United States District Court, District of Columbia
CYNTHIA L. ROSEBERRY-ANDREWS, Plaintiff,
DEPARTMENT OF HOMELAND SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE.
Cynthia L. Roseberry-Andrews, proceeding pro se, has
filed suit under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, seeking certain
records from the Department of Homeland Security
(“DHS” or “Defendant”) regarding her
employment with the U.S. Immigration and Customs Enforcement
(“ICE”) Freedom of Information Act Office (the
“ICE FOIA Office”). Defendant has moved for
summary judgment, arguing that it has conducted a reasonable
search of its records and produced all responsive, non-exempt
information. Roseberry-Andrews has cross-moved for summary
judgment, alleging that Defendant did not conduct a proper
search, was dilatory in responding, did not properly apply
FOIA exemptions, and failed to comply with FOIA's
“segregability” requirement. The Court agrees
with Defendant on many of the issues raised by the parties,
but ultimately concludes that Defendant has failed to provide
sufficient evidence that the ICE FOIA Office conducted an
adequate search or complied with FOIA's
“segregability” requirement. Thus,
Defendant's motion for summary judgment will be granted
in part and denied in part, with leave granted to file a
renewed motion within 60 days. Accordingly, the Court will
reserve judgment in part and deny in part
Roseberry-Andrews' cross-motion for summary judgment.
Roseberry-Andrews' FOIA Request and Lawsuit
December 29, 2014, Roseberry-Andrews filed a FOIA request
with the ICE FOIA Office. See ECF No. 1
(“Orig. Compl”) Ex. 1 at 8-9. The request
sought information pertaining to her employment in that same
ICE FOIA Office from eight different program offices within
DHS. Id. at 8. Those offices were: (1) the Office of
the Principal Legal Advisor (“OPLA”); (2) the ICE
FOIA Office; (3) the ICE Privacy Office; (4) “HR [Human
Resources]”; (5) “EEO [Equal Employment
Opportunity]”; (6) “Reasonable
Accommodation”; (7) the Office of Employee and Labor
Relations (“ELR”); and (8) the Office of the
Assistant Secretary (“OAS”).
Id. Roseberry-Andrews also listed the names of
individual employees in the ICE FOIA and ELR offices from
whom she requested records. Id.
same day, ICE confirmed receipt of Roseberry-Andrews'
FOIA request. Orig. Compl. Ex. 1 at 11; ECF No. 14
(“Am. Compl.”) ¶ 10. On December 31, ICE
followed up with a formal acknowledgment letter and assigned
her request a case number. Orig. Compl. Ex. 1 at 12-13; Am.
Compl. ¶ 11; ECF. No. 22-1 (“Def's
SoMF”) at 2. The acknowledgement letter also stated
that, “[a]lthough ICE's goal is to respond within
20 business days of receipt of your request, ” FOIA
permits, and ICE would invoke, a 10-day extension because
Roseberry-Andrews' request “seeks numerous
documents that will necessitate a thorough and wide-ranging
search.” Orig. Compl. Ex. 1 at 12 (citing 5 U.S.C.
November 13, 2015, having not heard or received anything
further from the government, Roseberry-Andrews filed an
administrative appeal. Id. at Ex. 2; Am. Compl.
¶ 11; Def.'s SoMF at 2. ICE received the appeal on
the same day. Def.'s SoMF at 7. On December 21, 2015, ICE
remanded the appeal to the ICE FOIA Office to complete
processing of her FOIA request. Id. at 2.
January 13, 2016, Roseberry-Andrews filed this lawsuit
against Catrina Pavlik-Keenan, an ICE FOIA Officer. Orig.
Compl. On April 20, 2016, she filed an amended complaint,
replacing Pavlik-Keenan with Jeh Johnson, then the Secretary
of DHS, as the defendant. Am. Compl. The amended complaint
asserts that Roseberry-Andrews did not receive the records
she seeks and requests wide-ranging relief, including
damages, injunctive relief, declaratory relief, and
attorney's fees. Id. at 20.
DHS's FOIA Productions
the ICE FOIA Office collected responsive records from the
various program offices, it was also a subject of
Roseberry-Andrews' request. Therefore, to ensure
objectivity in reviewing and processing the records, it
handed over responsibility for these tasks to the DHS FOIA
Office. Def.'s SoMF at 9-10. On July 1, 2016, Defendant
produced 1, 826 pages to Roseberry-Andrews. Id. at
10. On July 24, Plaintiff provided Defendant's counsel a
list of redactions and withholdings that she did not dispute,
which the parties agreed would not be included on
Defendant's Vaughn Index during summary judgment
briefing. Id. at 10.
