Roseberry-Andrews v. Pavlik-Keenan ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CYNTHIA L. ROSEBERRY-ANDREWS,
Plaintiff,
v.
Civil Action No. 16-63 (TJK)
DEPARTMENT OF HOMELAND
SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
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.
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-Andrews 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)).
1
Citations to pages numbers in Roseberry-Andrews’ filings refer to the page number generated
by the ECF system at the top of the page.
2
Human Resources, EEO, and Reasonable Accommodation were offices listed by Roseberry-
Andrews in her FOIA request, but neither party has supplied the Court with the full names of
these offices.
2
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
3
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
4
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
5
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.
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 (1976)) (internal quotation
marks omitted). “FOIA ‘mandates that an agency disclose records on request, unless they fall
within one of nine exemptions.’” Elec. Privacy Info. Ctr. v. DHS (“EPIC”), 777 F.3d 518, 522
(D.C. Cir. 2015) (quoting Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011)).
“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton
v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). “Summary judgment is
appropriately granted when, viewing the evidence in the light most favorable to the non-movants
and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in
their favor.” Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496
(D.C. Cir. 2016). “The evidence presented must show ‘that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R.
Civ. P. 56(a)). “Where the nonmoving party is proceeding pro se, courts in this jurisdiction will
construe the non-moving party’s filings liberally.” Cunningham v. DOJ, 40 F. Supp. 3d 71, 82
(D.D.C. 2014), aff’d, No. 14-5112, 2014 WL 5838164 (D.C. Cir. Oct. 21, 2014). “However, a
pro se litigant still has the burden of establishing more than ‘[t]he mere existence of a scintilla of
6
evidence’ in support of [her] position.” Id. (first alteration in original) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
“In the FOIA context, a district court reviewing a motion for summary judgment
conducts a de novo review of the record, and the responding federal agency bears the burden of
proving that it has complied with its obligations under the FOIA.” MacLeod v. DHS, No. 15-
CV-1792 (KBJ), 2017 WL 4220398, at *6 (D.D.C. Sept. 21, 2017) (citing 5 U.S.C.
§ 552(a)(4)(B)); see also Cable News Network, Inc. v. FBI, 271 F. Supp. 3d 108, 111 (D.D.C.
2017) (“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 . . . .” (quoting DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749,
775 (1989)) (internal quotation marks omitted)). Indeed, “consistent with D.C. Circuit
precedent,” judges in this Circuit have “proceeded to review the agencies’ facts and evidence to
determine whether summary judgment in favor of the agency defendants is warranted despite the
lack of a coherent opposition from the plaintiff.” MacLeod, 2017 WL 4220398, at *8. “[T]he
Court may . . . treat the Department’s factual proffers as conceded, but it must address the
Department’s legal arguments on their merits.” King v. DOJ, 245 F. Supp. 3d 153, 158 (D.D.C.
2017) (citing Winston & Strawn, LLP v. McLean, 843 F.3d 503, 508 (D.C. Cir. 2016)),
reconsideration denied, 2017 WL 5449803 (D.D.C. Nov. 10, 2017).
“To prevail on summary judgment [in a FOIA case], an ‘agency must show that it made
a good faith effort to conduct a search for the requested records, using methods which can be
reasonably expected to produce the information requested,’ which it can do by submitting ‘[a]
reasonably detailed affidavit, setting forth the search terms and the type of search performed, and
averring that all files likely to contain responsive materials (if such records exist) were
7
searched.’” Reporters Comm. for Freedom of Press v. FBI (“RCFP”), 877 F.3d 399, 402 (D.C.
Cir. 2017) (second alteration in original) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57,
68 (D.C. Cir. 1990)). “The agency fails to meet this burden such that summary judgment is
inappropriate when the agency fails to set forth the search terms and the type of search
performed with specificity or otherwise provides ‘no information about the search strategies of
the [agency] components charged with responding to [a] FOIA request’” and “no indication of
what each [component’s] search specifically yielded.” Evans v. Fed. Bureau of Prisons, No. CV
16-2274 (BAH), 2018 WL 707427, at *2 (D.D.C. Feb. 5, 2018) (quoting RCFP, 877 F.3d at 402
(alterations in original)) (internal quotation marks omitted). “At a bare minimum, the agency’s
affidavits need to specify ‘what records were searched, by whom, and through what process.’”
Rodriguez v. DOD, 236 F. Supp. 3d 26, 38 (D.D.C. 2017) (quoting Steinberg v. DOJ, 23 F.3d
548, 552 (D.C. Cir. 1994)).
“In addition to demonstrating the adequacy of the search, the agency must ‘demonstrate
that the records have not been improperly withheld.’” Evans, 2018 WL 707427, at *3 (quoting
Ctr. for the Study of Servs. v. HHS, 874 F.3d 287, 288 (D.C. Cir. 2017)). “The burden is on the
agency to justify withholding the requested documents, and the FOIA directs district courts to
determine de novo whether non-disclosure was permissible.” EPIC, 777 F.3d at 522. “Summary
judgment is warranted on the basis of agency affidavits when the affidavits 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) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). The
agency cannot rely on “conclusory and generalized allegations of exemptions.” Morley, 508
8
F.3d at 1114 (quoting Founding Church of Scientology of Wash., D.C., Inc. v. NSA, 610 F.2d
824, 830 (D.C. Cir. 1979)).
FOIA also requires that “[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions which are exempt.”
5 U.S.C. § 552(b). The court has an affirmative duty to ensure that this requirement is satisfied,
even if it must do so sua sponte. See Morley, 508 F.3d at 1123.
Analysis
As described above, Roseberry-Andrews alleges that Defendant violated FOIA in a
number of ways. Her complaints fall into four categories: Defendant (1) took too long to
respond to her request, (2) did not perform an adequate search, (3) improperly claimed certain
exemptions, and (4) failed to comply with FOIA’s segregability requirement. The Court
addresses each argument in turn.3
A. Defendant’s Delay
Roseberry-Andrews argues that DHS’s delay in responding to her FOIA request gives
rise to a cognizable legal claim. The Court cannot agree.
3
In its brief, Defendant, in addition to defending its FOIA production, also argues that
Roseberry-Andrews’ case should be dismissed because only federal agencies may be sued under
FOIA, and thus the head of an agency is an improper defendant. Def.’s MSJ Br. at 16. “While it
is true that the FOIA authorizes a cause of action against federal agencies only, ‘pleadings [in
general] must be construed so as to do justice,’ and pro se filings in particular must be construed
liberally.” Schotz v. Samuels, 72 F. Supp. 3d 81, 88 (D.D.C. 2014) (alteration in original)
(citations omitted) (quoting Fed. R. Civ. P. 8(e)) (substituting DOJ for Director of Bureau of
Prisons as defendant). Thus, the Court hereby substitutes the Department of Homeland Security
as the real party of interest and dismisses the complaint against Secretary Johnson under Rule
12(b)(6) for failure to state a claim upon which relief can be granted. Consequently, Defendant’s
request to dismiss the case for lack of jurisdiction is denied.
