Parker v. United States Immigration and Customs Enforcement , 238 F. Supp. 3d 89 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LONNIE J. PARKER, :
:
Plaintiff, : Civil Action No.: 15-1253 (RC)
:
v. : Re Document Nos.: 17, 19, 29
:
U.S. IMMIGRATION AND CUSTOMS :
ENFORCEMENT, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT;
DENYING AS MOOT PLAINTIFF’S MOTION FOR DISCOVERY
I. INTRODUCTION
Plaintiff, Mr. Lonnie Parker, challenges defendant Immigration and Customs
Enforcement (ICE)’s response to his FOIA request. Mr. Parker sought records related to ICE’s
previous criminal investigation of Mr. Parker. ICE responded to Mr. Parker’s request, but
withheld portions of some documents under various FOIA exemptions. Mr. Parker argues that
ICE’s search was inadequate because it did not produce any communications between ICE and
the FBI—which Mr. Parker asserts must exist—and because it insufficiently searched for
responsive emails. The Court grants ICE summary judgment in part but denies ICE summary
judgment as to the adequacy of some portions of its search.1
1
Mr. Parker’s cross-motion for summary judgment appears to seek an order compelling
ICE to perform additional searches. Mem. P. & A. Supp. Pl.’s Mot. Summ. J. & Opp’n Def.’s
Mot. Summ. J. (Pl.’s MSJ) at 6, ECF No. 19. Because the Court believes additional briefing by
ICE may resolve this matter, Mr. Parker’s motion is denied.
II. BACKGROUND
Mr. Parker filed a FOIA request on ICE in early 2014, seeking:
All records from the United States Immigration and Customs
Enforcement’s office in Little Rock Arkansas [sic], listing my client’s name
(Lonnie Joseph Parker) or otherwise describing or discussing my client (Mr.
Parker), that were created or generated from January 1, 1998 to January 31, 2006,
currently located in any system of records in the possession or control of the
United States Immigration and Customs Enforcement agency (including any
archived or stored records), in any form or format, including any hand-written
notes, diagrams, emails, phone logs, photographs, maps, diagrams, spread sheets,
or any other forms of records responsive to this records request.
FOIA Request, ECF No. 17-3, Ex. 1. ICE is “the principal investigative arm of [the Department
of Homeland Security] and the second largest investigative agency in the federal government.”
Pineiro Decl. ¶ 24, ECF No. 18.
After receiving this request, ICE determined that its Office of Enforcement and Removal
Operations (ERO) and Homeland Security Investigations (HSI) office were the likely locations
of responsive records. Pineiro Decl. ¶ 23. ERO searched the Central Index System database
using Mr. Parker’s name and date of birth, but did not find any entries in the index suggesting
that ERO had any responsive records. Pineiro Decl. ¶ 27. ERO thus concluded its search. HSI
searched the TECS system using Mr. Parker’s name. Pineiro Decl. ¶ 28. TECS is a law
enforcement database that includes case management functions and enforcement, inspection, and
intelligence records. Pineiro Decl. ¶ 29. HSI located 60 pages of responsive records within TECS
including “search query results, incident reports and reports of investigation from a criminal
investigation case.” Pineiro Decl. ¶¶ 7, 30. ICE withheld some portions of the records under
FOIA Exemptions 6 and 7 and released the rest to Mr. Parker. Pineiro Decl. ¶ 7. Mr. Parker
appealed this result administratively, and the ICE Office of the Principal Legal Advisor affirmed
ICE’s withholdings but instructed ICE to reprocess the request and locate additional potentially
responsive records. Pineiro Decl. ¶¶ 8, 9.
2
Unsatisfied with this resolution, Mr. Parker filed suit against ICE in August of 2015.
Compl., ECF No. 1. After Mr. Parker initiated this litigation, “HSI determined that . . . additional
responsive hard file records beyond what was previously found in TECS” might exist in a Little
Rock field office.2 Pineiro Decl. ¶ 31. Agent Sanders, one of two ICE agents Mr. Parker
discusses in his briefing, was then employed at the Little Rock office.3 2d Pineiro Decl. ¶ 8, ECF
No. 21-1. “Based on his experience and knowledge of the Little Rock office’s storage of physical
case file records . . . using [Mr. Parker’s] name and the case number associated with [Mr.