Defendant's production to Roseberry-Andrews, it
discovered that some documents had been released without
certain necessary redactions, and clawed the production back
to include them. Id. On August 16, 2016, Defendant
reproduced the same 1, 826 pages to Roseberry-Andrews with
additional redactions. Id. In October 2016,
Defendant represented to Roseberry-Andrews that, during the
course of preparing its Vaughn index, it determined
that some redactions should be removed and that it would
provide her with a replacement release. Id.
Ultimately, of the 1, 826 pages Defendant produced to
Roseberry-Andrews, 601 pages were withheld in full and 867
pages redacted. Id.
The Parties' Cross-Motions for Summary Judgment
October 2016, Defendant moved for summary judgment.
See ECF No. 22; ECF No. 22-2 (“Def.'s MSJ
Br.”); ECF No. 27 (“Def.'s Reply”). In
response, Roseberry-Andrews filed an opposition to
Defendant's motion for summary judgment and a
cross-motion for summary judgment. See ECF No. 24;
ECF No. 25 (“Pl.'s Cross-Mot. Br.”).
maintains that it conducted a proper FOIA search and that its
redactions and withholdings are proper. It has submitted a
declaration from Fernando Pineiro, the Deputy FOIA Officer of
the ICE FOIA Office, describing its search. ECF No. 22-3
(“Pineiro Decl.”) ¶ 1. Pineiro explains that
when the ICE FOIA Office receives a FOIA request, it
“identif[ies] which program offices, based on their
experience and knowledge of ICE's program offices, within
ICE are reasonably likely to possess records responsive to
that request, if any, and to initiate searches within those
program offices.” Id. ¶ 19. Once the ICE
FOIA Office has determined the appropriate program offices
for a particular FOIA request, it provides points of contact
in each component office with “a copy of the FOIA
request and instructs them to conduct a search for responsive
records.” Id. According to Pineiro,
“[p]er the ICE FOIA Office's instructions, the
individuals and component offices are directed to conduct
searches of their file systems, including both paper files
and electronic files, which in their judgment . . . would
most likely be the files to contain responsive
documents.” Id. Once these searches are
complete, any potentially responsive documents are sent to
the ICE FOIA Office. Id.
case, the ICE FOIA Office instructed seven program offices to
search for responsive documents. Id. ¶ 24.
Those seven offices included five that Roseberry-Andrews
asked to be searched (ELR, OPLA, Privacy, ICE FOIA, and OAS)
and two that she did not ask to be searched (the Office of
Diversity and Civil Rights (“ODCR”) and the
Office of the Chief Information Officer
(“OCIO”)). The search did not include three
offices named in Roseberry-Andrews' request (HR, EEO, and
Reasonable Accommodation). See Orig. Compl. Ex. 1 at
8-9. Pineiro's declaration identifies the search terms
that five of the seven offices used for their searches.
Pineiro Decl. ¶¶ 33-35, 37-38. Those offices
generally searched for terms that included
Roseberry-Andrews' name (e.g., id.
¶ 37) or the names of the ICE employees identified in
the complaint (e.g., id. ¶¶ 35,
38). All of the offices searched provided records that were
ultimately released to Roseberry-Andrews except OAS, which
reportedly did not have any responsive records. Id.
also submitted a Vaughn index and a declaration from
Kevin Tyrrell, the Associate Director for FOIA Appeals and
Litigation at the DHS FOIA Office. ECF No. 22-4
(“Tyrrell Decl.”) ¶ 1 & Ex. G
(“Vaughn Index”). DHS withheld or
redacted information pursuant to FOIA Exemptions 5, 6, 7(C),
and 7(E). See Tyrrell Decl. ¶¶ 21-39 &
Vaughn Index. The Vaughn Index contains a
document-by-document accounting of which exemptions were
applied and why.
cross-motion for summary judgment can be difficult to follow,
but, as the Court reads it, she raises four principal
arguments why Defendant allegedly failed to comply with FOIA.
First, she argues that DHS impermissibly delayed responding
to her request. See Pl.'s Cross-Mot. Br. at 6.
