Heartland Alliance for Human Needs & Human Rights v. United States Immigration & Customs Enforcement

          MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT RE DOCUMENT NO. 54, 56

          RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On December 18, 2015, President Barack Obama signed into law the Consolidated Appropriations Act, 2016, which allocated federal funding for financial year 2016 for the federal agency U.S. Immigrations and Customs Enforcement (“ICE”). See Am. Compl. ¶ 8, ECF No. 31 (citing Am. Compl. Ex. 1, ECF No. 31-1). The Consolidated Appropriations Act, 2016 stipulated that “funding made available under this heading shall maintain a level of not less than 34, 000 detention beds. . . .” Am. Compl. Ex. 1 at 4 (emphasis added).^[1] This statute thus mandated that ICE “maintain” a minimum level of detention beds, thereby continuing a requirement that was first included as a budgetary condition in 2009. See Am. Compl. ¶ 8; Am. Compl. Exs. 3-6, ECF Nos. 31-3-31-6. Since then, this requirement has been criticized by nonprofit organizations and the national media on the grounds that ICE has construed “maintain” to mean “maintain and fill, ” Am. Compl. ¶ 8, the specified level of detention beds, such that the statute amounts to a “detention bed quota” or “detention bed mandate, ” see generally Am. Compl. Exs. 3-6 (compiling articles from Bloomberg News, Los Angeles Times, and New York Times that discuss and critique the quota). According to such critics, the statute incentivizes ICE to fill a set number of beds in for-profit facilities as well as federal detention facilities, Am. Compl. ¶ 8, without considering factors such as “need, ” id. ¶ 10 (quoting Ex. 3), “low-cost alternatives to detention, ” id. ¶ 11 (quoting Ex. 5), whether the detainee is a violent offender, id. ¶ 12 (quoting Ex. 6), or the monetary cost of the policy, id. ¶ 13 (citing Ex. 7, ECF No. 31-7).

         Plaintiff National Immigrant Justice Center (“NIJC”) is among these critics. Seeking to “obtain pertinent information to inform the legal community and the public about ICE detention, release, and bond policies and procedures, ” id. ¶ 14, NIJC submitted two FOIA requests in 2014 that sought production of records both from ICE and from the Office of Management and Budget (“OMB), respectively. As detailed below, Plaintiff submitted two further FOIA requests in 2017 to ICE and OMB. Id. ¶¶ 15, 24. Before and since the complaint in this matter was filed, ICE and OMB have searched for and produced records responsive to these FOIA requests. Throughout, NIJC has criticized aspects of the agencies' searches and challenged the basis for their withholding of certain records in whole or in part.

         Defendants ICE and OMB now move for summary judgment on Plaintiff's claim.^[2] See Defs.' Mot. Summ. J., ECF No. 54. Plaintiff opposes this motion and has filed a cross-motion for summary judgment. See Pl.'s Cross-Mot. Summ. J., ECF No. 56. For the reasons set forth below, the Court will grant in part and deny in part Defendants' motion for summary judgment and grant in part and deny in part Plaintiff's cross-motion for summary judgment.

         II. FACTUAL BACKGROUND

         Because the FOIA searches in this case were conducted piecemeal over a period of over four years and the adequacy of Defendant ICE's searches is central to this suit, the Court will begin by detailing both the FOIA requests submitted to ICE and the responsive searches conducted by the agency.^[3]

         A. Procedural History for 2014 FOIA Requests

         On July 1, 2014, Plaintiff submitted two FOIA requests to ICE and OMB, respectively.^[4]Am. Compl. ¶¶ 15, 24. NIJC's requests sought to determine “whether ICE has adopted uniform detention, release, and bond policies that are independent from the bed space inventory and/or from ICE quotas or performance objectives.” Id. ¶ 14.

