Roseberry-Andrews v. Dep't of Homeland Sec.

299 F.Supp.3d 9

Cynthia L. ROSEBERRY–ANDREWS, Plaintiff,

v.DEPARTMENT OF HOMELAND SECURITY, Defendant.

Civil Action No. 16–63 (TJK)

United States District Court, District of Columbia.

Signed March 13, 2018

Cynthia L. Roseberry–Andrews, North Beach, MD, pro se.

Johnny Hillary Walker, III, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

TIMOTHY J. KELLY, United States District Judge

Plaintiff Cynthia L. Roseberry–Andrews, proceeding pro se , has filed suit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking certain records from the Department of Homeland Security ("DHS" or "Defendant") regarding her employment with the U.S. Immigration and Customs Enforcement ("ICE") Freedom of Information Act Office (the "ICE FOIA Office"). Defendant has moved for summary judgment, arguing that it has conducted a reasonable search of its records and produced all responsive, non-exempt information. Roseberry–Andrews has cross-moved for summary judgment, alleging that Defendant did not conduct a proper search, was dilatory in responding, did not properly apply FOIA exemptions, and failed to comply with FOIA's "segregability" requirement. The Court agrees with Defendant on many of the issues raised by the parties, but ultimately concludes that Defendant has failed to provide sufficient evidence that the ICE FOIA Office conducted an adequate search or complied with FOIA's "segregability" requirement. Thus, Defendant's motion for summary judgment will be granted in part and denied in part, with leave granted to file a renewed motion within 60 days. Accordingly, the Court will reserve judgment in part and deny in part Roseberry–Andrews' cross-motion for summary judgment.

I. Background

A. Roseberry–Andrews' FOIA Request and Lawsuit

On December 29, 2014, Roseberry–Andrews filed a FOIA request with the ICE FOIA Office. See ECF No. 1 ("Orig. Compl.") Ex. 1 at 8–9.¹ The request sought information pertaining to her employment in that same ICE FOIA Office from eight different program offices within DHS. Id. at 8. Those offices were: (1) the Office of the Principal Legal Advisor ("OPLA"); (2) the ICE FOIA Office; (3) the ICE Privacy Office; (4) "HR [Human Resources]"; (5) "EEO [Equal Employment Opportunity]"; (6) "Reasonable Accommodation"; (7) the Office of Employee and Labor Relations ("ELR"); and (8) the Office of the Assistant Secretary ("OAS"). Id.² Roseberry–Andr ews also listed the names of individual employees in the ICE FOIA and ELR offices from whom she requested records. Id.

That same day, ICE confirmed receipt of Roseberry–Andrews' FOIA request. Orig. Compl. Ex. 1 at 11; ECF No. 14 ("Am. Compl.") ¶ 10. On December 31, ICE followed up with a formal acknowledgment letter and assigned her request a case number. Orig. Compl. Ex. 1 at 12–13; Am. Compl. ¶ 11; ECF. No. 22–1 ("Def.'s SoMF") at 2. The acknowledgement letter also stated that, "[a]lthough ICE's goal is to respond within 20 business days of receipt of your request," FOIA permits, and ICE would invoke, a 10–day extension because Roseberry–Andrews' request "seeks numerous documents that will necessitate a thorough and wide-ranging search." Orig. Compl. Ex. 1 at 12 (citing 5 U.S.C. § 552(a)(6)(B) ).

On November 13, 2015, having not heard or received anything further from the government, Roseberry–Andrews filed an administrative appeal. Id. at Ex. 2; Am. Compl. ¶ 11; Def.'s SoMF at 2. ICE received the appeal on the same day. Def.'s SoMF at 7. On December 21, 2015, ICE remanded the appeal to the ICE FOIA Office to complete processing of her FOIA request. Id. at 2.

On January 13, 2016, Roseberry–Andrews filed this lawsuit against Catrina Pavlik–Keenan, an ICE FOIA Officer. Orig. Compl. On April 20, 2016, she filed an amended complaint, replacing Pavlik–Keenan with Jeh Johnson, then the Secretary of DHS, as the defendant. Am. Compl. The amended complaint asserts that Roseberry–Andrews did not receive the records she seeks and requests wide-ranging relief, including damages, injunctive relief, declaratory relief, and attorney's fees. Id. at 20.

B. DHS's FOIA Productions

Although the ICE FOIA Office collected responsive records from the various program offices, it was also a subject of Roseberry–Andrews' request. Therefore, to ensure objectivity in reviewing and processing the records, it handed over responsibility for these tasks to the DHS FOIA Office. Def.'s SoMF at 9–10. On July 1, 2016, Defendant produced 1,826 pages to Roseberry–Andrews. Id. at 10. On July 24, Plaintiff provided Defendant's counsel a list of redactions and withholdings that she did not dispute, which the parties agreed would not be included on Defendant's Vaughn Index during summary judgment briefing. Id. at 10.

