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Parker v. U.S. Immigration and Customs Enforcement

United States District Court, District of Columbia

March 2, 2017

LONNIE J. PARKER, Plaintiff,
v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendant. Re Document Nos. 17, 19, 29

          MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING AS MOOT PLAINTIFF'S MOTION FOR DISCOVERY

          RUDOLPH CONTRERAS, United States District Judge

         I. INTRODUCTION

         Plaintiff, Mr. Lonnie Parker, challenges defendant Immigration and Customs Enforcement (ICE)'s response to his FOIA request. Mr. Parker sought records related to ICE's previous criminal investigation of Mr. Parker. ICE responded to Mr. Parker's request, but withheld portions of some documents under various FOIA exemptions. Mr. Parker argues that ICE's search was inadequate because it did not produce any communications between ICE and the FBI-which Mr. Parker asserts must exist-and because it insufficiently searched for responsive emails. The Court grants ICE summary judgment in part but denies ICE summary judgment as to the adequacy of some portions of its search.[1]

         II. BACKGROUND

         Mr. Parker filed a FOIA request on ICE in early 2014, seeking:

All records from the United States Immigration and Customs Enforcement's office in Little Rock Arkansas [sic], listing my client's name (Lonnie Joseph Parker) or otherwise describing or discussing my client (Mr. Parker), that were created or generated from January 1, 1998 to January 31, 2006, currently located in any system of records in the possession or control of the United States Immigration and Customs Enforcement agency (including any archived or stored records), in any form or format, including any hand-written notes, diagrams, emails, phone logs, photographs, maps, diagrams, spread sheets, or any other forms of records responsive to this records request.

         FOIA Request, ECF No. 17-3, Ex. 1. ICE is “the principal investigative arm of [the Department of Homeland Security] and the second largest investigative agency in the federal government.” Pineiro Decl. ¶ 24, ECF No. 18.

         After receiving this request, ICE determined that its Office of Enforcement and Removal Operations (ERO) and Homeland Security Investigations (HSI) office were the likely locations of responsive records. Pineiro Decl. ¶ 23. ERO searched the Central Index System database using Mr. Parker's name and date of birth, but did not find any entries in the index suggesting that ERO had any responsive records. Pineiro Decl. ¶ 27. ERO thus concluded its search. HSI searched the TECS system using Mr. Parker's name. Pineiro Decl. ¶ 28. TECS is a law enforcement database that includes case management functions and enforcement, inspection, and intelligence records. Pineiro Decl. ¶ 29. HSI located 60 pages of responsive records within TECS including “search query results, incident reports and reports of investigation from a criminal investigation case.” Pineiro Decl. ¶¶ 7, 30. ICE withheld some portions of the records under FOIA Exemptions 6 and 7 and released the rest to Mr. Parker. Pineiro Decl. ¶ 7. Mr. Parker appealed this result administratively, and the ICE Office of the Principal Legal Advisor affirmed ICE's withholdings but instructed ICE to reprocess the request and locate additional potentially responsive records. Pineiro Decl. ¶¶ 8, 9.

         Unsatisfied with this resolution, Mr. Parker filed suit against ICE in August of 2015. Compl., ECF No. 1. After Mr. Parker initiated this litigation, “HSI determined that . . . additional responsive hard file records beyond what was previously found in TECS” might exist in a Little Rock field office.[2] Pineiro Decl. ¶ 31. Agent Sanders, one of two ICE agents Mr. Parker discusses in his briefing, was then employed at the Little Rock office.[3] 2d Pineiro Decl. ¶ 8, ECF No. 21-1. “Based on his experience and knowledge of the Little Rock office's storage of physical case file records . . . using [Mr. Parker's] name and the case number associated with [Mr. Parker's] prior criminal case, [Agent Sanders] conducted a manual search of case file records located in a file cabinet in a secure room within the office.” Pineiro Decl. ¶ 31, ECF No. 18. This search uncovered 129 pages of records, including “an application for a search warrant with supporting affidavit, fax cover coversheets [sic], military records, statutes and legal citations, an air force uniform manual [sic], agents' notes, a consent to search form, letters, employments forms, evidence chain of custody forms, notes, memoranda, court orders, transcript, and computer data file printouts.” Pineiro Decl. ¶ 32. ICE released the recovered records after withholding some portions pursuant to FOIA Exemptions 6 and 7.[4] Pineiro Decl. ¶ 33.

         Agent Sanders also searched “his personal Outlook email archives” but did not find any responsive records. 2d Pineiro Decl. ¶ 8. Mr. Parker's briefing also discusses the emails and other communications associated with an Agent Mensinger. Agent Mensinger left ICE before Mr. Parker's FOIA request was submitted to ICE. 2d Pineiro Decl. ¶ 10. Given that Agent Mensinger no longer had a functioning ICE email account, and that Mr. Parker sought records from before 2008, the only ICE record system that might still contain copies of any of Agent Mensinger's emails was “various back-up tape systems in regional offices.” 2d Pineiro Decl. ¶ 10. Due to their age, these assorted systems are “no longer produced commercially” and “ICE no longer maintains the equipment and software” which would be required to read or search the email files stored within. 2d Pineiro Decl. ¶ 10. ICE does not describe any search for Agent Mensinger's email beyond establishing the inaccessible nature of the email archive tapes.