Indeed, she argues both that DHS's delays were so severe
that they rise to the level of a
“policy-or-practice” claim (i.e., that
DHS has established a policy or practice of failing to comply
with FOIA requests) and that DHS's delay violated her
constitutional right to due process because she needed the
documents DHS produced in advance of a court proceeding she
asserts took place on August 29-30, 2016. Id. at
5-8. Second, she argues that the ICE FOIA Office failed to
conduct an adequate search because it “provided no
explanation of the nature of any search that it
conducted.” Id. at 12. Third, she contests
many of the agency's specific withholdings under certain
FOIA exemptions. Id. at 8-12. And last,
Roseberry-Andrews alleges the agency failed to
“[c]onduct a segregated . . . review of the information
withheld” Id. at 10.
enacted the FOIA in order to ‘pierce the veil of
administrative secrecy and to open agency action to the light
of public scrutiny.'” Morley v. CIA, 508
F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Dep't of
Air Force v. Rose, 425 U.S. 352, 361 (1976)) (internal
quotation marks omitted). “FOIA ‘mandates that an
agency disclose records on request, unless they fall within
one of nine exemptions.'” Elec. Privacy Info.
Ctr. v. DHS (“EPIC), 777 F.3d 518, 522 (D.C. Cir.
2015) (quoting Mlner v. Dep't of Navy, 562 U.S.
562, 565 (2011)).
vast majority of FOIA cases can be resolved on summary
judgment.” Brayton v. Office of U.S. Trade
Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). “Summary
judgment is appropriately granted when, viewing the evidence
in the light most favorable to the non-movants and drawing
all reasonable inferences accordingly, no reasonable jury
could reach a verdict in their favor.”
Lopez v. Council on Am.-Islamic Relations Action Network,
Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). “The
evidence presented must show ‘that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.'” Id.
(quoting Fed.R.Civ.P. 56(a)). “Where the nonmoving
party is proceeding pro se, courts in this
jurisdiction will construe the non-moving party's filings
liberally.” Cunningham v. DOJ, 40 F.Supp.3d
71, 82 (D.D.C. 2014), aff'd, No. 14-5112, 2014
WL 5838164 (D.C. Cir. Oct. 21, 2014). “However, a
pro se litigant still has the burden of establishing
more than ‘[t]he mere existence of a scintilla of
evidence' in support of [her] position.”
Id. (first alteration in original) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
the FOIA context, a district court reviewing a motion for
summary judgment conducts a de novo review of the record, and
the responding federal agency bears the burden of proving
that it has complied with its obligations under the
FOIA.” MacLeod v. DHS, No. 15-CV-1792 (KBJ),
2017 WL 4220398, at *6 (D.D.C. Sept. 21, 2017) (citing 5
U.S.C. § 552(a)(4)(B)); see also Cable News Network,
Inc. v. FBI, 271 F.Supp.3d 108, 111 (D.D.C. 2017)
(“Unlike the review of other agency action that must be
upheld if supported by substantial evidence and not arbitrary
or capricious, the FOIA expressly places the burden on the
agency to sustain its action . . . .” (quoting DOJ
v. Reporters Comm. for Freedom of Press, 489 U.S. 749,
775 (1989)) (internal quotation marks omitted)). Indeed,
“consistent with D.C. Circuit precedent, ” judges
in this Circuit have “proceeded to review the
agencies' facts and evidence to determine whether summary
judgment in favor of the agency defendants is warranted
despite the lack of a coherent opposition from the
plaintiff.” MacLeod, 2017 WL 4220398, at *8.
“[T]he Court may . . . treat the Department's
factual proffers as conceded, but it must address the
Department's legal arguments on their merits.”
King v. DOJ, 245 F.Supp.3d 153, 158 (D.D.C. 2017)
(citing Winston & Strawn, LLP v. McLean, 843
F.3d 503, 508 (D.C. Cir. 2016)), reconsideration
denied, 2017 WL 5449803 (D.D.C. Nov. 10, 2017).
prevail on summary judgment [in a FOIA case], an
‘agency must show 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, ' which it can do by submitting ‘[a]
reasonably detailed affidavit, setting forth the search terms
and the type of search performed, and averring that all files
likely to contain responsive materials (if such records
exist) were searched.'” Reporters Comm. for
Freedom of Press v. FBI (“RCFP”),
877 F.3d 399, 402 (D.C. Cir. 2017) (second alteration in
original) (quoting Oglesby v. U.S. Dep't of
Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). “The
agency fails to meet this burden such that summary judgment
is inappropriate when the agency fails to set forth the
search terms and the type of search performed with
specificity or otherwise provides ‘no information about
the search strategies of the [agency] components charged with
responding to [a] FOIA request'” and “no
indication of what each [component's] search specifically
yielded.” Evans v. Fed. Bureau of Prisons, No.