Parker’s] prior criminal case, [Agent Sanders] conducted a manual search of case file records
located in a file cabinet in a secure room within the office.” Pineiro Decl. ¶ 31, ECF No. 18. This
search uncovered 129 pages of records, including “an application for a search warrant with
supporting affidavit, fax cover coversheets [sic], military records, statutes and legal citations, an
air force uniform manual [sic], agents’ notes, a consent to search form, letters, employments
forms, evidence chain of custody forms, notes, memoranda, court orders, transcript, and
computer data file printouts.” Pineiro Decl. ¶ 32. ICE released the recovered records after
withholding some portions pursuant to FOIA Exemptions 6 and 7.4 Pineiro Decl. ¶ 33.
2
Given that Mr. Parker’s initial FOIA request called in its first sentence for “[a]ll records
from the United States Immigration and Customs Enforcement’s office in Little Rock Arkansas
[sic],” FOIA Request, it is mildly surprising that ICE required more than a year to consider
searching the Little Rock office.
3
ICE clarified in its opposition that this search was conducted by Agent Sanders. 2d
Pineiro Decl. ¶ 8.
4
ICE further determined that additional records might exist in the Minneapolis/St. Paul
field office, and an “Intelligence Research Specialist” there “searched the TECS system and the
office’s paper file records by using [Mr. Parker’s] name, date of birth, and case number,” as well
as the specialist’s “experience and knowledge” of the office’s storage system. Pineiro Decl. ¶ 35.
That search resulted in nine pages of records, which ICE determined were not actually
responsive and did not release. Pineiro Decl. ¶ 36.
3
Agent Sanders also searched “his personal Outlook email archives” but did not find any
responsive records. 2d Pineiro Decl. ¶ 8. Mr. Parker’s briefing also discusses the emails and
other communications associated with an Agent Mensinger. Agent Mensinger left ICE before
Mr. Parker’s FOIA request was submitted to ICE. 2d Pineiro Decl. ¶ 10. Given that Agent
Mensinger no longer had a functioning ICE email account, and that Mr. Parker sought records
from before 2008, the only ICE record system that might still contain copies of any of Agent
Mensinger’s emails was “various back-up tape systems in regional offices.” 2d Pineiro Decl.
¶ 10. Due to their age, these assorted systems are “no longer produced commercially” and “ICE
no longer maintains the equipment and software” which would be required to read or search the
email files stored within. 2d Pineiro Decl. ¶ 10. ICE does not describe any search for Agent
Mensinger’s email beyond establishing the inaccessible nature of the email archive tapes.
ICE now moves for summary judgment on the grounds that it performed an adequate
search, withheld only material properly within FOIA Exemptions 6 and 7, and released all
segregable material. See generally Mem. Law Supp. Def.’s Mot. Summ. J. (Def.’s MSJ), ECF
No. 17-2. ICE provides a Vaughn index describing the material withheld from the records. See
generally Vaughn Index, ECF No. 17-3, Ex. 5. Mr. Parker did not object to ICE’s withholdings,
but argues in his cross-motion for summary judgment that ICE did not perform an adequate search
because it did not follow up on all of the leads that Mr. Parker identified.5 See generally Mem. P.
& A. Supp. Pl.’s Mot. Summ. J. & Opp’n Def.’s Mot. Summ. J. (Pl.’s MSJ), ECF No. 19.6
5
In his reply, Mr. Parker also moved for discovery pursuant to Rule 56(d), Pl.’s Reply
Mem. Supp. Pl.’s Mot. Summ. J. (Pl.’s Reply), ECF No. 24, which ICE opposed, Def.’s Opp’n
Pl.’s Request Discovery (Def.’s Discovery Opp’n), ECF No. 26. Mr. Parker subsequently
withdrew the request. Pl.’s Reply Re: Discovery (Pl.’s Discovery Reply), ECF No. 28.
6
Mr. Parker’s memorandum docketed at ECF No. 20 as the opposition is identical to the
memorandum docketed at ECF No. 19 as Mr. Parker’s Motion for Summary Judgment. For
clarity, the Court cites only to ECF No. 19.
4
III. LEGAL STANDARD
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). Summary judgment is
appropriate where “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). A “material” fact is
one capable of affecting the substantive outcome of the litigation. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a
reasonable jury to return a verdict for the nonmovant. Scott v. Harris, 550 U.S. 372, 380 (2007).
When assessing a summary judgment motion in a FOIA case, a court makes a de novo
assessment of whether the agency has properly withheld the requested documents. See 5 U.S.C.
§ 552(a)(4)(B); Judicial Watch v. U.S. Dep’t of Homeland Sec., 598 F. Supp. 2d 93, 95 (D.D.C.
2009). To prevail on a motion for summary judgment, “the defending agency must prove that
each document that falls within the class requested either has been produced, is unidentifiable or
is wholly exempt from the Act’s inspection requirements.” Weisberg v. U.S. Dep’t of Justice,
627 F.2d 365, 368 (D.C. Cir. 1980) (internal quotation marks omitted) (quoting Nat’l Cable
Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)).
