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New Orleans Workers' Center for Racial Justice v. United States Immigration and Customs Enforcement

United States District Court, District of Columbia

March 4, 2019

NEW ORLEANS WORKERS' CENTER FOR RACIAL JUSTICE, et al., Plaintiffs,
v.
UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON UNITED STATES DISTRICT JUDGE

         The New Orleans Workers' Center for Racial Justice and eleven individual plaintiffs bring this civil action against the defendant, the United States Immigration & Customs Enforcement (“ICE”), under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), seeking, inter alia, records related to ICE's Criminal Alien Removal Initiative (“CARI”). See Complaint (“Compl.”) ¶ 1. Currently pending before the Court are the parties' cross-motions for summary judgment. See generally Defendant's Motion for Summary Judgment (“Def.'s Mot.”); Plaintiffs' Cross-Motion for Summary Judgment (“Pls.' Cross-Mot.”). Upon careful consideration of the parties' submissions, [1] the Court concludes that it must deny the defendant's motion and grant in part and deny in part the plaintiffs' cross-motion.

         I. BACKGROUND

         The following facts are undisputed by the parties, unless otherwise indicated. “On November 13, 2013, [the p]laintiffs submitted to [the d]efendant . . . [the] FOIA request” that is the subject of this civil action (the “Request”). Def.'s Facts ¶ 1; see Pls.' Facts ¶ 1. “The [stated] purpose of the [R]equest [wa]s to obtain information for the public about . . . []CARI[] and other ICE programs related to community enforcement[, ] . . . includ[ing] information on mobile fingerprint units and other technological tools at ICE's disposal, and the collaboration between ICE and local law enforcement in the planning and carrying out of immigration enforcement actions.” Pineiro Decl., Ex. 1 (FOIA Request Re[:] CARI and New Orleans Community Raids and Request for Expedited Review (“Request”)) at 1.[2] Specifically, the Request sought records related to the following seven categories: (1) “the policies, procedures[, ] or objectives of CARI, ” id., Ex. 1 (Request) at 8; (2) the “[s]cope of CARI, ” id., Ex. 1 (Request) at 9; (3) “[i]nformation on CARI [a]rrests, ” id., Ex. 1 (Request) at 10; (4) “CARI's [c]ost and [f]iscal [i]mpact, ” id., Ex. 1 (Request) at 12; (5) “communications related to CARI by, to, or between” various government officials, id., Ex. 1 (Request) at 12; (6) “[a]ssessments of CARI, ” id., Ex. 1 (Request) at 13; and (7) “requests for prosecutorial discretion file[d] by individuals arrested by CARI officers, ” id., Ex. 1 (Request) at 13. Each of these seven categories sought several subcategories of records. For example, under the third category regarding “[i]nformation on CARI [a]rrests, ” the Request sought, inter alia, “[a]ny and all records pertaining to the factual basis for the initial stop, interrogation[, ] and/or arrest of the” individual plaintiffs in this case, “[a]ny and all records containing information related to any stops, interrogations, fingerprinting, and/or arrests by ICE agents who work in whole or in part o[n] CARI teams, ” and “[a]ll records containing information related to [certain] arrest data for the past two years, ” including the “[t]otal number of ICE arrests per week in [ ] designated jurisdiction[s]” in New Orleans, the “[t]otal number of ICE arrests per week related to CARI, ” and the “[t]otal number of individuals fingerprinted using ICE's mobile fingerprinting units and/or other technological tools per week.” Id., Ex. 1 (Request) at 10-11.

         On November 26, 2013, the defendant sent a letter to the plaintiffs acknowledging receipt of the plaintiffs' Request. See id., Ex. 2 (Letter from Catrina M. Pavlik-Keenan, FOIA Officer, to Jennifer Rosenbaum, New Orleans Workers' Center for Racial Justice (Nov. 26, 2013)) at 1; see also Pls.' Facts ¶ 26; Def.'s Reply Facts ¶ 26.[3] According to the defendant, “upon receipt and review of the Request, [it] determined that . . . there were two [ ] offices likely to have records responsive to [the R]equest: [(1)] the [defendant's] Office of Enforcement and Removal Operations (‘ERO')[] and [(2)] the [defendant's] Office of the Principal Legal Advisor (‘OPLA').” Pineiro Decl. ¶ 25. Accordingly, the defendant “instructed those specific offices to conduct a [ ] search for [responsive] records.” Id. In response, the ERO conducted searches of its headquarters, its Secure Communities and Enforcement office, its Field Operations office, and its New Orleans Field Office, see Harrington Decl. ¶ 8, which is one of its “[twenty-four] Field Offices, ” id. ¶ 6. However, “the Chief of [OPLA's] Executive Communications Unit . . . indicat[ed] that OPLA did not possess any [responsive] records, as OPLA did not have any involvement in . . . []CARI[] matters.” Pineiro Decl. ¶ 30.

         Approximately “[sixteen] months after [the p]laintiffs [ ] [filed their] Request . . ., [the defendant] had not produced a[ny] . . . responsive document[s].” Pls.' Facts ¶ 28; see Def.'s Reply Facts ¶ 28. “As a result, on March 25, 2015, [the p]laintiffs filed their Complaint” in this case. Pls.' Facts ¶ 28; see Def.'s Reply Facts ¶ 28. According to the defendant, “[i]n response to the filing of the [C]omplaint . . ., and upon [the defendant's] litigation review, [the] ERO . . . tasked [its twenty-three] remaining [ ] Field Offices to search for responsive document[s], ” Harrington Decl. ¶ 9, and the defendant also tasked its Office of Public Affairs, see Pineiro Decl. ¶ 31.

