United States District Court, District of Columbia
SUSAN B. LONG, et al., Plaintiffs,
IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendant. Fields provided in response to December 2015 Request but not August 2016 Request Corresponding numbered requests in December 2015 and August 2016 Requests
MEMORANDUM OPINION AND ORDER
Mehta United States District Judge
Susan B. Long and David Burnham are co-directors of the
Transactional Records Access Clearinghouse
(“TRAC”), a data gathering, data research, and
data distribution organization associated with Syracuse
University. See Pls.' Mot. for Summ. J., ECF No.
12 [hereinafter Pls.' Mot.], Decl. of Susan B. Long, ECF
No. 12-1 [hereinafter Long Decl.], ¶ 2. TRAC's
primary purpose is to provide “comprehensive
information about the staffing, spending, and enforcement
activities of the federal government.” Id.
years, Plaintiffs have submitted monthly Freedom of
Information Act (“FOIA”) requests to Defendant
Immigration and Customs Enforcement (“ICE”)
seeking certain data within ICE's Enforcement Integrated
Database (“EID”). See Pls.' Mot.,
Pls.' Resp. to Def.'s Statement of Facts &
Additional Statement of Facts [hereinafter Pls.' Stmt.],
¶¶ 85-88, 90-91; Def.'s Mem. of P. & A. in
Opp'n to Pls.' Mot. & Reply to Pls.'
Opp'n to Def.'s Mot. for Summ. J., ECF No. 16
[hereinafter Def.'s Reply], Def.'s Resp. to Pls.'
Stmt. [hereinafter Def.'s Reply Stmt.], ¶¶
85-88, 90-91. The EID is an electronic database owned and
operated by ICE that “captures and maintains
information relating to the investigation, arrest, booking,
detention, and removal of persons encountered during
immigration and law enforcement investigations and operations
conducted by ICE” and other component agencies within
the U.S. Department of Homeland Security (“DHS”).
See Def.'s Mot. for Summ. J., ECF No. 11
[hereinafter Def.'s Mot.], Decl. of Marla Jones, ECF No.
11-2 [hereinafter Jones Decl.], ¶¶ 6-7; see
also Id. (explaining that the EID is a “common
database repository for all records created, updated, and
accessed by a number of [DHS] software applications”
that “provides users with the capability to access a
person-centric and/or event-centric view of . . . data”
and “allows ICE officers to manage cases from the time
of an alien's arrest, in-processing, or placement into
removal proceedings, through the final case
disposition”); id. ¶ 8 (“The EID is
used as data storage throughout the immigration enforcement
lifecycle from arrest to removal or release.”).
their monthly FOIA requests,  Plaintiffs sought from the EID
updated, anonymous case-by-case information about each person
whom ICE deported as a result of the Secure Communities
Program, an immigration enforcement program administered by
ICE, and its temporary successor, the Priority Enforcement
Program. Pls.' Stmt. ¶¶ 77-79, 86;
see Def.'s Reply Stmt. ¶¶ 77-79, 86.
As is relevant here, each request identified the specific
case-by-case information requested by Plaintiffs, including a
list of separately numbered requests describing particular
fields of information and data elements that Plaintiffs
sought from the EID. Pls.' Stmt. ¶ 91; see
Def.'s Reply Stmt. ¶ 91; see, e.g., Long
Decl., Exs. A-B.
past, ICE responded to Plaintiffs' monthly requests by
providing “computer extracts furnished as Excel
spreadsheet files derived from the EID, ” Pls.'
Stmt. ¶ 94; Def.'s Reply Stmt. ¶ 94,
which contained fields of information and data elements that
corresponded to at least some of the separately numbered
requests, see Long. Decl., Ex. F; Jones Decl.
¶¶ 16-27; cf. Pls.' Stmt. ¶ 118;
Def.'s Reply Stmt. ¶ 118. In January 2017, however,
in response to Plaintiffs' FOIA request for data covering
fiscal year 2015 through August 2016 (“August 2016
Request”), ICE withheld many of the fields that it
previously provided in response to Plaintiffs' requests
covering earlier, overlapping time periods-including a
virtually identical request submitted by Plaintiffs several
months earlier, which covered fiscal year 2015 through
December 2015 (“December 2015 Request”).
