MEMORANDUM OPINION
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
The
National Immigrant Justice Center (NIJC) brings this Freedom
of Information Act (FOIA) lawsuit to challenge the adequacy
of responses to its FOIA requests from the Department of
Homeland Security (DHS) and its constituent agency,
Immigration and Customs Enforcement (ICE). Following this
Court's order on an earlier partial motion for summary
judgment, DHS and ICE made supplemental productions of the
requested statistical data and draft statistical reports.
NIJC now challenges specific redactions made to the records.
The parties filed renewed cross-motions for partial summary
judgment. The Court will grant in part and deny in part both
Defendants' motion for partial summary judgment and
NIJC's motion for partial summary judgment. Defendants
will be directed to provide the location-identifying data in
the produced records, re-produce DHS's July 20, 2018
production in native format, and provide the Originating
Agency Identifier and Contributing Agency Identifier codes in
all produced records.
I.
BACKGROUND
The
facts were described in detail in the Court's Memorandum
Opinion on the parties' first cross-motions for partial
summary judgment and will only be summarized and supplemented
here. See Heartland All. for Human Needs & Human Rights
v. DHS, 291 F.Supp.3d 69, 74-76 (D.D.C. 2018). NIJC is a
nonprofit entity through which the Heartland Alliance for
Human Needs and Human Rights does business. It is
“[d]edicated to ensuring human rights protections and
access to justice for all immigrants, refugees, and asylum
seekers.” Am. Compl. [Dkt. 22] ¶ 4. “Secure
Communities was an immigration enforcement program
administered by ICE from 2008 to 2014, ” Id.
¶ 7, and reinstituted in 2017, see Exec. Order No. 13,
767, 82 Fed. Reg. 8, 793 (Jan. 25, 2017), which allowed
fingerprints collected by police to be provided “to the
FBI for checks against various criminal justice
databases” and to DHS to determine “which
fingerprinted arrestees may be removable aliens.” Ex.
6, Am. Compl. (DHS FOIA Request) [Dkt. 22-6] at
8.[1]
NIJC
submitted requests under the Freedom of Information Act, 5
U.S.C. § 552 (2012), on March 14, 2014 to DHS and ICE
regarding the Secure Communities program administered by ICE.
See DHS FOIA Request; Ex. 12, Am. Compl. (ICE FOIA Request)
[Dkt. 22-12].[2] Both FOIA requests asked for a variety of
records pertaining to the Secure Communities program,
including “all reports produced related to the Secure
Communities Statistical Monitoring, including all draft
reports and reports produced by contracted
statistician(s)” and all underlying statistical data.
Am. Compl. ¶ 21.
On
February 8, 2016, NIJC filed the Complaint in this case
challenging the adequacy of the agencies' response to the
FOIA requests. See Compl. [Dkt. 1]. NIJC also submitted
additional FOIA Requests to DHS and ICE on November 4, 2016
requesting the same types of records for the Priority
Enforcement Program (PEP), a replacement program for Secure
Communities which was in place from 2014 to 2016, and filed
an Amended Complaint. See Am. Compl. ¶¶ 37-45; Ex.
19, Am. Compl. (DHS Second FOIA Request) [Dkt. 22-19]; Ex.
21, Am. Compl. (ICE Second FOIA Request) [Dkt. 22-21].
The
parties agreed to focus on the reports and statistical data
in hopes of resolving the case without extensive production.
The Court, therefore, ordered Defendants to locate and
produce all statistical monitoring reports and underlying
data, or indicate in a Vaughn Index[3] the grounds for withholding
each record. See 12/1/16 Order [Dkt. 20]. After those
productions, both parties moved for partial summary judgment
and, on January 31, 2018, the Court denied Defendants'
motion and granted in part NIJC's motion. The Court
required DHS and ICE to search for and produce all underlying
data used in the draft statistical reports. See 1/31/18 Order
[Dkt. 41]. For the next six months, DHS and ICE searched for
and produced numerous records, including statistical data and
draft reports regarding the data. The parties also conferred
repeatedly and engaged in telephone conferences with the
Court regarding challenges to some redactions made by DHS and
ICE. In August 2018, the Court determined that the remaining
disputes should be briefed through another round of
cross-motions for partial summary judgment. See 8/2/18 Order
[Dkt. 48]. Those motions are now ripe for
decision.[4]
II.
LEGAL STANDARDS
A.
Summary Judgment
Summary
judgment is the typical vehicle to resolve an action brought
under FOIA. See McLaughlin v. DOJ, 530 F.Supp.2d 210, 212
(D.D.C. 2008). Under Federal Rule of Civil Procedure 56,
summary judgment is appropriate if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to a judgment
as a matter of law. Fed.R.Civ.P. 56(c). The party seeking
summary judgment bears the initial burden of demonstrating
the absence of a genuine issue of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27
F.3d 635, 638 (D.C. Cir. 1994).
In
considering whether there is a triable issue of fact, the
Court must draw all reasonable inferences in favor of the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). The party opposing a motion for summary
judgment, however, “may not rest upon the mere
allegations or denials of his pleading, but must set forth
specific facts showing that there is a genuine issue for
trial.” Id. at 248.
B. FOIA
FOIA
requires federal agencies to release government records to
the public upon request, subject to nine listed exceptions.
See 5 U.S.C. § 552(b); Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007). In a FOIA case, a court may award summary
judgment solely on the basis of information provided by the
department or agency in affidavits or declarations when the
affidavits or declarations describe “the documents and
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.” Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981). A defending agency in a FOIA
case must show that its search for responsive records was
adequate, that any exemptions claimed actually apply, and
that any reasonably ...