9
1. Defendant’s Failure to Meet FOIA Deadlines
Roseberry-Andrews’ first argument is that “FOIA requests are required to be completed
within twenty days of receipt.” Pl.’s Cross-Mot. Br. at 6 (citing 5 U.S.C. § 552(a)(6)(A)(i)). But
that is not what the statute says. 5 U.S.C. § 552(a)(6)(A)(i) only requires the agency to
communicate its “determination” whether to comply with a FOIA request and “the reasons
therefor” to a requestor within 20 days (or, in “unusual circumstances,” 30 days, 5 U.S.C.
§ 552(a)(6)(B)(i)). It does not require the agency to complete processing the entire request
within this period. See Citizens for Responsibility & Ethics in Washington v. FEC (“CREW”),
711 F.3d 180, 188 (D.C. Cir. 2013) (“To be clear, a ‘determination’ does not require actual
production of the records to the requester at the exact same time that the ‘determination’ is
communicated to the requester.”); Daily Caller v. U.S. Dep’t of State, 152 F. Supp. 3d 1, 10
(D.D.C. 2015) (“[T]he agency is plainly correct that FOIA does not require production of all
responsive, non-exempt documents within twenty days of receiving a request.”). Indeed, as the
D.C. Circuit has noted, it would be a “practical impossibility for agencies to process all [FOIA]
requests completely within twenty days.” CREW, 711 F.3d at 189 (alteration in original).
Defendant does not contest that it did not comply with these explicit timeframes.
Although it provided Roseberry-Andrews notice that her case involved unusual circumstances,
Orig. Compl. Ex. 1 at 12, it does not present evidence that it ultimately communicated its
“determination” and “the reasons therefor” within 30 days. See 5 U.S.C. § 552(a)(6)(B)(i).
Where Roseberry-Andrews’ argument fails, however, is that an agency’s failure to comply with
these statutory deadlines is not an independent basis for a claim. As the D.C. Circuit has
explained, “if the agency does not adhere to FOIA’s explicit timelines, the ‘penalty’ is that the
agency cannot rely on the administrative exhaustion requirement to keep cases from getting into
court.” CREW, 711 F.3d at 189; see also Elec. Privacy Info. Ctr. v. DOJ, 15 F. Supp. 3d 32, 41
10
(D.D.C. 2014) (“Thus, far from EPIC’s reading of the FOIA to require an agency to immediately
hand over all of the requested documents as a result of its failure to meet the deadline, CREW
makes clear that the impact of blowing the 20-day deadline relates only to the requester’s ability
to get into court.”). Thus, in this case, Defendant cannot—and did not—argue that Roseberry-
Andrews failed to exhaust her administrative remedies. But Defendant’s failure to communicate
its initial determination within 30 days does not provide Roseberry-Andrews a separate claim
that it violated FOIA.4
2. Defendant’s Alleged Policy or Practice of Delay
In addition to the delay in her individual case, Roseberry-Andrews also argues that
Defendant has a “policy or practice” of delaying responses to FOIA requests. See, e.g., Pl.’s
Cross-Mot. Br. at 6 (“Defendant has established a pattern and practice of failing to comply with
FOIA request processing time requirements . . . .”); id. at 7.
“The D.C. Circuit has . . . recognized that, separate from claims seeking relief for specific
requests made under the FOIA, requesting parties may also assert a ‘claim that an agency policy
or practice will impair the party’s lawful access to information in the future.’” Nat’l Sec.
Counselors v. CIA, 898 F. Supp. 2d 233, 252-53 (D.D.C. 2012) (quoting Payne Enters., Inc. v.
United States, 837 F.2d 486, 491 (D.C. Cir. 1988)). “To state a policy-or-practice claim, a
plaintiff must plausibly allege ‘that the agency has adopted, endorsed, or implemented some
policy or practice that constitutes an ongoing ‘failure to abide by the terms of the FOIA.’” Am.
Ctr. for Law & Justice v. U.S. Dep’t of State (“ACLJ”), 249 F. Supp. 3d 275, 281-82 (D.D.C.
2017) (quoting Muttitt v. Dep’t of State, 926 F. Supp. 2d 284, 293 (D.D.C. 2013)) (internal
4
Roseberry-Andrews also asserts that DHS violated FOIA because it “processed over 104,000
FOIA requests after receiving Plaintiff’s FOIA request.” Pl.’s Cross-Mot. Br. at 7. It is not clear
how Roseberry-Andrews calculated this number or on what basis she alleges it represents a
violation of FOIA.
11
quotation marks omitted). “That FOIA policy or practice may be ‘informal, rather than
articulated in regulations or an official statement of policy.’” Id. (quoting Payne, 837 F.2d at
491). “Claims targeting agencies’ internal FOIA workings usually also involve instances where
conduct is ‘sufficiently outrageous.’” Id. (quoting Payne, 837 F.2d at 494).
Here, Roseberry-Andrews’ arguments about Defendant’s delay in responding to FOIA
requests are insufficient to state a policy or practice claim. She baldly asserts that DHS has a
policy or practice of violating FOIA both because it fails to complete FOIA requests within
twenty days and because it does not provide written notification of the “unusual circumstances”
that underlie its decisions to extend the time to provide an initial determination. See Pl.’s Cross-
Mot. Br. at 6-7. But Roseberry-Andrews “points to no fact or statement to establish why . . .
requests were delayed or how the delays were the result of an either formal or informal DHS
policy or practice to violate FOIA’s requirements, rather than an inevitable but unintended delay
attributable to a lack of resources.” Judicial Watch, Inc. v. DHS, 211 F. Supp. 3d 143, 146
(D.D.C. 2016). Indeed, courts in this Circuit have repeatedly recognized that “a plaintiff ‘cannot
rest on the mere fact of delay alone to establish a [policy or practice] claim.’” ACLJ, 249 F.
Supp. 3d at 283 (quoting Judicial Watch, 211 F. Supp. 3d at 146) (collecting cases); see also
Cause of Action Inst. v. Eggleston, 224 F. Supp. 3d 63, 72 (D.D.C. 2016) (“[D]elay alone, even
repeated delay, is not the type of illegal policy or practice that is actionable under Payne
Enterprises.”). Simply put, “[w]hile [Roseberry-Andrews] has shown that [DHS] is indeed slow,
[she] has not plausibly alleged that the government subscribes to some policy or practice of
12
slow-walking its requests for information.” ACLJ, 249 F. Supp. 3d at 278. Thus, this argument
fails.5
3. Defendant’s Alleged Violation of Roseberry-Andrews’ Due Process
Rights
Roseberry-Andrews also suggests that her constitutional due process rights were violated
because she did not receive records from Defendant in advance of a hearing that she asserts
occurred on August 29-30, 2016. See Pl.’s Cross-Mot. Br. at 5-8.
The Court disagrees. As a factual matter, Roseberry-Andrews’ argument fails because
Defendant produced documents to her before the hearing in question. DHS produced responsive
documents to Roseberry-Andrews on July 1, 2016, and then again on August 16, 2016 (with
additional redactions). See Def.’s SoMF at 10. Both of these productions occurred before
August 29, 2016. Thus, there was no due process deprivation. After Roseberry-Andrews’
hearing, while Defendant was preparing its Vaughn index, it did determine that some additional
redactions could be removed, id., but Roseberry-Andrews provides no basis to conclude that this
later-released information was necessary for or even relevant to her hearing.
