United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
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.
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.
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
(3) all records related to investigations on jurisdictions
where statistical monitoring reports revealed “yellow
flag” anomalies or were otherwise chosen for further
(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
(8) all revisions to the quarterly statistical review
protocol for the Secure Communities Statistical Monitoring;
(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.
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.
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 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.
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. ...