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Roseberry-Andrews v. Department of Homeland Security

United States District Court, District of Columbia

March 13, 2018

CYNTHIA L. ROSEBERRY-ANDREWS, Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         I. Background

         A. Roseberry-Andrews' FOIA Request and Lawsuit

         On 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.[1] 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.[2] Roseberry-Andrews also listed the names of individual employees in the ICE FOIA and ELR offices from whom she requested records. Id.

         That 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. § 552(a)(6)(B)).

         On 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.

         On 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.

         B. DHS's FOIA Productions

         Although 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.

         After 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.

         C. The Parties' Cross-Motions for Summary Judgment

         In 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.”).

         Defendant 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.

         In this 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. ¶¶ 32-38.

         Defendant 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.

         Roseberry-Andrews' 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.

         II. Legal Standard

         “Congress 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)).

         “[T]he 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 (1986)).

         “In 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).

         “To 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)).

         “In 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)).

         FOIA 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.

         III. Analysis

         As 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.[3]

         A. Defendant's Delay

         Roseberry-Andrews argues that DHS's delay in responding to her FOIA request gives rise to a cognizable legal claim. The Court cannot agree.

         1. Defendant's Failure to Meet FOIA Deadlines

         Roseberry-Andrews' 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).

         Defendant 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 FOIA.[4]

         2. Defendant's Alleged Policy or Practice of Delay

         In 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.

         “The 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).

         Here, 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 fails.[5]

         3. Defendant's Alleged Violation of ...


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