CV 16-2274 (BAH), 2018 WL 707427, at *2 (D.D.C. Feb. 5, 2018)
(quoting RCFP, 877 F.3d at 402 (alterations in
original)) (internal quotation marks omitted). “At a
bare minimum, the agency's affidavits need to specify
‘what records were searched, by whom, and through what
process.'” Rodriguez v. DOD, 236 F.Supp.3d
26, 38 (D.D.C. 2017) (quoting Steinberg v. DOJ, 23
F.3d 548, 552 (D.C. Cir. 1994)).
addition to demonstrating the adequacy of the search, the
agency must ‘demonstrate that the records have not been
improperly withheld.'” Evans, 2018 WL
707427, at *3 (quoting Ctr. for the Study of Servs. v.
HHS, 874 F.3d 287, 288 (D.C. Cir. 2017)). “The
burden is on the agency to justify withholding the requested
documents, and the FOIA directs district courts to determine
de novo whether non-disclosure was permissible.”
EPIC, 777 F.3d at 522. “Summary judgment is
warranted on the basis of agency affidavits when the
affidavits describe the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and
are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.” Larson
v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir.
2009) (quoting Miller v. Casey, 730 F.2d 773, 776
(D.C. Cir. 1984)). The agency cannot rely on
“conclusory and generalized allegations of
exemptions.” Morley, 508 F.3d at 1114 (quoting
Founding Church of Scientology of Wash., D.C., Inc. v.
NSA, 610 F.2d 824, 830 (D.C. Cir. 1979)).
also requires that “[a]ny reasonably segregable portion
of a record shall be provided to any person requesting such
record after deletion of the portions which are
exempt.” 5 U.S.C. § 552(b). The court has an
affirmative duty to ensure that this requirement is
satisfied, even if it must do so sua sponte. See
Morley, 508 F.3d at 1123.
described above, Roseberry-Andrews alleges that Defendant
violated FOIA in a number of ways. Her complaints fall into
four categories: Defendant (1) took too long to respond to
her request, (2) did not perform an adequate search, (3)
improperly claimed certain exemptions, and (4) failed to
comply with FOIA's segregability requirement. The Court
addresses each argument in turn.
argues that DHS's delay in responding to her FOIA request
gives rise to a cognizable legal claim. The Court cannot
Defendant's Failure to Meet FOIA Deadlines
first argument is that “FOIA requests are required to
be completed within twenty days of receipt.” Pl.'s
Cross-Mot. Br. at 6 (citing 5 U.S.C. § 552(a)(6)(A)(i)).
But that is not what the statute says. 5 U.S.C. §
552(a)(6)(A)(i) only requires the agency to communicate its
“determination” whether to comply with a FOIA
request and “the reasons therefor” to a requestor
within 20 days (or, in “unusual circumstances, ”
30 days, 5 U.S.C. § 552(a)(6)(B)(i)). It does not
require the agency to complete processing the entire request
within this period. See Citizens for Responsibility &
Ethics in Washington v. FEC
(“CREW”), 711 F.3d 180, 188 (D.C. Cir.
2013) (“To be clear, a ‘determination' does
not require actual production of the records to the
requester at the exact same time that the
‘determination' is communicated to the
requester.”); Daily Caller v. U.S. Dep't of
State, 152 F.Supp.3d 1, 10 (D.D.C. 2015) (“[T]he
agency is plainly correct that FOIA does not require
production of all responsive, non-exempt documents within
twenty days of receiving a request.”). Indeed, as the
D.C. Circuit has noted, it would be a “practical
impossibility for agencies to process all [FOIA] requests
completely within twenty days.” CREW, 711 F.3d
at 189 (alteration in original).
does not contest that it did not comply with these explicit
timeframes. Although it provided Roseberry-Andrews notice
that her case involved unusual circumstances, Orig. Compl.
Ex. 1 at 12, it does not present evidence that it ultimately
communicated its “determination” and “the
reasons therefor” within 30 days. See 5 U.S.C.