         On May 7, 2015, the defendant “released its first production set to [the p]laintiffs.” Pls.' Facts ¶ 30; see Def.'s Reply Facts ¶ 30. Thereafter, in June 2015, the plaintiffs sent a letter to the defendant, see Pls.' Facts ¶ 31; Def.'s Reply Facts ¶ 31, to which they attached various appendices identifying, inter alia, “[d]atabases, [o]ffices[, ] and [i]ndividuals' [f]iles [that the defendant should] [s]earch[], ” Pls.' Cross-Mot., Ex. 23 (Appendices to Counsel for Plaintiffs' Correspondence with Counsel for ICE, June 22, 2015 (“June 2015 Appendices”)) at 6, as well as “[s]earch [t]erms” that the defendant should use, id., Ex. 23 (June 2015 Appendices) at 8. In September 2015, the plaintiffs “sent a similar letter to [the defendant] . . ., [again identifying] search terms, offices and records custodians, and specific data sources” that they believed the defendant should search. Pls.' Facts ¶ 32; see Def.'s Reply Facts ¶ 32 (not disputing that the “[p]laintiffs sent correspondence to ICE in September 2015” and stating that the correspondence “speaks for itself”); Pls.' Cross-Mot., Ex. 24 (Appendices to Counsel for Plaintiffs' Correspondence with Counsel for ICE, September 2, 2015 (“September 2015 Appendices”)) at 2, 4.

         “On June 18, 2015, the [defendant] made its second production of responsive material, ” Def.'s Facts ¶ 13; Pls.' Facts ¶ 13, followed by five additional productions on July 16, August 18, September 17, October 15, and November 18, 2015, see Def.'s Facts ¶¶ 14-17; Pls.' Facts ¶¶ 14-17. “In total, between May 7, 2015[, ] and November 18, 2015, [the defendant] produced 3, 680 pages of documents, as well as certain spreadsheets of data.” Pls.' Facts ¶ 35; Def.'s Reply Facts ¶ 35. Then, “[i]n February [ ] 2016, [the defendant] re[-]released 167 pages of documents with several portions of the documents that were previously redacted now unredacted, ” and “[o]n March 10, 2016[, ] it re[-]released four additional pages with fewer redactions.” Pls.' Facts ¶ 36; Def.'s Reply Facts ¶ 36. Following the defendant's final production, the parties filed their cross-motions for summary judgment, see Def.'s Mot. at 1; Pls.' Cross-Mot. at 1, which are the subject of this Memorandum Opinion.

         II. STANDARD OF REVIEW

         The Court must grant a motion for 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). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on “mere allegations or denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, “[c]onclusory allegations unsupported by factual data will not create a triable issue of fact.” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (Garland, J., concurring) (alteration in original) (quoting Exxon Corp. v. FTC, 663 F.2d 120, 126-27 (D.C. Cir. 1980)). If the Court concludes that “the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof, ” then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, when “ruling on cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.” Shays v. FEC, 424 F.Supp.2d 100, 109 (D.D.C. 2006).

         “FOIA cases typically are resolved on a motion for summary judgment.” Ortiz v. U.S. Dep't of Justice, 67 F.Supp.3d 109, 116 (D.D.C. 2014). “FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions.” Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). In a FOIA action, the defendant agency has “[the] burden of demonstrating that the withheld documents are exempt from disclosure.” Boyd v. U.S. Dep't of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007) (citation omitted). The Court will grant summary judgment to the government in a FOIA case only if the agency can prove “that it has fully discharged its obligations under [ ] FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Friends of Blackwater v. U.S. Dep't of Interior, 391 F.Supp.2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep't of Treasury, 10 F.Supp.2d 3, 11 (D.D.C. 1998)). Thus, in a lawsuit brought to compel the production of documents under FOIA, “an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly[, or partially, ] exempt [from disclosure].'” Students Against Genocide, 257 F.3d at 833 (omission in original) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). However, “[t]he burden upon the requester is merely ‘to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.'” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999) (quoting Nat'l Ass'n of Gov't Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).

         III. ANALYSIS

         The plaintiffs challenge the defendant's response to their Request for two main reasons. First, they argue that the defendant's searches for responsive records were inadequate because the defendant failed to (1) “search its headquarters and at least five essential component[] [offices], ” Pls.' Opp'n at 9; (2) “search critical types of record storage systems where responsive information is stored, ” id. at 5; (3) “generate reasonable and obvious search terms related to [the p]laintiffs' Request, ” id.; and (4) “search adequately for several categories of clearly responsive records, ” id. Second, the plaintiffs argue that the defendant “improperly applied exemptions under 5 U.S.C. § 552(b)(5), (6), 7(C), and 7(E)” as the basis for withholding responsive records. Id. at 24. The Court will address each of the plaintiffs' challenges in turn.

         A. The Adequacy of the Defendant's Searches

         “The adequacy of an agency's search is measured by a standard of reasonableness[] and is dependent upon the circumstances of the case.” Truitt v. U.S. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (internal quotation marks omitted). To satisfy its burden to show that no genuine issue of material fact exists as to the adequacy of its search, the agency must show that each agency component “has conducted a search reasonably calculated to uncover all relevant documents.” Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). “[T]he agency may meet its burden by providing ‘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 . . . were searched.'” Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003). “The plaintiff may then provide ‘countervailing evidence' as to the adequacy of the agency's search.” Id. at 314 (quoting Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)). The question a court must answer in considering the adequacy of an agency's search is “not whether other responsive documents may exist, but whether the search itself was adequate.” Moore v. Bush, 601 F.Supp.2d 6, 13 (D.D.C. 2009) (citing Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)). However, “if the ‘record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.'” Beltranena v. Clinton, 770 F.Supp.2d 175, 183 (D.D.C. 2011) (quoting Truitt, 897 F.2d at 542).