Moreover, even if Defendant had failed to provide documents to Roseberry-Andrews in
advance of the hearing, her due process argument also fails as a matter of law because, as courts
in this Circuit have concluded, “FOIA does not offer a remedy for alleged violations of
constitutional rights arising from the handling of a FOIA request.” Houser v. Church, 271 F.
Supp. 3d 197, 204 (D.D.C. 2017) (citing Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d
771, 777 (D.C. Cir. 2002)). That principle holds even when the delay allegedly prejudiced the
5
Roseberry-Andrews cites Open America v. Watergate Special Prosecution Force, 547 F.2d 605
(D.C. Cir. 1976), at length in the context of delay. Pl.’s Cross-Mot. Br. at 6-7. But Open
America addresses the circumstances under which “an agency is entitled to a stay” in FOIA
litigation. Clemente v. FBI, 71 F. Supp. 3d 262, 266 (D.D.C. 2014). Here, DHS has already
made its production, so a stay it not at issue.
13
plaintiff in some other proceeding. Sanchez-Alanis v. Fed. Bureau of Prisons, 270 F. Supp. 3d
215, 219 (D.D.C. 2017) (“Plaintiff also asserts that the delay violated his due process rights, but
‘the comprehensiveness of FOIA . . . precludes the creation of a . . . remedy’ predicated on a
constitutional violation.” (quoting Johnson, 310 F.3d at 777)).6
In light of the above, Roseberry-Andrews’ cross-motion for summary judgment will be
denied insofar as it alleges a FOIA violation grounded in Defendant’s alleged delay.
B. Adequacy of Defendant’s Search
To establish that it conducted an adequate search, Defendant “must show that it made a
good faith effort to conduct a search for the requested records, using methods which can be
reasonably expected to produce the information requested, which it can do by submitting [a]
reasonably detailed affidavit, setting forth the search terms and the type of search performed, and
averring that all files likely to contain responsive materials (if such records exist) were
searched.” RCFP, 877 F.3d at 402 (alteration in original) (internal quotations marks omitted).
Roseberry-Andrews appears to suggest that Defendant did not perform an adequate
search. See Pl.’s Cross-Mot. Br. at 12 (“To date the Defendant has provided no explanation of
the nature of any search that it conducted for the requested records concerning the preparation of
Plaintiff’s FOIA request . . . .”). She does not explain, however, why the search was inadequate.
Nevertheless, this Court “must address the [agency’s] legal arguments on their merits.” King,
245 F. Supp. 3d at 158. In order to carry its burden that it conducted an adequate search,
Defendant must establish that it searched the proper offices and that the searches it did conduct
were adequate. Defendant comes up short on both counts.
6
Roseberry-Andrews cites Wade v. Kirkland, 118 F.3d 667 (9th Cir. 1997), to support her
position, Pl.’s Cross-Mot. Br. at 7, but she provides no explanation about how this case—which
involved an exception to the mootness doctrine for the purposes of a class-certification motion,
Wade, 118 F.3d at 669—helps her argument.
14
1. Offices Searched
The Court concludes that Defendant has not provided an adequate explanation for the
offices it searched.
“To prevail on summary judgment, . . . the defending ‘agency must show beyond material
doubt [ ] that it has conducted a search reasonably calculated to uncover all relevant
documents.’” Morley, 508 F.3d at 1114 (alteration in original) (quoting Weisberg v. DOJ, 705
F.2d 1344, 1351 (D.C. Cir. 1983)). It can do so by submitting a “reasonably detailed affidavit
. . . averring that all files likely to contain responsive materials (if such records exist) were
searched.” RCFP, 877 F.3d at 402 (quoting Oglesby, 920 F.2d at 68).
In her FOIA request, Roseberry-Andrews requested information from eight program
offices within ICE. See Orig. Compl. Ex. 1 at 8-9. Pineiro declared that the ICE FOIA Office
“determined that because of the subject matter of the FOIA request, there were seven (7) offices
reasonably likely to have records responsive to the Plaintiff’s request.” Pineiro Decl. ¶ 24; see
also id. ¶¶ 32-38. Five of those offices (ELR, OPLA, Privacy, ICE FOIA Office, and OAS) were
identified by Roseberry-Andrews. Orig. Compl. Ex. 1 at 8-9. It also searched two offices that
Roseberry-Andrews did not identify: ODCR and OCIO. Pineiro Decl. ¶ 24. DHS did not
search, as Roseberry-Andrews requested, Human Resources, EEO, or Reasonable
Accommodation. Id.
The Court concludes that Defendant has not adequately justified its selection of the
offices it searched. In particular, DHS has not explained why it chose not to search the three
additional program offices that Roseberry-Andrews identified as having responsive records,
which were, after all, records relating to her own employment. See, e.g., Rodriguez, 236 F.
Supp. 3d at 36-37 (concluding search unreasonable where agency did not search an office
identified by plaintiff as likely to have responsive records). It may be that it is not likely these
15
program offices possess records related to Roseberry-Andrews’ request; it is also possible that
these offices were in fact searched as subcomponents of the other program offices. But “[t]he
Court cannot fill in these gaps for the agency.” Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d
101, 154 (D.D.C. 2013); see also Am. Immigration Council v. DHS, 21 F. Supp. 3d 60, 72
(D.D.C. 2014) (denying summary judgment because “the Court cannot judge the merits of
[plaintiff’s] contention [that additional sub-offices should be searched] without knowing
Defendants’ position on whether any of those locations are likely to have responsive
documents”).
The need for Defendant to explain why it did not search the three additional offices
identified by Roseberry-Andrews is underscored by the fact that Pineiro’s declaration is also
deficient insofar as it does not “aver[] that all files likely to contain responsive materials (if such
records exist) were searched.” RCFP, 877 F.3d at 402 (quoting Oglesby, 920 F.2d at 68). To be
sure, Pineiro states that Defendant identified seven offices that were reasonably likely to have
responsive records. Pineiro Decl. ¶ 24. But he does not specifically state that those were the
only such offices, or that no other offices would likely have responsive records. See Elkins v.
FAA, 103 F. Supp. 3d 122, 131 (D.D.C.) (“Nowhere in the FAA’s declaration does [the
declarant] aver that all files likely to contain responsive records were searched or that no other
offices would likely contain responsive documents.”), on reconsideration, 134 F. Supp. 3d 1
(D.D.C. 2015). Thus, in light of Roseberry-Andrews’ specific request that Defendant search
these three additional offices and Defendant’s failure to explain why it did not do so, the Court
denies Defendant’s request for summary judgment as to the adequacy of its search.
16
2. Search Terms Employed
With regard to the program offices ICE did search, the Court concludes that Defendant’s
affidavits are also insufficient because they do not adequately describe the searches that
Defendant conducted.
“A federal agency has discretion [to] craft[] a list of search terms that [it] believe[s] [is]
reasonably tailored to uncover documents responsive to the FOIA request.” Coffey v. Bureau of
Land Mgmt., 249 F. Supp. 3d 488, 498 (D.D.C. 2017) (alterations in original). But summary
judgment is inappropriate “when the agency fails to set forth the search terms and the type of
search performed with specificity or otherwise provides ‘no information about the search
strategies of the [agency] components charged with responding to [a] FOIA request.’” Evans,
2018 WL 707427, at *2 (quoting RCFP, 877 F.3d at 403 (alterations in original)) (internal
quotation marks omitted). “Although a court should not second guess an agency with respect to
its choice of reasonable search terms, it must nonetheless confirm that the agency’s choice was
reasonably calculated to lead to responsive documents.” Coffey, 249 F. Supp. 3d at 498 (citation
and internal quotation marks omitted).
