) at 1-4.

The parties then filed a second Joint Report with the Court on December 5, 2008. December 5, 2008 Joint Report to the Court ("Second Joint Report"). This Report indicated that ICE would complete its production of responsive documents by December 9, 2008, the Office of Civil Rights would complete its production by December 19, 2008, and that the OIG, ICE, and the Office of Civil Rights would produce Vaughn indexes describing their search methodologies. Id. ΒΆΒΆ 1-4. On December 19, 2008, ICE released approximately 250 additional pages of documents in its third "final response" to the ...


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