         The Court must first address the defendant's argument that its searches were adequate as a general matter because the “[p]laintiffs' [R]equest failed to ‘reasonably describe' the records sought.” Def.'s Mem. at 6. Specifically, the defendant argues that the Request was “overly broad” and could be construed to seek “an extremely voluminous set of records, virtually none of which would have any connection to CARI, ” id. at 6-7, and, “[i]n the context of such a broad request, it is within an agency's discretion to structure a search that is likely to uncover responsive documents without resulting in an unduly burdensome search, ” Def.'s Reply at 4.

         Accordingly, the defendant argues that it “properly undertook searches based on its own reasonable interpretation of the scope of the . . . [R]equest.” Def.'s Mem. at 7. The plaintiffs respond that the defendant's “failure to adhere to its own regulation requiring collaboration with [the p]laintiffs to remedy any issues with the Request forecloses th[e defendant's] argument, ” and, in any event, the “[p]laintiffs' Request reasonably described the records sought.” Pls.' Opp'n at 20.

         As an initial matter, the defendant is correct that a FOIA request must “reasonably describe[]” the records sought by a requester, 5 U.S.C. § 552(a)(3)(A), and the Court agrees with the defendant that the plaintiffs' Request, at least in some respects, falls short of this standard. “The linchpin inquiry” when evaluating whether a request reasonably describes the records sought is “whether the agency is able to determine precisely what records (are) being requested.” Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982) (internal quotation marks omitted). Here, as the defendant notes, see Def.'s Mem. at 7, the Request broadly defines the term “CARI, ” a term used throughout its Request, to include not only its Criminal Alien Removal Initiative, but also “ICE programs related to community enforcement which use[] mobile fingerprint units and other technological tools, and/or the collaboration between ICE and local law enforcement in the planning and carrying out of the enforcement actions, ” Pineiro Decl., Ex. 1 (Request) at 7. However, the Request fails to identify the non-CARI-specific “ICE programs” that it targets or define key terms such as “community enforcement, ” “technological tools, ” or “the enforcement actions, ” see generally id., Ex. 1 (Request), thus “leaving unanswered how broadly [the plaintiffs thought] an objective agency professional should construe th[ose] terms, ” Freedom Watch, Inc. v. U.S. Dep't of State, 925 F.Supp.2d 55, 62 (D.D.C. 2013).[4] Moreover, numerous subcategories of requested records seek “[a]ny and all” records “related to” or “pertaining to” broad subjects, including “the policies, procedures[, ] or objectives of CARI, ” “CARI teams, ” and CARI “enforcement actions, ” Pineiro Decl, Ex. 1 (Request) at 8, 10-11; see, e.g., id., Ex. 1 (Request) at 8 (seeking “[a]ny and all Records, received, maintained, or created by any government agency or subdivision, related to the policies, procedures[, ] or objectives of CARI” (emphases added)), which is a formulation that other members of this Court have consistently found to be “insufficiently precise, ” Freedom Watch, Inc., 925 F.Supp.2d at 61 (observing that requests seeking “all” documents “related to” a particular topic are “subject to criticism as overbroad since life, like law, is ‘a seamless web,' and all documents ‘relate' to all others in some remote fashion” (citation omitted)); see Sack v. CIA, 53 F.Supp.3d 154, 164 (D.D.C. 2014) (observing that requests seeking all documents “pertaining to” a particular topic “lack [ ] clarity [and] leave[] the agency to guess at the plaintiff's intent” because “a record may pertain to something without specifically mentioning it”).

         However, the Court cannot conclude for several reasons that the Request's shortcomings justify the scope of the search conducted by the defendant in this case. First, as the plaintiffs correctly note, see Pls.' Opp'n at 20, the defendant failed to timely notify them of any perceived deficiencies in their Request in violation of the defendant's own FOIA regulations in effect at the time. Those regulations required the defendant, upon

determin[ing] that [a] request does not reasonably describe records, . . . [to] tell [the requester] either what additional information is needed or why [the] request is otherwise insufficient[, and] . . . also [ ] give [the requester] an opportunity to discuss [the] request so that [the requester] may modify it to meet [such] requirements.

6 C.F.R. § 5.3(b) (2015).[5] Here, it is undisputed that the defendant did not notify the plaintiffs at any point prior to the filing of this action that it believed the Request failed to reasonably describe the records sought or give the plaintiffs an opportunity to address such perceived failures, see Pls.' Facts ¶ 27 (“Between the filing of . . . [the] Request and their Complaint, . . . ICE did not assert that the [ ] Request was overly broad, burdensome, or otherwise deficient.”); Def.'s Reply Facts ¶ 27, [6] and the Court has been unable to locate any evidence in the record demonstrating that the defendant provided such notice and opportunity at any point prior to filing its motion for summary judgment. Thus, given the defendant's failure to follow its own administrative process, the Court cannot conclude that any failure by the plaintiffs to reasonably describe the records sought supports the defendant's position that it is entitled to summary judgment as to the adequacy of its search. See Ruotolo v. U.S. Dep't of Justice, Tax Div., 53 F.3d 4, 10-11 (2d Cir. 1995) (denying summary judgment to an agency on the basis that the plaintiffs' request failed to “reasonably describe” the records sought in part because the agency's FOIA regulations imposed on the agency a “duty . . . to assist the [requesters] in reformulating their request if it [ ] thought that the request needed to be narrowed, ” but it “made no effort” to do so).

