Heartland Alliance for Human Needs & Human Rights v. United States Immigration and Customs Enforcement ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HEARTLAND ALLIANCE FOR HUMAN
NEEDS & HUMAN RIGHTS,
D/B/A NATIONAL IMMIGRANT
JUSTICE CENTER :
:
Plaintiff, : Civil Action No.: 16-204 (RC)
:
v. : Re Document No.: 54, 56
:
UNITED STATES IMMIGRATION &
CUSTOMS ENFORCMENT et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S CROSS-MOTION FOR
SUMMARY JUDGMENT
I. INTRODUCTION
On December 18, 2015, President Barack Obama signed into law the Consolidated
Appropriations Act, 2016, which allocated federal funding for financial year 2016 for the federal
agency U.S. Immigrations and Customs Enforcement (“ICE”). See Am. Compl. ¶ 8, ECF No. 31
(citing Am. Compl. Ex. 1, ECF No. 31-1). The Consolidated Appropriations Act, 2016
stipulated that “funding made available under this heading shall maintain a level of not less than
34,000 detention beds. . . .” Am. Compl. Ex. 1 at 4 (emphasis added). 1 This statute thus
mandated that ICE “maintain” a minimum level of detention beds, thereby continuing a
requirement that was first included as a budgetary condition in 2009. See Am. Compl. ¶ 8; Am.
1
Because the document itself is not paginated, the Court refers here to the ECF page
number. Throughout this opinion, the Court uses the original page number if it is available and
defaults to ECF numbering if not.
Compl. Exs. 3–6, ECF Nos. 31-3–31-6. Since then, this requirement has been criticized by non-
profit organizations and the national media on the grounds that ICE has construed “maintain” to
mean “maintain and fill,” Am. Compl. ¶ 8, the specified level of detention beds, such that the
statute amounts to a “detention bed quota” or “detention bed mandate,” see generally Am.
Compl. Exs. 3–6 (compiling articles from Bloomberg News, Los Angeles Times, and New York
Times that discuss and critique the quota). According to such critics, the statute incentivizes ICE
to fill a set number of beds in for-profit facilities as well as federal detention facilities, Am.
Compl. ¶ 8, without considering factors such as “need,” id. ¶ 10 (quoting Ex. 3), “low-cost
alternatives to detention,” id. ¶ 11 (quoting Ex. 5), whether the detainee is a violent offender, id.
¶ 12 (quoting Ex. 6), or the monetary cost of the policy, id. ¶ 13 (citing Ex. 7, ECF No. 31-7).
Plaintiff National Immigrant Justice Center (“NIJC”) is among these critics. Seeking to
“obtain pertinent information to inform the legal community and the public about ICE detention,
release, and bond policies and procedures,” id. ¶ 14, NIJC submitted two FOIA requests in 2014
that sought production of records both from ICE and from the Office of Management and Budget
(“OMB), respectively. As detailed below, Plaintiff submitted two further FOIA requests in 2017
to ICE and OMB. Id. ¶¶ 15, 24. Before and since the complaint in this matter was filed, ICE
and OMB have searched for and produced records responsive to these FOIA requests.
Throughout, NIJC has criticized aspects of the agencies’ searches and challenged the basis for
their withholding of certain records in whole or in part.
Defendants ICE and OMB now move for summary judgment on Plaintiff’s claim. 2 See
Defs.’ Mot. Summ. J., ECF No. 54. Plaintiff opposes this motion and has filed a cross-motion
2
Defendants move for summary judgment on Plaintiff’s claim under FOIA. Plaintiff also
makes several claims under the Administrative Procedure Act, see Am. Compl. ¶¶ 54–59, 68–73.
Because neither parties’ filings address these claims, the Court will not analyze them here. The
2
for summary judgment. See Pl.’s Cross-Mot. Summ. J., ECF No. 56. For the reasons set forth
below, the Court will grant in part and deny in part Defendants’ motion for summary judgment
and grant in part and deny in part Plaintiff’s cross-motion for summary judgment.
II. FACTUAL BACKGROUND
Because the FOIA searches in this case were conducted piecemeal over a period of over
four years and the adequacy of Defendant ICE’s searches is central to this suit, the Court will
begin by detailing both the FOIA requests submitted to ICE and the responsive searches
conducted by the agency. 3
A. Procedural History for 2014 FOIA Requests
On July 1, 2014, Plaintiff submitted two FOIA requests to ICE and OMB, respectively. 4
Am. Compl. ¶¶ 15, 24. NIJC’s requests sought to determine “whether ICE has adopted uniform
detention, release, and bond policies that are independent from the bed space inventory and/or
from ICE quotas or performance objectives.” Id. ¶ 14.
Court notes, however, that other courts in this Circuit have “uniformly declined jurisdiction over
APA claims that”—like Plaintiff’s claims—“sought remedies made available by FOIA.”
Feinman v. F.B.I., 713 F. Supp. 2d 70, 76 (citing Kenney v. U.S. Dep’t of Justice, 603 F. Supp. 2d
184, 190 (D.D.C. 2009); People for the American Way Found. v. Nat’l Park Serv., 503 F. Supp.
2d 284, 308–09 (D.D.C. 2007); Edmonds Inst. v. U.S. Dep’t of the Interior, 383 F. Supp. 2d 105,
111–12 (D.D.C. 2005) (citations omitted).
3
Because the adequacy of Defendant OMB’s search is not at issue, the Court will not
specifically describe it except insofar as it bears on the adequacy of Defendant ICE’s search.
4
Although the complaint also names the Department of Homeland Security (“DHS”) as a
Defendant, DHS indicated that “it has no record of having received a FOIA request from
Plaintiff.” Status Report (Nov. 22, 2016) 3, ECF No. 24. Because neither Defendants’ motion
for summary judgment nor Plaintiff’s cross-motion raises any considerations regarding
Defendant DHS (separately than in its capacity as the Department of which ICE is a component),
the Court does not address DHS in resolving the instant motions.
3
1. 2014 FOIA Request to ICE
The ICE FOIA request, 2014-ICFO-02072, sought two categories of records. The first
prong of the request centered on two ICE field offices, namely ICE’s San Antonio and Seattle
Areas of Responsibility (“AORs”). 5 Am. Compl. Ex. 8, ECF No. 31-8; see also Defs.’
Statement Undisputed Material Facts ¶ 1, ECF No. 54-1. In this prong, NIJC sought:
• “daily, weekly, bi-weekly, and/or monthly Records of the bed space inventory in ICE’s
San Antonio and Seattle AORs from June 1, 2013 through November 30, 2013,
including the number of vacant beds and the detainee population, broken down by
gender, individuals subject to mandatory custody, individuals subject to non-mandatory
custody, and by the alleged custodial authority (e.g., INA §§ 236(a), 236(c), 241, 235);”
• “daily, weekly, bi-weekly, and/or monthly Records of bond amounts for detainees in
ICE’s San Antonio and Seattle AORs from June 1, 2013 through November 30, 2013,
including the detainee’s gender, whether the individual was subject to mandatory
custody, and the alleged custodial authority for each individual (e.g., INA §§ 236(a),
236(c), 241, 235);” and
• “any Records concerning the setting and calculation of bond amounts for detainees in
ICE’s San Antonio and Seattle AORs from June 1, 2013 to the present, (including but not
limited to) all communications (e.g., transmittals, letters, emails, memoranda, and reports,
instructions, and summaries) related thereto.” Am. Compl. Ex. 8 at 3–4 (emphasis
omitted).
5
Plaintiff’s 2014 FOIA request explains that “the term ‘AOR’ means the geographic area
of responsibility under the authority of an ICE field office.” Am. Compl. Ex. 8 at 1 n.2. For
consistency and clarity, the Court adopts this term. Unless otherwise indicated, the Court uses
the terms “field office” and “AOR” interchangeably.
4
The second prong of the request expanded beyond these two AORs and sought four kinds
of records regarding nationwide ICE-related detention (the “Detention Bed Quota”):
• “any Records dated between January 1, 2009 and the present which set out or reflect
approved policies, guidelines, or procedures for maintaining and/or filling (i) a level
of not less than 33,400 detention beds and/or (ii) a level of not less than 34,000
detention beds, including all communications (e.g., transmittals, letters, emails,
memoranda, and reports, instructions, and summaries) related thereto (such as to,
from, or within ICE headquarters, an ICE field office, or an ICE AOR);”
• “any Records dated between January 1, 2009 and the present which set out or reflect
an assessment of compliance with any statutory requirement for maintaining and/or
filling (i) a level of not less than 33,400 detention beds and/or (ii) a level of not less
than 34,000 detention beds;”
• “any Records from January 1, 2009 through the present which set out or reflect
approved policies, guidelines, or procedures for appraising the performance of ICE
personnel, Field Offices, or AORs related to maintaining and/or filling beds in
detention facilities used to house ICE detainees;” and
• “any Records from January 1, 2009 through the present which set out or reflect
approved policies, guidelines, or procedures for requesting and/or setting and/or
calculating bond amounts for apprehended and/or detained individuals based on the
presence of vacant beds in an ICE detention facility.” Id. at 4 (emphasis omitted).
