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American Civil Liberties Union of Southern California v. United States Citizenship and Immigration Services

United States District Court, D. Columbia

September 30, 2015

AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant

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          For AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, Plaintiff: Esha Mankodi, LEAD ATTORNEY, JONES DAY, Washington, DC; Arthur B. Spitzer, AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL, Washington, DC.

         For UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant: Benton Gregory Peterson, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

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         MEMORANDUM OPINION

         TANYA S. CHUTKAN, United States District Judge.

         Before the court are the parties' cross-motions for summary judgment. Upon consideration of the motions, the responses and replies thereto, and for the following reasons, the Court grants in part and denies in part both motions.

         I. BACKGROUND

         The American Civil Liberties Union of Southern California (" ACLU" ) brought this action under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § § 552 et seq., challenging United States Citizenship and Immigration Services' (" USCIS" ) search and withholdings in response to ACLU's May 17, 2012 FOIA request. That request broadly sought two categories of information: records relating to or concerning " policies for the identification, vetting and adjudication of immigration benefits applications with national security concerns,"

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and statistical information related to the processing of benefits applications. (Pl. Cross Mot. Summ. J. at 2-3). Underlying ACLU's request was a concern " that certain immigrants--including Muslim, Arab, Middle Eastern and South Asian immigrants--are treated differently than other applicants in their efforts to obtain naturalization and other important immigration benefits." (Eggleston Decl. Ex. A). This differential treatment is apparently institutionalized through the Controlled Application Review and Resolution Program, or CARPP.

         In response to ACLU's request, USCIS originally identified 389 responsive pages, releasing some in whole or in part, and withholding others. (Eggleston Decl. ¶ 16). After ACLU appealed the decision, the agency remanded the request for further processing. Having not received a timely response, ACLU then filed this lawsuit. Judge Ketanji Brown Jackson, who was then assigned to the case, ordered USCIS to complete its processing of the request by a date certain, which resulted in numerous rolling productions over the course of a year. ( Id. at ¶ 26). A total of 1,503 have now been processed and reprocessed, with varying levels of redactions. (Def. Mot. S.J. at 2). Four issues are currently before the court: the application of Exemption 7(E),[1] the adequacy of the agency's search, the scope of the agency's search, and whether the agency has released all segregable portions of the records.

         II. LEGAL STANDARD

         a. Motion for Summary Judgment

         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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895, 369 U.S.App.D.C. 122 (D.C. Cir. 2006). Summary judgment may be rendered on a " claim or defense . . . or [a] part of each claim or defense." Fed.R.Civ.P. 56(a). " 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." Fed.R.Civ.P. 56(c)(1)(A). " A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb, 433 F.3d at 895 (quoting Liberty Lobby, 477 U.S. at 248). An issue is " genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See id. The party seeking summary judgment " bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297, 260 U.S.App.D.C. 334 (D.C. Cir. 1987).

         In considering a motion for summary judgment, " the evidence of the nonmovant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor." Liberty Lobby, 477 U.S. at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850, 371 U.S.App.D.C. 68 (D.C. Cir. 2006). The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials, and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmovant is required to

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provide evidence that would permit a reasonable jury to find in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242, 259 U.S.App.D.C. 115 (D.C. Cir. 1987).

         b. FOIA

         " FOIA provides a 'statutory right of public access to documents and records' held by federal government agencies." Citizens for Responsibility & Ethics in Washington v. DOJ, 602 F.Supp.2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413, 218 U.S.App.D.C. 17 (D.C. Cir. 1982)). FOIA requires that federal agencies comply with requests to make their records available to the public, unless such " information is exempted under clearly delineated statutory language." Id. (internal quotation marks omitted); see also 5 U.S.C. § 552(a), (b).

         " 'FOIA cases typically and appropriately are decided on motions for summary judgment.'" Georgacarakos v. FBI, 908 F.Supp.2d 176, 180 (D.D.C. 2012) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). The district court conducts a de novo review of the government's decision to withhold requested documents under any of FOIA's specific statutory exemptions. 5 U.S.C. § 552(a)(4)(B). Thus, the agency bears the burden of showing that nondisclosed, requested material falls within a stated exemption. Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429, 1433, 298 U.S.App.D.C. 125 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)); Liberty Lobby, 477 U.S. at 254. In cases concerning the applicability of exemptions and the adequacy of an agency's search efforts, summary judgment may be based solely on information provided in the agency's supporting declarations. See, e.g., ACLU v. U.S. Dept. of Def., 628 F.3d 612, 619, 393 U.S.App.D.C. 384 (D.C. Cir. 2011); Students Against Genocide v. Dept. of State, 257 F.3d 828, 838, 347 U.S.App.D.C. 235 (D.C. Cir. 2001). " If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption," and " is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU, 628 F.3d at 619. " Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.'" Id. (internal quotation marks omitted) (quoting Larson v. Dep't of State, 565 F.3d 857, 862, 385 U.S.App.D.C. 394 (D.C. Cir. 2009)). However, a motion for summary judgment should be granted in favor of the FOIA requester " [w]hen an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption" . Coldiron v. DOJ, 310 F.Supp.2d 44, 48 (D.D.C. 2004) (quoting Petroleum Info. Corp., 976 F.2d at 1433).

         The FOIA requires that " [a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b). More specifically, " [i]t has long been a rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Central, Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 260, 184 U.S.App.D.C. 350 (D.C. Cir. 1977). In order to withhold a file or portion thereof under a FOIA exemption, " the Government must make that showing in its Vaughn index and in such affidavits as it may submit therewith." Kimberlin v. DOJ, 139 F.3d 944, 950, 329 U.S.App.D.C. 251 (D.C. Cir. 1998). " The index ...


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