IV. ANALYSIS
A. Withholdings under FOIA Exemptions and Segregability
ICE requests summary judgment as to the propriety of its withholdings and its release of
segregable materials because Mr. Parker is silent on both issues. See, e.g., Def.’s Reply Supp.
5
Summ. J. & Opp’n Pl.’s Cross-Mot. Summ. J. (Def.’s Opp’n) at 1–2, ECF No. 21.7 The matter is
no longer so simple. The D.C. Circuit has held that—even if the nonmovant does not respond to
the motion for summary judgment—the court cannot grant the motion simply because it was
conceded. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (“Under
the Federal Rules of Civil Procedure, a motion for summary judgment cannot be ‘conceded’ for
want of opposition. ‘The burden is always on the movant to demonstrate why summary judgment
is warranted. The nonmoving party’s failure to oppose summary judgment does not shift that
burden.’” (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J.,
concurring))). Instead, “[t]he District Court ‘must always determine for itself whether the record
and any undisputed material facts justify granting summary judgment.’” Id. (quoting Grimes,
794 F.3d at 97 (Griffith, J., concurring) and citing Fed. R. Civ. P. 56(e)(3)). This requires the
Court to conduct an independent evaluation to determine whether the record and any undisputed
material facts justify granting summary judgment. See Grimes, 794 F.3d at 98–99 (Griffith, J.
concurring) (“The wiser course for district courts is to conduct an independent review of the
record to determine whether there remains any genuine dispute over material facts. If not, the
court should say as much without relying upon any concession by the nonmoving party.”). The
Court thus independently considers if ICE has properly invoked the FOIA exemptions it claims,
and if it has met it burden to show that it has released all reasonably segregable material.
7
ICE’s memorandum docketed at ECF No. 22 as the opposition is identical to the
memorandum docketed at ECF No. 21 as ICE’s reply. For clarity, the Court cites only to ECF
No. 21.
6
1. Application of FOIA Exemptions
ICE withholds portions of records under FOIA Exemption 6, Exemption 7(C), and
Exemption 7(E).8 See generally Vaughn Index, ECF No. 17-3, Ex. 5. For many documents, ICE
asserts FOIA Exemption 6 and Exemption 7(C) together—because the Court concludes that
Exemption 7(C) justifies the withholdings it does not analyze the applicability of Exemption 6.
The Court separately analyzes ICE’s remaining withholdings under Exemption 7(E) alone.
Because “‘[d]isclosure, not secrecy, is [FOIA’s] dominant objective,’ . . . agencies may
withhold only those documents or portions thereof that fall under one of nine delineated statutory
exemptions.” Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 845 (D.C. Cir. 2010) (second
alteration in original) (quoting Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) and
citing 5 U.S.C. § 552(b)). The agency’s documents supporting the exemption, including the
Vaughn index, must “permit adequate adversary testing of the agency’s claimed right to an
exemption.” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 840 F. Supp.
2d 226, 230 (D.D.C. 2012) (quoting Kimberlin v. U.S. Department of Justice, 139 F.3d 944, 950
(D.C. Cir. 1998)); see also 5 U.S.C. § 552(a)(4)(B). However, “a reviewing court should ‘respect
the expertise of an agency’ and not ‘overstep the proper limits of the judicial role in FOIA
review,’” Pinson v. U.S. Dep’t of Justice, 160 F. Supp. 3d 285, 293 (D.D.C. 2016) (quoting
Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979)), and an
8
ICE also labels each of its withholdings with Privacy Act exemption (j)(2). Mr. Parker
never raises any claims under the Privacy Act. See generally, e.g., Comp., ECF No. 1. The Court
thus does not address whether the Privacy Act would require disclosing the records at issue here,
although the Court notes that all of the records in this case appear to originate within record
systems that have been exempted from the Privacy Act. See Privacy Act of 1974; Department of
Homeland Security U.S. Immigration and Customs Enforcement-009 External Investigations
System of Records, 75 Fed. Reg. 404 (Jan. 5, 2010); see also Pineiro Decl. ¶ 40–44; Barnard v.
Dep’t of Homeland Sec., 598 F. Supp. 2d 1, 25 (D.D.C. 2009).