ICE acknowledged receipt of this FOIA request on July 10, 2014, see Am. Compl. Ex. 9, ECF
No. 31-9, and issued a “final response” to Plaintiff on February 19, 2015, see Am. Compl. Ex.
10, ECF No. 31-10.
5
2. ICE’s First Search in Response to the 2014 FOIA Request 6
According to declarations provided by the agency, ICE identified the records initially
released to Plaintiff after applying its “standard procedures for initiating searches in response to
FOIA requests.” Declaration of Toni Fuentes in Support of Defs.’ Mot. Summ. J. (“Fuentes
Decl.”) 5, ECF No. 54-2. After initial processing of Plaintiff’s request, “the ICE FOIA Office
determined that ICE’s Office of Enforcement Operations (ERO) was the program office likely to
have responsive records.” Id. ¶ 32. Following standard procedure, ERO submitted the request to
its Information Disclosure Unit (IDU). Id. ¶ 34. The ERO’s IDU reviewed Plaintiff’s request
and, “based on subject matter expertise and knowledge of the program officers’ activities,”
determined that it was appropriate to conduct searches for potentially responsive documentation
at the ERO Field office in San Antonio and the ERO Field Office in Seattle. Id. ¶¶ 34–35.
a. Seattle Field Office Search
Upon receipt of this directive, the designated FOIA point of contact in the ERO’s Seattle
Field Office tasked the Deputy Field Office Director (DFOD) with conducting relevant searches.
Id. ¶ 36. The DFOD is responsible for “supervis[ing] the ERO Seattle Office enforcement of
U.S. immigration law and agency policies,” including, inter alia, policies related to the
“calculation and setting of bond amounts[] within the state of Washington.” Id. The DFOD
conducted a search of his email and Microsoft Outlook archive folders. Id. He used the
following search terms: “‘34,000,’ ‘filling beds,’ ‘Vacant beds,’ ‘33,400 mandate,’ ‘detention
beds,’ and ‘bond amounts.’” Id.
6
The following summary of ICE’s first search in response to NICJ’s 2014 FOIA request
addresses only AOR searches because the filings before the Court do not explain what searches,
if any, ICE initially conducted for records responsive to the second prong of Plaintiff’s 2014
FOIA request, which sought records regarding ICE’s nationwide detention policy.
6
b. San Antonio Field Office Search
The San Antonio AOR separately conducted a search in response to the ICE FOIA
Office’s tasking. The ERO San Antonio Field Office tasked its Assistant Field Operations
Director (AFOD), four Supervisory Detention and Deportation Officers (SDDOs), and two
Deportation Officers. Id. ¶ 37. The AFOD “oversees the day-to-day operations of the field
office,” including legal and policy enforcement “as they pertain to the setting and the calculation
of bond amounts.” Id. The SDDOs’ duties include “approv[al of] bonds and provid[ing]
guidance relating to any changes in the bond policies.” Id. The Deportation Officers “handl[e]
their individual assigned cases,” including bond determinations. Id. These employees, once
tasked, “collectively searched” both their Outlook email accounts and the “office’s shared (S)
Drive” with the search term “Bond.” Id.
3. ICE’s First Production and Plaintiff’s Administrative Appeal
After both field offices completed their searches, ICE’s FOIA Office notified Plaintiff on
February 19, 2015, that its “search for responsive records produced 387 pages and 123 Excel
spreadsheets,” of which portions of 247 pages were withheld pursuant to FOIA Exemptions. Id.
¶ 8; see also Defs.’ Mot. Summ. J. 33, Ex. C, ECF No. 54-2. Plaintiff timely filed an
administrative appeal on April 19, 2015, arguing that ICE’s response was “deficient” and
contesting “the withholding of any records, in part or in their entirety, without a Vaughn index;”
the withholding of 35 pages “in their entirety based on a blanket assertion of exemptions and/or
without any meaningful explanation,” and the “incomplete search performed by the agency.”
Am. Compl. Ex. 11 at 2–3, ECF No. 31-11.
This administrative appeal included arguments addressing both prongs of the 2014 FOIA
request. Regarding the first prong, NCIJ contended that the agency’s search of the San Antonio
7
and Seattle AORs had three deficiencies: (1) the responsive records failed to include particular
kinds of records, such as, among other omissions, “records disclosing its maximum space
capacity;” (2) the responsive records did not address “bond amounts for detainees” in either of
the AORs; and (3) the responsive records regarding the “setting and calculation of bond
amounts” omitted salient communications for the San Antonio AOR and failed to include “any
communications from the Seattle AOR.” Id. at 3–4. NCIJ contested the second prong as well,
arguing that the agency’s search for records regarding nationwide ICE-related detention was
inadequate because ICE produced minimal (four documents totaling eight pages) or no records in
response to the discrete items identified in its FOIA request. Id. Plaintiff suggested that there
were in fact responsive records not included in the agency’s production, pointing to public
records such as an August 2014 report by the Department of Homeland Security Office of the
Inspector General that “repeatedly discuss[ed] records relevant to the FOIA Request.” Id. at 4.
In response to this administrative appeal, Defendant ICE “determined that a new
search(es) or modifications to existing search(es) could be made and it remanded the appeal to
the ICE FOIA Office” for supplementary processing and re-tasking. Defs.’ Statement of
Undisputed Material Facts (“Defs.’ SMF”) 2, ECF No. 54-1 (citing Defs.’ Mot. Summ. J. 58, Ex
E, ECF No. 54-2).
4. ICE’s Supplemental Search in Response to the 2014 FOIA Request
In response to NIJC’s April 19, 2015, administrative appeal, the ICE FOIA Office wrote
Plaintiff on May 15, 2015. Am. Compl. Ex. 13, ECF No. 31-13. In response to Plaintiff’s
administrative appeal, ICE FOIA had determined that ERO should “conduct new or modif[ed] . .
. search(es).” Fuentes Decl. ¶ 40; see also Am. Compl. Ex. 13 at 3. “Specifically, the ICE FOIA
Office instructed ERO to task the Office of Principal Legal Advisors (OPLA), the ICE’s Office
8
of Deputy Director, the ICE’s Office of Director, the Office of Chief Financial Officer, ERO,
and the Seattle [Field] Office [Field Office Director].” Fuentes Decl. ¶ 40. ICE’s filings do not
further detail who conducted these searches, which search terms were used, or the date ranges
that were applied for these searches. ICE subsequently produced further documents, totaling 732
pages and 127 Excel spreadsheets as of August 11, 2016. Declaration of Fernando Pineiro
Pursuant to Court Order (“Pineiro Decl.”) ¶ 20, ECF No. 19-1. 7
5. Filing of FOIA Civil Suit
As mentioned previously, Defendant ICE notified Plaintiff on May 15, 2015, that it
would be conducting further searches in response to NIJC’s administrative appeal. See Am.
Compl. Ex. 13. On February 5, 2016, no further records having been produced, Plaintiff filed the
instant FOIA suit. See Compl. After a hearing before the Court and submission of additional
declarations by both agencies, the Court ordered OMB to process further records and directed
ICE to explain whether it believed any further searches were necessary. Order (Nov. 8, 2016),
ECF No. 23. On November 22, 2016, Defendant ICE stated that it was conducting further
7
In addition to these pages were records referred to ICE by OMB that OMB had located
in its own independent search, which it conducted in response to Plaintiff’s separate 2014 FOIA
request to OMB. See Pineiro Decl. ¶ 20; see also Defs.’ Mot. Summ. J. 98, Ex. G, ECF No. 54-2
(September 9, 2014, letter from OMB discussing “two documents, totaling six pages” that
originated with Defendant ICE and which Defendant OMB referred to ICE). ICE withheld these
pages in full pursuant to FOIA Exemption 5. See id. at 103, Ex. I, ECF No. 54-2. Plaintiff
appealed this withholding as a constructive denial of records by ICE, characterizing this filing as
a supplemental appeal regarding the 2014 FOIA request to ICE. Id. at 100. However, the initial
ICE searches and the initial OMB searches were each assigned a different FOIA processing
number, and the documents that were referred to ICE were associated with the OMB processing
number. Id. ICE sent its “final response” regarding disposition of the records associated with
the OMB processing numbers on November 6, 2014. Id. at 102. Plaintiff’s appeal on grounds of
constructive denial was received on June 1, 2015. Id. at 100. Because ICE regulations require
appeals from an adverse agency determination to be received within 60 days, and because
Plaintiff’s appeal was received outside of this window, ICE administratively closed this appeal.
Id. (citing 6 C.F.R. § 5.9(a)(1) (2015)); see also Pineiro Decl. ¶¶ 11–14.