Here, Pineiro’s declaration fails in two respects: it does not provide the search terms that
two of the offices used to search and it fails to explain why the other offices used inconsistent
terms.
Failure to Provide Search Terms. Defendant failed to provide the search terms that two
of the offices—ELR and OAS—used when conducting their search. See Pineiro Decl. ¶ 32
(“The administrative support staff searched ELR’s paper files and internal shared drive.”); id.
¶ 36 (“[OAS] searched the shared computer drive, and searched email records for records
relating to the Plaintiff or the Plaintiff’s employee complaints or personnel actions.”). Without
even knowing which search terms these offices used to search electronic files, the Court cannot
17
conclude that these searches were adequate. See DeBrew v. Atwood, 792 F.3d 118, 122 (D.C.
Cir. 2015) (concluding “declaration is not sufficiently detailed to support a summary judgment
because it does not disclose the search terms used by the BoP and the type of search
performed”); Morley, 508 F.3d at 1122 (rejecting affidavit that “merely identifies the three
directorates that were responsible for finding responsive documents without ‘identify[ing] the
terms searched or explain[ing] how the search was conducted’ in each component”) (alterations
in original) (quoting Oglesby, 920 F.2d at 68); Walston v. DOD, 238 F. Supp. 3d 57, 65 (D.D.C.
2017) (“Without a complete list of the search terms used in response to [plaintiff’s] FOIA
request, the Court is unable to conclude that [defendant’s] search was adequate.”); Defs. of
Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 92 (D.D.C. 2009) (rejecting a declaration that
“simply states that searches were conducted” without providing search terms). Indeed, courts in
this Circuit have found similar declarations from Pineiro to be insufficient to warrant summary
judgment. See, e.g., Parker v. ICE, 238 F. Supp. 3d 89, 104 (D.D.C. 2017) (denying summary
judgment to ICE because declaration from Pineiro “provided insufficient detail” about the search
terms and the “nature of that electronic search process”); Tushnet v. ICE, 246 F. Supp. 3d 422,
434-35 (D.D.C. 2017) (denying summary judgment to ICE because Pineiro declaration stating
that offices had “full discretion to search their records” was inadequate).
Failure to Explain Inconsistent Search Methodology. Defendant’s description of its
search methodology suffers from another flaw: it does not explain why different program offices
used varying search terms. In her FOIA request, Roseberry-Andrews identified the offices she
wanted searched and listed individual employees in the ICE FOIA Office and ELR whose
records she presumably believed contained relevant documents. Orig. Compl. Ex. 1 at 8-9. In
their searches, some program officers searched the names of the ICE employees Roseberry-
18
Andrews identified. See Pineiro Decl. ¶ 35 (“OCIO searched archived e-mails by the names of
specific former ICE employees identified in the FOIA request.”); id. ¶ 38 (“The ICE FOIA
Office manually searched its paper central file system by the names specified in the FOIA
request.”).7 Other offices, however, only searched for Roseberry-Andrews’ name. See id. ¶ 34
(ICE Privacy Officer “searched her computer hard drive and e-mail by the Plaintiff’s name and
complaint number”); id. ¶ 33 (“[T]he program office’s internal shared computer drive was
searched using the name of the applicable case manager and the name of the Plaintiff (employee
who requested accommodations).”); id. ¶ 37 (“OPLA (the Deputy Chief and the OPLA attorney
named in the request) searched an internal case management system, as well as OPLA shared
drives by the Plaintiff’s name.”).
There may well be a good explanation for these inconsistent search methodologies, but
Defendant does not provide it. As a result, these inconsistencies provide another reason that the
Court cannot conclude that Defendant’s search—or at least its description of that search—is
sufficient to warrant summary judgment. See Tushnet, 246 F. Supp. 3d at 434-35 (denying
summary judgment where ICE declarations “fall short of explaining why such disparate searches
were reasonable for particular offices”); James Madison Project v. Dep’t of State, 235 F. Supp.
3d 161, 169 (D.D.C. 2017) (“But the agency misses the point: the problem with the declaration
in this case is that it is conclusory, and the searches are deficient because the agency—for no
discernable reason—searched different data sets using different search terms . . . even within the
same bureau or office. So the agency must do more to explain its methodology, and it must
explain its reasoning more clearly.”).
7
The Court also notes that it is unclear why the ICE FOIA Office searched only paper files, and
not any electronic files, for responsive records.
19
In light of these deficiencies as to the adequacy of its search, the Court will deny
Defendant’s motion for summary judgment without prejudice, and allow it to file a renewed
motion for summary judgment within 60 days of the date of this Opinion. In support of any such
motion, Defendant may either conduct additional searches to ensure that it adequately looked for
records responsive to Roseberry-Andrews’ request or provide additional representations
describing the searches it has already conducted. Accordingly, the Court also reserves judgment
on Roseberry-Andrews’ cross-motion for summary judgment on this issue.
C. Exemptions Claimed by Defendant
Turning to the FOIA exemptions Defendant has invoked, “[t]he agency bears the burden
to establish the applicability of a claimed exemption to any records or portions of records it seeks
to withhold.” Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review (“AILA”),
830 F.3d 667, 673 (D.C. Cir. 2016). Indeed, FOIA exemptions “are ‘explicitly made exclusive
and must be narrowly construed.’” Id. (quoting Milner, 562 U.S. at 565).
In this case, DHS withheld some or all of responsive records pursuant to FOIA
exemptions (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). See Tyrrell Decl. ¶ 7. Roseberry-Andrews
appears to challenge at least some of Defendant’s withholdings under at least Exemptions (b)(5)
and (b)(7)(E), but does not contest withholdings pursuant to other exemptions. Pl.’s Cross-Mot.
Br. at 8-12. Nevertheless, “[t]he court is mindful that the plaintiff is a pro se litigant whose
pleadings and other submissions are construed liberally . . . [and] will address each of the
claimed exemptions below.” Concepcion v. FBI, 606 F. Supp. 2d 14, 27 (D.D.C. 2009).
1. Exemption 5
Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). “This exemption ‘has been interpreted as protecting against disclosure [of] those
20
documents normally privileged in the civil discovery context.’” Judicial Watch, Inc. v. DOD,
245 F. Supp. 3d 19, 27 (D.D.C. 2017) (alteration in original) (quoting Judicial Watch, Inc. v.
DOJ, 365 F.3d 1108, 1113 (D.C. Cir. 2004)). Exemption 5 “allows the government to withhold
records from FOIA disclosure under at least three privileges: the deliberative-process privilege,
the attorney-client privilege, and the attorney work-product privilege.” Nat’l Ass’n of Criminal
Def. Lawyers v. Dep’t of Justice Exec. Office for U.S. Attorneys (“NACDL”), 844 F.3d 246, 249
(D.C. Cir. 2016). In this case, DHS invokes all three of these privileges.
a. Attorney-Client Privilege
The attorney-client privilege protects “confidential communications between an attorney
and his client relating to a legal matter for which the client has sought professional advice.” Pub.
