Leopold v. U.S. Immigration & Customs Enforcement

560 F.Supp.3d 189

Jason LEOPOLD, et al., Plaintiffs,

v.U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, et al., Defendants.

Civil Action No. 18-2415 (RDM)

United States District Court, District of Columbia.

Signed September 17, 2021

Merrick Jason Wayne, Matthew Topic, Loevy & Loevy, Chicago, IL, for Plaintiffs.

Brenda A. Gonzalez-Horowitz, Michael A. Tilghman, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants U.S. Immigration & Customs Enforcement, U.S. Department of Homeland Security, U.S. Customs & Border Protection, U.S. Citizenship & Immigration Services.

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

Plaintiffs Jason Leopold and Buzzfeed, Inc., bring this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking to compel U.S. Immigration and Customs Enforcement ("ICE"), the U.S. Department of Homeland Security ("DHS"), U.S. Customs and Border Protection ("CBP"), and U.S. Citizenship and Immigration Services ("USCIS") to release videos, audio recordings, and photographs depicting the agency's treatment of migrants, migrant children, criminal aliens, immigration fugitives, and re-entrant. The case is now before the Court on Defendants’ motion for summary judgment and motion to dismiss the case against DHS, CBP, and USCIS as moot, Dkt. 36, and Plaintiffs’ cross-motion for summary judgment, Dkt. 38. For the reasons set forth below, the Court will GRANT Defendants’ motion to dismiss the case against DHS, CBP, and USCIS, GRANT Defendants’ motion for summary judgment, and DENY Plaintiffs’ cross-motion for summary judgment.

I. BACKGROUND

On June 19, 2018, Plaintiffs submitted a FOIA request to ICE and CBP seeking the following records for the time period beginning January 20, 2017:

(1) All unedited videos, audio, and photographs shot and recorded by ICE and CBP employees and/or contractors working for both agencies of any and all immigration enforcement actions undertaken by the agency related to migrants and migrant children seeking asylum, criminal aliens, immigration fugitives, and re-entrants;

(2) All unedited videos, audio recordings, and photographs shot and recorded by ICE and CBP employees and/or contractors working for both agencies of migrant children being separated from their parents or parent and subsequently held in U.S. detention facilities, either those operated by the U.S. government or private prisons and contractors; and

(3) A copy of the concluding documents (report of investigation, final report, closing memo, referral letter) concerning investigations undertaken by OPR/IG at CBP/ICE/DHS in 2017 and 2018, thus far relating or referring to immigration migrants, criminal aliens, aliens, asylum seekers, and personnel and/or contractor working for these agencies.

Dkt. 1 at 3 (Compl. ¶ 9); Dkt. 1-1 at 1–2 (Ex. A). Plaintiffs sent similarly worded requests to DHS on June 21, 2018, Dkt. 1 at 3 (Compl. ¶ 10); Dkt. 1-2 at 1 (Ex. B), and to USCIS on August 7, 2018, Dkt. 1 at 4 (Compl. ¶ 11).

ICE responded to Plaintiffs’ request by email on June 27, 2018. Dkt. 1 at 4 (Compl. ¶ 14). The agency informed Plaintiffs: "In conducting a search for responsive records, the ICE FOIA office has determined that further clarification is needed regarding your request." Dkt. 1-4 at 1. It offered to provide an Excel spreadsheet in response to part three of Plaintiffs’ request, which Plaintiffs accepted, id. ; however, when asked about parts one and two of the request, ICE responded only that it is "not capable of editing any video footage," id. at 2. ICE did not provide any documents responsive to parts one and two. Dkt. 1 at 4–5 (Compl. ¶ 19); Dkt. 11 at 4–5 (Answer ¶¶ 15, 19).

On August 31, 2018, Plaintiffs administratively appealed ICE's constructive denial of their request. Dkt. 1 at 5 (Compl. ¶ 17). ICE responded to the appeal on October 2, 2018, explaining that the agency had "begun processing [Plaintiffs’] request on a ‘first-in, first out basis,’ " but advised that ICE was "permitted to respond to relatively simple requests more quickly than requests involving complex and/or voluminous records." Dkt. 1-5 at 1 (Ex. E). The response informed Plaintiffs that the agency had remanded the request to the ICE FOIA Office "for the completion of processing, including tasking to the appropriate agency/office(s)." Dkt. 1 at 5 (Compl. ¶ 18); Dkt. 1-5 at 2. On October 20, 2018, after the ICE FOIA Office failed to provide any further response to the request, Dkt. 1 at 5 (Compl. ¶ 19), Plaintiffs initiated this action, in which they claim that Defendants’ failure to produce the requested records violates FOIA, see Dkt. 1 (Compl.).