         Even assuming that it was proper for the defendant to structure its search based on its “own reasonable interpretation of the . . . [R]equest, ” Def.'s Mem. at 7, rather than notifying the plaintiffs of the Request's deficiencies and giving the plaintiffs an opportunity to modify it, the Court cannot conclude that the defendant's interpretation of the Request was reasonable. As this Circuit has instructed, even when a request is “not a model of clarity, ” an agency must “‘construe [the] request liberally, '” particularly when a “request is reasonably susceptible to a broader reading.” LaCedra v. Exec. Office for U.S. Att'ys, 317 F.3d 345, 348 (D.C. Cir. 2003) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). The defendant appears to have ignored this instruction, as it has narrowly interpreted the Request as seeking only records related to CARI, see Harrington Decl. ¶ 13 (asserting that the search terms “‘CARI' and ‘Criminal Alien Removal Initiative' were reasonably likely to uncover all relevant records responsive to a reasonable interpretation of [the p]laintiffs' . . . [R]equest[] . . . because every topic [in the Request] is connected to CARI”), even though various subcategories of requested records plainly seek records that reach beyond the objectives of CARI, see, e.g., Pineiro Decl., Ex. 1 (Request) at 11 (requesting the “[t]otal number of ICE arrests per week in [ ] designated jurisdiction[s]” in New Orleans, the “[t]otal number of individuals fingerprinted using ICE's mobile fingerprinting units and/or other technological tools per week, ” and the “[r]ace or ethnicity of each individual arrested and/or fingerprinted” in those categories); id., Ex. 1 (Request) at 8 (seeking “records . . . related to training, briefing, guidance, procedures, rules, or other informational materials developed for local [law enforcement agencies] or other state or local entities”). Thus, the defendant's interpretation of the Request as excluding the non-CARI-specific information requested is plainly inconsistent with its obligation to “construe a FOIA request liberally.” LaCedra, 317 F.3d at 348 (quoting Nation Magazine, 71 F.3d at 890); see Leopold v. U.S. Dep't of Justice, 130 F.Supp.3d 32, 43-44 (D.D.C. 2015) (rejecting an agency's “limited” interpretation of a term used in the plaintiff's Request because “[t]he natural meaning of the term . . . encompasse[d] more”). And, in any event, for the reasons explained in Part III.A.1-5 of this Memorandum Opinion, infra, the defendant failed to conduct an adequate search based on even its narrow interpretation of the Request.

         Moreover, the defendant appears to have resolved any issues presented by the specific deficiencies it identifies in the plaintiffs' Request. For example, despite the defendant's position that the Request's definition of the term “CARI” could be construed to seek “voluminous . . . records, virtually none of which would have any connection to CARI, ” Def.'s Mem. at 7, the defendant appears to have determined that the term “CARI” should be interpreted to only refer to the Criminal Alien Removal Initiative itself, and not any other programs or topics, see, e.g., Def.'s Mem. at 13 (arguing that the search terms “‘CARI' and ‘Criminal Alien Removal Initiative['] were reasonably likely to uncover all relevant records responsive to a reasonable interpretation of . . . [the R]equest”), which is an interpretation that the plaintiffs do not appear to dispute, see Pls.' Opp'n at 22 (arguing that the defendant's “criticism of th[e R]equest as ‘far too broad' is unfounded[] [because the p]laintffs' language sufficiently specified and described records of a particular program” (emphasis added)); see also id. at 23 (arguing that the “Request adequately described records sought and obviously focused on a particular enforcement initiative” (emphasis added)). Additionally, although the defendant argues that the plaintiffs' request for “[a]ny and all Records . . . related to the . . . objectives of CARI, ” Pineiro Decl., Ex. 1 (Request) at 8, could be construed to “seek[] . . . every record maintained at ICE that is ‘related to' the enforcement of federal immigration laws, ” Def.'s Mem. at 7 (emphasis omitted), the defendant appears to have wisely concluded that the Request does not sweep so broadly, as it does not represent that it searched for “every record . . . ‘related to' the enforcement of federal immigration laws, ” see id. (emphasis omitted).

         Finally, to the extent that the defendant asserts that supplementing its search as requested by the plaintiffs would be “unduly burdensome, ” Def.'s Reply at 4, it has failed to adequately support such a claim. Although the defendant is correct that “an agency need not honor a FOIA request that requires it to conduct an unduly burdensome search, ” id. at 5 (internal quotation marks and citation omitted), “the burden falls on the agency to ‘provide sufficient explanation as to why [ ] a search would be unreasonably burdensome, '” Hainey v. U.S. Dep't of the Interior, 925 F.Supp.2d 34, 45 (D.D.C. 2013) (quoting Nation Magazine, 71 F.3d at 892), and “[c]ourts typically demand ‘a detailed explanation by the agency regarding the time and expense of a proposed search in order to assess its reasonableness, '” Shapiro v. CIA, 170 F.Supp.3d 147, 156 (D.D.C. 2016) (citation omitted). Here, the defendant's generic claims that the plaintiffs' Request is “overly broad, ” Def.'s Mem. at 6, and “vague, ” id. at 13, are plainly insufficient to satisfy this burden, see Hall v. CIA, 881 F.Supp.2d 38, 53 (D.D.C. 2012) (“This Court will not find a search unduly burdensome on conclusory statements alone.”). And, although the defendant has provided more detail regarding the alleged burden of searching for the CARI-related arrest data requested by the plaintiffs, see Harrington Decl. ¶ 32 (asserting that “[i]n order to determine the universe of arrests related to CARI, . . . ICE would have to manually review over 230, 000 A-files, for FY2013 alone”), for the reasons explained in Part III.A.2.a of this Memorandum Opinion, infra, those claims fail to satisfy its burden, as well.[7]

         Thus, the Court concludes that summary judgment for the defendant is not warranted due to the deficiencies in the plaintiffs' Request. Having rejected the defendant's arguments on this issue, the Court next turns to the plaintiffs' specific challenges to the adequacy of the defendant's search.