Emps. for Envtl. Responsibility v. EPA, 213 F. Supp. 3d 1, 22 (D.D.C. 2016) (quoting Mead Data
Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977)). “In the FOIA
context, the agency is the ‘client’ and the agency’s lawyers are the ‘attorneys’ for the purposes of
attorney-client privilege.” Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 802 F. Supp. 2d 185,
200 (D.D.C. 2011). “To be privileged, a communication must be ‘for the purpose of securing
primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal
proceeding.’” Muttitt, 926 F. Supp. 2d at 308-09 (quoting In re Grand Jury, 475 F.3d 1299,
1304 (D.C. Cir. 2007)). “The purpose of the privilege is to ensure that a client’s confidences are
protected, encouraging clients to be honest with their attorneys.” Competitive Enter. Inst. v.
EPA, 232 F. Supp. 3d 172, 184 (D.D.C. 2017).
Under the attorney-client privilege, DHS withheld emails between agency employees and
agency attorneys regarding Roseberry-Andrews’ employment and an EEO complaint. Def.’s
MSJ Br. at 7 (citing Tyrrell Decl. ¶ 27). DHS also redacted legal opinions provided by its
attorneys regarding the requirements of the Americans with Disabilities Act and federal
21
regulations regarding probationary periods. Id. Roseberry-Andrews claims that there is no
attorney-client privilege because “the termination was completed” and there was no pending
litigation but only “EEOC disclosure.” Pl.’s Cross-Mot. Br. at 10.
The Court concludes that DHS properly withheld materials pursuant to the attorney-client
privilege under Exemption 5. The information withheld involves communications with agency
attorneys regarding compliance with employment laws and legal advice from attorneys about the
requirements of certain federal statutes and regulations. Such information is covered by the
attorney-client privilege. See, e.g., Jordan v. U.S. Dep’t of Labor, 273 F. Supp. 3d 214, 231
(D.D.C. 2017) (“[C]onfidential disclosures between an attorney and her client regarding factual
and legal matters are certainly protected by attorney-client privilege . . . .”). As to Roseberry-
Andrews’ arguments, it is not clear what “termination” and “EEOC disclosure” she is
referencing. But in any event, the attorney-client privilege “is not limited to communications
made in the context of litigation or even a specific dispute.” Sea Shepherd Conservation Soc’y v.
IRS, 89 F. Supp. 3d 81, 103 (D.D.C. 2015) (quoting Coastal States Gas Corp. v. DOE, 617 F.2d
854, 862 (D.C. Cir. 1980)).
b. Attorney Work Product
“Courts have long recognized that materials prepared by one’s attorney in anticipation of
litigation are generally privileged from discovery by one’s adversary.” NACDL, 844 F.3d at 250
(citing Hickman v. Taylor, 329 U.S. 495, 510-12 (1947)); see also Fed. R. Civ. P. 26(b)(3). “The
doctrine protects both ‘factual and deliberative’ matters, because ‘the risk is apparent that an
attorney’s discussion of factual matters may reveal his or her tactical [or] strategic thoughts.’”
Conservation Force v. Jewell, 66 F. Supp. 3d 46, 65 (D.D.C. 2014) (quoting Shapiro v. DOJ,
969 F. Supp. 2d 18, 28 (D.D.C. 2013)), aff’d per curiam, No. 15-5131, 2015 WL 9309920 (D.C.
Cir. Dec. 4, 2015). But “[n]ot every document created by a government lawyer . . . qualifies for
22
the privilege (and thus, the exemption).” NACDL, 844 F.3d at 251. The D.C. Circuit has “long
required a case-specific determination that a particular document in fact was prepared in
anticipation of litigation before applying the privilege to government records.” Id.
In ascertaining whether a document was prepared in anticipation of litigation, the D.C.
Circuit has applied a “‘because of’ test, asking whether, in light of the nature of the document
and the factual situation in the particular case, the document can fairly be said to have been
prepared or obtained because of the prospect of litigation.” Id. (quoting United States v. Deloitte
LLP, 610 F.3d 129, 137 (D.C. Cir. 2010)). “For that standard to be met, the attorney who created
the document must have ‘had a subjective belief that litigation was a real possibility,’ and that
subjective belief must have been ‘objectively reasonable.’” Id. (quoting In re Sealed Case, 146
F.3d 881, 884 (D.C. Cir. 1998)).
Here, “[a]lthough Plaintiff does not mount any defense challenging Defendant’s reliance
on the [work product] privilege, the Court must nevertheless ‘satisf[y] itself that the record and
any undisputed facts justify granting summary judgment.’” Wisdom v. U.S. Tr. Program, 266 F.
Supp. 3d 93, 107 (D.D.C. 2017) (third alteration in original) (quoting McLean, 843 F.3d at 507).
Defendant asserts that it withheld communications and documents drafted to assist agency
attorneys in litigating and managing cases (although it does not say what kind). Def.’s MSJ Br.
at 7-8 (citing Tyrrell Decl. ¶ 29). While it would have been useful for Defendant to have
provided additional information about precisely which cases these communications involve, the
Court concludes that these withholdings were proper.
c. Deliberative Process Privilege
“The deliberative process privilege protects ‘documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.’” Loving v. DOD, 550 F.3d 32, 38 (D.C. Cir. 2008)
23
(quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n (“Klamath Water”), 532
U.S. 1, 8 (2001)). It “rests on the obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item of discovery and front page news,
and its object is to enhance ‘the quality of agency decisions,’ by protecting open and frank
discussion among those who make them within the Government.” Klamath Water, 532 U.S. at
8-9 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)).
“To fall within the deliberative process privilege, materials must bear on the formulation
or exercise of agency policy-oriented judgment.” Pub. Emps. for Envtl. Responsibility v. EPA,
No. 14-cv-2056 (RC), 2017 WL 6333969, at *3 (D.D.C. Dec. 11, 2017) (quoting Petrol. Info.
Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992)). “The deliberative
process privilege does not . . . protect material that is purely factual, unless the material is so
inextricably intertwined with the deliberative sections of documents that its disclosure would
inevitably reveal the government’s deliberations.” Wallick v. Agric. Mktg. Serv., No. 16-cv-
2063, 2017 WL 5592665, at *12 (D.D.C. Nov. 20, 2017) (citing NLRB, 421 U.S. at 150-54).
“For the deliberative process privilege to apply, a court must first determine whether the
withheld materials are both ‘predecisional’ and ‘deliberative.’” 100Reporters LLC v. DOJ, 248
F. Supp. 3d 115, 150 (D.D.C. 2017) (quoting Access Reports v. DOJ, 926 F.2d 1192, 1194 (D.C.
Cir. 1991)). “[A] document [is] predecisional if it was generated before the adoption of an
agency policy and deliberative if it reflects the give-and-take of the consultative process.”
Worldnetdaily.com, Inc. v. DOJ, 215 F. Supp. 3d 81, 83-84 (D.D.C. 2016) (alterations in
original) (quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006)) (internal
quotation marks omitted). “[W]hen claiming the deliberative process privilege, the agency must,
at the very least, explain in its Vaughn Indices and/or declarations, for each contested document
24
withheld in part or in full, (1) what deliberative process is involved, (2) the role played by the
documents in issue in the course of that process, and (3) the nature of the decisionmaking
authority vested in the office or person issuing the disputed document[s], and the positions in the
chain of command of the parties to the documents.” Ctr. for Biological Diversity v. EPA, 279 F.