9
review and processing of potentially responsive records. See Status Report (Nov. 22, 2016).
ICE also indicated that the parties were “working on clarifications regarding plaintiff’s request,”
with an eye to “specific Bates-numbered documents where the plaintiff indicated that other
records may exist based on these documents.” Id. at 1–2. However, this issue remained
unresolved, and NIJC continued to contest the scope of ICE’s search. In particular, Plaintiff
asserted that Defendants’ searches used improper cut-off dates. See Joint Status Report (Feb. 9,
2017) at 5, ECF No. 25. NIJC also contested both agencies’ withholdings in the parties’
February 9, 2017 Joint Status Report. See id.
On that same day, in furtherance of its argument that the documents produced to date had
become “stale,” id. at 7, NIJC submitted two new FOIA requests with Defendant ICE (2017-
ICFO-15562) and Defendant OMB (2017-069), respectively. Plaintiff’s 2017 FOIA requests
were, in all relevant respects, identical to the 2014 FOIA requests. 8 See Am. Compl. ¶¶ 32, 34.
Each search request again sought two categories of records: prong one sought information
regarding ICE’s San Antonio and Seattle AORs and prong two sought information regarding
nationwide ICE-related detention (the “Detention Bed Quota”). See id. ¶¶ 15, 24. The 2017
request for records regarding the “Detention Bed Quota” covered the same four kinds of records
as the 2014 request. 9 The difference between the requests was the time period covered: the
8
The sole substantive discrepancy is that the 2014 request included two search requests
for the Seattle and San Antonio AORs that were not repeated in the 2017 request. Compare Ex.
A, ECF No. 54-2 (making three records requests regarding AORs) with Ex. J, ECF No. 54-2
(making one records request regarding AORs). The agency’s declarations do not separate out
this component, nor does Plaintiff at any point contest it, and so the Court considers the requests
identical in all material ways.
9
These four items are enumerated as items (2) to (5) in Plaintiff’s February 9, 2017
FOIA request, see Defs.’ Mot. Summ. J. 107, Ex. J, ECF 54-2, and referenced as “Plaintiff’s
FOIA request item numbers 2-5” in Defendants’ motion for summary judgment, id. at 9. They
are substantively identical to the four items enumerated as items (4) to (7) in the July 1, 2014
FOIA Request, see id. at 45, Ex. A, that are reproduced in full above, see supra Part II.A.1.
10
February 9, 2017 FOIA requests updated the timeframe of the search to cover records originating
between July 2, 2014, and February 9, 2017. Id. ¶¶ 32, 34. Accordingly, read together, NIJC’s
two FOIA requests sought nationwide records for the period between January 1, 2009 and the
submission of the second FOIA request on February 9, 2017.
Because the adequacy of Defendant ICE’s searches is central to the pending motions, the
Court will next describe the searches conducted by the agency in response to the 2017 FOIA
request submitted to ICE.
6. ICE’s Searches in Response to 2017 FOIA Request
Upon review of NIJC’s 2017 FOIA request, the ICE FOIA Office initially tasked five
program offices with searches for potentially responsive records: the Office of Enforcement and
Removal Proceedings (ERO), the Office of Detention Policy and Planning (ODPP), the Office of
the Director, the Office of Congressional Relations (OCR), and the Office of Diversity and Civil
Rights (ODCR). See Fuentes Decl. ¶ 42; Supp. Fuentes Decl. ¶ 10. The ICE ERO also
determined that the ERO Seattle and San Antonio Field Offices should search for potentially
responsive records. Fuentes Decl. ¶ 43.
On August 9, 2018, as the parties prepared to file motions for summary judgment,
Defendants moved for a temporary stay to permit ICE to conduct two additional searches. See
ECF No. 51. The Court granted this stay, see Minute Order (Aug. 9, 2018), and ICE agreed to
extend the date range of its searches, see Pl.’s Mem. Opp’n 4. Pursuant to this agreement, as
detailed below, ICE expanded its search to cover June 1, 2013 to August 1, 2018, for the first
prong of the request—appearing in both the 2014 and 2017 FOIA submissions—in which NIJC
sought “any Records concerning the setting and calculation of bond amounts for detainees in
11
ICE’s San Antonio and Seattle [Areas of Responsibility (“AORs”).” Watkins Decl. Ex. 1, ECF
No. 56-3; see also Pl.’s Statement of Material Facts (“ Pl.’s SMF”) ¶ 1, ECF No. 56-7.
a. Searches of ERO Seattle Field Office
Upon receipt of the 2017 FOIA request, the ERO Seattle Field Office tasked the Acting
Field Operations Director (AFOD) with conducting a search. Supp. Fuentes Decl. ¶ 44. The
AFOD “performs the duties of the FOD,” manages field office employees, and “ensur[es] that
the Seattle office enforces” all immigration laws “in accordance with the agency’s policies and
directives,” including those related to “calculation and setting of bonds.” Id. The ERO Seattle
Field Office’s AFOD conducted a search of his email account. Id. He searched for the terms
“detention beds” and “bed quota.” Id. Because the AFOD reported to the ICE FOIA Office
“that all potentially responsive records relating to bond calculations were previously produced”
in response to the 2014 FOIA request, id., this search did not result in any “additional records for
setting bond amounts or bond calculations in the Seattle [Field] Office.” Id.
Subsequently, in approximately July 2018, the Seattle Field Office conducted a new
search using the time frame of June 1, 2013 to August 1, 2018. Id. ¶ 46. In this iteration of the
search, the Seattle Field Office tasked the Acting FOD, four Assistant FODs (AFODs), the
Deputy Field Operation Director (DFOD), and seventeen Supervisory Detention and Deportation
Officers. Id. ¶ 47. Each of these employees searched their individual outlook email accounts,
their individual computer folders, and the office’s shared drive. Id. “[U]sing the search function
of their outlook email account and their computers,” these individuals conducted queries with
terms that included, but “were not limited to: ‘bonds,’ ‘bond amount,’ ‘minimum bond amount,’
‘bed mandate,’ ‘adult detention,’ and ‘minimum monthly bond amount.’” Id. Potentially
12
responsive records were sent to the ICE FOIA Office, id., and released to Plaintiff on September
13, 2018, id. ¶ 49.
b. Search of ERO San Antonio Field Office
The ERO San Antonio Field Office also conducted a search, tasking its AFOD as the
individual “reasonably likely to have responsive records.” Id. ¶ 45. The ERO San Antonio Field
Office’s AFOD is responsible for supervising the daily ERO operations “of an eighteen-county
area in and around San Antonio, Texas,” and for managing 80 employees. Id. Using the search
terms “bond” and “bond determination,” he searched three locations: his desktop computer, the
office’s shared drive, and his email account. Id. The AFOD reported that “he was unable to
locate any responsive records pertaining to Plaintiff’s FOIA request” for records regarding the
nationwide detention policy (prong two) and forwarded other potentially responsive records to
the main ICE FOIA office. Id.
The San Antonio Field Office also conducted further searches in mid-2018 in response to
Defendants’ litigation review. Id. ¶ 48. This search, like the Seattle Field Office search, was
adjusted to cover the time frame from June 1, 2013 to August 1, 2018. Id. ¶ 46. The San
Antonio Field Office tasked its FOD, ten Assistant FODs, three Deputy FODs, and forty-seven
Supervisory Detention and Deportation Officers, id. ¶ 48. These individuals each searched their
own Outlook email accounts and computer folders as well as the office’s shared drive. Id. The
search terms used were: “‘bonds,’ ‘bond amount,’ ‘minimum bond amount,’ ‘bed mandate,’
‘adult detention,’ and ‘minimum monthly bond amount.’” Id. After review and processing by
the ICE FOIA Office, responsive records were released to Plaintiff on September 13, 2018. Id. ¶
48.
13
c. Search of Program Offices
As indicated previously, upon review of NIJC’s 2017 FOIA request, ICE’s FOIA Office
directed both the Seattle and San Antonio field offices and five program offices to search for
records regarding the “[b]ed [m]andate in general.” See Supp. Fuentes Decl. ¶¶ 8, 10. The
program offices deemed likely to have responsive records were the Office of Enforcement and
Removal Proceedings (ERO), the Office of the Deputy Director, the Office of Detention Policy
and Planning (ODPP), the Office of Congressional Relations (OCR), and the Office of Diversity
and Civil Rights (ODCR). See Fuentes Decl. ¶ 42; Supp. Fuentes Decl. ¶ 10. The Court will
next describe each of these program office searches. For these searches, the record before the
Court describes only a single round of searches, as detailed below. There is no evidence that the
parties agreed to update the search period regarding the second prong of the request, covering
nationwide ICE policy, to include the time up to August 1, 2018, in a manner parallel to the
updated time frame applied to the first prong of the request, concerning the AORs.
i. ERO Searches
ERO’s search consisted of referrals to the Seattle and San Antonio Field Offices, Fuentes
Decl. ¶ 43, and to three sub-components at the headquarters level that were identified by ERO
IDU, Supp. Fuentes Decl. ¶ 11. The declarations provided by ICE do not describe any ERO field
office searches other than those discussed previously.
