Smith v. U.S. Immigration & Customs Enforcement

429 F.Supp.3d 742

Jennifer M. SMITH, Plaintiff,

v.U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendant.

Civil Action No. 16-cv-2137-WJM-KLM

United States District Court, D. Colorado.

Signed December 16, 2019

Mark Silverstein, Sara R. Neel, American Civil Liberties Union, Daniel James Culhane, Daniel J. Culhane, LLC, Denver, CO, for Plaintiff.

David Z. Moskowitz, Ian J. Kellogg, U.S. Attorney's Office, Denver, CO, for Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN PART, DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND PERMANENTLY ENJOINING DEFENDANT

William J. Martinez, United States District Judge

Plaintiff Jennifer M. Smith ("Smith") is an immigration attorney who frequently makes requests under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for information regarding her clients in the files of Defendant U.S. Immigration and Customs Enforcement ("ICE"). ICE has a policy of denying any FOIA request when made by or on behalf of a non-citizen whom ICE deems to be a "fugitive" under the immigration laws. Smith contends that this policy is facially unlawful under FOIA.

Currently before the Court is ICE's Motion for Summary Judgment (ECF No. 84) and Smith's competing Motion for Summary Judgment (ECF No. 85). For the reasons explained below, the Court finds that Smith has standing to pursue this challenge and agrees with Smith that ICE's policy violates FOIA (although not always for precisely the same reasons that Smith advances). The Court will therefore grant Smith's motion to the extent stated in this order, deny ICE's motion, permanently enjoin ICE from applying its policy to withhold records, and direct entry of final judgment.

I. STATUTORY BACKGROUND

A brief review of FOIA sets the stage for the facts, law, and arguments discussed below.

When a party makes a FOIA request for federal agency records, the agency usually has twenty working days to "determine...whether to comply with such request," and then it must inform the requester of its decision "and the reasons therefor." 5 U.S.C. § 552(a)(6)(A)(i).¹ The agency may refuse to disclose otherwise responsive records if those records fall within certain enumerated categories. See id . § 552(b). As relevant to this lawsuit, one of those categories is "records or information compiled for law enforcement purposes." Id . § 552(b)(7). But the agency may only invoke this exception "to the extent that the production of such law enforcement records or information" might lead to certain consequences, including that disclosure "could reasonably be expected to interfere with enforcement proceedings." Id . § 552(b)(7)(A). As the parties normally do, the Court will refer to this exception as "Exemption 7(A)."

If a requesting party disagrees with the agency's withholding decision, the party may file an administrative appeal with the head of the agency. Id . § 552(a)(6)(A)(i)(III). If the appeal is unsuccessful, the party may file a lawsuit in federal district court. Id . § 552(a)(4)(B).² The district court

has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in [ § 552(b) ], and the burden is on the agency to sustain its action.

Id . The § 552(b) exemptions are "exclusive"—if the document is not properly withheld under one of them, it must be disclosed. Milner v. Dep't of Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011).

II. LEGAL STANDARD

"FOIA actions are typically decided on motions for summary judgment." Info. Network for Responsible Min. v. BLM , 611 F. Supp. 2d 1178, 1182 (D. Colo. 2009). Summary judgment is appropriate "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).

In evaluating a FOIA summary judgment motion, "two guiding principles apply. First, FOIA is to be broadly construed in favor of disclosure. Second, its exemptions are to be narrowly circumscribed." Trentadue v. Integrity Comm. , 501 F.3d 1215, 1226 (10th Cir. 2007). In other words, "disclosure, not secrecy, is [FOIA's] dominant objective." Dep't of Interior v. Klamath Water Users Protective Ass'n , 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (internal quotation marks omitted).

In the rare case where a FOIA summary judgment motion reveals a genuine dispute of material fact—"material" in this context meaning a dispute on which the propriety of an exemption turns—then the Court may hold a bench trial to resolve that dispute. See Animal Legal Def. Fund v. U.S. Food & Drug Admin. , 836 F.3d 987, 990 (9th Cir. 2016) (en banc); Brown v. Perez , 835 F.3d 1223, 1233 (10th Cir. 2016) ; Brown v. U.S. Dep't of Labor , 342 F. Supp. 3d 1112, 1114 (D. Colo. 2018).

III. FACTS & PROCEDURAL HISTORY

In this matter, it is impossible to judge the significance of factual agreements and disputes without setting them in their procedural context. The Court will therefore discuss the facts and procedural history together. The facts recounted below are undisputed unless attributed to a party or otherwise noted. The procedural history is, of course, a matter of record.