         ICE now moves for summary judgment on the grounds that it performed an adequate search, withheld only material properly within FOIA Exemptions 6 and 7, and released all segregable material. See generally Mem. Law Supp. Def.'s Mot. Summ. J. (Def.'s MSJ), ECF No. 17-2. ICE provides a Vaughn index describing the material withheld from the records. See generally Vaughn Index, ECF No. 17-3, Ex. 5. Mr. Parker did not object to ICE's withholdings, but argues in his cross-motion for summary judgment that ICE did not perform an adequate search because it did not follow up on all of the leads that Mr. Parker identified.[5] See generally Mem. P. & A. Supp. Pl.'s Mot. Summ. J. & Opp'n Def.'s Mot. Summ. J. (Pl.'s MSJ), ECF No. 19.[6]

         III. LEGAL STANDARD

         “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009) (citing Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007)). Summary judgment is appropriate where “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 “material” fact is one capable of affecting the substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the nonmovant. Scott v. Harris, 550 U.S. 372, 380 (2007). When assessing a summary judgment motion in a FOIA case, a court makes a de novo assessment of whether the agency has properly withheld the requested documents. See 5 U.S.C. § 552(a)(4)(B); Judicial Watch v. U.S. Dep't of Homeland Sec., 598 F.Supp.2d 93, 95 (D.D.C. 2009). To prevail on a motion for summary judgment, “the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements.” Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting Nat'l Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)).

         IV. ANALYSIS

         A. Withholdings under FOIA Exemptions and Segregability

         ICE requests summary judgment as to the propriety of its withholdings and its release of segregable materials because Mr. Parker is silent on both issues. See, e.g., Def.'s Reply Supp. Summ. J. & Opp'n Pl.'s Cross-Mot. Summ. J. (Def.'s Opp'n) at 1-2, ECF No. 21.[7] The matter is no longer so simple. The D.C. Circuit has held that-even if the nonmovant does not respond to the motion for summary judgment-the court cannot grant the motion simply because it was conceded. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (“Under the Federal Rules of Civil Procedure, a motion for summary judgment cannot be ‘conceded' for want of opposition. ‘The burden is always on the movant to demonstrate why summary judgment is warranted. The nonmoving party's failure to oppose summary judgment does not shift that burden.'” (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring))). Instead, “[t]he District Court ‘must always determine for itself whether the record and any undisputed material facts justify granting summary judgment.'” Id. (quoting Grimes, 794 F.3d at 97 (Griffith, J., concurring) and citing Fed.R.Civ.P. 56(e)(3)). This requires the Court to conduct an independent evaluation to determine whether the record and any undisputed material facts justify granting summary judgment. See Grimes, 794 F.3d at 98-99 (Griffith, J. concurring) (“The wiser course for district courts is to conduct an independent review of the record to determine whether there remains any genuine dispute over material facts. If not, the court should say as much without relying upon any concession by the nonmoving party.”). The Court thus independently considers if ICE has properly invoked the FOIA exemptions it claims, and if it has met it burden to show that it has released all reasonably segregable material.

         1. Application of FOIA Exemptions

         ICE withholds portions of records under FOIA Exemption 6, Exemption 7(C), and Exemption 7(E).[8] See generally Vaughn Index, ECF No. 17-3, Ex. 5. For many documents, ICE asserts FOIA Exemption 6 and Exemption 7(C) together-because the Court concludes that Exemption 7(C) justifies the withholdings it does not analyze the applicability of Exemption 6. The Court separately analyzes ICE's remaining withholdings under Exemption 7(E) alone.

         Because “‘[d]isclosure, not secrecy, is [FOIA's] dominant objective, ' . . . agencies may withhold only those documents or portions thereof that fall under one of nine delineated statutory exemptions.” Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 845 (D.C. Cir. 2010) (second alteration in original) (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) and citing 5 U.S.C. § 552(b)). The agency's documents supporting the exemption, including the Vaughn index, must “permit adequate adversary testing of the agency's claimed right to an exemption.” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 840 F.Supp.2d 226, 230 (D.D.C. 2012) (quoting Kimberlin v. U.S. Department of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998)); see also 5 U.S.C. § 552(a)(4)(B). However, “a reviewing court should ‘respect the expertise of an agency' and not ‘overstep the proper limits of the judicial role in FOIA review, '” Pinson v. U.S. Dep't of Justice, 160 F.Supp.3d 285, 293 ...


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