7
agency’s explanation is thus “sufficient if it appears ‘logical’ or ‘plausible,’” Wolf v. CIA, 473
F.3d 370, 374–75 (D.C. Cir. 2007).
a. Threshold Requirement of Exemption 7
ICE claims that Exemption 7(C) and 7(E) apply to some withheld material. “In order to
withhold documents under Exemption 7, the agency must, as a preliminary matter” make a
“threshold” showing demonstrating “that the records were compiled for a law enforcement
purpose.” Kay v. FCC, 976 F. Supp. 23, 37 (D.D.C. 1997). Here, ICE asserts that it meets this
threshold requirement because “the Secretary of Homeland Security is charged with the
administration and enforcement of laws relating to the Customs and the importation and
exportation of goods in the country” and “ICE . . . is responsible for identifying and eliminating
vulnerabilities within the nation’s borders. . . . that threaten national security and public safety.”
Pineiro Decl. ¶ 46. The specific “records at issue in this matter were compiled as part of a
criminal investigation by . . . [the] U.S. Customs Service.” Pineiro Decl. ¶ 46. Mr. Parker does
not argue that any of the records withheld or redacted by ICE under Exemption 7 were not
compiled for a law enforcement purpose, and in fact characterizes his FOIA request as seeking
“public records pertaining to [ICE’s] prior criminal investigation of Plaintiff for the time period
of ICE’s investigation action.” Pl.’s MSJ at 1, ECF No. 19. The Court thus credits ICE’s
assertion that all of the relevant records were compiled for law enforcement purposes and that
Exemption 7’s threshold requirement has been met.
b. Exemption 7(C)
ICE uses Exemption 7(C) to justify withholding the names, initials, signatures, and phone
numbers of ICE employees and third-party individuals. See generally Vaughn Index. ICE may
also have withheld email addresses and room numbers of ICE employees under Exemption 7(C).
8
Pineiro Decl. ¶ 49. According to ICE, each affected individual “has an interest in remaining free
from harassment.” Def.’s MSJ at 12.
Under Exemption 7(C), an agency is exempt from producing “records or information
compiled for law enforcement purposes . . . 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.” 5 U.S.C. § 552(b)(7)(C). A court first determines if
there is a privacy interest in the information to be disclosed, ACLU v. U.S. Dep’t of Justice, 655
F.3d 1, 6 (D.C. Cir. 2011), and then balances the individual’s privacy interest against the public
interest, considering only the public interest “that focuses on ‘the citizens’ right to be informed
about “what their government is up to,”’” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1282
(D.C. Cir. 1992) (quoting U.S. Dep’t of Justice v. Reporters Comm. For Freedom of the Press,
489 U.S. 749, 773 (1989)). It is a FOIA requester’s obligation to articulate a public interest
sufficient to outweigh an individual’s privacy interest, and the public interest must be significant.
See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
Here, as ICE notes, the individuals and ICE employees do clearly have a privacy interest
as the names, addresses, and phone numbers redacted could be linked to them and potentially
expose them to harassment. Mr. Parker does not articulate a public interest in learning personal
information about the ICE agents or third-party individuals mentioned in these documents. Even
if such an interest existed—for example, if identifying particular ICE employees revealed some
slight amount of information about how the government was fulfilling its duties—the Court
concludes that this interest is outweighed by the private interest in privacy. Information about
“private individuals appearing in files within the ambit of Exemption 7(C)” is categorically
exempt from disclosure unless disclosure “is necessary in order to confirm or refute compelling
9
evidence that the agency is engaged in illegal activity.” See Pinson v. U.S. Dep’t of Justice, No.
12-1872, 2016 WL 4074130, at *7 (D.D.C. July 29, 2016) (quoting SafeCard Servs., Inc. v.
S.E.C., 926 F.2d 1197, 1206 (D.D.C. 1991)). Here, there is no allegation of illegal activity by the
agency, and the private individuals’ data must therefore be withheld. Although private
information about agency employees is somewhat less protected, the D.C. Circuit has
consistently held that the privacy interests of investigators justifies withholding their information
in many circumstances. See Schrecker v. Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003).
Mr. Parker articulates no public interest in obtaining information about the particular
investigators involved in his case. The Court thus finds that the privacy interests of the ICE
employees justify withholding their personal information because revealing personal data about
relatively low-level employees would not significantly inform the public about what the
government was up to, and grants ICE summary judgment as to its use of Exemption 7(C).
c. Exemption 7(E)
ICE applies Exemption 7(E) to withhold “internal case numbers and internal system
codes” from several documents.9 ICE’s declaration explains that these materials comprise
“sensitive database and event codes, identification numbers, law enforcement system URLs,
internal website links, record identification numbers, event numbers, category codes, TECS
codes, method codes, file numbers, event numbers [sic], status codes, internal agency codes, case
numbers, program codes, and system codes.” Pineiro Decl. ¶ 57.