A. Smith's Original FOIA Request

Smith operates the Law Office of Jennifer M. Smith, P.C., in Glenwood Springs, Colorado. (ECF No. 84 at 6, ¶ 1; ECF No. 85-4 ¶ 2.)³ In May 2013, she submitted a FOIA request to United States Citizenship and Immigration Services ("CIS") seeking the "Complete Alien File (A-File)" for, and "any and all records you may have" regarding, Marta Alicia del Carmen Orellana Sanchez ("Ms. Sanchez"), one of Smith's clients. (ECF No. 84 at 6, ¶¶ 2–4.) In August 2013, CIS responded that it had identified 52 pages of responsive records, some of which it released to Smith. (Id . ¶¶ 5–6; ECF No. 89 at 2, ¶ 6.)

CIS's search efforts also located "potentially responsive records that may have originated with ICE." (ECF No. 84 at 6, ¶ 7.) CIS asked ICE to determine whether those records should be released, and it informed Smith of the referral to ICE. (Id . ¶ 8.)

About two years later—in September 2015—ICE sent a letter to Smith announcing that it would not release any records because it deemed Ms. Sanchez to be a "fugitive":

ICE's records indicate that as of September 03, 2015, the subject of your request is a fugitive under the Immigration and Nationality Act of the United States. It is ICE's practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts. The agency has reviewed the information sought in your request and has determined that there is a connection between that information and the subject of the request's status as a fugitive. The information you have requested and the fugitive status are both directly related to the Immigration and Nationality Act of the United States.

(Id . at 7, ¶ 9.) The letter did not invoke any specific FOIA exemption. (See ECF No. 15-3 at 2–3.) The letter was signed by a certain Ms. Stoney on behalf of Catrina M. Pavlik-Keenan, whose title is "FOIA Officer." (Id . at 3.)

The "practice to deny fugitive alien FOIA requesters access to the FOIA process" was not a written policy, but it was nonetheless an established ICE practice at the time. (ECF No. 84 at 7, ¶ 10.) The Court will refer to this as the "Fugitive Practice."

B. Early Proceedings in this Lawsuit

1. Original & Amended Complaints

Smith challenged the withholding under the Fugitive Practice through the required administrative channels and received no relief. (ECF No. 85 at 6, ¶ 7.) Smith then filed this lawsuit on August 24, 2016, arguing that FOIA contains no exception that would justify the Fugitive Practice. (ECF No. 1 ¶ 17.) Smith originally sought two forms of relief: (1) disclosure of Ms. Sanchez's records, and (2) a declaration "that defendant ICE's stated policy of denying access to records otherwise obtainable under the FOIA process pertaining to persons it deems to be ‘fugitive alien FOIA requesters’ is in violation of the FOIA." (See id . at 7.)

By letter dated September 27, 2016, Ms. Pavlik-Keenan (through a subordinate) "sent another letter to [Smith's] law office in response to a FOIA request related to [her] representation of a different client." (ECF No. 85 at 7, ¶ 11 (emphasis removed).) The letter was addressed to "Ms. Brown" (see ECF No. 19-2 at 1), whose identity and role ICE has repeatedly questioned (see ECF No. 35 at 4–5, 9 & n.5; ECF No. 46 at 3 & n.1; ECF No. 84 at 14 n.8; ECF No. 88 at 36 & n.11) but Smith has never explained (see generally ECF Nos. 40, 49, 85-4, 89, 90)—except it is clear that Ms. Brown can be reached by mail at the Law Office of Jennifer M. Smith, P.C. Using materially the same language employed in the letter regarding Ms. Sanchez's records, the letter to Ms. Brown invoked the Fugitive Practice to refuse release of records relating to this other client. (ECF No. 19-2 at 1.)

The next day, September 28, 2016, Smith's attorney in this lawsuit "received an unannounced overnight delivery from an unfamiliar address in Maryland, which contained 20 pages of additional documents that were subsequently confirmed to be the missing portions of [Ms. Sanchez's] A-File." (ECF No. 85 at 7, ¶ 9.) ICE "provided no explanation for its decision to provide the documents it had previously withheld." (Id . ¶ 10.)

These events prompted Smith to file her First Amended Complaint (still the currently operative complaint), acknowledging that her claim specifically for Ms. Sanchez's records was moot. (ECF No. 32 ¶ 4.) Smith instead pleaded that ICE has a "pattern or practice" of violating FOIA, and she requested that the Court "[p]ermanently enjoin...