Supp. 3d 121, 147 (D.D.C. 2017) (second alteration in original) (citations and internal quotation
marks omitted).
Here, Defendant withheld discussions regarding Roseberry-Andrews’ workplace
grievances and the application of ICE policies to potential personnel actions under the
deliberative process privilege. Def.’s MSJ Br. at 9. It also withheld draft documents regarding,
for instance, how to respond to Roseberry-Andrews’ complaint. Id.; see, e.g., Vaughn Index at
7-10. In response, Roseberry-Andrews points to certain “officer’s notes” that in her view should
not have been withheld under the deliberative process privilege; she asserts that there are “facts”
in those notes that can be disclosed. Pl.’s Cross-Mot. Br. at 8-9. It is unclear to what “notes”
Roseberry-Andrews refers here, although it appears this argument may have been lifted from a
brief in another case.8 Nevertheless, upon review of DHS’s Vaughn Index, the Court is satisfied
that the agency’s withholdings under the deliberative process privilege were proper. See, e.g.,
Am. Fed’n of Gov’t Employees, Local 2782 v. U.S. Dep’t of Commerce, 907 F.2d 203, 208 (D.C.
Cir. 1990) (deliberative process privilege covers predecisional documents regarding personnel
actions); Nat’l Sec. Counselors v. CIA, 206 F. Supp. 3d 241, 278 (D.D.C. 2016) (“Judges on this
8
Defendant argues that Roseberry-Andrews’ failure to respond to its arguments in support of its
application of the deliberative process privilege means that she has “conceded” the issue. See
Def.’s Reply at 2-3 (citing Hopkins v. Women’s Div., General Bd. of Global Ministries, 284 F.
Supp. 2d 15, 25 (D.D.C. 2003)). But a pro se plaintiff’s failure to respond to an argument does
not automatically relieve the government of satisfying its burden on summary judgment. See,
e.g., Wisdom, 266 F. Supp. 3d at 107; MacLeod, 2017 WL 4220398, at *8.
25
Court have repeatedly held that drafts may be withheld under Exemption 5 where the
withholding agency carries its normal burden of demonstrating that withheld materials are both
predecisional and deliberative.”).
2. Exemption 6
Exemption 6 provides that agencies may withhold “personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6).9
Courts “follow a two-step process when considering withholdings or redactions under
Exemption 6.” AILA, 830 F.3d at 673. First, they “determine whether the [records] are
personnel, medical, or ‘similar’ files covered by Exemption 6.” Id. (alteration in original)
(quoting Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1228 (D.C. Cir. 2008)). “The
Supreme Court has interpreted the term ‘similar files’ broadly so as ‘to cover detailed
Government records on an individual which can be identified as applying to that individual.’”
Ayuda, Inc. v. FTC, 70 F. Supp. 3d 247, 264 (D.D.C. 2014) (quoting U.S. Dep’t of State v. Wash.
Post Co., 456 U.S. 595, 602 (1982)).
“Second, if . . . the records are covered by the exemption, [a court] ‘determine[s] whether
their disclosure would constitute a clearly unwarranted invasion of personal privacy.’” AILA,
9
Defendant notes that “[a]lthough all withholdings [on its Vaughn Index] are properly marked
with (b)(6), not all withholdings marked (b)(6) are also marked with (b)(7)(C).” Vaughn Index at
2. Thus, the Court will evaluate DHS’s withholdings under Exemption 6, even though courts
will often evaluate Exemption 7(C) in lieu of Exemption 6. See Citizens for Responsibility &
Ethics in Washington v. DOJ, 854 F.3d 675, 681 (D.C. Cir. 2017) (“When information is claimed
to be exempt from disclosure under both provisions, courts ‘focus . . . on Exemption 7(C)
because it provides broader privacy protection than Exemption 6 and thus establishes a lower bar
for withholding material.’”) (quoting Citizens for Responsibility and Ethics in Washington v.
DOJ (“CREW II”), 746 F.3d 1082, 1091 n.2 (D.C. Cir. 2014)).
26
830 F.3d at 673 (quoting Multi Ag Media LLC, 515 F.3d at 1228) (internal quotation marks
omitted). This requires a court to “balance the public interest in disclosure against the interest
Congress intended [Exemption 6] to protect.” Id. (alteration in original) (quoting DOD v. Fed.
Labor Relations Auth. (“FLRA”), 510 U.S. 487, 495 (1994)). To do so, a court “follow[s]
another two-step process.” Id. It must first determine that “disclosure would compromise a
substantial, as opposed to a de minimis, privacy interest,” id. at 674 (quoting Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 33 (D.C. Cir. 2002)), and then, “if so, . . . weigh the privacy
interest at stake ‘against the public interest in the release of the records,’” id. (quoting Nat’l
Ass’n of Home Builders, 309 F.3d at 33). Exemption 6 “does not categorically exempt
individuals’ identities . . . because the ‘privacy interest at stake may vary depending on the
context in which it is asserted.’” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 153 (D.C. Cir.
2006) (quoting Armstrong v. Exec. Office of the President, 97 F.3d 575, 582 (D.C. Cir. 1996)).
“[T]he only relevant ‘public interest in disclosure’ to be weighed in this balance is the extent to
which disclosure would serve the ‘core purpose of the FOIA,’ which is ‘contribut[ing]
significantly to public understanding of the operations or activities of the government.’” FLRA,
510 U.S. at 495 (second alteration in original) (quoting Reporters Comm. for Freedom of Press,
489 U.S. at 775).
In this case, Defendant withheld “the names, telephone numbers, email addresses, work
locations, and other personally identifiable information for non-leadership, lower-level ICE
employees,” as well as the “names[,] signatures, and home addresses for other individuals and
third parties (such as family members and contractors).” Def.’s MSJ Br. at 11.
The Court concludes that Defendant’s withholdings under Exemption 6 were proper. The
Court agrees with Defendant that the information redacted “can be identified as applying to”
27
particular individuals. Ayuda, 70 F. Supp. 3d at 264. Moreover, individuals have a substantial
privacy interest in personal information such as their telephone numbers and addresses. AILA,
830 F.3d at 673. And releasing the personal information of third parties and “lower-level ICE
employees,” Def.’s MSJ Br. at 14, does not “contribut[e] significantly to public understanding of
the operations or activities of the government.” FLRA, 510 U.S. at 495 (emphasis omitted). The
Court’s conclusion is in accord with other courts in this Circuit. See, e.g., Henderson v. DOJ,
157 F. Supp. 3d 42, 51 (D.D.C. 2016) (“EOUSA properly withheld the third-party information
under Exemption 6.”); Conservation Force, 66 F. Supp. 3d at 67 (“It has long been held that
personal data and information can be redacted from documents produced under the FOIA in the
interest of privacy.”) (collecting cases).
Roseberry-Andrews’ arguments to the contrary are unavailing. She argues that DHS’s
redactions were not proper because the names of GS-14 and above employees are already public,
and the titles of third parties cannot be redacted. Pl.’s Cross-Mot. Br. at 11. But she does not
point to any specific instances where Defendant allegedly redacted the name of a GS-14
employee and, in any event, DHS represented that it only redacted the names of “non-leadership,
lower-level ICE employees,” Def.’s MSJ Br. at 11. Roseberry-Andrews also cites no evidence
that Defendant redacted the titles of third parties or that such redactions, if they occurred, would
be improper.