The first ERO sub-component tasked with conducting a search was the ERO Field
Operations Division (FOPS). Id. FOPS was tasked because of its role in guiding and
coordinating the 24 ERO field offices and associated sub-offices throughout the country. Id. ¶
12. Within this sub-component, the Domestic Operations Division, which “oversees, directs, and
coordinates all ERO Field Operations activities throughout the nation’s field offices and
14
suboffices,” id. ¶ 13, was charged with conducting a search. The Domestic Operations Division
determined that the Unit Chief should carry out the search because of his status as a direct
reportee to the ERO’s Deputy Director and his responsibility for “coordinating all the field
offices’ operations and activities.” Id. The Unit Chief searched his Outlook email account using
the terms “bond calculation” and “Bed detention quota.” Id.
The second sub-component tasked with conducting a search was the Custody
Management Division (CMD), which “provid[e]s policy and oversight” for the daily
“administrative custody of more than 33,000 detainees.” Id. ¶ 15. The CMD Executive
Assistant Director (EAD), who oversees ICE’s detention operations, was tasked with the search.
See id. The EAD did not conduct any searches because he determined that a search would not be
“reasonably likely to locate any potentially responsive records” regarding the second prong of
the 2017 FOIA request and “deferred” to the ERO FOPs for the remaining items. Id.
The final ERO sub-component tasked with conducting a search was the ERO Executive
Associate Director’s Office. Id. ¶ 14. This “central tasking and correspondence unit” is
responsible for “all incoming/outgoing requests for information” from individuals both inside
and outside of the agency. Id. In this office, the EAD, who “leads the ERO in its mission”
regarding identification, arrest, and removal of aliens who threaten national security or public
safety, conducted a search. Id. The ERO EAD searched his Outlook email using the “find
function” for the terms “detention bed quota,” “Detention beds,” “beds,” “Bond Seattle,” “Bond
San Antonio,” “Bed Quota,” and “Bond Calculation.” Id. The EAD sent potentially responsive
records to the ICE FOIA Office for further processing. Id.
15
ii. Office of the Deputy Director Searches
In addition to the ERO, the HQ-level Office of the Deputy Director was also tasked with
conducting a search. Id. at 5. The Office of the Deputy Director is located within ICE’s Office
of the Director, which manages ICE’s daily operations, 20,000 personnel across over 400 offices,
and nearly $6 billion budget. Id. ¶ 16. Within the Office of the Deputy Director, two focal
points for the search were identified. First, the Deputy Director was deemed “reasonably likely”
to have responsive records due to his responsibility for “oversight of daily operations within
ICE” and management of “operational and mission support personnel” in both domestic and
international offices. Id. ¶ 17. The Special Assistant to the Deputy Director was tasked with
conducting the search of the Deputy Director’s files because of his “subject matter expertise and
knowledge” of the office. Id. The Special Assistant searched the Deputy Director’s email
account with the Outlook search function, querying for the terms “Beds,” “Detention,” “Bed
space,” and “34,000.” Id. Second, the Acting Deputy Director’s files were searched. Id. ¶ 18.
To conduct this search, the Special Assistant to the Acting Deputy Director used the Outlook
search function of the Acting Deputy Director’s email account to search for the terms “Bond
Calculation,” “Detention bed quota,” and “Bond Calculation and Detention Bed Quota.” Id. For
both searches, potentially responsive records were sent to the ICE FOIA Office for processing.
Id.
iii. ODPP, ODCR, and OCR Searches
The final three ICE offices that were initially tasked by ICE’s FOIA Office did not, in the
end, conduct any searches. Within the ODPP, which “is charged with designing a detention
system that meets the unique needs of ICE’s detained population,” id. ¶ 19, the Unit Chief
determined that the ODPP was “not likely t[o] posess any responsive records,” id. ¶ 20. The
16
Unit Chief indicated that the ODPP focuses on issues such as the providing of adequate health
care to alien detainees, exercising fiscal prudence in any detention reforms, and ensuring federal
oversight, and thus concluded that other operation program offices, such as ERO, were likely to
possess the requested information. Id. The ODCR, whose mission is to “ensure that the rights of
employees and applicants are protected,” id. ¶ 21, made a similar determination, id. ¶ 22. The
ODCR Division Chief notified the ICE FOIA Office of this conclusion, stating that “it would not
be reasonably likely to possess any responsive records” and suggesting that operational program
offices like ERO were likely to possess the requested information. Id. Finally, the Chief of Staff
of ICE OCR, which “serves as the central point for oversight, administration, and coordination of
ICE federal congressional activity,” drew the same conclusion. Id. ¶¶ 23–24. Accordingly, the
Chief of Staff indicated to the ICE FOIA Office that the OCR “was not likely to possess any
responsive records” and also pointed to “operational program offices, such as ERO,” as likely to
possess the requested information. Id. ¶ 24.
7. Failure to Resolve Issues in Dispute
On September 13, 2018, ICE transmitted “an interim response” along with the records
deemed responsive to the supplemental searches of the Seattle and San Antonio Field Offices.
See Joint Status Report (Sept. 14, 2018) at 1–2, ECF No. 52. The agency produced 40 pages,
which were given Bates numbers 2016-ICLI-00019 6937 through 2016-ICLI-00019 6976. Id. at
2. Portions of these pages were withheld pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). Id.
The portion of the interim report reproduced in the parties’ September 14, 2018 Joint Status
Report does not discuss the results of the program office searches or provide additional detail,
nor is this report included in the parties’ filings. The agency represents that, as of September 13,
2018, it had “completed its searches and produced all potentially responsive records.” Id.
17
Following this transmission, further efforts to reach agreement on the adequacy of ICE’s
search proved unavailing. Defendants now move for summary judgment and ask the Court to
dismiss Plaintiff’s action with prejudice. NIJC opposes this motion and has filed a cross-motion.
Plaintiff’s cross-motion argues that ICE failed to justify the scope of its search regarding the
“Detention Bed Quota,” and that both ICE and OMB did not adequately justify their “failure to
provide segregable portions of the withheld records.” Pl.’s Mem. Opp’n Summ. J. and Cross-
Mot. Summ. J. 11–12 (“Pl.’s Mem. Opp’n”), ECF No. 56-1. Plaintiff also seeks an order
directing Defendant ICE to provide a Vaughn Index to justify its withholdings regarding the
setting and calculation of bond amounts. See Pl.’s Cross-Mot. Summ. J.
III. LEGAL STANDARD
Congress enacted FOIA to permit citizens to discover “what their government is up to.”
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)
(quoting EPA v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J. dissenting)). FOIA operates via
several steps. First, upon an agency’s receipt of a request that “reasonably describes” records
being sought, 5 U.S.C. § 552(a)(3)(A), the agency must “conduct[ ] a search reasonably
calculated to uncover all relevant documents.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344,
1351 (D.C. Cir. 1983). Then, FOIA requires the agency to disclose responsive records revealed
by the search, unless material in the records falls within one of FOIA’s nine statutory
exemptions. 5 U.S.C. § 552(b); see also Judicial Watch, Inc. v. U.S. Dep’t of Def., 847 F.3d 735,
738 (D.C. Cir. 2017) (“The Act requires government agencies to make information available upon
request, unless the information is protected by one of nine statutory ‘exemptions.”).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Pinson v. Dep’t of Justice, 236 F. Supp. 3d 338, 352 (D.D.C. 2017) (quoting Defs. of Wildlife v.
U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). A court addressing a motion for
18
summary judgment in a FOIA suit is to review the matter de novo. See 5 U.S.C. § 552(a)(4)(B);
Life Extension Found., Inc. v. IRS, 915 F. Supp. 2d 174, 179 (D.D.C. 2013). In general,
summary judgment is appropriate when “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. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is
enough evidence for a reasonable factfinder to return a verdict for the non-movant. See Scott v.
Harris, 550 U.S. 372, 380 (2007). In a FOIA case, “summary judgment is appropriate if there
are no material facts genuinely in dispute and the agency demonstrates ‘that its search for
responsive records was adequate, that any exemptions claimed actually apply, and that any
reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt
information.’” Prop. of the People, Inc. v. Office of Mgmt. and Budget, 330 F. Supp. 3d 373, 380
(D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 181 (D.D.C.
2017)).
The reviewing court may grant summary judgment based on the record and agency
declarations if “the agency’s supporting declarations and exhibits describe the requested
documents and ‘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.’”
Pronin v. Fed. Bureau of Prisons, No. CV 17-1807, 2019 WL 1003598, at *3 (D.D.C. Mar. 1,
2019) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal citation
omitted)). An agency’s “[c]onclusory and generalized allegations of exemptions” are not
sufficient justification. Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1114–15 (D.C. Cir.
