Am. Immigration Council v. U.S. Dep't of Homeland Sec.

950 F.Supp.2d 221

AMERICAN IMMIGRATION COUNCIL, Plaintiff,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Civil Action No. 12–856 (JEB).

United States District Court, District of Columbia.

June 24, 2013.

Creighton R. Magid, Dorsey & Whitney LLP, Beth Jennifer Werlin, Melissa E. Crow, American Immigration Council, Washington, DC, Michelle S. Grant, Dorsey & Whitney LLP, Minneapolis, MN, for Plaintiff.

Wynne Patrick Kelly, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

Plaintiff American Immigration Council brought this action under the Freedom of Information Act seeking records on immigrants' access to legal counsel during their interactions with U.S. Immigration and Customs Enforcement authorities. Defendant ICE (a component of the Department of Homeland Security, the second Defendant) eventually produced nearly 8,000 pages of responsive records, withholding and partially redacting hundreds of pages. In its suit, Plaintiff challenges the sufficiency of Defendants' search for responsive records, as well as the propriety of many of their withholdings. Arguing they have complied with their obligations, Defendants now move for summary judgment on both issues. As to the first, the Court concludes that an issue of material fact exists as to whether Defendants conducted a sufficiently exhaustive search to satisfy FOIA. Having also reviewed Defendants' justifications for their various withholdings and having examined their redactions in camera, the Court further finds that Defendants have not provided sufficient information for it to determine whether any of the withholdings are proper. Denial of Defendants' Motion for Summary Judgment thus results.

I. Background

In March 2011, the American Immigration Council (AIC) submitted the following FOIA request concerning individuals' access to legal counsel during their interactions with U.S. Immigration and Customs Enforcement authorities:

[A]ny and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Immigration and Customs Enforcement (ICE), whether issued or maintained by ICE Headquarters offices (including but not limited to the Office of the Assistant Secretary (OAS), Enforcement and Removal Operations (ERO), Homeland Security Investigations (HIS) [ sic ], Management and Administration, Office of the Principal Legal Advisor (OPLA), and the Office of Detention Policy and Planning (ODPP), including any divisions, subdivisions or sections therein); ICE field offices, including any divisions, subdivisions or sections therein; local Offices of Chief Counsel; and/or any other ICE organizational structure; and which relate or refer in any way to any of the following:

• Attorneys' ability to be present during their clients' interactions with ICE;

• What role attorneys may play during their clients' interactions with ICE;

• Attorney conduct during interactions with ICE on behalf of their clients;

• Attorney appearances at ICE offices or other facilities.

Compl., Exh. A (Letter from Emily Creighton, AIC, to FOIA Office, U.S. Immigrations and Customs Enforcement (March 14, 2011)) at 1 (footnote omitted). The request “include[d], but [was] not limited to” thirteen specific types of records. Id. at 1–3.

After more than a year without receiving any records and three unsuccessful administrative appeals of actual and constructive denials of its request, AIC concluded that it had exhausted its administrative remedies and filed suit in this Court. See Compl., ¶¶ 15–24; see also5 U.S.C. § 552(a)(6)(A–C) (under normal circumstances, agency must make an initial determination within 20 days, with another 20 days allotted for administrative appeal; where the agency exceeds its time limits, requester will be deemed to have exhausted administrative remedies).

Two and a half months after AIC filed its Complaint with this Court, ICE processed 1,084 pages of responsive documents and produced them. See Joint Motion to Stay These Proceedings, ¶ 4. Shortly thereafter, ICE “identified an additional 6,000 or so pages of documents” that it deemed potentially responsive to AIC's request. Id., ¶ 5. The parties jointly requested a brief stay of the proceedings to allow ICE to review and produce additional documents on a rolling basis. Id., ¶¶ 6–7. The Court granted this request on August 20, 2012.

ICE then processed 6,906 pages of further records in five rolling productions, withholding portions of the records pursuant to various FOIA exemptions. See Mot., Attach. 1 (Defendant Statement of Material Facts (SMF)), ¶¶ 20–21; Opp., Attach. 1 (Plaintiff Response to Def. SMF), ¶¶ 20–21. ICE also provided AIC with a summary Vaughn Index for the purpose of identifying information in its withholdings. See Def. SMF, ¶ 23.

On January 9, 2013, the parties entered into a joint stipulation acknowledging AIC's receipt and review of the 6,906 additional pages of documents, many of which ICE had redacted in whole or in part pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). See Mot., Exh. 2 (Joint Stipulation), ¶¶ 1–2. AIC agreed that it would not challenge ICE's whole or partial redactions for the following page ranges: 0216–0221, 0242–0432, 0449–0518, 0550–0581, 0584–0620, 0658–0724, 0748–0781, 0803–0816, 0821–0822, 0830–0840, 0845–0847, 0855, 0859, 0890, 0899, 0918–0919, 0924, 0934, 0948–0962, 0967–0984, and 1085–6906. See id., ¶¶ 2–3.

On January 25, 2013, Defendants filed a Motion for Summary Judgment, claiming that they had conducted a reasonable search in response to Plaintiff's request, produced all responsive documents, and properly withheld certain records pursuant to various FOIA exemptions. See Mot. at 7–21. AIC contests the Motion, arguing that Defendants failed to demonstrate that their search was adequate, that the descriptions of their withholdings are insufficient as a whole, and that they improperly withheld various documents. See Opp. at 5–33.

On April 25, this Court ordered Defendants to produce the remaining disputed documents for in camera review. Thereafter, Defendants produced the documents, which number nearly 600 pages. The Court has since reviewed the redactions along with Defendants' various justifications.

II. Legal Standard

Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505;Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505;Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C.Cir.2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they “describe 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.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009) (citation omitted). Such affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal quotation marks omitted). “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 Com. for the Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

III. Analysis

Plaintiff contends that Defendants erred in two essential areas. First, AIC claims that ICE failed to conduct an adequate search for responsive records. See Opp. at 7–16. Second, AIC asserts that ICE improperly withheld multiple records pursuant to several FOIA exemptions. See id. at 16–35. Given that ICE has demonstrated neither the adequacy of its search nor the propriety of its withholdings, the Court cannot grant Defendants' Motion on either ground.

A. Adequacy of Search

FOIA requires government agencies to describe their searches in sufficient detail for a court to determine whether the search was sufficiently exhaustive to satisfy the Act. Nation Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 890 (D.C.Cir.1995); Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990). To describe its search in this case, ICE relies on two declarations from its Deputy FOIA Officer, Ryan Law. See...