         1. Offices Searched

         The plaintiffs argue that the defendant “[u]nreasonably [l]imited its [s]earch to [t]wo [c]omponent [o]ffices.” Pls.' Opp'n at 8. Specifically, they argue that the defendant should have “search[ed] its headquarters and . . . essential [agency] components whose involvement in CARI has been confirmed by records [the defendant] produced and whose missions are closely related to the clear themes in [the] Request, ” id. at 9, namely, the offices of the defendant's Director, Deputy Director, Chief of Staff and Executive Secretariat, Assistant Deputy Director, and Management and Administration (the “headquarters offices”), the OPLA, the Homeland Security Investigations (“HSI”) department, the Office of Firearms and Tactical Programs/National Firearms and Tactical Training Unit, the Office of Congressional Relations (the “OCR”), the Office of the Chief Financial Officer (the “OCFO”), id. at 9-10, and the Office of State, Local, and Tribal Coordination, id. at 18. The defendant responds that it was not “obligated to search” these offices because they “had nothing to do with CARI, so [they] would be unlikely to have responsive records.” Def.'s Mem. at 10; see Def.'s Reply at 10-11 (“[T]he offices listed by [the p]laintiffs did not implement [CARI] or have any association with it[.]”).

         Although there is “no requirement that an agency search every division or field office . . . in response to a FOIA Request, ” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (citing Marks v. U.S. Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978)), “[i]t is well-settled that if an agency has reason to know that certain places may contain responsive documents, it is obligated under FOIA to search [those places] barring an undue burden, ” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 327 (D.C. Cir. 1999). And, even if an agency “start[s] with [a] reasonable assumption that only . . . [certain search locations] would be necessary, ” “it must revise its assessment of what is ‘reasonable' in a particular case to account for leads that emerge during its inquiry.” Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998).

         Here, the Court cannot conclude that the offices searched by the defendant were adequate for at least two reasons. First, the defendant has failed to “aver[] that all locations likely to contain responsive records were searched.” Powell v. IRS, 280 F.Supp.3d 155, 162 (D.D.C. 2017); see Iturralde, 315 F.3d at 313-14. Rather, the defendant asserts only that it identified “[three] offices likely to have [responsive] records” and “instructed those [ ] offices to conduct a comprehensive search for [responsive] records.” Pineiro Decl. ¶ 25; see id. ¶ 26. However, these statements “fail[] to invoke ‘the magic words' concerning the adequacy of the search- namely, the assertion that [the agency] searched all locations likely to contain responsive documents, ” Huntington v. U.S. Dep't of Commerce, 234 F.Supp.3d 94, 103 (D.D.C. 2017), and, thus, preclude summary judgment for the defendant, see id. at 104.

         Additionally, the plaintiffs have identified countervailing evidence undermining the defendant's claim that the offices it chose not to search were “not likely to have responsive records, ” Harrington Decl. ¶ 28, because “these offices had nothing to with CARI, ” Def.'s Reply Facts ¶ 44. Specifically, the plaintiffs have identified evidence demonstrating that the defendant “ha[d] reason to know” that at least six other offices may possess responsive documents. Valencia-Lucena, 180 F.3d at 327. As to OPLA, the defendant itself initially identified OPLA as one of “two [ ] offices likely to have records responsive to [the p]laintiffs' Request.” Pineiro Decl. ¶ 25. Although it later determined that a “search [of OPLA] would not be reasonably calculated to uncover any relevant documents” because “the Chief of [OPLA's] Executive Communications Unit [ ] . . . indicat[ed] that OPLA did not possess any [responsive] records, as OPLA did not have any involvement in . . . []CARI[] matters, ” id. ¶ 30, the Chief's “bare assertion that . . . [OPLA] had no responsive documents is inadequate because it does not indicate that he performed any search at all, ” Defs. of Wildlife v. U.S. Dep't of Agric., 311 F.Supp.2d 44, 55 (D.D.C. 2004) (concluding that “the Deputy Under Secretary's conclusory denial that he did not possess any responsive documents d[id] not ‘demonstrate beyond material doubt that [the agency's] search was reasonably calculated to uncover all relevant documents'” (quoting Nation Magazine, 71 F.3d at 890)); see Valencia-Lucena, 180 F.3d at 327 (the agency's “failure to search [a location] where the requested documents might be located clearly raises a genuine issue of material fact as to the adequacy of the search”). Moreover, documents produced by the defendant contradict the Chief's representation that “OPLA did not have any involvement in . . . []CARI[] matters.” Pineiro Decl. ¶ 30; see, e.g., Pls.' Cross-Mot., Ex. 13 (Examples of Records Indicating ICE's Office of the Principal Legal Advisor's Involvement in CARI) at Bates No. 3138 (email stating that “[c]oordination with OPLA [wa]s essential” to an operation requiring “[f]ield [o]ffices . . . to identify [fifty] targets for each Fugitive Operation/CARI Team” (emphasis added)).

