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Roseberry-Andrews v. Department of Homeland Security

United States District Court, District of Columbia

November 2, 2018

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

          MEMORANDUM OPINION

          TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE

         In this Freedom of Information Act (“FOIA”) case, Plaintiff Cynthia Roseberry-Andrews, proceeding pro se, seeks information from the Department of Homeland Security (“DHS” or “Defendant”) regarding her employment there. After DHS produced responsive documents and provided her a Vaughn index, the parties cross-moved for summary judgment. Although the Court agreed with Defendant on a number of points, it denied Defendant's motion in part, on the grounds that it had failed to (1) demonstrate that it had conducted an adequate search or (2) explain whether it had withheld any information it deemed non-segregable. Accordingly, the Court also reserved judgment on Roseberry-Andrews' motion on these issues. The Court ordered DHS to submit a renewed motion for summary judgment to address these deficiencies, and that renewed motion is now ripe. See ECF No. 30 (“2d Mot.”); ECF No. 30-1 (“Def.'s Br.”); ECF No. 30-2 (“Def.'s SoMF”); ECF No. 30-3 (“Supp. Pavlik-Keenan Decl.”); ECF No. 31 (“Pl.'s Opp.”); ECF No. 32 (“Def.'s Reply”). For the reasons described below, the Court will grant Defendant's renewed motion in its entirety and deny Roseberry-Andrews' motion.

         I. Background

         A. Factual and Procedural Background

         The Court assumes familiarity with the procedural and factual background of this case, which is laid out in its prior opinion. See Roseberry-Andrews v. DHS, 299 F.Supp.3d 9 (D.D.C. 2018). In her FOIA request, Roseberry-Andrews sought information about her employment with DHS from eight offices, and in some cases, from certain individuals within those offices: (1) the Office of the Principal Legal Advisor (“OPLA”); (2) the U.S. Immigration and Customs Enforcement (“ICE”) FOIA Office, including employees Catrina Pavlik-Keenan, Fernando Pineiro, Ruthlee Gowins, Todd Fuss, and Bradley White; (3) the ICE Privacy Office; (4) “HR [Human Resources]”; (5) Equal Employment Opportunity (“EEO”); (6) “Reasonable Accommodation[]”; (7) the Office of Employee and Labor Relations (“ELR”), including employee Joel Alexander; and (8) the Office of the Assistant Secretary (“OAS”). ECF No. 1, Ex. 1 at 8.

         In support of its first motion for summary judgment, ECF No. 22 (“First Motion”), Defendant submitted a declaration from Pineiro, the Deputy FOIA Officer at ICE, describing the searches undertaken by Defendant. See ECF No. 22-3 (“Pineiro Decl.”). Defendant searched seven offices for documents responsive to Roseberry-Andrews' request. Pineiro Decl. ¶ 24. Those offices included five that Roseberry-Andrews had identified (OPLA, ICE FOIA, Privacy, ELR, and OAS), and two that she had not (the Office of Diversity and Civil Rights (“ODCR”) and the Office of the Chief Information Officer (“OCIO”)). Id. Pineiro's declaration also identified the search terms that five of the seven offices had used. Pineiro Decl. ¶¶ 33-35, 37-38. Those offices generally searched for Roseberry-Andrews' name (e.g., Id. ¶ 37) or the names of the ICE FOIA employees identified in the complaint (e.g., Id. ¶¶ 35, 38).

         Defendant produced 1, 826 pages to Roseberry-Andrews. ECF No. 22-1 at 10. Defendant withheld 601 of these pages in full, and partially redacted another 867 pages, pursuant to multiple FOIA exemptions. Id.; see also ECF No. 22-4 (“Tyrrell Decl.”) ¶¶ 21-42 & Ex. G (“Vaughn Index”). Roseberry-Andrews provided Defendant with a list of redactions and other withholdings she did not dispute; those withholdings were subsequently not included on Defendant's Vaughn index. ECF No. 22-1 at 10. In conjunction with its First Motion, Defendant submitted a declaration from the Associate Director for FOIA Appeals and Litigation at DHS confirming that he had “reviewed each record line-by-line to identify information exempt from disclosure, ” and that any records released in part were “correctly segregated and non-exempt portions were released.” Tyrrell Decl. ¶¶ 44-45.

         The Court granted the First Motion in part and denied it in part. The Court agreed with Defendant that Roseberry-Andrews could not prevail on her claim that DHS improperly delayed in responding to her request. Roseberry-Andrews, 299 F.Supp.3d at 20-22. The Court also agreed that Defendant's withholdings, on the record before it, were proper under FOIA. Id. at 25-33. But it denied the First Motion as to two discrete issues.

         First, the Court concluded, for a number of reasons, that Defendant had not sufficiently demonstrated that it conducted an adequate search. Id. at 23. The Court found that Defendant had failed to “provide[] an adequate explanation for the offices it searched” because it did not appear to have looked for records in three of the offices that Roseberry-Andrews identified: EEO, Reasonable Accommodation, and Human Resources. Id. The Court noted that “it [was] . . . possible that these offices were in fact searched as subcomponents of the other program offices, ” id., but that it could not “fill in these gaps for the agency, ” id. (quoting Nat'l Sec. Counselors v. CIA, 960 F.Supp.2d 101, 154 (D.D.C. 2013)). This uncertainty in the record called into question the adequacy of Pineiro's declaration as to whether all offices (and files) likely to have responsive records were searched. Roseberry-Andrews, 299 F.Supp.3d at 23 (citing Reporters Comm. for Freedom of Press v. FBI (“RCFP”), 877 F.3d 399, 402 (D.C. Cir. 2017)).

         For the offices DHS did search, the Court also concluded that there were some deficiencies in either its methodology, or its representations about that methodology. Id. at 24-25. Specifically, Defendant failed to identify the search terms that two of the offices (ELR and OAS) had used. Id. at 24. Moreover, the Court noted that Defendant appeared to have employed “inconsistent” search methodologies. Id. at 24-25. Some offices searched for Roseberry-Andrews' name, while others searched for the names of ICE FOIA employees identified in her FOIA request. Id. The Court observed that while “[t]here may well be a good explanation for these inconsistent search methodologies . . . Defendant [did] not provide it.” Id. at 25.

         Second, the Court declined to grant summary judgment for Defendant on the issue of whether DHS complied with FOIA's segregability requirement because it was “unclear on the record before the Court whether Defendant [had] withheld any information on the grounds that it was non-segregable (and, if so, what explanation it would offer to justify such withholdings).” Id. at 34.

         The Court ordered Defendant to submit a renewed motion for summary judgment within 60 days that explained “how it conducted an adequate search-whether by conducting additional searches or providing additional information about the searches already conducted” and that set forth “whether it withheld any non-segregable information and why.” Id. The Court also reserved judgment in part on Roseberry-Andrews' motion for summary judgment on the two issues described above. Id.

         B. Defendant's Renewed Motion for Summary Judgment

         On May 14, 2018, Defendant filed its renewed motion for summary judgment (the “Renewed Motion”). 2d Mot. Defendant also submitted a supplemental declaration from ...


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