19
2007) (internal citations omitted); see also Pinson v. Dep’t of Justice, 313 F. Supp. 3d 88, 106
(D.D.C. 2018). “Ultimately, an agency’s justification for invoking a FOIA exemption is
sufficient if it appears ‘logical’ or ‘plausible.’” Scudder v. Cent. Intelligence Agency, 254 F.
Supp. 3d 135, 140 (D.D.C. 2017) (quoting Judicial Watch, 715 F.3d at 941 (internal citations
omitted)). A reviewing court should respect an agency’s expertise and not “overstep the proper
limits of the judicial role in FOIA review.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608
F.2d 1381, 1388 (D.C. Cir. 1979).
IV. ANALYSIS
Plaintiff argues that there are three deficiencies in Defendants’ response to its FOIA
requests: (1) the adequacy of ICE’s searches in response to Plaintiff’s 2017 FOIA request for
records regarding the nationwide detention policy; (2) improper application of FOIA exemptions
by Defendant ICE; and (3) improper application of FOIA exemptions by Defendant OMB. See
generally Pl.’s Mem. Opp’n. For the reasons set forth below, the Court finds that the agency’s
search in response to Plaintiff’s 2017 FOIA request for records regarding the AORs (prong one)
is adequate, but the scope of its search regarding the nationwide detention policy (prong two)
cannot be found adequate based on the documentation that the government has submitted to date.
The Court additionally concludes that, for both the 2014 and 2017 FOIA requests, ICE has not
met its burden to establish the adequacy of its searches for records regarding the nationwide
detention policy (prong two). The Court further finds that Defendant ICE has not sufficiently
carried its burden regarding the agency’s application of FOIA exemptions, but Defendant OMB
has sufficiently carried its burden regarding the agency’s application of FOIA exemptions.
Accordingly, the Court grants in part and denies in part Defendants’ motion for summary
judgment and grants in part and denies in part Plaintiff’s cross-motion for summary judgment.
20
A. Adequacy of ICE’s FOIA Searches
Defendants aver that ICE has conducted an adequate search for responsive documents
and has thereby discharged its responsibility under FOIA, such that summary judgment in ICE’s
favor is appropriate. NIJC disagrees. Plaintiff’s cross-motion for summary judgment argues that
ICE has not carried its burden to establish that the scope of its search was adequate, see Pl.’s
Resp. to Defs.’ Statement of Undisputed Material Facts (“Pl.’s Resp. Defs.’ SMF”), ECF No. 56-
6, and that, specifically, ICE’s search in response to its February 9, 2017 FOIA request was
inadequate with regard to the nationwide “bed mandate in general,” Pl.’s Mem. Opp’n 12
(quoting Joint Status Report (Feb. 13, 2018) (emphasis omitted)).
“An agency fulfills its obligations under FOIA to conduct an adequate search ‘if it can
demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all
relevant documents.’” Canning v. United States Dep’t of State, 346 F. Supp. 3d 1, 13 (D.D.C.
2018) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)
(internal citation omitted)); see also Morley, 508 F.3d at 1114. For a search to be reasonably
calculated to uncover all relevant documents, the agency does not need to search “every record
system” for the requested documents. 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)). Nor must
the agency’s search be perfect. Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986). But the
agency must show that it “conduct[ed] a good faith, reasonable search of those systems of
records likely to possess the requested records.” Pinson v. U.S. Dep’t of Justice, 177 F. Supp. 3d
56, 80 (D.D.C. 2016) (quoting Marino, 993 F. Supp. 2d at 9 (internal citation omitted)); see also
Oglesby, 920 F.2d at 68.
“To prevail on summary judgment, the agency must submit declarations that ‘denote
21
which files were searched, [and] by whom those files were searched, and [that] reflect a
systematic approach to document location.’” Canning, 346 F. Supp. 3d at 14 (quoting Liberation
Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d 137, 144 (D.D.C. 2015) (internal citation and
quotation marks omitted)); see also Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d
312, 318 (D.C. Cir. 2006); Steinberg v. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir.
1994); Oglesby, 920 F.2d at 68. Once the agency has provided a “reasonably detailed”
declaration describing its search, the burden shifts to the FOIA requester to produce
“countervailing evidence” suggesting that a genuine dispute of material fact exists as to the
adequacy of the search. Morley, 508 F.3d at 1116. An agency’s declarations “are accorded a
presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the
existence and discoverability of other documents.’” SafeCard Servs., Inc. v. Secs. and Exchange
Commission, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent.
Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)). However, if the record raises
substantial doubts regarding the agency’s efforts, “particularly in view of well[-]defined requests
and positive indications of overlooked materials,” then summary judgment is not appropriate.
Valencia-Lucena, 180 F.3d at 326 (internal quotations and citations omitted).
Before assessing the record, the Court notes that the filings are not a paragon of clarity
about which aspects of the piecemeal search are presently in dispute. Rather than enumerate the
issues explicitly, Plaintiff’s cross-motion points to the February 13, 2018 Joint Status Report as
evidence of issues in dispute with ICE. Pl.’s Mem. Opp’n 4. ICE also foregrounds this same
joint status report as an accurate summation of the issues that remain disputed. See, e.g., Fuentes
Decl. 7 n.1 (“Defendant ICE is only addressing Plaintiff’s narrowed issues stated in the parties[’]
Joint Status Report, filed on February 13, 2018.”). The Court thus begins with this document in
22
order to home in on which aspects of ICE’s search Plaintiff attacks as inadequate, turning first to
the AOR searches (prong one) and then to the nationwide searches (prong two).
1. Searches Regarding AORs
In the February 1, 2018 Joint Status Report that NIJC invokes in its cross-motion,
Plaintiff contests the scope of both the 2014 and 2017 searches for “[r]ecords concerning the
setting and calculation of bond amounts for detainees in ICE’s San Antonio and Seattle AORs.”
Pl.’s Mem. Opp’n 4–5. This status report identified several issues regarding the scope of the
search, which Plaintiff reproduces in its opposition to Defendants’ motion for summary
judgment:
(1) “ICE failed to produce any communications from the Seattle AOR”;
(2) “[G]aps with respect to the records that were produced for the San Antonio AOR,”
including the failure to produce earlier communications regarding the minimum bond rate
despite production of an “email stating that the minimum bond is being lowered to
$7,500, which presupposes earlier communications that set the prior minimum bond at a
higher rate”; and
(3) Failure to “include[] communications involving the relevant Field Office Director,
Assistant Field Office Director, and/or other supervisory officials for example with
respect to any decision(s) to set certain minimum bond amounts for certain periods of
time.” Id. at 5.
In the context of the February 13, 2018 Joint Status Report, these issues reference both
the 2014 and 2017 searches. Plaintiff’s opposition only contests these issues in the context of the
2017 search. Without weighing in on the merits of the parties’ litigation strategy, the Court
infers that this strategy reflects late-breaking, pre-summary judgment developments. As
23
previously described, the supplemental search that ICE conducted in fall 2018 extended the date
range of the search for “any Records concerning the setting and calculation of bond amounts for
detainees in ICE’s San Antonio and Seattle [Areas of Responsibility (“AORs”).” Watkins Decl.;
see also Pl.’s SMF ¶ 1. With this extension, ICE’s searches in response to prong one of the 2017
FOIA request—which was in all relevant respects identical to the 2014 FOIA request—covered
June 1, 2013 to August 1, 2018, and the 2017 FOIA request regarding the AORs thus swept in
the entirety of the 2014 request regarding the AORs. Accordingly, in analyzing the adequacy of
ICE’s searches in response to prong one of NIJC’s FOIA requests, the Court will consider only
the 2017 FOIA request. For the following reasons, the Court finds that ICE has satisfied its
burden for the searches conducted in response to Plaintiff’s FOIA request for records from the
Seattle and San Antonio AORs (prong one).
The agency bears the burden of showing that it acted in accordance with FOIA in a
motion for summary judgment. See Valencia-Lucena, 180 F.3d at 326. The agency must
“demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all
relevant documents.’” Canning, 346 F. Supp. 3d at 13 (quoting Valencia-Lucena, 180 F.3d at
325 (internal citation omitted)); see also Morley, 508 F.3d at 1114. Although the search need not
canvass “every record system,” Marino, 993 F. Supp. 2d at 9 (citing Oglesby, 920 F.2d at 68), it
must include the records systems “likely to possess the requested records.” Pinson, 177 F. Supp.