         As to the defendant's headquarters offices, records produced by the defendant demonstrate that at least one headquarters component, then-Director John Morton's office, oversaw and managed the development of an operational plan for CARI. See Pls.' Cross-Mot., Ex. 8 (Examples of Records ICE Produced Evidencing a Quota System and Close Attention to Numbers of CARI Arrests (“Quota Documents”)) at Bates No. 2853 (email with subject line referring to the “Criminal Removals Enforcement Initiative” and stating that “the criminal enforcement operations plan [ ] was briefed to Director Morton, ” who requested that the plan be “updated to include [additional] information”). Moreover, given other evidence demonstrating that CARI is a nationwide initiative involving the ERO's twenty-four field offices, see, e.g., Harrington Decl. ¶ 6 (representing that the “ERO's mission is carried out nationwide by [twenty-four] ERO Field Offices”); Pls.' Cross-Mot, Am. Ex. 17 (Exemption 5 Withholdings Challenged by Plaintiffs (“Exemption 5 Withholdings”)) at Bates No. 2682 (email instructing Field Office Directors to “complete [their] annex to the [CARI] Operational Plan”), the Court agrees with the plaintiffs that “[i]t strains credulity for [the defendant] to assert that [the] ERO could implement . . . [CARI] without any involvement whatsoever of any ICE [h]eadquarters office, ” Pls.' Opp'n at 10; see Defs. of Wildlife v. U.S. Dep't of Interior, 314 F.Supp.2d 1, 13 (D.D.C. 2004) (concluding that “it would strain credulity to find that the [agency] did not know that [its] Office of the Inspector General . . . would be [a] likely repositor[y] of responsive records” in light of “the high-profile nature of the[] ethics concerns” targeted by the request and “the fact that the [office's] mission is to investigate such alleged ethics violations”).

         The plaintiffs have also identified evidence demonstrating that responsive records are likely to be possessed by the OCFO, [8] the HSI, [9] the Office of Firearms and Tactical Programs/National Firearms and Tactical Training Unit, [10] and the OCR.[11] However, as to the remaining office identified by the plaintiffs in their summary judgment briefing, the Office of State, Local, and Tribal Coordination, the plaintiffs' belief that this office is likely to possess responsive records appears to be merely speculative. See Pls.' Opp'n at 18 (relying only on that office's general mission statement to argue that the defendant should have searched that office for responsive records). Thus, the Court cannot conclude that the defendant's failure to search this office was unreasonable. See Nolen v. U.S. Dep't of Justice, 146 F.Supp.3d 89, 98-99 (D.D.C. 2015) (rejecting the plaintiffs' argument that the FBI should have searched its field offices because the “[p]laintiff [ ] offered no evidence, only speculation, that the . . . field offices would possess [responsive] records”).[12]

         In sum, the plaintiffs have identified evidence demonstrating that the defendant failed to search at least six of its offices likely to possess responsive records. The defendant makes no meaningful response to the plaintiffs' evidence, other than inexplicably asserting that the evidence is “not relevant to the question of whether [it] . . . conduct[ed] adequate searches.” See, e.g., Def.'s Reply Facts ¶ 49. Moreover, “the record[] [ ] contains no evidence that [the defendant] limited its search [to exclude these offices] based on ascertained facts about” the offices' involvement in CARI. Leopold, 130 F.Supp.3d at 44; see Def.'s Reply Facts ¶¶ 43-44 (asserting only that “ICE FOIA tasked” offices with searches based on its “knowledge of ICE operations”); id. ¶ 53 (suggesting that it did not search the HSI because “CARI was [not] created and implemented within” it). Thus, the Court must conclude based on the record before it that the defendant's exclusion of these six offices from its search was unreasonable. See Valencia-Lucena, 180 F.3d at 327 (concluding that “summary judgment for the [agency] was inappropriate” because the agency “provid[ed] no explanation for why it did not search . . . [a] facility” likely to possess responsive records).

         2. Record Storage Systems Searched

         The plaintiffs argue that the defendant's search of its record storage systems was inadequate because (1) it “failed to search databases that the record confirms exist and are searchable for CARI-related records, ” (2) its “searches of most other types of record[] storage systems, including [email accounts], hard drives and servers, paper files, USBs, and DVDs were either inadequate or nonexistent, ” and (3) it “omitt[ed] attachments to many emails from its production to [the p]laintiffs.” Pls.' Opp'n at 11. The Court will address each of the plaintiffs' arguments in turn.

         a. Databases

         The plaintiffs argue that the defendant failed to search a number of “databases likely to contain [requested data], namely, EARM, EADM, ATD, GEMS, and IDENT, ” Pls.' Facts ¶ 31, and that it notified the defendant of this fact in its June and September correspondence, id. ¶¶ 31-32. The plaintiffs further argue that the defendant “has produced records showing . . . [that these] databases contain[] information on CARI arrests[] . . . [and] that a search of the database[s for that information] was possible, ” Pls.' Opp'n at 12 (internal citations omitted); however, “[o]ut of the 160 ICE custodians tasked with [a] search, only four ICE custodians searched any databases at all, ” Pls.' Facts ¶ 60, and those four “searched only the EARM database and no other databases, ” id. ¶ 61. The defendant responds that it instructed “specific individuals and component offices to conduct searches of their file systems, . . . which in their judgment, based on their knowledge of the manner in which they routinely keep records, would be reasonably likely to have responsive records.” Def.'s Reply at 11. With respect to data on CARI arrests, it asserts that it “did not track electronically whether an arrest related to the CARI program, but if noted at all, it would have been a manual note in [a] physical file or a note in [an] electronic file in a comments or notes section (which is not searchable for reporting purposes), ” and thus, “[i]n order to determine the universe of arrests related to CARI, every individual arrest record would need to be manually reviewed to determine if that arrest was part of the CARI program.” Harrington Decl. ¶ 32. It further responds that “[a]ny statistics regarding CARI arrests that the agency kept and produced were aggregate numbers kept and reported contemporaneously with the CARI program only and not linked to any individual cases electronically for historical purposes.” Id. ¶ 30.

