Alliance v. Napolitano, Civil Action No. 10–0353 (RCL).

803 F.Supp.2d 16

TECHSERVE ALLIANCE, f/k/a National Association Of Computer Consultant Business, Plaintiff,

v.Janet NAPOLITANO, Secretary, U.S. Department of Homeland Security, et al., Defendants.

Civil Action No. 10–0353 (RCL).

United States District Court, District of Columbia.

Aug. 17, 2011.

Laura Metcoff Klaus, Maggie Sklar, Robert P. Charrow, Greenberg Traurig, L.L.P., Washington, DC, for Plaintiff.

Michelle Lo, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.I. INTRODUCTION

Plaintiff Techserve Alliance, formerly known as the National Association of Computer Consultant Businesses (“NACCB”) submitted a Freedom of Information Act (“FOIA”) request to the United States Citizenship and Immigration Services (“USCIS”) seeking H–1B visa materials. NACCB—an association of information technology staffing, solutions, and consulting firms—hires the recipients of H–1B visas, which allow temporary non-immigrant alien workers to gain employment in the United States. USCIS responded by reiterating the propriety of its search and subsequent decision to withhold numerous documents. NACCB filed suit against USCIS, challenging the adequacy of its search and response to the FOIA request as well as USCIS's subsequent decision to withhold numerous documents. The case is now before the Court on the parties' cross-motions for summary judgment. Having reviewed the motions, the oppositions, the replies, the entire record in the case, and the applicable law at length, the Court grants defendants' motion for summary judgment for the reasons that follow.

II. BACKGROUND

FOIA allows the public to gain access to records from a federal administrative agency, Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999), and represents a strong Congressional commitment to transparency in government through the disclosure of government information. Dep't of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). FOIA strikes a balance between “ensur[ing] an informed citizenry, vital to the functioning of a democratic society,” and “legitimate governmental and private interests [that] could be harmed by [the] release of certain types of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.Cir.1992). Though FOIA embodies a policy of disclosure, full disclosure cannot always be achieved, and thus the Act sets forth nine exemptions that allow an agency to withhold all or parts of a document. 5 U.S.C. § 552(b)(1)-(9) (2006).

A. Factual History

1. Scope of NACCB's FOIA Request

On April 15, 2009, Mark B. Roberts, CEO of NACCB, submitted a FOIA request to USCIS for materials relating to H–1B petitions and related policies. Def.'s Mot. Summ. J. 4, June 24, 2010, ECF No. 16 (“Def.'s Mot.”). NACCB's request sought material related to nine categories of documents and did not request expedited processing.¹ United States employers seeking to hire temporary, highly skilled, non-immigrant alien workers must file and obtain H–1B visas for those potential employees. Id. The National Records Center (“NRC”), an office that processes FOIA requests submitted to USCIS, received NACCB's FOIA request on April 21, 2009. USCIS acknowledged receipt of NACCB's FOIA request on April 22, 2009, and assigned control number NRC2009022434 to it.² Decl. of Jill Eggleston 4, Ex. 1 to Def.'s Mot. Summ. J., June 24, 2010, ECF No. 16–1 (“Eggleston Decl.”).

NRC handles FOIA requests pursuant to a “first-in/first-out system of processing,” permitting USCIS to respond to relatively simple requests faster than those requests involving complex or voluminous records. Id. at 2. Jill Eggleston, the Assistant Center Director for NRC, explained that a complex FOIA request in 2009 required an average of twelve to eighteen months to process to completion. Supplemental Decl. of Jill Eggleston 2, Ex. 1 to Def.'s Reply Support Mot. Summ. J., Sept. 2, 2010, ECF No. 22 (“Supp. Eggleston”). When NRC received the NACCB's FOIA request, it forwarded the request to its Significant Interest Team. Id. The Significant Interest Team subsequently assigned paralegal Cynthia Holt to handle NACCB's FOIA request.³ Id.; Eggleston Decl. 2. Holt determined that three offices—the National Security and Records Verification Directorate (“NSRV”), the Service Center Operations (“SCOPS”), and the Office of Policy and Strategy (“OPS”)—were most likely to have documents responsive to NACCB's request. Eggleston Decl. 5–6.

2. The Response to NACCB's FOIA Request

After receiving NACCB's FOIA request, NSRV determined that the Fraud Detection and National Security Office (“FDNS”), a division of USCIS, had responsive documents.⁴ Id. at 2. When FDNS received NACCB's FOIA request, Charles Pratt—an Immigration Officer and resident expert for employment fraud within FDNS—discussed the request with his supervisors and contacted relevant offices within USCIS and FDNS.⁵ Id. at 2. Pratt then searched FDNS's shared computer drive and his personal computer drive in addition to examining hard copy files for responsive records. Id. Pratt sent all responsive documents back to the NRC on or about May 12, 2009. Eggleston Decl. 6.

