Harvard Immigration & Refugee Clinical Program v. United States Dep't of Homeland Sec.

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HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY and UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants.

No. 21-cv-12030-DJC

United States District Court, D. Massachusetts

July 21, 2023

MEMORANDUM AND ORDER

Denise J. Casper United States District Judge

I. Introduction

Plaintiff Harvard Immigration and Refugee Clinical Program (“HIRCP”) has filed this lawsuit against the United States Department of Homeland Security (“DHS”) and United States Immigration and Customs Enforcement (“ICE”) (collectively, the “Agencies”) alleging violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, in connection with its requests for records concerning ICE's use of solitary confinement in immigration detention centers. D. 1. HIRCP claims that the Agencies failed to conduct adequate searches in response to its FOIA requests and improperly redacted or withheld responsive documents. Id. Both the Agencies, D. 48, and HIRCP, D. 59, now move for summary judgment. For the reasons stated below, the Court ALLOWS in part and DENIES in part each of the motions and directs the parties to take the actions as directed in this Order.

II. Standard of Review

“FOIA cases are typically decided on motions for summary judgment.” Am. C.L. Union of Mass., Inc. v. U.S. Immigr. & Customs Enft, 448 F.Supp.3d 27, 35 (D. Mass. 2020) (citation and internal quotation marks omitted). Summary judgment is warranted for a defendant in a FOIA case “when the agency proves that it has fully discharged its obligations under the FOIA after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Crooker v. Tax Div. of U.S. Dep't of Just., No. 9430129 MAP, 1995 WL 783236, at *7 (D. Mass. Nov. 17, 1995) (citation and internal quotation marks omitted). An agency discharges its burden when it “prove[s] that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the [FOIA's] inspection requirements.” Gillin v. IRS, 980 F.2d 819, 821 (1st Cir. 1992) (alterations in original) (citation and internal quotation marks omitted). “This burden does not shift even when the requester files a cross-motion for summary judgment because ‘the Government ultimately [has] the onus of proving that the [documents] are exempt from disclosure,' while the ‘burden upon the requester is merely ‘to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.'” Leopold v. Dep't of Just., 301 F.Supp.3d 13, 21 (D.D.C. 2018) (alterations in original) (quoting Pub. Citizen Health Res. Grp. v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999)).

III. Factual Background

Unless otherwise noted, the following facts are undisputed. These facts are primarily drawn from the Agencies' statement of undisputed material facts, D. 50, HIRCP's response to same, D. 58, HIRCP's statement of undisputed material facts, D. 62, the Agencies' response to same, D. 64, and supporting documentation.

On September 4, 2013, ICE published a directive (“the ICE directive”) that specified “ICE staff responsibilities for placement, review, and notification about segregation of all detainees, including detainees with special vulnerabilities.” D. 62 ¶ 2; D. 64 ¶ 2. According to the ICE directive, “[p]lacement of detainees in segregated housing . . . should occur only when necessary and in compliance with applicable detention standards” and placement in segregated housing “due to a special vulnerability should be used only as a last resort and when no other viable housing options exist.” D. 61-1 at 2; D. 62 ¶ 3; D. 64 ¶ 3. On September 29, 2017, the DHS Office of Inspector General (“OIG”) released a report (“the OIG Report”) that “sought to determine whether, for detainees with mental health conditions: (1) facility personnel follow ICE guidance for documenting segregation decisions; (2) facilities report segregation data accurately and promptly; and (3) ICE field offices follow procedures for reviewing segregation.” D. 61-2 at 4; D. 62 ¶¶ 5-6; D. 64 ¶¶ 5-6. OIG selected seven facilities “to visit and review judgmental samples of instances in which detainees with mental health conditions were held in segregation and to assess the confinement conditions.” D. 62 ¶ 8; D. 64 ¶ 8; D. 61-2 at 18. The OIG Report found that the ICE field offices reviewed “did not record and promptly report all instances of segregation to ICE headquarters, nor did their system properly reflect all required reviews of ongoing segregation cases per ICE guidance.” D. 61-2 at 4; D. 62 ¶ 9; D. 64 ¶ 9. There are three FOIA requests that remain at issue between the parties and the Court now turns to each of them.

A. The OIG and CRCL FOIA Request

On November 21, 2017, HIRCP submitted a FOIA request to ICE seeking records relating to the 2017 OIG Report, and complaints filed against ICE with DHS's Office for Civil Rights and Civil Liberties (“CRCL”) (“the OIG and CRCL FOIA Request”). D. 62 ¶ 10; D. 64 ¶ 10; see D. 1-3. Part A of the OIG and CRCL FOIA Request sought “the disclosure of records submitted by ICE to the OIG between July 2016 and January 2017 pertaining to detainees with mental health disabilities placed in segregated housing.” D. 1-3 at 4; D. 62 ¶ 11; D. 64 ¶ 11. “Part B of the OIG and CRCL FOIA Request sought the disclosure of records submitted by ICE to CRCL in response to complaints received by CRCL relating to the segregation of detainees; records within ICE's possession related to the outcomes of CRCL's investigation into the ‘Primary Allegations' of the complaints against ICE; Records submitted by ICE to CRCL in response to the ‘Primary Allegations'; and records within ICE's possession related to the outcomes of CRCL's investigation into the ‘Primary Allegations.'” D. 62 ¶ 12; D. 64 ¶ 12; see D. 1-3 at 6.