         Notably, the defendant does not dispute that its databases or electronic systems contain responsive data on CARI arrests, but instead argues that it would be unreasonably burdensome to search them for such data. Specifically, it argues that it “did not track electronically whether an arrest related to the CARI program, ” and, thus, “[i]n order to determine the universe of arrests related to CARI, . . . [it] would have to manually review over 230, 000 A-files, for FY2013 alone.” Harrington Decl. ¶ 32. However, these assertions fail to satisfy the defendant's burden to “provide sufficient explanation as to why [ ] a search would be unreasonably burdensome, ” Hainey, 925 F.Supp.2d at 45 (quoting Nation Magazine, 71 F.3d at 892), which typically requires “a detailed explanation by the agency regarding the time and expense of a proposed search, ” Wolf v. CIA, 569 F.Supp.2d 1, 9 (D.D.C. 2008). First, the defendant has failed to identify the specific electronic files or systems to which it is referring or describe in any detail what information they contain and how that information is stored and retrieved. Thus, the Court lacks sufficient information to assess the defendant's claim that a search for these records would require an unreasonably burdensome manual search. See Church of Scientology of Calif. v. IRS, 792 F.2d 146, 151 (D.C. Cir. 1986) (instructing that agencies must provide “an affidavit reciting facts which enable the [ ] Court to satisfy itself that all appropriate files have been searched, i.e., that further searches would be unreasonably burdensome[, ] [and s]uch an affidavit would presumably identify the searched files and describe at least generally the structure of the agency's file system which makes further search difficult”). Additionally, the defendant has failed to provide the Court with an estimate of the time or cost required for a manual search or the total number of files that would need to be searched. See Harrington Decl. ¶ 32 (providing only the number of files that would need to be reviewed for “FY2013”); see also Pinson v. U.S. Dep't of Justice, 80 F.Supp.3d 211, 217 (D.D.C. 2015) (Pinson I) (rejecting as insufficient the agency's “state[ment] that all Civil Division files would need to be searched” without any “estimate of the time required to conduct [the] requested search, the cost of such a search, or the number of files that would have to be manually searched”). Such omissions by the defendant fail to demonstrate that the search would be unduly burdensome. See Shapiro, 170 F.Supp.3d at 156 (“Courts typically demand ‘a detailed explanation by the agency regarding the time and expense of a proposed search in order to assess its reasonableness.'” (quoting Wolf, 569 F.Supp.2d at 9)).

         On the other hand, the plaintiffs have identified countervailing evidence undermining the defendant's blanket claim that it “did not track electronically whether an arrest related to the CARI program.” Harrington Decl. ¶ 32. For example, emails produced by the defendant demonstrate that at least two of the defendant's electronic systems contained “CARI drop downs” used to track certain CARI activities, which would be utilized by certain teams. See Pls.' Cross-Mot., Ex. 10 (CARI Tracking Documents) at Bates No. 1601 (“There have been drop downs added in ENFORCE and FCMS to accommodate CARI activity[, ] . . . [which] will [ ] be utilized when a detailed CARI officer assists in the lead cultivation and arrest of a detainee.”); id., Ex. 10 (CARI Tracking Documents) at Bates No. 590 (explaining that certain “teams” would track CARI arrests using a “drop down for CARI in FCMS”). Additionally, other emails produced by the defendant suggest that other codes, not necessarily specific to CARI, could be used to identify CARI-related data. See id., Ex. 10 (CARI Tracking Documents) at Bates No. 813 (June 26, 2012 email stating that “[a]nything and everything Fugitive Operations . . . is doing right now is considered CARI”); id., Ex. 10 (CARI Tracking Documents) at Bates No. 590 (providing “fields” specific to “Fugitive Operations” used in “EABM”). And, at least one document demonstrates that the defendant kept “[a] spreadsheet . . . on CARI” that permitted it to calculate “total . . . [CARI] arrests.” Id., Ex. 10 (CARI Tracking Documents) at Bates No. 3236. Finally, other documents suggest that the defendant was able to generate CARI-related reports using databases or other electronic systems. See, e.g., id., Ex. 10 (CARI Tracking Documents) at Bates No. 590 (“During the Criminal Alien Removal Initiative (May 14, 2012 thru September 28, 2012), HQ will be tracking our work through various reports generated from information within EABM.”); id., Ex. 10 (CARI Tracking Documents) at Bates No. 813 (stating “that reporting for CARI is being pulled from Enforce”); id., Ex. 10 (CARI Tracking Documents) at Bates Nos. 763-70 (copy of a “GENERATED” “ACTIVITY REPORT” containing data associated with a “CARI team 2” data field); id., Ex. 10 (CARI Tracking Documents) at Bates No. 2643 (purporting to attach “two worksheets with graphs, one for [a]ll [a]rrests and one for CARI [a]rrests only”). Notably, the defendant does not specifically respond to this evidence that it did in fact track electronically whether an arrest related to CARI. See, e.g., Def.'s Reply Facts ¶ 66 (asserting only that it “does not track individuals subjected to stops, interrogations, fingerprints, and/or arrests as it relates specifically to the CARI program”).

         Thus, “[a]lthough the [defendant's] claim of infeasibility as to [CARI-specific data] may well be correct, the Court cannot credit this bare assertion” in light of the plaintiffs' specific countervailing evidence and the lack of detail provided by the defendant. Int'l Counsel Bureau v. U.S. Dep't of Def., 657 F.Supp.2d 33, 41 (D.D.C. 2009); see Pinson I, 80 F.Supp.3d at 217 (“Because the DOJ has not met its burden to ‘provide a sufficient explanation as to why [the requester's] search would be unreasonably burdensome,' a grant of summary judgment would be inappropriate.” (quoting Nation Magazine, 71 F.3d at 892)); cf. Nation Magazine, 71 F.3d at 893 (reversing the district court's determination that searching for a “1981 [ ] memo would be too laborious, given that the [relevant] files [we]re indexed chronologically”). Accordingly, the defendant “must either search [for] these records or demonstrate why it would be impractical to do so.” Int'l Counsel Bureau, 657 F.Supp.2d at 41.