Exemption 7(E) protects law enforcement information that “would disclose techniques
and procedures for law enforcement investigations or prosecutions, or would disclose guidelines
9
ICE withholds these case numbers and internal system codes from Documents 1, 2, 3,
18, 21, 22, 23, 24, 27, and 28. See generally Vaughn Index.
10
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 D.C. Circuit has “set[]
a relatively low bar for the agency to justify withholding,” Blackwell v. FBI, 646 F.3d 37, 42
(D.C. Cir. 2011), such information may be withheld “not just for circumvention of the law, but
for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an
expected risk; not just for an undeniably or universally expected risk, but for a reasonably
expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a
reasonably expected risk.” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009).
The “sensitive database and event codes, identification numbers, law enforcement system
URLs, internal website links, record identification numbers, event numbers, category codes,
TECS codes, method codes, file numbers, . . . status codes, internal agency codes, case numbers,
program codes, and system codes” withheld by ICE create such a chance of a reasonably
expected risk of circumvention of the law. Pineiro Decl. ¶ 57. According to ICE, this
information, which is used to store and index data and is “not readily known by the public,”
“could be used by persons seeking improper access to law enforcement data” to navigate law
enforcement databases and possibly even “breach into sensitive law enforcement systems” and
manipulate data. See, e.g., Pineiro Decl. ¶ 57, Vaughn Index at 1. ICE also notes that revealing
these codes “would not assist the public in understanding how the agency is carrying out its
statutory responsibilities.” See, e.g., Vaughn Index at 1–2. 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. Mr. Parker does not
object to the withholdings, and similar material has been withheld under Exemption 7(E) by
other courts in this jurisdiction. See, e.g., Skinner v. U.S. Dep’t of Justice, 893 F. Supp. 2d 109,
11
114 (D.D.C. 2012), aff’d sub nom. Skinner v. Bureau of Alcohol, Tobacco, Firearms &
Explosives, No. 12-5319, 2013 WL 3367431 (D.C. Cir. May 31, 2013) (withholding TECS user
access codes and TECS numbers under Exemption 7(E)); Abdelfattah v. U.S. Immigration &
Customs Enf’t, 851 F. Supp. 2d 141, 145 (D.D.C. 2012) (affirming the exemption of “program
codes, investigative notes, and internal instructions” by ICE under Exemption 7(E)). The Court
thus approves ICE’s use of Exemption 7(E).
2. Segregability
ICE’s declaration states that their employees “reviewed each record line-by-line to
identify information exempt from disclosure” and released all reasonably segregable, non-
exempt portions. Pineiro Decl. ¶ 59–60. FOIA requires that any reasonably segregable portion of
a record shall be provided to any person requesting such record after removal of exempt portions,
unless the non-exempt portions are inextricably intertwined with exempt portions. See 5 U.S.C.
§ 552(b); see also Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir.
2002). Given that “[a]gencies are entitled to a presumption that they complied with the
obligation to disclose reasonably segregable material,” Sussman v. U.S. Marshals Serv., 494 F.3d
1106, 1117 (D.C. Cir. 2007), and that Mr. Parker does not dispute ICE’s release of reasonably
segregable material, the Court grants ICE summary judgment on its obligation to release all non-
exempt portions of records.
B. Motion for Discovery
Plaintiff’s reply included a motion for telephonic discovery. Pl.’s Reply at 5–6, ECF No.
24.10 Defendant opposed the motion for discovery on several grounds, see generally Def.’s
10
Plaintiff’s reply, docketed at ECF No. 24, contains the motion for telephonic discovery.
The motion itself is separately docketed at ECF No. 29.
12
Discovery Opp’n, ECF No. 26, and Plaintiff withdrew the request, see generally Pl.’s Discovery
Reply, ECF No. 28. Plaintiff’s motion for discovery is thus denied as moot.
C. Adequacy of the Search
The main bone of contention between the parties is the adequacy of ICE’s search. Mr.
Parker objects on two grounds: first, that ICE did not identify any records of communications
between ICE and the FBI, and second, that ICE insufficiently searched for emails from its
agents. The Court agrees that ICE’s search is not inadequate simply because it has not located
communications with the FBI, but denies ICE summary judgment as to the adequacy of its email
search because it does not provide sufficient detail about the search terms used to search Agent
Sanders’s email or the backup system that potentially contains Agent Mensinger’s email.
FOIA obligates agencies to perform an adequate search—one “reasonably calculated to
uncover all relevant documents.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal
quotation mark omitted) (quoting Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C.
Cir. 1983)). The search need not encompass “every record system,” but must be “a good faith,
reasonable search of those systems of records likely to possess the requested records.” Marino v.