See Pls.' Stmt. ¶¶ 114-15, 118, 129;
Def.'s Reply Stmt. ¶¶ 114-15, 118, 129;
Def.'s Reply, Second Decl. of Marla Jones, ECF No. 16-1
[hereinafter Suppl. Jones Decl.], ¶¶ 14-16; see
also Long Decl., Ex. C (comparing numbered requests
submitted in December 2015 Request and August 2016 Request);
cf. Jones Decl. ¶¶ 16, 37.
denying Plaintiffs' administrative appeal of the
agency's response to the August 2016 Request, ICE
reasoned that these fields did not exist in the EID and,
accordingly, that Plaintiffs were not entitled to them under
FOIA. See Pls.' Stmt. ¶¶ 145-46;
Def.'s Reply Stmt. ¶¶ 145-46; see also
Long Decl., Ex. H. Plaintiffs brought this FOIA action to
challenge that determination and to compel ICE to produce
data responsive to what Plaintiffs dub the
“disappearing fields”- that is, the fields of
information and corresponding data elements from the EID that
ICE provided in response to the December 2015 Request, but
not the August 2016 Request. See generally Compl.,
ECF No. 1.
the court are the parties' cross-motions for summary
judgment. See Def.'s Mot.; Pls.' Mot. After
thorough review of the parties' briefs and accompanying
materials, the court concludes that this matter cannot be
resolved on the present record. As discussed below, there
remains a genuine dispute of material fact concerning whether
the requests at issue require ICE to create new records.
Accordingly, the parties' motions are denied without
requires that federal agencies, “upon any request for
records which (i) reasonably describes such records and (ii)
is made in accordance with published rules . . ., shall make
the records promptly available to any person, ” 5
U.S.C. § 552(a)(3)(A), provided those records are not
exempt from disclosure, id. § 552(b); see
also Citizens for Responsibility & Ethics in Wash. v.
U.S. Dep't of Justice, 602 F.Supp.2d 121, 123
(D.D.C. 2009) (“FOIA provides a ‘statutory right
of public access to documents and records' held by
federal government agencies.” (quoting Pratt v.
Webster, 673 F.2d 408, 413 (D.C. Cir. 1982))). “A
request that ‘reasonably describes' the records
sought triggers the agency's obligation to search for and
disclose all responsive records unless the records fall
within one of the statutory exemptions.” Ctr. for
the Study of Servs. v. U.S. Dep't of Health
& Human Servs., 874 F.3d 287, 288 (D.C. Cir. 2017)
(citations omitted). FOIA authorizes district courts
“to enjoin [an] agency from withholding agency records
and to order the production of any agency records improperly
withheld.” 5 U.S.C. § 552(a)(4)(B). Where, as
here, the agency contends that the information sought is not
subject to disclosure under FOIA, “[t]he burden is on
the agency to demonstrate, not the requester to disprove,
that the materials sought are not ‘agency records'
or have not been ‘improperly'
‘withheld.'” Aguiar v. Drug Enf't
Admin., 865 F.3d 730, 735 (D.C. Cir. 2017) (quoting
U.S. Dep't of Justice v. Tax Analysts, 492 U.S.
136, 142 n.3 (1989)).
FOIA cases are appropriately resolved on motions for summary
judgment. Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A
court must grant summary judgment “if 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 dispute is “genuine” only
if a reasonable fact-finder could find for the nonmoving
party, and a fact is “material” only if it is
capable of affecting the outcome of the litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
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' and directs the
district courts to ‘determine the matter de
novo.'” U.S. Dep't of Justice v. Reporters
Comm. for Freedom of Press, 489 U.S. 749, 755 (1989)
(quoting 5 U.S.C. § 552(a)(4)(B)). “In FOIA cases,
summary judgment may be granted on the basis of agency
affidavits if they contain reasonable specificity of detail
rather than merely conclusory statements, and if they are not
called into question by contradictory evidence in the record
or by evidence of agency bad faith.” Aguiar,
865 F.3d at 734-35 (internal quotation marks omitted).
discussed, the parties' dispute here concerns ICE's
response to Plaintiffs' August 2016 Request.
Specifically, Plaintiffs challenge ICE's withholding of
data responsive to the fields of information provided in
response to Plaintiffs' December 2015 Request, but not
then August 2016 Request. These "disappearing
fields," and the specific numbered requests to which
they correspond in both the December 2015 and August 2016
Requests, can be ...