         b. Other Record Systems

         The plaintiffs further argue that the defendant's “searches of . . . [custodians' email accounts, ] hard drives and servers, paper files, USBs, and DVDs were either inadequate or nonexistent.” Pls.' Opp'n at 11. Specifically, the plaintiffs argue that the defendant's declarations “reveal inadequate efforts to search custodians' email accounts” because “[t]hey fail to describe with any detail [the defendant's] methodologies for searching with the limited terms it devised, ” “do not state which, if any, custodians searched their email archives, and show no systematic effort to ensure that archived emails were searched.” Id. at 13. Additionally, the plaintiffs argue that the defendant's declarations “did not describe whether custodians who searched computer hard drives and shared servers did so using keywords, search methods designed to search the full text of documents, or other safeguards to ensure that all files were searched.” Pls.' Facts ¶ 73. They further argue that the defendant “should have searched paper files for responsive documents, but it refused to search most paper records because they were allegedly ‘too voluminous.'” Pls.' Opp'n at 14. And finally, they object to the fact that “[n]ineteen [ ] custodians who conducted searches did not search their hard drives or shared servers, ” Pls.' Facts ¶ 73, “[o]nly thirteen ICE custodians searched paper files, ” “[o]nly a single [ ] custodian searched a thumb drive, ” and “[n]o other [ ] custodians searched USB/thumb drive[s], CD[s], or DVDs, ” id. ¶ 75.

         As to the defendant's searches of custodians' email accounts, hard drives, and shared servers, the Court agrees with the plaintiffs that the defendant's declarations fail to demonstrate that these searches were adequate. To satisfy its burden, the defendant must “describe in detail how [it] conducted its search[es].” Aguirre v. SEC, 551 F.Supp.2d 33, 61 (D.D.C. 2008); see Oglesby, 920 F.2d at 68 (“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 . . . were searched, is necessary . . . to allow the district court to determine if the search was adequate in order to grant summary judgment.” (emphasis added)). Here, the defendant asserts that, under its standard search procedures, its “determination of . . . how to conduct any necessary searches[] [of hard drives or shared drives] is necessarily based on the manner in which the employee maintains his/her files, ” Pineiro Decl. ¶ 21, and that “[i]ndividual archives of emails are searched by the individual employees where those employees have identified individual archives containing potentially responsive documents, ” id. ¶ 23. The defendant further represents that, in this case, various employees “searched their government computer[s], including their hard drives, shared network drives, and their Microsoft Outlook e[]mail account, using [specific] search terms.” See, e.g., Harrington Decl. ¶ 10a. Such assertions fail to provide the Court with any detail regarding how the defendant's employees conducted these searches, and, thus, they are insufficient. See Aguirre, 551 F.Supp.2d at 61 (rejecting as insufficient the agency's assertions that it “sent memoranda to FOIA liaisons in the . . . Offices . . . who could have responsive documents[, t]hose liaisons contacted the relevant staff and instructed them to review their work files . . . to determine if they had responsive documents[, and that] [t]he FOIA Office staff followed standard [search] procedures”); see also Oglesby, 920 F.2d at 68 (concluding that the agency's “affidavit did not adequately describe [its] search” where it “merely state[d] that ‘ . . . consistent with customary practice and established procedure, a search was initiated of the . . . [agency's] Central Records'”). Additionally, the defendant's failure to indicate whether any of its custodians searched their archived emails also precludes the Court from assessing whether the custodians' searches of their email accounts were reasonable. See Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514-15 (D.C. Cir. 2011) (concluding that the agency “failed to show the adequacy of its search[] because it didn't address its employees' archived emails and backup tapes, ” which was “raised . . . before the district court”). Absent additional information regarding the manner in which the defendant conducted these searches, the Court cannot determine whether these searches were adequate.

         As to custodians' apparent failures to search their hard drives, shared servers, paper files, USB/thumb drives, CDs, or DVDs, the Court also lacks sufficient information to determine whether these failures render the defendant's search inadequate. “While an agency need not search every one of its record systems, a ‘reasonably detailed affidavit . . . averring that all files likely to contain responsive materials . . . were searched, is necessary to . . . allow the district court to determine if the search was adequate in order to grant summary judgment.'” Am. Immigration Council v. U.S. Dep't of Homeland Sec., 950 F.Supp.2d 221, 231 (D.D.C. 2013) (emphasis added) (quoting Oglesby, 920 F.2d at 68). However, the defendant has failed to assert that it searched all files likely to contain responsive records. And, its assertion that its standard procedure is to direct “individuals and component offices . . . to conduct searches of their file systems (including both paper files and electronic files) which in their judgment, based on their knowledge of the manner in which they routinely keep records, would be reasonably likely to have responsive records, ” Harrington Decl. ¶ 7, is inadequate, see Am. Immigration Council, 950 F.Supp.2d at 231 (rejecting as insufficient ICE's assertion that it searched filing systems that “were determined by the person familiar with the records within [an ICE department] to be relevant to the request and reasonably calculated to uncover relevant documents”); see also Huntington, 234 F.Supp.3d at 104 (denying summary judgment to the defendant because the agency's assertion that it “conducted a search of the offices reasonably likely to have the records sought” “ultimately d[id] not pass muster”).

         Without the additional information described above, the Court cannot determine whether the defendant's searches of, or apparent failures to search, these record systems were unreasonable. Thus, the Court concludes that issues of material fact exist regarding this issue, and thus, summary judgment is inappropriate. See Am. Immigration Council, 950 F.Supp.2d at 233 (“Without a more detailed description of the ...


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