         1. 2014 FOIA Request to ICE

         The ICE FOIA request, 2014-ICFO-02072, sought two categories of records. The first prong of the request centered on two ICE field offices, namely ICE's San Antonio and Seattle Areas of Responsibility (“AORs”).^[5] Am. Compl. Ex. 8, ECF No. 31-8; see also Defs.' Statement Undisputed Material Facts ¶ 1, ECF No. 54-1. In this prong, NIJC sought:

• “daily, weekly, bi-weekly, and/or monthly Records of the bed space inventory in ICE's San Antonio and Seattle AORs from June 1, 2013 through November 30, 2013, including the number of vacant beds and the detainee population, broken down by gender, individuals subject to mandatory custody, individuals subject to non-mandatory custody, and by the alleged custodial authority (e.g., INA §§ 236(a), 236(c), 241, 235);”

• “daily, weekly, bi-weekly, and/or monthly Records of bond amounts for detainees in ICE's San Antonio and Seattle AORs from June 1, 2013 through November 30, 2013, including the detainee's gender, whether the individual was subject to mandatory custody, and the alleged custodial authority for each individual (e.g., INA §§ 236(a), 236(c), 241, 235);” and

• “any Records concerning the setting and calculation of bond amounts for detainees in ICE's San Antonio and Seattle AORs from June 1, 2013 to the present, (including but not limited to) all communications (e.g., transmittals, letters, emails, memoranda, and reports, instructions, and summaries) related thereto.” Am. Compl. Ex. 8 at 3-4 (emphasis omitted).

         The second prong of the request expanded beyond these two AORs and sought four kinds of records regarding nationwide ICE-related detention (the “Detention Bed Quota”):

• “any Records dated between January 1, 2009 and the present which set out or reflect approved policies, guidelines, or procedures for maintaining and/or filling (i) a level of not less than 33, 400 detention beds and/or (ii) a level of not less than 34, 000 detention beds, including all communications (e.g., transmittals, letters, emails, memoranda, and reports, instructions, and summaries) related thereto (such as to, from, or within ICE headquarters, an ICE field office, or an ICE AOR);”

• “any Records dated between January 1, 2009 and the present which set out or reflect an assessment of compliance with any statutory requirement for maintaining and/or filling (i) a level of not less than 33, 400 detention beds and/or (ii) a level of not less than 34, 000 detention beds;”

• “any Records from January 1, 2009 through the present which set out or reflect approved policies, guidelines, or procedures for appraising the performance of ICE personnel, Field Offices, or AORs related to maintaining and/or filling beds in detention facilities used to house ICE detainees;” and

• “any Records from January 1, 2009 through the present which set out or reflect approved policies, guidelines, or procedures for requesting and/or setting and/or calculating bond amounts for apprehended and/or detained individuals based on the presence of vacant beds in an ICE detention facility.” Id. at 4 (emphasis omitted).

         ICE acknowledged receipt of this FOIA request on July 10, 2014, see Am. Compl. Ex. 9, ECF No. 31-9, and issued a “final response” to Plaintiff on February 19, 2015, see Am. Compl. Ex. 10, ECF No. 31-10.

         2. ICE's First Search in Response to the 2014 FOIA Request^[6]

         According to declarations provided by the agency, ICE identified the records initially released to Plaintiff after applying its “standard procedures for initiating searches in response to FOIA requests.” Declaration of Toni Fuentes in Support of Defs.' Mot. Summ. J. (“Fuentes Decl.”) 5, ECF No. 54-2. After initial processing of Plaintiff's request, “the ICE FOIA Office determined that ICE's Office of Enforcement Operations (ERO) was the program office likely to have responsive records.” Id. ¶ 32. Following standard procedure, ERO submitted the request to its Information Disclosure Unit (IDU). Id. ¶ 34. The ERO's IDU reviewed Plaintiff's request and, “based on subject matter expertise and knowledge of the program officers' activities, ” determined that it was appropriate to conduct searches for potentially responsive documentation at the ERO Field office in San Antonio and the ERO Field Office in Seattle. Id. ¶¶ 34-35.

         a. Seattle Field Office Search

         Upon receipt of this directive, the designated FOIA point of contact in the ERO's Seattle Field Office tasked the Deputy Field Office Director (DFOD) with conducting relevant searches. Id. ¶ 36. The DFOD is responsible for “supervis[ing] the ERO Seattle Office enforcement of U.S. immigration law and agency policies, ” including, inter alia, policies related to the “calculation and setting of bond amounts[] within the state of Washington.” Id. The DFOD conducted a search of his email and Microsoft Outlook archive folders. Id. He used the following search terms: “‘34, 000,' ‘filling beds,' ‘Vacant beds,' ‘33, 400 mandate,' ‘detention beds,' and ‘bond amounts.'” Id.

