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Heartland Alliance for Human Needs & Human Rights v. United States Department of Homeland Security

United States District Court, District of Columbia

January 31, 2018

HEARTLAND ALLIANCE FOR HUMAN NEEDS & HUMAN RIGHTS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE

         The National Immigrant Justice Center (NIJC) brings this Freedom of Information Act (FOIA) lawsuit to challenge the adequacy of responses to its FOIA requests from the Department of Homeland Security (DHS) and its constituent agency, Immigration and Customs Enforcement (ICE). DHS and NIJC filed cross-motions for partial summary judgment. The Court will deny DHS's motion for partial summary judgment because it has not demonstrated that an adequate search was conducted. It will grant in part NIJC's motion for summary judgment. DHS will be directed to search for and produce all data underlying the draft statistical reports regarding Secure Communities and the Priority Enforcement Program.

         I. BACKGROUND

         NIJC is a nonprofit entity, under which the Heartland Alliance for Human Needs and Human Rights does business. It is “[d]edicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers.” Compl. [Dkt. 1] ¶ 4. “Secure Communities was an immigration enforcement program administered by ICE from 2008 to 2014, ” id. ¶ 7, and reinstituted in 2017. See Exec. Order No. 13, 767, 82 Fed. Reg. 8, 793 (Jan. 25, 2017). Secure Communities allowed fingerprints collected by police, which were provided “to the FBI for checks against various criminal justice databases” to also be turned over to DHS to determine “which fingerprinted arrestees may be removable aliens.” Ex. 6, Compl. (DHS FOIA Request) [Dkt. 1-11] at 8.[1]

         As part of its mission, NIJC submitted requests under the Freedom of Information Act, 5 U.S.C. § 552 (2012), on March 14, 2014 to DHS and ICE regarding the Secure Communities program administered by ICE. See DHS FOIA Request; Ex. 12, Compl. (ICE FOIA Request) [Dkt. 1-17]. Both FOIA requests asked for the following:

all records, including electronic records, in the custody or control of [DHS's Office for Civil Rights and Civil Liberties (CRCL)] related to the Statistical Monitoring of the Secure Communities Program, including but not limited to:
(1) all reports produced related to the Secure Communities Statistical Monitoring, including all draft reports and reports produced by contracted statistician(s);
(2) all communications, including emails, with ICE and/or contracted statistician(s) regarding Secure Communities Statistical Monitoring;
(3) all records related to investigations on jurisdictions where statistical monitoring reports revealed “yellow flag” anomalies or were otherwise chosen for further investigation;
(4) all records related to asserting DHS Title VI jurisdiction in relation to investigation(s) described in Request No. 3;
(5) all communications with the DOJ Civil Rights Division regarding investigation(s) described in Request No. 3;
(6) all findings produced as part of investigation(s) described in Request No. 3, including drafts of findings;
(7) all recommendations to ICE or subject jurisdiction(s) of investigation(s) described in Request No. 3, including drafts of recommendations;
(8) all revisions to the quarterly statistical review protocol for the Secure Communities Statistical Monitoring; and
(9) all communications with DOJ regarding the results of investigation(s) described in Request No. 3.

Compl. ¶ 20. DHS assigned the FOIA Request reference number 2014-CRFO-00027, id. ¶ 22, and identified 7, 735 responsive records, releasing 2, 833 records in their entirety and withholding the remaining 4, 902 records pursuant to various FOIA exemptions. Id. ¶ 24. NIJC filed an administrative appeal concerning the withheld documents in November 2014. Id. ¶ 25.

         ICE assigned the FOIA request reference number 2014FOIA12739, id. ¶ 31, and to date no records have been identified or produced by ICE. NIJC filed an administrative appeal of the ICE failure to respond to the FOIA Request in May 2015. Id. ¶ 32. On February 8, 2016, NIJC filed the Complaint in this case challenging the adequacy of the agencies' response to the FOIA requests. See id. NIJC also submitted additional FOIA Requests to DHS and ICE on November 4, 2016 requesting the same types of records for the Priority Enforcement Program (PEP), a replacement program for Secure Communities, which was in place from 2014 to 2016. See Pl.'s Cross-Mot. for Partial Summ. J. (NIJC Mot.) [Dkt. 32] at 7 n.1.

         The Court held a number of telephone conferences with the parties in October and November 2016 to determine the status of the responses to NIJC's FOIA Requests. NIJC indicated that, if DHS and ICE produced the quarterly statistical reports regarding Secure Communities and PEP, it might be willing to forego the remaining categories of records listed in the original FOIA Requests. The Court, therefore, ordered Defendants to locate and produce all statistical monitoring reports and underlying data, or indicate in a Vaughn Index[2] the grounds for withholding each record. See Order [Dkt. 20]. Production of other categories of requested documents was suspended while Defendants focused on the statistical reports. See id. DHS located 2, 519 responsive records that fit in the category of statistical monitoring reports, and withheld 1, 190 records in their entirety, providing a Vaughn Index to NIJC. Declaration of James V.M.L. Holzer (Holzer Decl.) [Dkt. 31-2] ¶ 4. After continued review, DHS withheld another 1, 258 records in full, produced 65 redacted records, and provided NIJC with four additional Vaughn Indexes explaining the withholdings. Id. ¶ 5. ICE located no records relevant to the narrowed request.

         DHS moved for partial summary judgment on the production of the statistical reports on April 28, 2017, asserting that all records were properly withheld or redacted pursuant to FOIA Exemption 5. See Mot. for Partial Summ. J. (DHS Mot.) [Dkt. 31]. NIJC opposed and filed a cross-motion for summary judgment on May 12, 2017, challenging DHS's segregability analysis and requesting production of tables with data and metrics included in the draft statistical reports, as well as the remaining underlying data. See NIJC Mot. DHS filed a combined opposition and reply on May 30, 2017. See Defs' Combined Reply in Supp. of its Mot. for Partial Summ. J. & Opp'n to Pl.'s Cross-Mot. for Summ. J. ...


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