United States District Court, District of Columbia
HEARTLAND ALLIANCE FOR HUMAN NEEDS & HUMAN RIGHTS, D/B/A NATIONAL IMMIGRANT JUSTICE CENTER Plaintiff,
v.
UNITED STATES IMMIGRATION & CUSTOMS ENFORCMENT et al., Defendants.
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 ...