3. Exemption 7
“Exemption 7 protects from disclosure ‘records or information compiled for law
enforcement purposes,’ but only to the extent that disclosure of such records would cause an
enumerated harm listed in Exemption 7’s subsections.” Miller v. DOJ, 872 F. Supp. 2d 12, 24
(D.D.C. 2012) (citing 5 U.S.C. § 552(b)(7)).
28
a. Exemption 7 Threshold
“To fall within Exemption 7, documents must first meet a threshold requirement: that the
records were ‘compiled for law enforcement purposes.’” Pub. Emps. for Envtl. Responsibility v.
U.S. Section, Int'l Boundary & Water Comm’n, U.S.-Mexico (“PEER”), 740 F.3d 195, 202-03
(D.C. Cir. 2014) (citing 5 U.S.C. § 552(b)(7)).
“Agencies classified as law enforcement agencies . . . receive deference to their assertion
that documents were compiled for a law enforcement purpose.” 100Reporters LLC, 248 F. Supp.
3d at 159 (citing Pratt v. Webster, 673 F.2d 408, 418 (D.C. Cir. 1982)). But “not every
document compiled by a law enforcement agency is compiled for a law enforcement purpose.”
Id. Instead, “the agency’s activity ‘must be related to the enforcement of federal laws or to the
maintenance of national security’” and “the nexus between the [activity] and one of the agency’s
law enforcement duties must be based on information sufficient to support at least ‘a colorable
claim’ of its rationality.” Pinson v. DOJ, 202 F. Supp. 3d 86, 101-02 (D.D.C. 2016) (alteration
in original) (quoting Pratt, 673 F.2d at 420-21). If the records at issue do not involve an ongoing
law enforcement investigation, “materials may still meet the threshold requirement of Exemption
7 if they are akin to ‘guidelines, techniques, and procedures for law enforcement investigations
and prosecutions outside of the context of a specific investigation.’” Pinson v. DOJ, 236 F.
Supp. 3d 338, 365 (D.D.C. 2017) (quoting Tax Analysts v. IRS, 294 F.3d 71, 78 (D.C. Cir.
2002)).
As an initial matter, this Court concludes, consistent with many other decisions in this
Circuit, that ICE is a law enforcement agency. See, e.g., Am. Immigration Council v. DHS
(“AIC”), 950 F. Supp. 2d 221, 245 (D.D.C. 2013) (“As Defendants correctly note, ICE is an
agency specializing in law enforcement, and, consequently, its decision to invoke Exemption
7(E) is entitled to a measure of deference.”); Barnard v. DHS, 598 F. Supp. 2d 1, 15 (D.D.C.
29
2009) (“[T]here is no question that ICE . . . perform[s] law enforcement activities.”). Thus,
Defendant’s determination of whether records are compiled for law enforcement purposes
receives deference under Pratt.10
With these principles in mind, the Court turns to the records that DHS redacted or
withheld pursuant to Exemption 7.
b. Exemption 7(C)
“FOIA exempts from disclosure ‘records or information compiled for law enforcement
purposes, but only to the extent that the production of such law enforcement records or
information . . . could reasonably be expected to constitute an unwarranted invasion of personal
privacy.’” CREW II, 746 F.3d at 1091 (quoting 5 U.S.C. § 552(b)(7)(C)). If Defendant satisfies
the Exemption 7 threshold that the information being withheld was compiled “for law
enforcement purposes,” the Court’s “task, then, is ‘to balance the [ ] privacy interest against the
public interest in disclosure.’” Id. (alteration in original) (quoting Nat’l Archives & Records
Admin. v. Favish, 541 U.S. 157, 171 (2004)). “Although the balancing test is applied to both
Exemption 6 and 7(C), ‘Exemption 7(C) is more protective of privacy than Exemption 6 and thus
establishes a lower bar for withholding material.’” 100Reporters LLC, 248 F. Supp. 3d at 158-
10
Defendant seems to suggest that any records created by a program office that provides support
to ICE meet the Exemption 7 threshold. See Def.’s MSJ Br. at 13 (“All of the ICE records that
are the subject of withholdings under Exemption 7 in this case originate from offices that are
responsible for management and administration functions in support of ICE’s operations. . . . As
such, they are critical components of ICE’s law enforcement mission and their records are
subject to Exemption 7.”). The Court rejects such a blanket assertion. See Pinson, 202 F. Supp.
3d at 101 n.1 (rejecting a similar argument as “erroneous” because “the Pratt test was articulated
specifically for law enforcement agencies, and details two conditions that even law enforcement
agencies must meet to pass the threshold with respect to particular documents”). Thus, the Court
will evaluate whether each category of documents that Defendant seeks to withhold under
Exemption 7 satisfies the threshold for this exemption.
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59 (quoting Prison Legal News v. Samuels, 787 F.3d 1142, 1146 n.5 (D.C. Cir. 2015)) (internal
quotation marks omitted).
Pursuant to Exemption 7(C), DHS withheld the names and personally identifiable
information of ICE employees who “handle a myriad of tasks relating to the enforcement of
federal immigration law.” Tyrrell Decl. ¶ 39. Moreover, DHS asserts that “[i]f their identities
are released, they could become targets of harassment” and “[t]here is no public interest to be
served by releasing the identities or personal information of these government employees.” Id.
Consistent with other opinions in this Circuit, this Court agrees that this information was
properly withheld under Exemption 7(C). See, e.g., Isiwele v. HHS, 85 F. Supp. 3d 337, 359
(D.D.C. 2015) (finding agency properly redacted names of law enforcement personnel); Gosen v.
U.S. Citizenship & Immigration Servs., 75 F. Supp. 3d 279, 290 (D.D.C. 2014) (“Because these
redactions do not appear to implicate any public interest at all, USCIS properly applied
Exemption[] . . . 7(C).”); Brown v. FBI, 873 F. Supp. 2d 388, 404 (D.D.C. 2012) (“In light of the
employees’ privacy interests, the potential for violence, and the insubstantial public interest in
the names of clerical employees, defendant properly withholds the names and identifying
information of FBI [Special Agents] and support personnel.”).
c. Exemption 7(E)
Exemption 7(E) authorizes the government to withhold records and documents if they
were “compiled for law enforcement purposes,” provided that their publication “would disclose
techniques and procedures for law enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably
be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). The “requirement that
disclosure risk circumvention of the law ‘sets a relatively low bar for the agency to justify
withholding.’” PEER, 740 F.3d at 205 (quoting Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir.
31
2011)). “Rather than requiring a highly specific burden of showing how the law will be
circumvented, exemption 7(E) only requires that the [agency] demonstrate logically how the
release of the requested information might create a risk of circumvention of the law.” Gilman v.
DHS, 32 F. Supp. 3d 1, 18 (D.D.C. 2014) (alteration in original) (quoting Blackwell, 646 F.3d at
42).