When SCOPS received NACCB's FOIA request, adjudications officer April Padilla contacted and subsequently forwarded the FOIA request to four Service Centers located within the Center Fraud Detection Operations because she believed those offices might have responsive records.⁶ Id. at 3. Additionally, Padilla forwarded the request to Carol Williams—an adjudications officer who worked on H–1B matters—who searched the SCOPS headquarters for any records, including hard copy and electronic materials that might be responsive to the FOIA request. Id. A SCOPS employee also suggested that Holt contact USCIS's Office of Field Operations for materials responsive to NACCB's third category of documents, the Adjudicator's Field Manual (“AFM”). Id. Holt subsequently contacted Roger Pitcairn, the point person for all AFM requests, in relation to the FOIA request. Id. SCOPS forwarded all responsive documents to NRC on or about May 29, 2009. Eggleston Decl. 6.

When the FOIA request reached OPS, it determined that it did not have responsive materials.⁷ Id. Additionally, OPS indicated that the FOIA request fell outside its purview and suggested instead that NRC contact FDNS and SCOPS, as those offices were more likely to contain responsive materials. Id.

3. Processing NACCB's FOIA Request

On March 22, 2010, NACCB's request reached the front of the FOIA queue at the NRC. and Holt began to process the request.⁸ Eggleston Decl. 7. After receiving and evaluating material amassed from various agencies and offices, Holt determined that 1,052 pages were responsive to the request. Def.'s Mot. 3. Holt assessed each page to establish: 1) whether a FOIA exemption precluded its disclosure; 2) whether parts of a document could be segregated, consistent with FOIA regulations; and 3) whether a document merited a direct response from a different agency.⁹ Id.

Holt concluded that 286 pages could be fully released, and 71 pages could be released in part. Id. She completed a line-by-line review of each of the remaining 621 pages, concluding that they could not be disclosed or reasonably segregated. Id. at 3–4. Finally, Holt determined that 74 pages merited the direct response of the DHS Office of Inspector General (“OIG”). Def.'s Mot. 4. By a letter dated March 24, 2010, USCIS referred those 74 pages to OIG for a direct response. Eggleston Decl. 8. After concluding that OIG should not directly respond to the request concerning these 74 pages, NRC directed FDNS to search for the document. Id. at 9. FDNS's search ultimately proved unsuccessful, and it directed NACCB—via a letter dated June 23, 2010—to a website where the final version of the document was publicly available, in addition to releasing six other pages that had been originally withheld. Id.

By a letter dated March 30, 2010, USCIS disclosed 357 pages of responsive, non-exempt documents to NACCB. Id. at 4. USCIS withheld a number of documents pursuant to FOIA exemptions 2, 5, 6, and 7(e).¹⁰, ¹¹ Def.'s Mot. 5; USCIS Letter to Mark B. Roberts, Def.'s Mot. Summ. J. 26, ECF No. 16–1 (Incorporated as Exhibit D) (“USCIS Response”). USCIS included instructions detailing the procedure for an administrative appeal if NACCB did not agree with its assessment of the FOIA request. USCIS Response 2. USCIS also informed NACCB that it was unable to locate documents related to categories 8 and 9 of the request, but that it would continue to search for responsive records. Eggleston Decl. 8. USCIS advised NACCB that if new responsive records were located, it would send them via a separate letter. Id.

On March 31, 2010, SCOPS located an additional set of records, responsive to category 8 of NACCB's request, which it sent to NRC for evaluation.¹² Id. at 6. Holt followed the same process laid out above, concluding that 48 pages were responsive to NACCB's request and that 42 pages merited a direct response from the Department of Labor (“DOL”). Id.; Eggleston Decl. 8. DOL determined that the 42 pages could be released. Eight of the 42 pages, however, contained redactions pursuant to FOIA Exemptions 5 and 7(e). Decl. Brian Pasternak 2, Exhibit 2 Def.'s Mot. Summ. J. June 24, 2010, ECF No. 16–2 (“Pasternak Decl.”).¹³ Holt subsequently evaluated the six remaining pages, concluding that two pages could be released in full while three pages could be released in part. Id. Holt only withheld one page, determining that the page could not be reasonably segregated. Id. The NRC released the non-exempt pages by a letter dated April 5, 2010.

B. Procedural History

NACCB filed this lawsuit on March 4, 2010, alleging that USCIS failed to respond to its FOIA request submitted on April 15, 2009. USCIS subsequently moved for summary judgment on June 24, 2010. USCIS's motion for summary judgment...