United States District Court, District of Columbia
LONNIE J. PARKER, Plaintiff,
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
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.
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.
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.
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.
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. Pineiro Decl. ¶ 31. Agent Sanders,
one of two ICE agents Mr. Parker discusses in his briefing,
was then employed at the Little Rock office. 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. Pineiro Decl. ¶ 33.
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.
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. See generally Mem. P. & A.
Supp. Pl.'s Mot. Summ. J. & Opp'n Def.'s Mot.
Summ. J. (Pl.'s MSJ), ECF No. 19.
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)).
Withholdings under FOIA Exemptions and Segregability
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.
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
Application of FOIA Exemptions
withholds portions of records under FOIA Exemption 6,
Exemption 7(C), and Exemption 7(E). 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.
“‘[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 ...