Here, Defendant seeks to redact a handful of documents pursuant to Exemption 7(E) to
withhold information about ICE databases, such as internal resource-location addresses and case
numbers. See Def.’s MSJ Br. at 14-15; Vaughn Index at 7, 14-15, 19. According to DHS, this
information can reveal “the type of activity under investigation, the location of a case or
investigative effort, and the scope and size of an investigation.” Def.’s MSJ Br. at 15.
Moreover, it asserts that the information is “not widely known and its revelation may allow
persons seeking to circumvent the law to take proactive steps to counter operational and
investigative actions.” Id.
In response, Roseberry-Andrews argues that Exemption 7(E) is inapplicable because it
only “applies to criminal investigations.” Pl.’s Cross-Mot. Br. at 11. She also argues that
Defendant “failed to show that releasing information about its databases would disclose
investigative or prosecutorial techniques, procedures, or guidelines” or that harm “could
reasonably be expected” from disclosure. Id. at 12.
The Court agrees with Defendant that its withholdings under Exemption 7(E) were
proper. As an initial matter, Roseberry-Andrews is incorrect that Exemption 7(E) applies only to
criminal investigations. The term “law enforcement” in Exemption 7 “refers to the act of
enforcing the law, both civil and criminal.” PEER, 740 F.3d at 203. And it “entails more than
just investigating and prosecuting individuals after a violation of the law.” Id.
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The Court is also satisfied that the information DHS withheld pursuant to Exemption
7(E) was “compiled for law enforcement purposes.” ICE is an agency located within DHS,
which is responsible for “administration and enforcement of laws related to immigration and
naturalization.” Def.’s MSJ Br. at 12-13 (citing 8 U.S.C. § 1103). ICE uses databases to “assist
. . . with deporting people who are unlawfully in the United States, to arrest those who violate
federal immigration laws, and to track investigations and court proceedings of those
apprehended.” Long v. ICE, 149 F. Supp. 3d 39, 49 (D.D.C. 2015). The Court therefore
concludes, particularly in light of the deference that Defendant receives under Pratt, that “the
withheld portions of the record are ‘related to the enforcement of federal laws’” and “based on
information sufficient to support at least a colorable claim of its rationality.” Bayala v. DHS,
264 F. Supp. 3d 165, 178-79 (D.D.C. 2017) (quoting Pratt, 673 F.2d at 420-21). The Court’s
conclusion is consistent with other decisions in this Circuit. See, e.g., id. at 178-80 (authorizing
DHS to withhold information about “electronic database systems”); Isiwele, 85 F. Supp. 3d at
360 (“[T]he Court finds that ICE properly redacted . . . database codes, case numbers, and
numeric references . . . under FOIA 7(E).” (internal quotation mark omitted)); Gosen, 75 F.
Supp. 3d at 290 (database information such as codes and descriptions of documents “is precisely
the type[ ] of information contemplated by the exemption, and . . . properly is withheld under
Exemption 7(E)” (alteration in original) (internal quotation marks omitted)).
The Court also agrees with DHS that the information withheld pursuant to Exemption
7(E) would disclose “techniques and procedures for law enforcement investigations.” 5 U.S.C.
§ 552(b)(7)(E). Defendant explained that information it withheld can reveal information about
the type, scope, and location of an investigation. Def.’s MSJ Br. at 14 (citing Tyrrell Decl. ¶ 39).
Such information involves “techniques and procedures” for law enforcement because it reveals
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how ICE organizes information regarding its investigations. And the fact that the redactions at
issue are not related to an ongoing investigation is of no moment. Tax Analysts, 294 F.3d at 78.
The Court also concludes that these withholdings meet the “relatively low bar,” PEER,
740 F.3d at 205, to establish that disclosure “could reasonably be expected to risk circumvention
of the law,” 5 U.S.C. § 552(b)(7)(E). Tyrrell’s declaration explains that “[d]isclosure of these
techniques and practices for navigating law enforcement databases could permit people seeking
to violate or circumvent the law to take proactive steps to counter operational and investigative
actions taken by ICE.” Tyrrell Decl. ¶ 42. As other courts in this Circuit have found, that is
sufficient to meet Exemption 7(E). See Parker, 238 F. Supp. 3d at 100 (“The Court agrees that
disclosing this information could reasonably be expected to create a risk of circumvention by
revealing how ICE’s databases work and rendering them more vulnerable to manipulation.”);
Abdelfattah v. ICE, 851 F. Supp. 2d 141, 145 (D.D.C. 2012) (permitting withholding of
“program codes . . . and internal instructions” by ICE under Exemption 7(E)). The Court thus
upholds Defendant’s redactions under Exemption 7(E).
For the foregoing reasons, on the record currently before the Court, the Court grants
Defendant’s motion for summary judgment as it relates to its withholdings under FOIA, and
denies Roseberry-Andrews’ cross-motion on this issue.
D. Segregability
FOIA requires that an agency provide “[a]ny reasonably segregable portion of a record
. . . after deletion of the portions which are exempt,” 5 U.S.C. § 552(b), “unless the exempt
portions are ‘inextricably intertwined with exempt portions,’” Johnson, 310 F.3d at 776 (quoting
Mead Data, 566 F.2d at 260). “The agency is ‘entitled to a presumption that [it] complied with
the obligation to disclose reasonably segregable material,’ but that does not excuse the agency
from carrying its evidentiary burden to fully explain its decisions on segregability,”
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100Reporters LLC, 248 F. Supp. 3d at 165 (quoting Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir.
2013) (alteration in original)). Indeed, the agency “must . . . provide descriptions of excerpts
deemed to be non-segregable, with explanations as to these decisions.” AIC, 950 F. Supp. 2d at
248.
Here, Roseberry-Andrews baldly asserts that DHS failed to “[c]onduct a segregated line
by line review of the information withheld.” Pl.’s Cross-Mot. Br. at 10. Tyrrell asserts in
equally conclusory fashion that he “reviewed each record line-by-line to identify information
exempt from disclosure,” and that any records released in part were “correctly segregated and
non-exempt portions were released.” Tyrrell Decl. ¶¶ 44-45. Ultimately, the Court denies
Defendant’s motion for summary judgment on the question of segregability because it is unclear
on the record before the Court whether Defendant withheld any information on the grounds that
it was non-segregable (and, if so, what explanation it would offer to justify such withholdings).
The Court notes that similar attestations have been met with skepticism by other courts in this
Circuit. See, e.g., AIC, 950 F. Supp. 2d at 248 (similar ICE attestation “will not suffice to
discharge [the agency’s] burden”). If Defendant has withheld information as non-segregable, it
should, in any future motion for summary judgment, clearly identify that information and
“provide the reasons behind [its] conclusions in order that they may be challenged by FOIA
plaintiffs and reviewed by the courts.” Id. (quoting Mead Data, 566 F.2d at 261).
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Conclusion and Order
For the foregoing reasons, it is hereby ORDERED that Defendant’s motion for summary
judgment (ECF No. 22) is GRANTED IN PART and DENIED IN PART WITHOUT
PREJUDICE. The Court will permit Defendant to file a renewed motion for summary
judgment within 60 days explaining how it conducted an adequate search—whether by
conducting additional searches or providing additional information about the searches already
conducted—and setting forth whether it withheld any non-segregable information and why. The
Court will also RESERVE JUDGMENT IN PART on and DENY IN PART Roseberry-
Andrews’ cross-motion for summary judgment (ECF No. 24).
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: March 13, 2018
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