3d at 80 (quoting Marino, 993 F. Supp. 2d at 9 (internal citation omitted)); see also Oglesby, 920
F.2d at 68. In addition, to establish that the search was adequate, the agency must “set forth
the search terms and the type of search performed” with specificity, see Trautman v. Dep’t of
Justice, 317 F. Supp. 3d 405, 409–10 (D.D.C. 2018) (quoting Reporters Comm. for Freedom of
Press v. Federal Bureau of Investigation, 877 F.3d 399, 403 (D.C. Cir. 2017) (internal quotation
24
mark and alteration marks omitted)). If the agency provides enough “reasonably detailed”
information about the search, then the burden shifts to the FOIA requester, who must “produce
countervailing evidence suggesting that a genuine dispute of material fact exists as to the
adequacy of the search.” Dillon v. U.S. Dep’t of Justice, No. CV 17-1716 (RC), 2019 WL
249580, at *5 (D.D.C. Jan. 17, 2019) (quoting Pinson, 313 F. Supp. 3d at 107); see also Morley,
508 F.3d at 1116.
Here, ICE relies on declarations to prove the adequacy of its search. As detailed
previously, ICE’s discussion of its “standard procedures” for FOIA searches, see Fuentes Decl.
¶¶ 21–30, sets forth in broad strokes a “systematic approach to document location.” Canning,
346 F. Supp. 3d at 14. ICE describes a process wherein the ICE FOIA Office determines which
subcomponent program offices are likely to have responsive records, and the subcomponent
offices then task individual units with executing the search. Fuentes Decl. ¶¶ 26–27. Applying
this process to respond to prong one of the 2017 AOR searches, the ICE FOIA Office tasked the
ERO Seattle and San Antonio Field Offices with conducting a search. See Fuentes Decl. ¶ 42;
see also Supp. Fuentes Decl. ¶ 10 & n.1. 10 The agency states under sworn declaration that the
ICE FOIA Office determined that these were the locations “likely to have responsive records.”
Fuentes Decl. ¶ 42. Because the first prong of the 2017 FOIA request explicitly sought records
10
The Court reads the first declaration as addressing the field office searches and only
speaking to prong one of the FOIA request. See Supp. Fuentes Decl. 3 n.1 (referring to first
declaration and stating, “ICE previously provided justification for the searches it conducted for
Seattle and San Antonio Field Offices”). Plaintiff appears to endorse this read. See Pl.’s Mem.
Opp’n 12 (“ICE’s Declaration of Toni Fuentes does not address the ‘nationwide’ scope of search
but instead only focuses on the San Antonio and Seattle [AORs].”). Thus, the Court assesses
only the AOR searches covered in the agency’s first declaration in determining the adequacy of
ICE’s 2017 search in response to prong one of NIJC’s FOIA request. The Supplemental Fuentes
Declaration, discussed below, addresses prong two. See Supp. Fuentes Decl. 3 (detailing “ICE’s
Search Justification for ‘Bed Mandate In General[’] Relating to Plaintiff’s Second FOIA
Request”).
25
regarding these field offices, the initial decision to target the ERO’s Seattle and San Antonio Field
Offices satisfies the case-specific “reasonableness” standard that determines the adequacy of the
agency’s search. See Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (quoting
McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1100–01 (D.C. Cir. 1983), Founding Church
of Scientology v. Nat’l Sec. Agency, 610 F.2d 824, 834 (D.C. Cir. 1979)).
ICE’s declaration also describes the searches that each of the field offices conducted. In
the ERO Seattle Field Office, the Acting Field Office Director (FOD) conducted a search of his
email account for the terms “detention beds” and “bed quota.” Fuentes Decl. ¶ 44. Because he
concluded “that all potentially responsive records relating to bond calculations were previously
produced” in response to the 2014 FOIA request, id., the Court will consider this aspect of the
Seattle Field Office’s searches (i.e., the searches conducted in response to prong one of
Plaintiff’s 2014 request) to make a determination about the adequacy of the parallel search
conducted in response to Plaintiff’s 2017 request. Upon receipt of the 2014 FOIA request, the
ERO Seattle Field Office tasked the Deputy FOD, id. ¶ 36, who queried his email and Microsoft
Outlook archive folders using the search terms “‘34,000,’ ‘filling beds,’ ‘Vacant beds,’ ‘33,400
mandate,’ ‘detention beds,’ and ‘bond amounts.’” Id. In addition, the Seattle Field Office tasked
other individuals with further searches as part of the supplemental search conducted after ICE’s
litigation review. Id. ¶ 46. The agency states that this search covered the updated time frame of
June 1, 2013 to August 1, 2018. Id. It involved the Acting FOD, four Assistant FODs, the
Deputy Field Operation Director, and seventeen Supervisory Detention and Deportation Officers,
each of whom queried their individual outlook email accounts, their individual computer folders,
and the office’s shared drive. Id. ¶ 47. The search terms used by these individuals included, but
were “not limited to: ‘bonds,’ ‘bond amount,’ ‘minimum bond amount,’ ‘bed mandate,’ ‘adult
detention,’ and ‘minimum monthly bond amount.’” Id.
26
The ERO San Antonio Field Office’s search similarly proceeded in several steps. The
agency states that, initially, the Acting FOD searched his desktop computer, the office’s shared
drive, and his email account with the search terms “bond” and “bond determination.” Id. ¶ 45.
Subsequently, in response to Defendants’ litigation review, the agency conducted a new search
that it states covered the time frame of June 1, 2013 to August 1, 2018. Id. ¶ 46. The individuals
who conducted this search were the San Antonio Field Office FOD, ten Assistant FODs, three
Deputy FODs, and forty-seven Supervisory Detention and Deportation Officers. Id. ¶ 48. Each
of these individuals searched their own Outlook email accounts, computer folders, and the
office’s shared drive with the search terms “bonds,” “bond amount,” “minimum bond amount,”
“bed mandate,” “adult detention,” and “minimum monthly bond amount.” Id.
On this showing, for both the Seattle and San Antonio AOR searches, the Court finds
that, although ICE’s first stabs at searches involving limited personnel and search terms were
plainly inadequate, the agency’s “relatively detailed” description of the later search that it
conducted, see Morley, 508 F.3d at 1116 (citation omitted), “set[s] forth the search terms and the
type of search performed” with specificity, Trautman, 317 F. Supp. at 409–10 (citation omitted),
and thereby satisfies ICE’s initial burden. 11 The burden thus shifts to the FOIA requester to
“produce ‘countervailing evidence’ suggesting that there is a genuine dispute of material fact.”
See Dillon, 2019 WL 249580, at *5 (quoting Pinson, 313 F. Supp. 3d at 107); see also Morley,
508 F.3d at 1116.
With respect to prong one of its FOIA request, Plaintiff has not provided countervailing
evidence that provides a basis to deny summary judgment. NIJC’s opposition does not squarely
11
Moreover, in contrast to the program office searches described below, both the Seattle
and San Antonio AORs used materially similar search terms to conduct their searches. See
Fuentes Decl. ¶¶ 47–48.
27
address the adequacy of the search of AORs in response to Plaintiff’s 2017 FOIA requests. To
be sure, NIJC notes the February 13, 2018 Joint Status Report in which it asserted that there were
three remaining issues: (1) the failure to produce any communications from the Seattle AOR; (2)
“gaps with respect to the records” produced for the San Antonio AOR; and (3) the omission of
communications involving “the relevant Field Director, Assistant Field Office Director, and/or
other supervisory officials.” See Pl.’s Mem. Opp’n 4–6 (citing Joint Status Report (Feb. 13,
2018), ECF No. 46). But intervening events bear on these assertions: The Court temporarily
stayed this case to permit ICE to respond to these considerations and run additional proposed
searches regarding both the San Antonio and Seattle Field Offices. See Unopposed Mot. to Stay,
ECF No. 51; August 9, 2018 Minute Order. The question is thus whether Plaintiff’s filing
further speaks to the adequacy of the 2017 AOR search, beyond citing a status report that was
submitted before the supplemental searches.
NIJC’s opposition does not provide any evidence or, indeed, make any further argument
regarding the adequacy of the AOR searches, instead focusing on the scope of ICE’s search
concerning the “[b]ed [m]andate [i]n [g]eneral.” Pl.’s Mem. Opp’n 11. Although Plaintiff’s
reply suggests that there were problems with the search regarding the “Seattle Area of
Responsibility—for which plaintiff specifically requested records concerning bonds,” Pl.’s Reply
9, this bare assertion is unavailing for several reasons. First, Plaintiff did not previously point to
any evidence or develop the argument that the Seattle AOR search was inadequate, and this
Court will not credit an argument raised for the first time in a reply brief. See In re Asemani, 455
F.3d 296, 300 (D.C. Cir. 2006). Second, even if the Court were to credit the argument, it is not a
persuasive one. Plaintiff’s reply brief argues that the scope of the agency’s search was
inadequate “with respect to ‘the bed mandate in general,’” Pl.’s Reply 6, without speaking to the
28
AOR search at any point, see generally Pl.’s Reply. The Court cannot take Plaintiff’s citation of
Seattle-area media coverage about bond problems at the Tacoma Northwest Detention Center, id.
at 9, which Plaintiff provided in the context of contesting the second prong of its FOIA request,
and read that single citation as specific evidence that creates a genuine issue of material fact
regarding the adequacy of the search in response to the first prong of its FOIA request, see
SafeCard Servs., Inc., 926 F.2d at 1200 (quoting Ground Saucer Watch, Inc., 692 F.2d at 771)
(“Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by
‘purely speculative claims about the existence and discoverability of other documents.’”). Aside
from this conclusory, unsupported argument, NIJC raises no specific argument concerning the
locations searched, the personnel who conducted the search, or the search terms used. The
adequacy of a search is judged by the process utilized, not the results. Pinson, 313 F. Supp. 3d at
108 (quoting Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir.
