United States District Court, D. Columbia
AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, Plaintiff,
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
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.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,
Defendant: Benton Gregory Peterson, LEAD ATTORNEY, U.S.
ATTORNEY'S OFFICE, Civil Division, Washington, DC.
S. CHUTKAN, United States District Judge.
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.
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
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.
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), 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.
Motion for Summary Judgment
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.
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
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).
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).
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