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Long v. Immigration and Customs Enforcement

United States District Court, District of Columbia

September 28, 2018

SUSAN B. LONG, et al., Plaintiffs,
IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendant. Fields provided in response to December 2015 Request but not August 2016 Request Corresponding numbered requests in December 2015 and August 2016 Requests


          Amit P Mehta United States District Judge


         Plaintiffs Susan B. Long and David Burnham are co-directors of the Transactional Records Access Clearinghouse (“TRAC”), a data gathering, data research, and data distribution organization associated with Syracuse University. See Pls.' Mot. for Summ. J., ECF No. 12 [hereinafter Pls.' Mot.], Decl. of Susan B. Long, ECF No. 12-1 [hereinafter Long Decl.], ¶ 2. TRAC's primary purpose is to provide “comprehensive information about the staffing, spending, and enforcement activities of the federal government.” Id. ¶ 3.

         For years, Plaintiffs have submitted monthly Freedom of Information Act (“FOIA”) requests to Defendant Immigration and Customs Enforcement (“ICE”) seeking certain data within ICE's Enforcement Integrated Database (“EID”). See Pls.' Mot., Pls.' Resp. to Def.'s Statement of Facts & Additional Statement of Facts [hereinafter Pls.' Stmt.], ¶¶ 85-88, 90-91; Def.'s Mem. of P. & A. in Opp'n to Pls.' Mot. & Reply to Pls.' Opp'n to Def.'s Mot. for Summ. J., ECF No. 16 [hereinafter Def.'s Reply], Def.'s Resp. to Pls.' Stmt. [hereinafter Def.'s Reply Stmt.], ¶¶ 85-88, 90-91. The EID is an electronic database owned and operated by ICE that “captures and maintains information relating to the investigation, arrest, booking, detention, and removal of persons encountered during immigration and law enforcement investigations and operations conducted by ICE” and other component agencies within the U.S. Department of Homeland Security (“DHS”). See Def.'s Mot. for Summ. J., ECF No. 11 [hereinafter Def.'s Mot.], Decl. of Marla Jones, ECF No. 11-2 [hereinafter Jones Decl.], ¶¶ 6-7; see also Id. (explaining that the EID is a “common database repository for all records created, updated, and accessed by a number of [DHS] software applications” that “provides users with the capability to access a person-centric and/or event-centric view of . . . data” and “allows ICE officers to manage cases from the time of an alien's arrest, in-processing, or placement into removal proceedings, through the final case disposition”); id. ¶ 8 (“The EID is used as data storage throughout the immigration enforcement lifecycle from arrest to removal or release.”).

         In their monthly FOIA requests, [1] Plaintiffs sought from the EID updated, anonymous case-by-case information about each person whom ICE deported as a result of the Secure Communities Program, an immigration enforcement program administered by ICE, and its temporary successor, the Priority Enforcement Program.[2] Pls.' Stmt. ¶¶ 77-79, 86; see Def.'s Reply Stmt. ¶¶ 77-79, 86. As is relevant here, each request identified the specific case-by-case information requested by Plaintiffs, including a list of separately numbered requests describing particular fields of information and data elements that Plaintiffs sought from the EID. Pls.' Stmt. ¶ 91; see Def.'s Reply Stmt. ¶ 91; see, e.g., Long Decl., Exs. A-B.[3]

         In the past, ICE responded to Plaintiffs' monthly requests by providing “computer extracts furnished as Excel spreadsheet files derived from the EID, ” Pls.' Stmt. ¶ 94; Def.'s Reply Stmt. ¶ 94, [4] which contained fields of information and data elements that corresponded to at least some of the separately numbered requests, see Long. Decl., Ex. F; Jones Decl. ¶¶ 16-27; cf. Pls.' Stmt. ¶ 118; Def.'s Reply Stmt. ¶ 118. In January 2017, however, in response to Plaintiffs' FOIA request for data covering fiscal year 2015 through August 2016 (“August 2016 Request”), ICE withheld many of the fields that it previously provided in response to Plaintiffs' requests covering earlier, overlapping time periods-including a virtually identical request submitted by Plaintiffs several months earlier, which covered fiscal year 2015 through December 2015 (“December 2015 Request”). See Pls.' Stmt. ¶¶ 114-15, 118, 129; Def.'s Reply Stmt. ¶¶ 114-15, 118, 129; Def.'s Reply, Second Decl. of Marla Jones, ECF No. 16-1 [hereinafter Suppl. Jones Decl.], ¶¶ 14-16; see also Long Decl., Ex. C (comparing numbered requests submitted in December 2015 Request and August 2016 Request); cf. Jones Decl. ¶¶ 16, 37.

         In denying Plaintiffs' administrative appeal of the agency's response to the August 2016 Request, ICE reasoned that these fields did not exist in the EID and, accordingly, that Plaintiffs were not entitled to them under FOIA. See Pls.' Stmt. ¶¶ 145-46; Def.'s Reply Stmt. ¶¶ 145-46; see also Long Decl., Ex. H. Plaintiffs brought this FOIA action to challenge that determination and to compel ICE to produce data responsive to what Plaintiffs dub the “disappearing fields”- that is, the fields of information and corresponding data elements from the EID that ICE provided in response to the December 2015 Request, but not the August 2016 Request. See generally Compl., ECF No. 1.

         Before the court are the parties' cross-motions for summary judgment. See Def.'s Mot.; Pls.' Mot. After thorough review of the parties' briefs and accompanying materials, the court concludes that this matter cannot be resolved on the present record. As discussed below, there remains a genuine dispute of material fact concerning whether the requests at issue require ICE to create new records. Accordingly, the parties' motions are denied without prejudice.


         FOIA requires that federal agencies, “upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . ., shall make the records promptly available to any person, ” 5 U.S.C. § 552(a)(3)(A), provided those records are not exempt from disclosure, id. § 552(b); see also Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 602 F.Supp.2d 121, 123 (D.D.C. 2009) (“FOIA provides a ‘statutory right of public access to documents and records' held by federal government agencies.” (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982))). “A request that ‘reasonably describes' the records sought triggers the agency's obligation to search for and disclose all responsive records unless the records fall within one of the statutory exemptions.” Ctr. for the Study of Servs. v. U.S. Dep't of Health & Human Servs., 874 F.3d 287, 288 (D.C. Cir. 2017) (citations omitted). FOIA authorizes district courts “to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld.” 5 U.S.C. § 552(a)(4)(B). Where, as here, the agency contends that the information sought is not subject to disclosure under FOIA, “[t]he burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not ‘agency records' or have not been ‘improperly' ‘withheld.'” Aguiar v. Drug Enf't Admin., 865 F.3d 730, 735 (D.C. Cir. 2017) (quoting U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)).

         Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court must grant 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). A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving party, and a fact is “material” only if it is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). “In FOIA cases, summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Aguiar, 865 F.3d at 734-35 (internal quotation marks omitted).


         As discussed, the parties' dispute here concerns ICE's response to Plaintiffs' August 2016 Request. Specifically, Plaintiffs challenge ICE's withholding of data responsive to the fields of information provided in response to Plaintiffs' December 2015 Request, but not then August 2016 Request. These "disappearing fields," and the specific numbered requests to which they correspond in both the December 2015 and August 2016 Requests, can be ...

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