2011)); Jennings v. Dep’t of Justice, 230 F. App’x 1, 1 (D.C. Cir. 2007) (quoting Iturralde v.
Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)).
In short, with respect to prong one of the 2017 FOIA request, ICE has provided “a
reasonably detailed affidavit” that sets “forth the search terms and the type of search performed”
and establishes that the agency conducted a search of “all files likely to contain responsive
materials.” Oglesby, 920 F.2d at 68. NIJC has not provided specific evidence or argumentation
that suggests that ICE’s search concerning this prong fell short of the benchmark for the
adequacy of an agency’s search: “reasonableness.” Weisberg, 705 F.2d at 1351 (quoting
McGehee, 697 F.2d at 1100–01); see also Dugan v. Dep’t of Justice, 82 F. Supp. 3d 485, 494
(D.D.C. 2015) (citing Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998)).
Thus, the Court finds that ICE has established the adequacy of its search with regard to the 2017
29
FOIA request for records concerning the Seattle and San Antonio AORs (prong one).
2. Searches Regarding Nationwide ICE Policy
The Court now turns to the scope of the agency’s search regarding “the bed mandate in
general,” or prong two of NIJC’s FOIA request. ICE asserts that the Supplemental Fuentes
Declaration details the agency’s “nationwide efforts to search for potentially responsive records”
and thereby “adequately demonstrate[s] that [ICE] conducted a reasonable []search.” Defs.’
Reply 3. Plaintiff contends that the Supplemental Fuentes Declaration is “deficient” in two
regards. Pl.’s Reply 6. First, NIJC argues that ICE fails to “set[] forth the dates of the alleged
searches,” making it unclear what “date range” applied to each of ICE’s searches. Id. Second,
NIJC attacks ICE’s failure to explain why there are “clear deficiencies in the scope of records
that were released.” Id.
Before assessing the merits of these arguments, the Court recapitulates its understanding
of the time frame that applies to the second prong of NIJC’s FOIA request. In contrast to prong
one, for which the parties agreed to update the time frame of the search, there is no evidence in
the record of a similar agreement regarding prong two, the request concerning the bed mandate
“in general.” For this aspect of the records request, the July 1, 2014 FOIA request sought
records from January 1, 2009 to the present, Defs.’ Mot. Ex. A, at 23, and the February 9, 2017
FOIA request sought records from July 2, 2014, to the present, id. Ex. J, at 107. Accordingly,
the Court must separately assess the adequacy of each of the 2014 and 2017 FOIA requests.
However, the declarations provided by the agency only speak to the program office searches
conducted in response to the 2017 FOIA request, and do not address any parallel 2014 searches.
See generally Fuentes Decl. 8–10 (discussing search conducted in response to 2014 FOIA
request). As discussed below, without more detail regarding the 2014 search, the Court cannot
30
deem it adequate. Furthermore, for the following reasons, the Court will deny Defendants’
motion for summary judgment regarding the adequacy of the 2017 search conducted in response
to the FOIA request for records concerning the nationwide detention policy (prong two).
As previously discussed, the agency must first “demonstrate beyond material doubt that
its search was ‘reasonably calculated to uncover all relevant documents.’” Canning, 346 F.
Supp. 3d at 13 (citations omitted). If the agency meets its burden of providing “reasonably
detailed” information about the search, then the burden shifts to the FOIA requester to “produce
countervailing evidence” that suggests a genuine dispute of material fact about the scope of the
search. Dillon, 2019 WL 249580, at *5 (citations omitted). Here, the agency relies on the
Supplemental Fuentes Declaration to establish the adequacy of the search for records concerning
the nationwide bed detention policy that the agency conducted subsequent to Plaintiff’s 2017
FOIA request. See Supp. Fuentes Decl. ¶ 4 (“The purpose of this supplemental declaration is to .
. . address [the allegation that] . . . ICE has not provided search justifications for Plaintiff’s
request for records pertaining to “Bond Mandate in General.”).
ICE’s supplemental declaration first references the same general search process that the
ICE FOIA Office uses when it receives any FOIA request. Id. ¶ 9. The agency then states that,
in this instance, the ICE FOIA Office determined that five program offices were “likely to have
responsive records:” the ERO, the ODPP, the Office of the Deputy Director, the Office of
Congressional Relations, and the Office of Diversity and Civil Rights. Id. ¶ 10. Two field
offices were also tasked. Id. It is not apparent from this declaration whether the Seattle and San
Antonio field offices were tasked with a search in response to prong two (nationwide policy) of
Plaintiff’s FOIA request, or whether the field offices only searched for records concerning prong
one (AORs). The second prong of the FOIA request entails a search for records regarding
31
policies, guidelines, or procedures related to the agency’s “detention bed quota,” including “all
communications” related to this policy, as well as policies, guidelines, or procedures regarding
the calculation of bond amounts based on vacant beds. See Def.’s Mot. Ex. J, at 107. As with
prong one of the FOIA request, the Court finds no evidence that the agency did not act in good
faith or otherwise failed to direct the search to the offices reasonably likely to have responsive
records.
Moreover, the missions of the program offices tasked appear reasonably connected to this
search request. For instance, ERO “oversees programs and conducts operations to identify and
apprehend removable aliens,” Fuentes Decl. ¶ 33, and it seems reasonable that the program
office that oversees the entirety of ICE’s operations to identify, apprehend, and if necessary
remove detained individuals would be likely to have records related to the agency’s nationwide
detention policy. Along similar lines, by way of further example, the Office of the Deputy
Director is responsible for the daily operations of ICE, its personnel, and its budget, Supp.
Fuentes Decl. ¶ 16, and thus seems another location that is reasonably likely to possess
potentially responsive records. In short, then, the ICE FOIA’s decisions about which program
offices to charge with conducting searches appear to reasonably target several sub-components
with missions that link up to the content of the request. Particularly because Plaintiff’s request
did not target a sub-component of ICE, and because Plaintiffs do not at any point challenge the
agency’s choices about where to search, but rather contest how the agency conducted its search,
the declarations thus indicate that ICE directed the offices reasonably likely to have responsive
records to conduct searches.
In addition, the supplemental declaration details the searches conducted by each of the
program offices tasked by the ICE FOIA Office. Searches were ultimately conducted by two of
32
the program offices: ERO and the Office of the Deputy Director. ERO’s search involved
referrals to three sub-components: ERO’s Field Operations (FOPS), ERO’s Custody
Management Division (CMD), and ERO’s Executive Associate Director’s Office. Id. ¶¶ 12–15.
Within ERO FOPS, the Unit Chief for the Domestic Operations Division searched his Outlook
email account using the terms “bond calculation” and “Bed detention quota.” Id. ¶ 13. Within
ERO CMD, the Executive Associate Director determined that a search would not be “reasonably
likely to locate any potentially responsive records” and “deferred” to ERO FOPS. Id. ¶ 15.
Within ERO’s Executive Associate Director’s Office, the Executive Associate Director searched
his Outlook email using the terms “detention bed quota,” “Detention beds,” “beds,” “Bond
Seattle,” “Bond San Antonio,” “Bed Quota,” and Bond Calculation.” Id. ¶ 14. Within the Office
of the Deputy Director, the Deputy Director’s Special Assistant searched the Deputy Director’s
email account for the terms “Beds,” “Detention,” “bed space,” and “34,000.” Id. ¶ 17. In this
same office, the Special Assistant to the Acting Deputy Director also searched the Acting Deputy
Director’s email account for the terms “Bond Calculation,” “Detention bed quota,” and “Bond
Calculation and Detention Bed Quota.” Id. ¶ 18. For the other three program offices—ODPP,
ODCR, and OCR—no searches were ultimately conducted. Within the ODPP, the Unit Chief
determined that the ODPP was “not likely t[o] posess any responsive records,” given its
organizational mission, and suggested that ERO was likely to possess the requested information.
Id. ¶ 20. The ODCR’s Division Chief came to the same conclusion, id. ¶ 22, as did the OCR’s
Chief of Staff, id. ¶ 24.
