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American Immigration Council v. United States Department of Homeland Security

United States District Court, District Circuit

June 24, 2013

AMERICAN IMMIGRATION COUNCIL, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG United States District Judge

Plaintiff American Immigration Council brought this action under the Freedom of Information Act seeking records on immigrants’ access to legal counsel during their interactions with U.S. Immigration and Customs Enforcement authorities. Defendant ICE (a component of the Department of Homeland Security, the second Defendant) eventually produced nearly 8, 000 pages of responsive records, withholding and partially redacting hundreds of pages. In its suit, Plaintiff challenges the sufficiency of Defendants’ search for responsive records, as well as the propriety of many of their withholdings. Arguing they have complied with their obligations, Defendants now move for summary judgment on both issues. As to the first, the Court concludes that an issue of material fact exists as to whether Defendants conducted a sufficiently exhaustive search to satisfy FOIA. Having also reviewed Defendants’ justifications for their various withholdings and having examined their redactions in camera, the Court further finds that Defendants have not provided sufficient information for it to determine whether any of the withholdings are proper. Denial of Defendants’ Motion for Summary Judgment thus results.

I. Background

In March 2011, the American Immigration Council (AIC) submitted the following FOIA request concerning individuals’ access to legal counsel during their interactions with U.S. Immigration and Customs Enforcement authorities:

[A]ny and all records which have been prepared, received, transmit1ted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Immigration and Customs Enforcement (ICE), whether issued or maintained by ICE Headquarters offices (including but not limited to the Office of the Assistant Secretary (OAS), Enforcement and Removal Operations (ERO), Homeland Security Investigations (HIS) [sic], Management and Administration, Office of the Principal Legal Advisor (OPLA), and the Office of Detention Policy and Planning (ODPP), including any divisions, subdivisions or sections therein); ICE field offices, including any divisions, subdivisions or sections therein; local Offices of Chief Counsel; and/or any other ICE organizational structure; and which relate or refer in any way to any of the following:
• Attorneys’ ability to be present during their clients’ interactions with ICE;
• What role attorneys may play during their clients’ interactions with ICE;
• Attorney conduct during interactions with ICE on behalf of their clients;
• Attorney appearances at ICE offices or other facilities.

Compl., Exh. A (Letter from Emily Creighton, AIC, to FOIA Office, U.S. Immigrations and Customs Enforcement (March 14, 2011)) at 1 (footnote omitted). The request “include[d], but [was] not limited to” thirteen specific types of records. Id. at 1-3.

After more than a year without receiving any records and three unsuccessful administrative appeals of actual and constructive denials of its request, AIC concluded that it had exhausted its administrative remedies and filed suit in this Court. See Compl., ¶¶ 15-24; see also 5 U.S.C. § 552(a)(6)(A)-(C) (under normal circumstances, agency must make an initial determination within 20 days, with another 20 days allotted for administrative appeal; where the agency exceeds its time limits, requester will be deemed to have exhausted administrative remedies).

Two and a half months after AIC filed its Complaint with this Court, ICE processed 1, 084 pages of responsive documents and produced them. See Joint Motion to Stay These Proceedings, ¶ 4. Shortly thereafter, ICE “identified an additional 6, 000 or so pages of documents” that it deemed potentially responsive to AIC’s request. Id., ¶ 5. The parties jointly requested a brief stay of the proceedings to allow ICE to review and produce additional documents on a rolling basis. Id., ¶¶ 6-7. The Court granted this request on August 20, 2012.

ICE then processed 6, 906 pages of further records in five rolling productions, withholding portions of the records pursuant to various FOIA exemptions. See Mot., Attach. 1 (Defendant Statement of Material Facts (SMF)), ¶¶ 20-21; Opp., Attach. 1 (Plaintiff Response to Def. SMF), ¶¶ 20-21. ICE also provided AIC with a summary Vaughn Index for the purpose of identifying information in its withholdings. See Def. SMF, ¶ 23.

On January 9, 2013, the parties entered into a joint stipulation acknowledging AIC’s receipt and review of the 6, 906 additional pages of documents, many of which ICE had redacted in whole or in part pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). See Mot., Exh. 2 (Joint Stipulation), ¶¶ 1-2. AIC agreed that it would not challenge ICE’s whole or partial redactions for the following page ranges: 0216-0221, 0242-0432, 0449-0518, 0550-0581, 0584-0620, 0658-0724, 0748-0781, 0803-0816, 0821-0822, 0830-0840, 0845-0847, 0855, 0859, 0890, 0899, 0918-0919, 0924, 0934, 0948-0962, 0967-0984, and 1085-6906. See id., ¶¶ 2-3.

On January 25, 2013, Defendants filed a Motion for Summary Judgment, claiming that they had conducted a reasonable search in response to Plaintiff’s request, produced all responsive documents, and properly withheld certain records pursuant to various FOIA exemptions. See Mot. at 7-21. AIC contests the Motion, arguing that Defendants failed to demonstrate that their search was adequate, that the descriptions of their withholdings are insufficient as a whole, and that they improperly withheld various documents. See Opp. at 5-33.

On April 25, this Court ordered Defendants to produce the remaining disputed documents for in camera review. Thereafter, Defendants produced the documents, which number nearly 600 pages. The Court has since reviewed the redactions along with Defendants’ various justifications.

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations when they “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). Such affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’” U.S. Dep’t of Justice v. Reporters Com. for the Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

III. Analysis

Plaintiff contends that Defendants erred in two essential areas. First, AIC claims that ICE failed to conduct an adequate search for responsive records. See Opp. at 7-16. Second, AIC asserts that ICE improperly withheld multiple records pursuant to several FOIA exemptions. See id. at 16-35. Given that ICE has demonstrated neither the adequacy of its search nor the propriety of its withholdings, the Court cannot grant Defendants’ Motion on either ground.