1. The OIG Portion

On February 21, 2018, ICE referred the OIG and CRCL FOIA Request to OIG for processing. D. 50 ¶ 7; D. 58 ¶ 7; see D. 1-3 at 14, 27. On December 10, 2018, OIG responded to HIRCP regarding this request, releasing one page in full and twenty-nine pages in part and withholding three pages in full, citing Exemptions 5, 6 and 7(C). D. 50 ¶ 8; D. 58 ¶ 8; see D. 1-3 at 27-28. OIG also referred 221 pages to ICE for processing. Id. By the time that HIRCP filed the complaint here on December 13, 2021, D. 1, “ICE had not yet finished processing the 221 pages that OIG had referred to ICE.” D. 50 ¶ 13; D. 58 ¶ 13; see D. 49-17 ¶ 12. HIRCP also alleged that OIG did not provide it “with the necessary explanations for its withholdings.” D. 1 ¶¶ 40, 105-116; D. 50 ¶ 10; D. 58 ¶ 10. Accordingly, at the commencement of this litigation, HIRCP sought relief “ordering DHS OIG to release any improperly withheld nonexempt information in the responsive records to the OIG Request,” D. 1 ¶ 119; D. 50 ¶ 10; D. 58 ¶ 10, and “ordering ICE to process the 221 pages responsive to the OIG Request.” D. 1 ¶ 118; D. 50 ¶ 13; D. 58 ¶ 13.

“During this litigation, OIG re-processed the 32 pages that it had previously withheld in full or in part. Specifically, OIG referred the 3 pages that it had withheld in full to ICE for processing.” D. 50 ¶ 11; D. 58 ¶ 11; see D. 49-2 at 2. “OIG also removed certain redactions from the 29 pages that it had withheld in part, and re-produced these 29 pages to [HIRCP] on March 30, 2022.” D. 50 ¶ 11; D. 58 ¶ 11; see D. 49-3 at 2. “On May 18, 2022, in an attempt to narrow the issues in this litigation, OIG provided [HIRCP] with an informal Vaughn index explaining the basis for its redactions to the 29 pages that it had withheld in part.” D. 50 ¶ 12; D. 58 ¶ 12; see D. 31 at 2. On July 6, 2022, ICE responded to HIRCP regarding the 221 pages that OIG had referred to ICE. D. 50 ¶ 14; D. 58 ¶ 14; see D. 49-6 at 2. ICE released 156 pages in full and 56 pages in part, citing certain exemptions. Id. HIRCP still challenges the adequacy of this search. D. 60 at 10.

2. The CRCL Portion

ICE determined that it was the appropriate office to respond to the CRCL portion of the OIG and CRCL FOIA request and tasked Enforcement and Removal Operations (“ERO”) and the Office of Professional Responsibility (“OPR”) with conducting searches for responsive records. D. 50 ¶¶ 16-17; D. 58 ¶¶ 16-17; see D. 49-17 ¶¶ 9, 30. On December 21, 2018, HIRCP submitted an administrative appeal with ICE regarding this request. D. 50 ¶ 18; D. 58 ¶ 18; see D. 49-17 ¶ 13. On July 8, 2019, ICE issued a response, but HIRCP did not receive it due to an “email error” prior to the filing of the complaint. D. 50 ¶ 20; D. 58 ¶ 20; D. 49-17 ¶ 15; see D. 49-1. Accordingly, at the commencement of this litigation, HIRCP sought an order requiring ICE to respond to the CRCL Request. D. 1 ¶ 118; D. 50 ¶ 20; D. 58 ¶ 20.

On April 1, 2022, ICE re-issued its response to HIRCP regarding the CRCL request. D. 50 ¶ 21; D. 58 ¶ 21; see D. 49-4 at 2. ICE released 181 pages in full, 125 pages in part and withheld twenty pages in full, citing Exemptions 5, 6, 7(C), and 7(E). Id. Furthermore, although ICE's Office of Diversity and Civil Liberties (“ODCR”) “identified potentially responsive records, ICE learned during this litigation that these records were inadvertently not processed and produced” to HIRCP. D. 50 ¶ 19; D. 58 ¶ 19. “Accordingly, ICE produced these records to HIRCP on February 2, 2023.” Id.; see D. 49-14. HIRCP still disputes ICE's invocation of Exemptions 5 and 7(E). D. 60 at 23-28.

B. The Consolidated ICE FOIA Request

On November 30, 2017, HIRCP submitted three related FOIA requests (“ICE FOIA Request 1”; ICE FOIA Request 2”; and “ICE FOIA Request 3”) (collectively, the “Consolidated ICE FOIA Request”) to ICE seeking three...