United States District Court, District of Columbia
LONNIE J. PARKER, Plaintiff,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendant.
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT;
GRANTING IN PART AND DENYING IN PART PLAINTIFF'S RENEWED
MOTION FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.
Lonnie Parker challenges the response of Defendant U.S.
Immigration and Customs Enforcement (“ICE”) to
his Freedom of Information Act (“FOIA”) request,
which seeks records in ICE's possession related to the
agency's previous criminal investigation of him.
Following the parties' first round of motions for summary
judgment, the Court granted in part and denied in part
ICE's motion, affirming ICE's decision to withhold
portions of certain responsive records under FOIA Exemption
7, but requesting additional detail regarding ICE's
search for responsive records. With its renewed motion for
summary judgment, ICE argues that it has sufficiently
demonstrated, through a new set of declarations, that it
performed an adequate search designed to recover all records
responsive to Mr. Parker's request. In his own renewed
motion, Mr. Parker once again disagrees. And once again, this
Court finds some portions of ICE's search adequate and
sufficiently explained, and other portions inadequate or
insufficiently explained. Therefore, this Court grants in
part and denies in part both parties' renewed motions for
FACTUAL AND PROCEDURAL BACKGROUND
early 2014, Mr. Parker filed a FOIA request with ICE 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
handwritten notes, diagrams, emails, phone logs, photographs,
maps, diagrams, spread sheets, or any other forms of records
responsive to this records request.
FOIA Request, Ex. 1 at 1, ECF No. 17-3.
receipt of Mr. Parker's FOIA Request, ICE identified the
Office of Enforcement and Removal Operations
(“ERO”) and Homeland Security Investigations
(“HSI”) as the locations most likely to have all
responsive records. Decl. Fernando Pineiro (“Pineiro
Decl.”) ¶ 23, ECF No. 18. ERO searched its Central
Index System database, but was unable to find any responsive
records. Pineiro Decl. ¶ 27. HSI searched its TECS
system using Mr. Parker's name and located sixty pages of
responsive records, which it released to Mr. Parker after
withholding some portions of the records pursuant to FOIA
Exemptions 6 and 7. Pineiro Decl. ¶¶ 7, 28, 30. Mr.
Parker filed suit in this Court thereafter. See
Compl., ECF No. 1.
this suit began, “HSI determined that . . . additional
responsive hard file records” might exist at ICE's
Little Rock field office. Pineiro Decl. ¶ 31. HSI's
Records Disclosure Unit tasked Special Agent Wayne Sanders,
one of the two agents assigned to Mr. Parker's criminal
case, with searching for those physical records because of
“his experience and knowledge of the Little Rock
office's storage of physical case file records.”
Pineiro Decl. ¶ 31; Suppl. Pineiro Decl. ¶ 8, ECF
No. 21-1. This hand search uncovered an additional 129 pages
of records, which ICE released to Mr. Parker after redacting
some portions pursuant to FOIA Exemptions 6 and 7. Pineiro
Decl. ¶¶ 31-33. Agent Sanders also searched his
personal Outlook emails, including archived emails, and did
not find any responsive records. 2d Pineiro Decl. ¶ 8,
ECF No. 21-1.
subsequently moved for summary judgment on the grounds that
it had performed an adequate search for responsive records
and had produced such responsive records, excepting those
portions that it had properly withheld, to Mr. Parker.
See Def.'s 1st Mot. Summ. J. (“Def.'s
1st Mot.”), ECF No. 17-2. Mr. Parker also moved for
summary judgment, challenging the adequacy of ICE's
search for responsive records, but not its withholdings
pursuant to Exemptions 6 and 7. See Pl.'s 1st
Mot. Summ. J. (“Pl.'s 1st Mot.”), ECF No. 19.
More specifically, he challenged the adequacy of the search
because ICE had not searched for all communication records
(including emails) of the two agents assigned to his case,
and because the agency's search had failed to uncover any
records of communications between ICE and the the Federal
Bureau of Investigation (“FBI”) in connection
with his criminal case. Pl.'s 1st Mot. at 6.
Court granted in part and denied in part ICE's motion and
denied Mr. Parker's. See Parker v. U.S. Immigration
& Customs Enf't, 238 F.Supp.3d 89, 94-95 (D.D.C.
2017). The Court found that ICE had sufficiently justified
its withholding of portions of the responsive documents
pursuant to Exemption 7. Id. at 98, 101. However,
the Court did not grant ICE summary judgment in full because
the agency had not provided sufficient detail about the
search terms used to search Agent Sanders's email account
or the backup systems that potentially contained the emails
of the other special agent assigned to the criminal
investigation, Agent Mensinger, from the relevant time
period. Id. at 101.
the Court first found that “ICE has provided
insufficient detail as to the ‘search terms on the
nature of that electronic search process' for Agent
Sanders's email, ” because “[i]t is not
enough for the agency to conclusorily state that it searched
relevant records”; “instead, the agency must
provide additional detail, including the search terms
used.” Id. at 104 (citing Pl.'s Reply at
3, ECF No. 24). Second, the Court explained that in order for
it to find for ICE, “Agent Sanders should also describe
whether he communicated with the FBI via email during the
relevant time period of the investigation of Mr. Parker. If
so, and if the agency does not produce the emails, Agent
Sanders should explain why these emails are not now likely to
be retrievable.” Id. at 104 n.14. Third, the
Court directed the agency to explain whether “any
emails sent or received by Agent Sanders during the relevant
time period would have migrated to the current Outlook system
or whether they too would have remained on now-inaccessible
recovery tapes.” Id. at 105 n.15. Fourth and
finally, the Court held that in order for ICE to succeed on
summary judgment, it would need to provide additional
information about the backup systems that may contain Agent
Mensinger's emails, as well as Mr. Sanders's older
emails. Id. at 105. Therefore, it directed
“ICE to provide an affidavit from an
information-technology professional . . . that describes the
email backup system potentially containing Agent
Mensinger's emails with greater specificity and describes
any practical obstacles to searching that system.”
now renewed its motion for summary judgment on the ground
that the new declarations it submitted with its motion
provide sufficient specificity as to how Agent Sanders
searched his emails and how ICE searched its backup email
system for responsive records, and that therefore the agency
has now demonstrated that it has performed a search
“reasonably calculated to uncover all relevant
documents.” Def.'s Renewed Mot. Summ. J.
(“Def.'s Mot.”) at 1, ECF No. 35-1 (citing
Weisberg v. U.S. Dep't of Justice, 705 F.2d
1344, 1351 (D.C. Cir. 1983)). Mr. Parker has also filed a
renewed motion for summary judgment, contesting ICE's
assertion that it has demonstrated that it has performed an
adequate search. Pl.'s Renewed Mot. Summ. J.
(“Pl.'s Mot.”) at 3, ECF No. 37. The
parties' renewed cross-motions for summary judgment are
now ripe for decision.
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
prevail on a motion for summary judgment, a defendant agency
must establish that it has conducted a search that is
“reasonably calculated to uncover all relevant
documents.” Weisberg, 705 F.2d at 1351. More
specifically, the agency must demonstrate “that it made
a good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to
produce the information requested.” Oglesby v. U.S.
Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
“The adequacy of an agency's search is measured by
a ‘standard of reasonableness' and is
‘dependent upon the circumstances of the
case.'” Weisberg, 705 F.2d at 1351
(internal citations omitted). It is ...