         b. San Antonio Field Office Search

         The San Antonio AOR separately conducted a search in response to the ICE FOIA Office's tasking. The ERO San Antonio Field Office tasked its Assistant Field Operations Director (AFOD), four Supervisory Detention and Deportation Officers (SDDOs), and two Deportation Officers. Id. ¶ 37. The AFOD “oversees the day-to-day operations of the field office, ” including legal and policy enforcement “as they pertain to the setting and the calculation of bond amounts.” Id. The SDDOs' duties include “approv[al of] bonds and provid[ing] guidance relating to any changes in the bond policies.” Id. The Deportation Officers “handl[e] their individual assigned cases, ” including bond determinations. Id. These employees, once tasked, “collectively searched” both their Outlook email accounts and the “office's shared (S) Drive” with the search term “Bond.” Id.

         3. ICE's First Production and Plaintiff's Administrative Appeal

         After both field offices completed their searches, ICE's FOIA Office notified Plaintiff on February 19, 2015, that its “search for responsive records produced 387 pages and 123 Excel spreadsheets, ” of which portions of 247 pages were withheld pursuant to FOIA Exemptions. Id. ¶ 8; see also Defs.' Mot. Summ. J. 33, Ex. C, ECF No. 54-2. Plaintiff timely filed an administrative appeal on April 19, 2015, arguing that ICE's response was “deficient” and contesting “the withholding of any records, in part or in their entirety, without a Vaughn index;” the withholding of 35 pages “in their entirety based on a blanket assertion of exemptions and/or without any meaningful explanation, ” and the “incomplete search performed by the agency.” Am. Compl. Ex. 11 at 2-3, ECF No. 31-11.

         This administrative appeal included arguments addressing both prongs of the 2014 FOIA request. Regarding the first prong, NCIJ contended that the agency's search of the San Antonio and Seattle AORs had three deficiencies: (1) the responsive records failed to include particular kinds of records, such as, among other omissions, “records disclosing its maximum space capacity;” (2) the responsive records did not address “bond amounts for detainees” in either of the AORs; and (3) the responsive records regarding the “setting and calculation of bond amounts” omitted salient communications for the San Antonio AOR and failed to include “any communications from the Seattle AOR.” Id. at 3-4. NCIJ contested the second prong as well, arguing that the agency's search for records regarding nationwide ICE-related detention was inadequate because ICE produced minimal (four documents totaling eight pages) or no records in response to the discrete items identified in its FOIA request. Id. Plaintiff suggested that there were in fact responsive records not included in the agency's production, pointing to public records such as an August 2014 report by the Department of Homeland Security Office of the Inspector General that “repeatedly discuss[ed] records relevant to the FOIA Request.” Id. at 4.

         In response to this administrative appeal, Defendant ICE “determined that a new search(es) or modifications to existing search(es) could be made and it remanded the appeal to the ICE FOIA Office” for supplementary processing and re-tasking. Defs.' Statement of Undisputed Material Facts (“Defs.' SMF”) 2, ECF No. 54-1 (citing Defs.' Mot. Summ. J. 58, Ex E, ECF No. 54-2).

         4. ICE's Supplemental Search in Response to the 2014 FOIA Request

         In response to NIJC's April 19, 2015, administrative appeal, the ICE FOIA Office wrote Plaintiff on May 15, 2015. Am. Compl. Ex. 13, ECF No. 31-13. In response to Plaintiff's administrative appeal, ICE FOIA had determined that ERO should “conduct new or modif[ed] . . . search(es).” Fuentes Decl. ¶ 40; see also Am. Compl. Ex. 13 at 3. “Specifically, the ICE FOIA Office instructed ERO to task the Office of Principal Legal Advisors (OPLA), the ICE's Office of Deputy Director, the ICE's Office of Director, the Office of Chief Financial Officer, ERO, and the Seattle [Field] Office [Field Office Director].” Fuentes Decl. ¶ 40. ICE's filings do not further detail who conducted these searches, which search terms were used, or the date ranges that were applied for these searches. ICE subsequently produced further documents, totaling 732 pages and 127 Excel spreadsheets as of August 11, 2016. Declaration of Fernando Pineiro Pursuant to Court Order (“Pineiro Decl.”) ¶ 20, ECF No. 19-1.^[7]