Dep’t of Justice, 993 F. Supp. 2d 1, 9 (D.D.C. 2013) (citing Oglesby v. U.S. Dep’t of the Army,
920 F.2d 57, 68 (D.C. Cir. 1990)). The agency must document its search by providing a
“reasonably detailed” affidavit describing the scope of that search. Iturralde v. Comptroller of
the Currency, 315 F.3d 311, 313–14 (D.C. Cir. 2003) (quoting Oglesby, 920 F.2d at 68). Such an
affidavit must be detailed enough to “allow the district court to determine if the search was
adequate” and will typically contain “the search terms and the type of search performed.”
Oglesby, 920 F.2d at 68. “Agency affidavits enjoy a presumption of good faith, which will
withstand purely speculative claims about the existence and discoverability of other documents.”
13
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (citing Goland v. CIA,
607 F.2d 339, 355 (D.C. Cir. 1978)). If the agency has produced such a reasonably detailed
affidavit describing its search, the burden shifts to the FOIA requester to produce “countervailing
evidence” of a genuine dispute of material fact as to the adequacy of the search. Morley, 508
F.3d at 1116.
First, Mr. Parker argues that the search was inadequate because ICE did not sufficiently
search for communications between ICE and the FBI, focusing in particular on emails or other
communications by ICE Agents Mensinger and Sanders. Pl.’s MSJ at 5. In support of this
contention, Mr. Parker provides his own declaration stating that he has “personal knowledge,”
based on the “court room testimony of several ICE agents” in the criminal matter and
“interactions with ICE agents involved in that criminal investigation,” that Agents Mensinger
and Sanders “were working closely and in cooperation with the Federal Bureau of Investigation.”
Parker Decl. ¶¶ 2–3, ECF No. 19-2. Mr. Parker essentially argues that, because the ICE agents
collaborated with the FBI, ICE must possess records memorializing these communications and
ICE’s failure to locate any such records is thus evidence that their search was inadequate.11
The Court rejects Mr. Parker’s argument that ICE’s search fails because it did not locate
communications between ICE and the FBI. In this circuit, it is clear that a plaintiff’s
unsubstantiated belief that missing records exist cannot demonstrate the inadequacy of an
agency’s search. The D.C. Circuit has dismissed as “mere speculation” similar arguments from
plaintiffs that the agency did not locate documents that the plaintiffs suspected to exist. Baker &
Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (citing Steinberg
11
Although ICE argues that Mr. Parker has not provided any “clear and known leads” at
all, Def.’s Opp’n at 4–5, the Court understands Mr. Parker to argue that his leads are the alleged
recorded communications between ICE agents and FBI agents.
14
v. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994)); Media Research Ctr. v. U.S. Dep’t of
Justice, 818 F. Supp. 2d 131, 138 (D.D.C. 2011) (rejecting plaintiff’s speculative argument “that
the search was inadequate because certain documents they believe must have been created have
not been produced” because plaintiff’s position was “conjecture” and the agency provided
sufficiently detailed affidavits describing its search); see also Meeropol v. Meese, 790 F.2d 942,
956 (D.C. Cir. 1986) (acknowledging that an agency has a “difficult” task to “demonstrate that a
specific file does not exist’ and holding that “a search need not be perfect, only adequate, and
adequacy is measured by the reasonableness of the effort in light of the specific request”).
Here, Mr. Parker presents no evidence that any records ever existed of communication
between ICE and the FBI, much less that such records were possessed by ICE at the time of its
search.12 ICE’s affidavits describing the search it performed are, in general,13 adequate. ICE
explains in detail how it determined which systems were likely to contain responsive documents,
12
Mr. Parker thus faces several challenges. First, he has not shown that any records
relating to ICE’s collaboration with the FBI ever existed. However, even if he surmounted that
hurdle, he would struggle to show that ICE violated FOIA by not producing the records. Because
an agency is not required “to document the fate of documents it cannot find,” Bey v. U.S. Dep’t
of Justice, 518 F. Supp. 2d 14, 21 (D.D.C. 2007) (quoting Roberts v. U.S. Dep’t of Justice, No.
92-1707, 1995 WL 356320, *2 (D.D.C. Jan. 29, 1993)), an otherwise adequate search by an
agency essentially creates a presumption that documents not located have been destroyed or
otherwise left the agency’s control. See also Meeropol v. Meese, 790 F.2d 942, 953–54 (D.C.
