*fn6,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,JUDICIAL WATCH, INC., PLAINTIFF, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, DEFENDANT." />

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Judicial Watch, Inc v. United States Department of Homeland Security

April 30, 2012 *fn6

JUDICIAL WATCH, INC., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



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

MEMORANDUM OPINION

Judicial Watch, Inc. ("Judicial Watch") brings this action against the United States Department of Homeland Security (the "DHS") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), seeking the disclosure of records relating to a survey of illegal immigrants. Complaint for Declaratory and Injunctive Relief ("Compl.") ¶¶ 5, 10. Currently before the Court are the parties' renewed cross-motions for summary judgment concerning the issue of whether the DHS conducted an adequate search for records responsive to Judicial Watch's FOIA request. Upon careful consideration of the parties' submissions,*fn1 the Court concludes for the following reasons that the DHS's motion must be denied without prejudice, and that Judicial Watch's motion must be granted in part and denied in part without prejudice.

I. BACKGROUND

The DHS is comprised of several component agencies, two of which are implicated in this case: United States Customs and Border Protection ("Customs") and United States Citizenship and Immigration Services ("Immigration"). See Organizational Chart, U.S. Department of Homeland Security, (Nov. 5, 2010), http://www.dhs.gov/xlibrary/assets/dhsorgchart.pdf. The United States Border Patrol ("Border Patrol") is a subcomponent of Customs, see DHS's Mem., Declaration of Magda Ortiz ("Ortiz Decl.") at 1, and it consists of numerous "[s]ector offices" covering different regions of the United States, DHS's Facts ¶¶ 45-46. The Office of Records Services (the "FOIA Office"), a component office of Immigration, processes FOIA requests on behalf of the Border Patrol. DHS's Mem., Ortiz Decl. at 1.

On February 27, 2004, Judicial Watch submitted a FOIA request to the DHS seeking records relating to a survey of illegal immigrants conducted by the Border Patrol in January 2004 ("amnesty survey"). Pl.'s Facts ¶ 2; DHS's Facts ¶ 1. Specifically, the request sought the following eight categories of records:

(1) Any and all records that refer and/or relate to a survey, developed by Border Patrol officials in Washington, of illegal aliens detained at the US-Mexican border, that had sought to establish whether "rumors of amnesty" had influenced their decision to cross into the United States.

(2) Any and all records that refer and/or relate to the number(s) of illegal immigrants entering the United States as a result of the amnesty and/or guest worker program and/or immigration reforms proposed by President George W. Bush on January 7, 2004.

(3) Any and all records that refer and/or relate to the decision to discontinue the survey on or about January 27, 2004.

(4) Any and all records that refer and/or relate to the results of any survey of illegal immigrants entering the United States as a result of the amnesty and/or guest worker program and/or immigration reforms proposed by President George W. Bush on January 7, 2004. (5) Any and all records that refer and/or relate to the number of illegal immigrants apprehended in San Diego county from January 7, 2004 to the present.

(6) Any and all records that refer and/or relate to the reported 13 questions contained on said questionnaire(s).

(7) Any and all records that refer and/or relate to the decision to instruct border patrol agents "not to talk about amnesty, an increase in apprehensions, or give comparisons of past immigration reform proposals" when talking with the media.

(8) The "talking points" distributed nationwide in which border agents are "not to talk about amnesty[,] an increase in apprehensions, or give comparisons of past immigration reform proposals."

Pl.'s Facts ¶ 2. Judicial Watch received a letter from the DHS acknowledging receipt of its FOIA request on March 2, 2004. Id. ¶ 3. After receiving no "substantive response" from the DHS, Judicial Watch instituted this lawsuit on June 3, 2004. Id. ¶¶ 5-7.

Judicial Watch's FOIA request was then forwarded to the Border Patrol on June 10, 2004. DHS's Facts ¶ 2. Upon receiving the request, the Border Patrol "sent out search requests" only to those "offices and personnel that were likely to have responsive records." Id. ¶ 3. "These offices were the [Border Patrol's] Southwest Border Sectors and Headquarters' liaison agents; the Office of Congressional Affairs; the Office of Policy and Planning, and the [Border Patrol's] Headquarters [l]iaison [a]gents who had duties relating to the Southwest border." Id. The "search requests directed the recipients to provide a copy of all responsive records[, and] if no records were found, that information was to be conveyed as well." DHS's Mem., Ortiz Decl. at 5. The Border Patrol "determined that other offices within [Customs] would not have responsive records, and did not forward the FOIA request to those offices." DHS's Facts ¶ 4.

Responsive records were located by the various offices and then forwarded to the FOIA Office for processing. Id.

The DHS produced its first set of responsive records to Judicial Watch on May 6, 2005. Id.; Pl.'s Facts ¶ 8. Of the 965 pages of records it identified as responsive to Judicial Watch's FOIA request, the DHS released 88 pages in full and 852 pages in part, and it withheld 25 pages in full. DHS's Facts ¶ 4. On June 15, 2005, the DHS released to Judicial Watch five pages previously withheld in full, and on August 26, 2005, it released a spreadsheet containing results from the amnesty survey. DHS's Facts ¶¶ 7-8; Pl.'s Facts ¶ 11.

On February 9, 2006, this Court granted the DHS's motion for a 90-day stay to allow the agency to conduct a second search for responsive records. See February 9, 2006 Order, Judicial Watch v. DHS, Civil Action No. 04-907 (D.D.C.) (RBW). That same day, "the Acting Commissioner of [Customs] signed a memorandum directing every office within [Customs] to conduct a new search for records responsive to [Judicial Watch's] FOIA request." DHS's Facts

¶ 13 (emphasis added). "The February 2006 search was more extensive than the prior searches because every [Customs] office was ordered to search for responsive documents instead of the offices where such documents would logically reside." Id. The Acting Commissioner's memorandum "set[] forth the eight categories of information specified in the original FOIA request by [Judicial Watch]" and "directed each office to identify potentially responsive documents." Id. ¶ 14 (internal quotation marks omitted). The memorandum also instructed responding offices to "describe[] in detail how the search was actually conducted," including information such as (1) "who in your office directed the search"; (2) "how the relevant agency files are kept"; (3) "where these files are located"; (4) "where your office looked for responsive records"; (5) "the date(s) you conducted this search"; (6) "the search terms or process used by your office to conduct this search when searching databases or other record systems"; and (7) "which documents were identified using each such search." DHS's Mem., Declaration of Shari Suzuki ("First Suzuki Decl."), Exhibit ("Ex.") 1 (Memorandum re Search for Responsive Records) at 2. According to the DHS, "[e]ach office within [Customs] conducted a search for responsive records and provided information . . . in accord with the [Acting] ...


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