         5. Filing of FOIA Civil Suit

         As mentioned previously, Defendant ICE notified Plaintiff on May 15, 2015, that it would be conducting further searches in response to NIJC's administrative appeal. See Am. Compl. Ex. 13. On February 5, 2016, no further records having been produced, Plaintiff filed the instant FOIA suit. See Compl. After a hearing before the Court and submission of additional declarations by both agencies, the Court ordered OMB to process further records and directed ICE to explain whether it believed any further searches were necessary. Order (Nov. 8, 2016), ECF No. 23. On November 22, 2016, Defendant ICE stated that it was conducting further review and processing of potentially responsive records. See Status Report (Nov. 22, 2016). ICE also indicated that the parties were “working on clarifications regarding plaintiff's request, ” with an eye to “specific Bates-numbered documents where the plaintiff indicated that other records may exist based on these documents.” Id. at 1-2. However, this issue remained unresolved, and NIJC continued to contest the scope of ICE's search. In particular, Plaintiff asserted that Defendants' searches used improper cut-off dates. See Joint Status Report (Feb. 9, 2017) at 5, ECF No. 25. NIJC also contested both agencies' withholdings in the parties' February 9, 2017 Joint Status Report. See id.

         On that same day, in furtherance of its argument that the documents produced to date had become “stale, ” id. at 7, NIJC submitted two new FOIA requests with Defendant ICE (2017-ICFO-15562) and Defendant OMB (2017-069), respectively. Plaintiff's 2017 FOIA requests were, in all relevant respects, identical to the 2014 FOIA requests.^[8] See Am. Compl. ¶¶ 32, 34. Each search request again sought two categories of records: prong one sought information regarding ICE's San Antonio and Seattle AORs and prong two sought information regarding nationwide ICE-related detention (the “Detention Bed Quota”). See Id. ¶¶ 15, 24. The 2017 request for records regarding the “Detention Bed Quota” covered the same four kinds of records as the 2014 request.^[9] The difference between the requests was the time period covered: the February 9, 2017 FOIA requests updated the timeframe of the search to cover records originating between July 2, 2014, and February 9, 2017. Id. ¶¶ 32, 34. Accordingly, read together, NIJC's two FOIA requests sought nationwide records for the period between January 1, 2009 and the submission of the second FOIA request on February 9, 2017.

         Because the adequacy of Defendant ICE's searches is central to the pending motions, the Court will next describe the searches conducted by the agency in response to the 2017 FOIA request submitted to ICE.

         6. ICE's Searches in Response to 2017 FOIA Request

         Upon review of NIJC's 2017 FOIA request, the ICE FOIA Office initially tasked five program offices with searches for potentially responsive records: the Office of Enforcement and Removal Proceedings (ERO), the Office of Detention Policy and Planning (ODPP), the Office of the Director, the Office of Congressional Relations (OCR), and the Office of Diversity and Civil Rights (ODCR). See Fuentes Decl. ¶ 42; Supp. Fuentes Decl. ¶ 10. The ICE ERO also determined that the ERO Seattle and San Antonio Field Offices should search for potentially responsive records. Fuentes Decl. ¶ 43.

         On August 9, 2018, as the parties prepared to file motions for summary judgment, Defendants moved for a temporary stay to permit ICE to conduct two additional searches. See ECF No. 51. The Court granted this stay, see Minute Order (Aug. 9, 2018), and ICE agreed to extend the date range of its searches, see Pl.'s Mem. Opp'n 4. Pursuant to this agreement, as detailed below, ICE expanded its search to cover June 1, 2013 to August 1, 2018, for the first prong of the request-appearing in both the 2014 and 2017 FOIA submissions-in which NIJC sought “any Records concerning the setting and calculation of bond amounts for detainees in ICE's San Antonio and Seattle [Areas of Responsibility (“AORs”).” Watkins Decl. Ex. 1, ECF No. 56-3; see also Pl.'s Statement of Material Facts (“ Pl.'s SMF”) ¶ 1, ECF No. 56-7.