Cir. 1986) (“Even if we assume that the documents plaintiffs posit were created, there is no
reason to believe that the documents, thirty years later, still exist, or, if they exist, that they are in
the possession of the [agency].” (quoting Goland, 607 F.2d at 353)); Bey, 518 F. Supp. 2d at 21(“The fact that a document once existed does not mean that it now exists; nor does the fact that
an agency created a document necessarily imply that the agency has retained it.” (quoting Miller
v. U.S. Dep’t of State, 779 F.2d 1378, 1385 (8th Cir. 1985)). An agency does not violate FOIA
by destroying records prior to receiving a FOIA request. See Chambers v. U.S. Dep’t of Interior,
568 F.3d 998, 1004 (D.C. Cir. 2009) (“[A]n agency has no duty to retrieve and release
documents it once possessed but that it legitimately disposed of prior to the date a FOIA request
was received.” (quoting McGehee v. CIA, 697 F.2d 1095, 1103 n.33 (D.C. Cir. 1983))).
13
The Court discusses infra the lack of specificity in ICE’s description of its search of
Agent Sanders’s email.
15
and describes its process for searching those systems. For example, ICE explains that as part of
the search by HSI, a Records Disclosure United Management and Program Analyst searched
ICE’s TECS system, a database, “using [Mr. Parker’s] name as a search term.” Pineiro Decl.
¶¶ 28–29. ICE has thus presented a sufficiently detailed affidavit that “enjoy[s] a presumption of
good faith [sufficient to] withstand purely speculative claims about the existence and
discoverability of other documents.” Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.
Cir. 1981) (citing Goland v. CIA, 607 F.2d 339, 355 (D.C. Cir. 1978)). As in Baker & Hostetler
and Media Research Center, Mr. Parker’s conjecture about the possible existence of other
documents fails to show that the agency’s search was inadequate.
Although originally focusing on purportedly missing communications between ICE and
the FBI, in his reply, Mr. Parker focused on his observations about ICE’s declarations supporting
its search. According to Mr. Parker, ICE “changed” its position between its initial declaration
and the second declaration attached to its opposition. In the initial declaration, ICE stated that the
search of its Little Rock office proceeded as follows: first, the special agent conducting the
search determined that in “his experience and knowledge” of the storage system, relevant files
might be located “in a file cabinet in a secure room within the office;” second, the special agent
searched that file cabinet and identified some responsive records; and third, given the request, the
special agent concluded that “there were no additional locations in the Little Rock office likely to
contain responsive records.” Pineiro Decl. ¶ 31. In its second declaration, ICE clarified that the
previously described search of the Little Rock office was in fact performed by Agent Sanders, a
focus of Mr. Parker’s briefing. 2d Pineiro Decl. ¶ 8, ECF No. 21-1. ICE further clarified that, in
addition to searching the file cabinet, Agent Sanders searched “his personal Outlook email archives
16
for responsive records” but that search revealed no records. 2d Pineiro Decl. ¶ 8. Mr. Parker
points to this discrepancy as evidence that ICE’s search was inadequate. Pl.’s Reply at 2–3.
Mr. Parker accurately notes that ICE’s description of its search has changed. However,
the Court does not agree with Mr. Parker that ICE’s clarifications demonstrate bad faith or an
inadequate search. The Court has no reason to conclude that ICE’s clarification about the scope
of the search performed was anything more than that—a clarification, perhaps a result of the fact
that Agent Sanders’s search of his email produced no responsive records. Courts in this jurisdiction
have previously concluded that, even if an agency performs a second, supplemental search the
agency retains the presumption of good faith. See Airaj v. United States, No. CV 15-983 (ESH),
2016 WL 1698260, at *7 (D.D.C. Apr. 27, 2016)) (“[T]he D.C. Circuit has held that the performance
of additional searches following an agency’s initial response to a FOIA request not only does not
discredit the original search, but to the contrary, actually indicates good faith and ‘suggest[s] a
stronger . . . basis for accepting the integrity of the search.’” (quoting Meeropol v. Meese, 790
F.2d 942, 953 (D.C. Cir. 1986)), appeal filed, No. 16-5193 (June 30, 2016). In this case, instead
of performing an additional search ICE merely explained its initial search more thoroughly.
However, although the Court rejects Mr. Parker’s argument based on ICE’s expanded
descriptions, the Court agrees with Mr. Parker that ICE has provided insufficient detail as to the
“search terms on the nature of that electronic search process” for Agent Sanders’s email. Pl.’s
Reply at 3. ICE indeed provides no details about the method of the search for Agent Sanders’s
email, except that it involved “searches of his personal Outlook email archives.” 2d Pineiro Decl.