Over the course of the litigation, the parties have engaged in numerous discussions attempting to resolve or narrow their dispute. See Dkt. 17; Dkt. 18; Dkt. 19; Dkt. 21; Dkt. 23; Dkt. 25; Dkt. 26; Dkt. 28; Dkt. 29. On May 2, 2019, the Court ordered Defendants to "provide plaintiff with declarations explaining any searches performed," Minute Order (May 2, 2019). Defendants complied by sending two unsigned¹ declarations—one from ICE and one from USCIS—to Plaintiffs on June 14, 2019. See Dkt. 38-2 (Ex. A). In the ICE declaration, Toni Fuentes, ICE's Deputy FOIA Officer, informed Plaintiffs, for the first time, that ICE had declined to conduct a search pre-suit because it concluded that the "searches were not necessary because any videos of children would jeopardize security and safety of detainees and employees as well as be a privacy issue." Id. at 6 (Ex. A ¶ 13). The declaration further explained that, once Plaintiffs filed suit, ICE "determined that searches at the headquarters (‘HQ’) level and at two field offices for potentially responsive documentation should be conducted," id. at 5–6 (Ex. A ¶ 15), and that those offices reported that they either "do[ ] not typically maintain" photographs or video footage or that they "did not have any of the requested records." Id. at 6 (Ex. A ¶ 15). Based on these reports, the declaration concluded that "ICE does not have records responsive to parts 1 and 2 of the FOIA request." Id. (Ex. A ¶ 16).

Plaintiffs "raised concerns with respect to Defendants’ declarations," and the parties continued to confer for several months. See Dkt. 18; Dkt. 19; Dkt. 21; Dkt. 23. The Court held a status conference on December 2, 2019, to discuss the source of the parties’ disagreement. At the status conference, Defendants’ counsel explained:

[W]hen ICE looked into ... whether or not a reasonable search could be done of [its] video cameras, it determined that it would be ... unduly burdensome to try to do a search. There are approximately 134 detention facilities that ICE manages across the country. And they have—each one has many security cameras, can be from—anywhere from 60 to 430 cameras and the [video] is kept for approximately between 30 to 90 days before it's copied over, but if they were to try and—if there had been no copying over and they had tried to process the video at issue, ICE admitted it's over [21 million] minutes of video that could be responsive, and now their estimate is that it would take over a thousand years to try and process that ....

Hr'g Tr. (Dec. 2, 2019) (Rough at 2–3). At the conclusion of the hearing, the Court asked the parties to continue to confer and to discuss "narrowing [the request] and trying to reach agreement." Id. (Rough at 17).

In the months that followed, Plaintiffs proposed limiting their search to specific ICE facilities. Dkt. 25; Dkt. 26. In a January 17, 2020, joint status report, the parties informed the Court (1) that "[t]he only remaining issue to be resolved is a search plaintiffs want of specific ICE and CBP facilities" and (2) that "Plaintiffs [would] ... provid[e] a list of facilities they propose to be searched" later that day. Dkt. 25 at 1. On February 21, 2020, the parties jointly reported that "[t]he issue remaining to be resolved is Plaintiff's request for videos from ICE detention centers. Plaintiff limited the request to five specific centers, and on February 20, 2020, Defendant [emailed Plaintiffs with] information about the volume of videos involved." Dkt. 26 at 1. In that February 20, 2020 email, Defendants notified Plaintiffs that the five facilities contained over 800 cameras and that "[c]ollecting and processing any of these videos would be overly burdensome" because it would take "thousands of hours and thousands of dollars to redact just one camera." Dkt. 38-3 at 1 (Ex. B). Defendants also informed Plaintiffs that "the footage will not always show a detainee going by," which means that ICE officials would need to "search ... thousands of hours of video just to find any video of detainees." Id.

The parties continued to confer. On February 26, 2020, Plaintiffs "sought to explore the possibility of limiting the universe of videos to things that have been preserved, collected, or produced in connection with lawsuits filed against CBP, ICE, or DHS involving detention centers," Dkt. 28 at 1 (quotation marks omitted); Defendants replied, however, that this proposal "would entail tasking 1,100 attorneys to search the files and cases in their possession and manually look for video files which would be overly broad and burdensome," id.

The parties filed their most recent joint status report on June 5, 2020. Dkt. 29. They confirmed that the sole remaining issue is "Plaintiffs’ request to Defendant ICE for audio, video, and photographs of immigration enforcement or detention, including the detention of children." Id. at 1; accord id. at 2. Plaintiffs reported that they had narrowed their request to "audio, video, and photographs that have already been collected and maintained or otherwise are identifiable as associated with five federal lawsuits involving ICE, where presumably ICE satisfied its obligations to suspend automatic over-writing and may have responsive records" and that "[a]ny such records would be within the scope of the request if they depict immigration...