         a. Searches of ERO Seattle Field Office

         Upon receipt of the 2017 FOIA request, the ERO Seattle Field Office tasked the Acting Field Operations Director (AFOD) with conducting a search. Supp. Fuentes Decl. ¶ 44. The AFOD “performs the duties of the FOD, ” manages field office employees, and “ensur[es] that the Seattle office enforces” all immigration laws “in accordance with the agency's policies and directives, ” including those related to “calculation and setting of bonds.” Id. The ERO Seattle Field Office's AFOD conducted a search of his email account. Id. He searched for the terms “detention beds” and “bed quota.” Id. Because the AFOD reported to the ICE FOIA Office “that all potentially responsive records relating to bond calculations were previously produced” in response to the 2014 FOIA request, id., this search did not result in any “additional records for setting bond amounts or bond calculations in the Seattle [Field] Office.” Id.

         Subsequently, in approximately July 2018, the Seattle Field Office conducted a new search using the time frame of June 1, 2013 to August 1, 2018. Id. ¶ 46. In this iteration of the search, the Seattle Field Office tasked the Acting FOD, four Assistant FODs (AFODs), the Deputy Field Operation Director (DFOD), and seventeen Supervisory Detention and Deportation Officers. Id. ¶ 47. Each of these employees searched their individual outlook email accounts, their individual computer folders, and the office's shared drive. Id. “[U]sing the search function of their outlook email account and their computers, ” these individuals conducted queries with terms that included, but “were not limited to: ‘bonds,' ‘bond amount,' ‘minimum bond amount,' ‘bed mandate,' ‘adult detention,' and ‘minimum monthly bond amount.'” Id. Potentially responsive records were sent to the ICE FOIA Office, id., and released to Plaintiff on September 13, 2018, id. ¶ 49.

         b. Search of ERO San Antonio Field Office

         The ERO San Antonio Field Office also conducted a search, tasking its AFOD as the individual “reasonably likely to have responsive records.” Id. ¶ 45. The ERO San Antonio Field Office's AFOD is responsible for supervising the daily ERO operations “of an eighteen-county area in and around San Antonio, Texas, ” and for managing 80 employees. Id. Using the search terms “bond” and “bond determination, ” he searched three locations: his desktop computer, the office's shared drive, and his email account. Id. The AFOD reported that “he was unable to locate any responsive records pertaining to Plaintiff's FOIA request” for records regarding the nationwide detention policy (prong two) and forwarded other potentially responsive records to the main ICE FOIA office. Id.

         The San Antonio Field Office also conducted further searches in mid-2018 in response to Defendants' litigation review. Id. ¶ 48. This search, like the Seattle Field Office search, was adjusted to cover the time frame from June 1, 2013 to August 1, 2018. Id. ¶ 46. The San Antonio Field Office tasked its FOD, ten Assistant FODs, three Deputy FODs, and forty-seven Supervisory Detention and Deportation Officers, id. ¶ 48. These individuals each searched their own Outlook email accounts and computer folders as well as the office's shared drive. Id. The search terms used were: “‘bonds,' ‘bond amount,' ‘minimum bond amount,' ‘bed mandate,' ‘adult detention,' and ‘minimum monthly bond amount.'” Id. After review and processing by the ICE FOIA Office, responsive records were released to Plaintiff on September 13, 2018. Id. ¶ 48.

         c. Search of Program Offices

         As indicated previously, upon review of NIJC's 2017 FOIA request, ICE's FOIA Office directed both the Seattle and San Antonio field offices and five program offices to search for records regarding the “[b]ed [m]andate in general.” See Supp. Fuentes Decl. ¶¶ 8, 10. The program offices deemed likely to have responsive records were the Office of Enforcement and Removal Proceedings (ERO), the Office of the Deputy Director, the Office of Detention Policy and Planning (ODPP), the Office of Congressional Relations (OCR), and the Office of Diversity and Civil Rights (ODCR). See Fuentes Decl. ¶ 42; Supp. Fuentes Decl. ¶ 10. The Court will next describe each of these program office searches. For these searches, the record before the Court describes only a single round of searches, as detailed below. There is no evidence that the parties agreed to update the ...