§ 552(a)(6)(B)(i). Where Roseberry-Andrews' argument
fails, however, is that an agency's failure to comply
with these statutory deadlines is not an independent basis
for a claim. As the D.C. Circuit has explained, “if the
agency does not adhere to FOIA's explicit timelines, the
‘penalty' is that the agency cannot rely on the
administrative exhaustion requirement to keep cases from
getting into court.” CREW, 711 F.3d at 189;
see also Elec. Privacy Info. Ctr. v. DOJ, 15
F.Supp.3d 32, 41 (D.D.C. 2014) (“Thus, far from
EPIC's reading of the FOIA to require an agency to
immediately hand over all of the requested documents as a
result of its failure to meet the deadline, CREW
makes clear that the impact of blowing the 20-day deadline
relates only to the requester's ability to get into
court.”). Thus, in this case, Defendant cannot-and
did not-argue that Roseberry-Andrews failed to exhaust her
administrative remedies. But Defendant's failure to
communicate its initial determination within 30 days does not
provide Roseberry-Andrews a separate claim that it violated
Defendant's Alleged Policy or Practice of Delay
addition to the delay in her individual case,
Roseberry-Andrews also argues that Defendant has a
“policy or practice” of delaying responses to
FOIA requests. See, e.g., Pl.'s Cross-Mot. Br.
at 6 (“Defendant has established a pattern and practice
of failing to comply with FOIA request processing time
requirements . . . .”); id. at 7.
D.C. Circuit has . . . recognized that, separate from claims
seeking relief for specific requests made under the FOIA,
requesting parties may also assert a ‘claim that an
agency policy or practice will impair the party's lawful
access to information in the future.'”
Nat'l Sec. Counselors v. CIA, 898 F.Supp.2d 233,
252-53 (D.D.C. 2012) (quoting Payne Enters., Inc. v.
United States, 837 F.2d 486, 491 (D.C. Cir. 1988)).
“To state a policy-or-practice claim, a plaintiff must
plausibly allege ‘that the agency has adopted,
endorsed, or implemented some policy or practice that
constitutes an ongoing ‘failure to abide by the terms
of the FOIA.'” Am. Ctr. for Law & Justice
v. U.S. Dep't of State
(“ACLJ”), 249 F.Supp.3d 275, 281-82
(D.D.C. 2017) (quoting Muttitt v. Dep't of
State, 926 F.Supp.2d 284, 293 (D.D.C. 2013)) (internal
quotation marks omitted). “That FOIA policy or practice
may be ‘informal, rather than articulated in
regulations or an official statement of policy.'”
Id. (quoting Payne, 837 F.2d at 491).
“Claims targeting agencies' internal FOIA workings
usually also involve instances where conduct is
‘sufficiently outrageous.'” Id.
(quoting Payne, 837 F.2d at 494).
Roseberry-Andrews' arguments about Defendant's delay
in responding to FOIA requests are insufficient to state a
policy or practice claim. She baldly asserts that DHS has a
policy or practice of violating FOIA both because it fails to
complete FOIA requests within twenty days and because it does
not provide written notification of the “unusual
circumstances” that underlie its decisions to extend
the time to provide an initial determination. See
Pl.'s Cross-Mot. Br. at 6-7. But Roseberry-Andrews
“points to no fact or statement to establish
why . . . requests were delayed or how the
delays were the result of an either formal or informal DHS
policy or practice to violate FOIA's requirements, rather
than an inevitable but unintended delay attributable to a
lack of resources.” Judicial Watch, Inc. v.
DHS, 211 F.Supp.3d 143, 146 (D.D.C. 2016). Indeed,
courts in this Circuit have repeatedly recognized that
“a plaintiff ‘cannot rest on the mere fact of
delay alone to establish a [policy or practice]
claim.'” ACLJ, 249 F.Supp.3d at 283
(quoting Judicial Watch, 211 F.Supp.3d at 146)
(collecting cases); see also Cause of Action Inst. v.
Eggleston, 224 F.Supp.3d 63, 72 (D.D.C. 2016)
(“[D]elay alone, even repeated delay, is not the type
of illegal policy or practice that is actionable under
Payne Enterprises.”). Simply put,
“[w]hile [Roseberry-Andrews] has shown that [DHS] is
indeed slow, [she] has not plausibly alleged that the
government subscribes to some policy or practice of
slow-walking its requests for information.”
ACLJ, 249 F.Supp.3d at 278. Thus, this argument
Defendant's Alleged Violation of ...