A. Adequacy of Search

FOIA requires government agencies to describe their searches in sufficient detail for a court to determine whether the search was sufficiently exhaustive to satisfy the Act. Nation Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995); Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). To describe its search in this case, ICE relies on two declarations from its Deputy FOIA Officer, Ryan Law. See Mot., Exh. 1 (Declaration of Ryan Law); Reply, Exh. 1 (Supplemental Declaration of Ryan Law). Those declarations, ICE contends, demonstrate that the search it undertook was reasonable. They describe, inter alia, the ICE departments searched, the employees who conducted the searches, the “search terms utilized, ” and “the databases, physical spaces, and other computer files searched.” Reply at 7-8.

Plaintiff raises several objections to ICE’s search, which it argues preclude summary judgment on this issue. These objections fall into three categories: First, that ICE failed to explain why it excluded certain departments and local field offices from its search, see Opp. at 10-12, Sur-Reply at 5; second, that ICE has not described its search in sufficient detail to allow this Court to assess its reasonableness, see Opp. at 5-12; Sur-Reply at 6-7; and, third, that countervailing evidence indicates the actual search ICE conducted was not adequate. See Reply at 12-16; Sur-Reply at 7.

As the Court ultimately finds the first two objections persuasive, it concludes that an issue of material fact remains as to whether the agency’s search was adequate.

1. Selection of Offices & Files to Search

Plaintiff first argues that Defendants have failed to explain why they have not searched certain offices, sub-offices, and field offices that are likely to contain responsive records. It additionally complains that, within those departments ICE did search, ICE improperly omitted filing systems that are likely to contain responsive records.

As a first step, “[u]pon receiving Plaintiff’s FOIA request . . . the ICE FOIA Office reviewed the request and determined that based on the subject matter of the FOIA request that the following offices and divisions as likely possessing records responsive [sic].” Law Decl., ¶ 20. Indeed, this appears to be the normal practice of the agency: “When the ICE FOIA Office receives a FOIA request, its first step is to identify which program offices within ICE are most likely to possess records responsive to that request and to initiate searches within those program offices.” Id., ¶ 7. Similarly, in deciding which filing systems within a department to search, the agency explains: “These terms and locations were used as they were determined by the person familiar with the records within [an ICE department] to be relevant to the request and reasonably calculated to uncover relevant documents.” Suppl. Law Decl., ¶ 37; see also id. ¶¶ 27, 43.

In order for such a methodology to be sufficient, ICE would, at a minimum, have to aver that it has searched all files likely to contain relevant documents. Agencies regularly make such attestations when they use similar methods of selecting which departments and files to search. For example, in Brehm v. Dep’t of Def., 593 F.Supp.2d 49 (D.D.C. 2009), the government agency selected two filing systems that it determined were “likely to contain responsive records.” Id. at 50. The defendant, however, additionally averred that “it is unlikely that other CIA directorates would possess records responsive to Plaintiff’s request.” Id.; see also Nation Magazine, 71 F.3d at 891 (agency attested that it had “made a comprehensive search through all of its records systems where [records] responsive to the Plaintiffs request could conceivable [sic] be maintained and failed to locate any [responsive] records”).

Where the government has not made such an attestation, courts have typically found that an issue of material fact exists as to the adequacy of the search. In Jefferson v. Bureau of Prisons, No. 05-848, 2006 WL 3208666 (D.D.C. Nov. 7, 2006), for example, the court found the FBI’s search inadequate because its declaration did not “aver that the FBI searched all files likely to contain responsive records.” Id. at *6. Likewise, in Bonaparte v. U.S. Dept. of Justice, 531 F.Supp.2d 118 (D.D.C. 2008), the court found the search inadequate in part because the Defendants had not averred that “all files likely to contain responsive materials . . . were searched.” Id. at 122. And in Maydak v. U.S. Dep’t of Justice, 362 F.Supp.2d 316 (D.D.C.2005), the court lamented that “no one avers, and the record does not otherwise permit the inference that all files likely to contain responsive records were searched.” Id. at 326.

Here, similarly, Defendants have not indicated that all those offices and records systems likely to contain responsive records have been searched. ICE has only stated that it identified certain offices as “most likely to possess records responsive to [Plaintiff’s] request.” Law Decl., ¶ 7; see also id., ¶ 20. The D.C. Circuit rejected just such an attestation in Oglesby, 920 F.2d at 68. There, the defendant selected the departments and filing systems it searched in much the same manner that ICE did in this case: “Based upon the information contained in [the plaintiff’s] letter, and consistent with customary practice and established procedure, a search was initiated of the Department record system most likely to contain the information which had been requested . . . namely, the Central Records.” Id. The plaintiff complained that in response to his FOIA request, “the agency only searched the record system ‘most likely’ to contain the requested information.” Id. The D.C. Circuit held that, while an agency need not search every one of its record systems, a “reasonably detailed affidavit . . . averring that all files likely to contain responsive materials . . . were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment.” Id. Such an assurance is necessary because

the agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested. It is not clear from [the government’s] affidavit that the Central Records system is the only possible place that responsive records are likely to be located. At the very least, [the government] was required to explain in its affidavit that no other record system was likely to produce responsive documents.

Id. (emphasis original).

While this averment may seem a technical requirement, the facts of this case demonstrate its importance. Plaintiff argues that certain offices, sub-offices, and filing systems should have been searched, see Opp. at 9, Sur-Reply at 5, but the Court cannot begin to analyze such a contention until it knows ICE’s ...


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