¶ 8. It is not enough for the agency to conclusorily state that it searched relevant records,
Weisberg, 627 F.2d at 370, instead, the agency must provide additional detail, including the
search terms used. See also Pinson v. U.S. Dep’t of Justice, No. CV 12-1872 (RC), 2016 WL
1729245, at *18 (D.D.C. Jan. 4, 2016) (denying agency summary judgment as to the adequacy of
its search when the agency did not provide a search method or search terms used). The Court
therefore cannot grant ICE summary judgment as to the adequacy of its search for Agent
Sanders’s email until it describes with additional specificity how that search was performed.14
Finally, the parties disagree about the extent of ICE’s duties to investigate Agent
Mensinger’s email. Both ICE and Mr. Parker agree that ICE has not searched any systems for
potentially responsive emails of Agent Mensinger. According to ICE, Agent Mensinger is no
longer with the agency. 2d Pineiro Decl. ¶ 10, ECF No. 21-1. His status as a former employee,
combined with the fact that Mr. Parker sought records created prior to 2008, means that relevant
emails would be found, if anywhere, on “various back-up tape systems in regional offices,”
which are “no longer produced commercially” and for which “ICE no longer maintains the equipment
and software.” 2d Pineiro Decl. ¶ 10. ICE argues that because it has no capability to read or
search any extant email archives, it has discharged its search obligations. Def.’s Opp’n at 6 n.3.
Mr. Parker first questions the veracity of ICE’s assertion that it can search Agent
Sanders’s email but not Agent Mensinger’s. Pl.’s Reply at 4. The Court is persuaded by ICE’s
explanation of the difference in accessibility between the agents’ email accounts. As ICE
explains, Agent Sanders—unlike Agent Mensinger—is a current employee with an active email
account that he is capable of searching.15 Agent Mensinger no longer has an agency email
14
Agent Sanders should also describe whether he communicated with the FBI via email
during the relevant time period of the investigation of Mr. Parker. If so, and if the agency does
not produce the emails, Agent Sanders should explain why these emails are not now likely to be
retrievable.
15
It is not clear to the Court that any emails sent or received by Agent Sanders during the
relevant time period would have migrated to the current Outlook system or whether they too
would have remained on now-inaccessible recovery tapes. This issue too should be addressed in
the supplemental declarations.
18
account. If his emails exist, it is only within the archives from before 2008, which the agency
now claims are inaccessible.
However, the Court is more sympathetic to Mr. Parker’s argument that ICE must provide
more information about the backup systems that may contain Agent Mensinger’s email (and
possibly Agent Sanders’s older emails as well). Pl.’s Reply at 4–5. Mr. Parker argues that ICE
provides “no meaningful details” such as the “computer programs” the backup system uses or
descriptions of any attempts by ICE to search the backup system. Pl.’s Reply at 4–5. The D.C.
Circuit has required that an agency “inform the court and plaintiffs whether backup tapes of any
potential relevance exist” and “whether there is any practical obstacle to searching them.”
Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 515 (D.C. Cir. 2011). As the
mention of obstacles suggests, not every backup system is amenable to a search. The D.C.
Circuit noted that searching a backup system could be “impossible, impractical, or futile” if the
system was configured only to restore data after a disaster and did not include the ability to
locate a specific file. Id. at 514 (citing Stewart v. U.S. Dep’t of the Interior, 554 F.3d 1236,
1243–44 (10th Cir. 2009)). In Safety Research & Strategies, Inc., another court in this
jurisdiction found that the Ancient Coin Collectors requirement was satisfied based on an
affidavit from the agency’s deputy chief information officer. Safety Research & Strategies, Inc.
v. U.S. Dep’t of Transp., 903 F. Supp. 2d 1, 7 (D.D.C. 2012). That affidavit “provided a detailed
description” of the agency’s backup system and explained the obstacles to searching the system.
Id. The Court directs ICE to provide an affidavit from an information-technology professional—
like the affidavit cited in Safety Research & Strategies, Inc.—that describes the email backup
system potentially containing Agent Mensinger’s emails with greater specificity and describes
any practical obstacles to searching that system. Without such a meaningful description of the
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agency’s search process, Mr. Parker cannot adequately assess and potentially challenge the
agency’s claims, thus, this Court may not grant ICE summary judgment.
V. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment (ECF No. 17) is
GRANTED IN PART AND DENIED IN PART, Plaintiff’s motion for summary judgment
(ECF No. 19) is DENIED AS PREMATURE, and Plaintiff’s motion for discovery (ECF No.
29) is DENIED AS MOOT. An order consistent with this Memorandum Opinion is separately
and contemporaneously issued.
Dated: March 2, 2017 RUDOLPH CONTRERAS
United States District Judge
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