After Defendant's production to Roseberry–Andrews, it discovered that some documents had been released without certain necessary redactions, and clawed the production back to include them. Id. On August 16, 2016, Defendant reproduced the same 1,826 pages to Roseberry–Andrews with additional redactions. Id. In October 2016, Defendant represented to Roseberry–Andrews that, during the course of preparing its Vaughn index, it determined that some redactions should be removed and that it would provide her with a replacement release. Id. Ultimately, of the 1,826 pages Defendant produced to Roseberry–Andrews, 601 pages were withheld in full and 867 pages redacted. Id.

C. The Parties' Cross–Motions for Summary Judgment

In October 2016, Defendant moved for summary judgment. See ECF No. 22; ECF No. 22–2 ("Def.'s MSJ Br."); ECF No. 27 ("Def.'s Reply"). In response, Roseberry–Andrews filed an opposition to Defendant's motion for summary judgment and a cross-motion for summary judgment. See ECF No. 24; ECF No. 25 ("Pl.'s Cross–Mot. Br.").

Defendant maintains that it conducted a proper FOIA search and that its redactions and withholdings are proper. It has submitted a declaration from Fernando Pineiro, the Deputy FOIA Officer of the ICE FOIA Office, describing its search. ECF No. 22–3 ("Pineiro Decl.") ¶ 1. Pineiro explains that when the ICE FOIA Office receives a FOIA request, it "identif[ies] which program offices, based on their experience and knowledge of ICE's program offices, within ICE are reasonably likely to possess records responsive to that request, if any, and to initiate searches within those program offices." Id. ¶ 19. Once the ICE FOIA Office has determined the appropriate program offices for a particular FOIA request, it provides points of contact in each component office with "a copy of the FOIA request and instructs them to conduct a search for responsive records." Id. According to Pineiro, "[p]er the ICE FOIA Office's instructions, the individuals and component offices are directed to conduct searches of their file systems, including both paper files and electronic files, which in their judgment ... would most likely be the files to contain responsive documents." Id. Once these searches are complete, any potentially responsive documents are sent to the ICE FOIA Office. Id.

In this case, the ICE FOIA Office instructed seven program offices to search for responsive documents. Id. ¶ 24. Those seven offices included five that Roseberry–Andrews asked to be searched (ELR, OPLA, Privacy, ICE FOIA, and OAS) and two that she did not ask to be searched (the Office of Diversity and Civil Rights ("ODCR") and the Office of the Chief Information Officer ("OCIO") ). The search did not include three offices named in Roseberry–Andrews' request (HR, EEO, and Reasonable Accommodation). See Orig. Compl. Ex. 1 at 8–9. Pineiro's declaration identifies the search terms that five of the seven offices used for their searches. Pineiro Decl. ¶¶ 33–35, 37–38. Those offices generally searched for terms that included Roseberry–Andrews' name (e.g., id. ¶ 37) or the names of the ICE employees identified in the complaint (e.g., id. ¶¶ 35, 38). All of the offices searched provided records that were ultimately released to Roseberry–Andrews except OAS, which reportedly did not have any responsive records. Id. ¶¶ 32–38.

Defendant also submitted a Vaughn index and a declaration from Kevin Tyrrell, the Associate Director for FOIA Appeals and Litigation at the DHS FOIA Office. ECF No. 22–4 ("Tyrrell Decl.") ¶ 1 & Ex. G ("Vaughn Index"). DHS withheld or redacted information pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). See Tyrrell Decl. ¶¶ 21–39 & Vaughn Index. The Vaughn Index contains a document-by-document accounting of which exemptions were applied and why.

Roseberry–Andrews' cross-motion for summary judgment can be difficult to follow, but, as the Court reads it, she raises four principal arguments why Defendant allegedly failed to comply with FOIA. First, she argues that DHS impermissibly delayed responding to her request. See Pl.'s Cross–Mot. Br. at 6. Indeed, she argues both that DHS's delays were so severe that they rise to the level of a "policy-or-practice" claim (i.e. , that DHS has established a policy or practice of failing to comply with FOIA requests) and that DHS's delay violated her constitutional right to due process because she needed the documents DHS produced in advance of a court proceeding she asserts took place on August 29–30, 2016. Id. at 5–8. Second, she argues that the ICE FOIA Office failed to conduct an adequate search because it "provided no explanation of the nature of any search that it conducted." Id. at 12. Third, she contests many of the agency's specific withholdings under certain FOIA exemptions. Id. at 8–12. And last, Roseberry–Andrews alleges the agency failed to "[c]onduct a segregated ... review of the information withheld." Id. at 10.

II. Legal Standard

"Congress enacted the FOIA in order to ‘pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.’ " Morley v. CIA , 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ) (internal...