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American Immigration Council v. United States Department of Homeland Security

United States District Court, District of Columbia

March 5, 2014

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

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For AMERICAN IMMIGRATION COUNCIL, Plaintiff: Creighton R. Magid, Frederick G. Jauss, IV, LEAD ATTORNEYS, DORSEY & WHITNEY, LLP, Washington, DC; Michelle S. Grant, LEAD ATTORNEY, PRO HAC VICE, DORSEY & WHITNEY LLP, Minneapolis, MN; Beth Jennifer Werlin, AMERICAN IMMIGRATION COUNCIL'S LEGAL ACTION CENTER, Washington, DC; Melissa E. Crow, AMERICAN IMMIGRATION COUNCIL, Washington, DC.

For UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants: Wynne Patrick Kelly, LEAD ATTORNEY, U.S. Attorney's Office, Civil Division, Washington, DC.

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MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

This dispute started with a Freedom of Information Act request by the American Immigration Council, an immigration law and policy group, seeking information about individuals' access to counsel during their interactions with Immigration and Customs Enforcement. After the government repeatedly refused to release documents responsive to AIC's request, the group sued the Department of Homeland Security and ICE. Defendants finally produced certain responsive documents and moved for summary judgment, which this Court rebuffed in Am. Immigration Council v. Dept. of Homeland Sec., 950 F.Supp.2d 221 (D.D.C. 2013). Defendants have now retooled and renew their request in a second Motion for Summary Judgment. AIC claims, in opposition, that Defendants have still not complied with their obligations under FOIA.

Although Defendants repeatedly excoriate AIC for " wast[ing] enough of the Court's and Defendants' time," Mot. at 1; see also Reply at 4 n.5, the reality is that Defendants have wasted their own time by neglecting to follow the Court's clear instructions, set out in its prior Opinion, about what they must do to prevail in this matter. Because the government has again failed to demonstrate that it conducted an adequate search for records and has also failed to include in its Vaughn Index one of the withheld documents, the Court must deny the Motion in part. The Court, however, will grant Defendants summary judgment in part on their decisions to redact eleven documents that were included in their Vaughn Index.

I. Background

The Court's prior decision in this matter laid out in great detail the factual background of the dispute, see Am. Immigration Council, 950 F.Supp.2d at 227-28, so this Opinion need provide only a brief sketch. In March 2011, AIC submitted a FOIA request to Defendants asking for:

[A]ny and all records which have been prepared, received, transmitted, collected

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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:
o Attorneys' ability to be present during their clients' interactions with ICE;
o What role attorneys may play during their clients' interactions with ICE;
o Attorney conduct during interactions with ICE on behalf of their clients;
o Attorney appearances at ICE offices or other facilities.

Id. at 227. A year later, AIC had nothing to show for its troubles but three unsuccessful administrative appeals challenging Defendants' repeated denials of its request. See id.

AIC therefore filed suit in this Court, prompting Defendants to release nearly 8,000 pages of responsive documents. See id. at 228. Defendants then moved for summary judgment, claiming that they had conducted a reasonable search for the queried records, produced all documents responsive to AIC's FOIA request, and properly invoked various FOIA exemptions in order to withhold certain materials. See id. at 227. The Court denied that motion on the ground that issues of material fact remained as to the adequacy of Defendants' search and because Defendants' summary Vaughn Index was too vague. See id.

There followed a status conference with both parties, after which the Court ordered Defendants to produce supplemental declarations and an updated Vaughn Index that would cure the defects of their last submission. See Minute Order of July 9, 2013. Defendants complied with the Court's Order and have once again moved for summary judgment. AIC opposes that Motion but has limited its Opposition to two primary issues: the adequacy of Defendants' search and the withholding of twelve specific documents.[1] See Opp. at 4, 14-16. To assist in its analysis of those arguments, the Court ordered Defendants to produce in camera redacted and unredacted copies of the disputed materials. See Minute Order of Feb. 10, 2014. Having now reviewed those records, the Court may consider the parties' legal arguments.

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). A genuine issue of material fact is one that would

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change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (" Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." ). In the event of conflicting evidence on a material issue, the Court is to construe the evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087, 373 U.S. App. D.C. 308 (D.C. Cir. 2006). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456, 295 U.S. App. D.C. 350 (D.C. Cir. 1992).

" FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears the ultimate burden of proof. See U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). The Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they describe " the documents and 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." Military Audit Project v. Casey, 656 F.2d 724, 738, 211 U.S. App. D.C. 135 (D.C. Cir. 1981). 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, 288 U.S. App. D.C. 324 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771, 224 U.S. App. D.C. 1 (D.C. Cir. 1981)).

III. Analysis

Congress enacted FOIA in order " to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation omitted). " The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (citation omitted). The statute provides that " each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(3); Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

" Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious," the Freedom of Information Act " expressly places the burden 'on the agency to sustain its action' and directs the district courts to 'determine the matter de novo.'" Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). " At all times courts must bear in mind that FOIA mandates a 'strong presumption in favor of disclosure'. . . ." Nat'l Ass'n of Home Builders

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v. Norton, 309 F.3d 26, 32, 353 U.S. App. D.C. 374 (D.C. Cir. 2002) (quoting Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)).

The Court will first address the adequacy of Defendants' search for responsive documents, turn next to the exemptions invoked to justify withholding certain documents, and finish by assessing the segregability of those documents. In the end, the Court concludes that it must deny summary judgment to Defendants on the adequacy of their search and on Document 12, but it may grant Defendants' Motion on their redactions of Documents 1 through 11.

A. Adequacy of Search

An agency " fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.'" Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325, 336 U.S. App. D.C. 386 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542, 283 U.S. App. D.C. 86 (D.C. Cir. 1990)); see also Steinberg v. Dep't of Justice, 23 F.3d 548, 551, 306 U.S. App. D.C. 240 (D.C. Cir. 1994). " [T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Weisberg v. DOJ, 745 F.2d 1476, 1485, 240 U.S. App. D.C. 339 (D.C. Cir. 1984).

The adequacy of an agency's search for documents requested under FOIA " is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case." Id. To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search " in reasonable detail." Perry v. Block, 684 F.2d 121, 127, 221 U.S. App. D.C. 347 (D.C. Cir. 1982) (per curiam). The affidavits or declarations should " set [ ] forth the search terms and the type of search performed, and aver[ ] that all files likely to contain responsive materials (if such records exist) were searched." Oglesby v. Dep't of Army, 920 F.2d 57, 68, 287 U.S. App. D.C. 126 (D.C. Cir. 1990). Absent contrary evidence, such affidavits or declarations are sufficient to show that an agency complied with FOIA. See Perry, 684 ...


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