This detailed description provides evidence that ICE’s search was “reasonably calculated
to uncover all relevant documents.” Canning, 346 F. Supp. 3d at 13 (citation omitted); see also
Morley, 508 F.3d at 1114. The agency sets forth with specificity the searches conducted within
33
three ERO sub-components as well as two searches within the Office of the Executive Director,
in a manner that meets its burden to set forth search terms with adequate precision. Moreover,
simply because three of the five program offices did not conduct any searches, it is not
necessarily the case the search was inadequate. An agency does not need to search “every record
system” for the requested documents, Marino, 993 F. Supp. 2d at 9 (citing Oglesby, 920 F.2d at
68). Here, individuals well-positioned to have knowledge of the program office’s mission
deferred to another program office, ERO, as more likely to possess the responsive records.
Particularly because ERO tasked three separate sub-components with conducting a search, the
Court finds this determination reasonable. The agency has thus met its initial burden.
However, Plaintiff presents other evidence that suggests a genuine dispute of material
fact regarding the program office searches conducted in response to the 2017 FOIA request.
NIJC specifically asserts that ICE’s explanation is problematic because of, first, the failure to
specify what “date range” applied to the program office searches, and, second, because of “clear
deficiencies” in the records that were released. Pl.’s Reply 6. NIJC points to the headlines as
support for its contentions. Given national coverage and the fact that “ICE came under great
scrutiny for creating a family separation crisis” in the days leading up to August 1, 2018, yet ICE
“failed to release records to plaintiff about this crisis vis-à-vis the setting of bonds,” Plaintiff
suggests that ICE’s search must be inadequate. Id. at 6–10.
This argument is largely unavailing. Beyond the conclusory statement that the lack of
records amounts to a “clear deficienc[y],” id. at 6, NCIJ does not offer any more particularized
allegations. Without specific evidence of problems with, for instance, the specific search terms
used or the inadequacy of the particular locations searched, however, Plaintiff’s allegations
amount to a “purely speculative claim[] about the existence and discoverability of other
34
documents.” SafeCard Servs., Inc., 926 F.2d at 1200 (internal citation and quotation mark
omitted).
Nonetheless, the Court agrees with one part of Plaintiff’s argument: ICE has not stated
the time frames covered by each of the program office searches regarding the “bed mandate in
general” at any point in the declarations provided. 12 To be sure, as previously noted, it is not
apparent on the record before the Court that ICE agreed to update the time frame for the
nationwide search (prong two) in a manner parallel to the field office search (prong one). But
the lack of a specified time frame for the search conducted in response to the 2017 request for
records regarding the nationwide policy still amounts to a material fact in genuine dispute that
renders summary judgment inapposite. 13
Additionally, there is another potential deficiency with the search: as previously
indicated, the government’s declarations suggest that the 2014 searches only included ERO and
do not identify any other program offices that were tasked with a search for potentially
12
As previously noted, in contrast, ICE states that the field office searches conducted
regarding the records identified in the February 13, 2018 Joint Status Report covered the time
frame of June 1, 2013 to August 1, 2018. Fuentes Decl. ¶ 46.
13
Furthermore, the search conducted in response to prong two of the 2017 FOIA request
used materially different search terms to seek identical information from different program
offices. For instance, in a single subdivision of one program office—the Deputy Director’s
Office—the Deputy Director’s email account was searched using the terms “Beds,” “Detention,”
“bed space,” and “34,000,” Supp. Fuentes Decl. ¶ 17, but the Acting Deputy Director’s email
account was searched using the terms “Bond Calculation,” “Detention bed quota,” and “Bond
Calculation and “Detention Bed Quota,” id. ¶ 18. The disparities become even more striking
when ERO is brought into the mix and the terms used are compared both within ERO and
against other program offices. As compared to the Deputy Director’s Office’s search, ERO
FOPS used a more limited search with just two terms, “bond calculation” and “Bed Detention
quota.” Id. ¶ 13. ERO’s Executive Associate Director’s Office, in contrast, used a relatively
more expansive search with the terms “detention bed quota,” “Detention beds,” “beds,” Bond
Seattle,” “Bond San Antonio,” “Bed Quota,” and “Bond Calculation.” Id. ¶ 14. ICE does not
explain these disparities at any point in its declarations, and until such time as the agency
clarifies this matter, summary judgment regarding the adequacy of the search concerning the
second prong of the 2017 FOIA request is inapposite for this further reason.
35
responsive records regarding the second prong of the FOIA request. See Fuentes Decl. ¶ 32.
Although Plaintiff does not raise this point, the Court nonetheless considers it because summary
judgment in a FOIA case is appropriate only if the agency first demonstrates “that its search for
responsive records was adequate.” Prop. of the People, Inc. v. Office of Mgmt. and Budget, 330
F. Supp. 3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. U.S. Envtl. Prot.
Agency, 232 F. Supp. 3d 172, 181 (D.D.C. 2017)). Here, particularly because the substantively
identical 2017 FOIA request ultimately tasked a number of other program offices with searching
for records responsive to the same set of issues, the lack of a parallel scope of search in 2014 is
suspect. Significantly, this issue is independent from question of the time frame covered by the
program office search. Because the July 1, 2014 FOIA request sought records from January 1,
2009 to the present, and the February 9, 2017 FOIA request sought records from July 2, 2014, to
the present, any flaw in ICE’s search methodology for the 2014 request would not be remedied
by a search that begins in June 1, 2013.
Summary judgment on the adequacy of ICE’s program office searches regarding “the bed
mandate in general” in response to both the 2014 and 2017 FOIA requests is thus denied. 14 For
the reasons stated previously, summary judgment on the adequacy of ICE’s field office searches
regarding the 2017 FOIA requests is granted.
14
The Court grants ICE leave to renew its motion for summary judgment and to file a
supplemental declaration or declarations addressing the program office searches conducted in
response to the 2017 FOIA requests and the scope of the program office searches conducted in
response to Plaintiff’s 2014 FOIA request. Any such supplementation must (1) specify the time
frame used for the search; (2) justify the agency’s choice to, in different program offices, use
materially different search terms to locate records potentially responsive to the same request; and
(3) fully elaborate the searches conducted, whether in program offices or in other locations, in
response to the second prong (“bed mandate in general”) of Plaintiff’s 2014 request.
36
B. Material Withheld by ICE
Defendant ICE’s application of FOIA exemptions is also at issue in both Defendants’
motion for summary judgment and Plaintiff’s cross-motion for summary judgment. Although
the parties’ filings are at times confusing as to precisely which withholdings are contested, it is
apparent that there are two discrete disputes regarding ICE’s withheld material. First, Defendant
ICE asserts that it properly applied FOIA Exemption 5 and FOIA Exemption 7(E) in partially
withholding an intra-agency draft memorandum, the “Operational Plan for Processing and
Removing Haitian Citizens Who Are Encountered at the U.S.-Mexico Border in FY 2016”
(“Operational Plan”), that was attached to a potentially responsive email record. See Defs.’ Mot.
Summ. J. 15–21. ICE further asserts that the agency disclosed all “reasonably segregable”
portions of this memorandum, see id. at 21–22, and has amply satisfied its burden by providing a
Vaughn Index for these disputed records, see ECF No. 55-1. Plaintiff unsurprisingly
characterizes this dispute rather differently. NIJC describes not one intra-agency memorandum,
but rather refers to two “Haitian Influx Issue Paper FY16” documents that contain an
“Operational Requirements” heading. See Pl.’s Mem. Opp’n 14; see also Watkins Decl. Ex. 3,
ECF No. 56-5. These two documents are, according to ICE, identical. Supp. Fuentes Decl. ¶ 25.
Plaintiff challenges Defendant ICE’s segregability analysis for these two records and argues that
the agency has failed to justify its conclusion that there are no segregable portions under the
“Operational Requirements” heading present in both of these documents. Id.
Separately, NIJC contests ICE’s “extensive redactions” in its productions of records
concerning the setting and calculation of bond amounts. See Pl.’s Resp. Def’s SMF 1. Plaintiff
contends that Defendants’ declarations have not “carried their burden of establishing that all
reasonably segregable, non-exempt, non-privileged portions of the withheld documents were
37
released.” Id. at 5. Plaintiff thus requests that the Court order Defendant ICE to “produce a
Vaughn [I]ndex solely for its withholdings or partial withholdings” regarding “records
concerning the setting and calculation of bond amounts.” Pl.’s Reply 3 (citing Joint Status
Report (Feb. 13, 2018) at 3); see also id. at 5 (citing same request made in email between parties
on March 21, 2018, see Watkins Decl. Ex. B, ECF No. 62-1). Defendants maintain that ICE
consistently asked Plaintiff to produce Bates numbers for the specific documents in dispute,
which NIJC failed to do. Defs.’ Reply 3. According to Defendants, ICE determined that the
disputed records likely originated from OMB and therefore requested Bates numbers to assist
with identification. See Supp. Fuentes Decl. ¶ 6. Because, on Defendants’ account, Plaintiff has
failed to identify the documents, ICE contends that it “has provided a Vaughn Index for the
records that Plaintiff properly identified as originating with ICE.” Defs.’ Reply 3–4. For the
reasons detailed below, Plaintiff has the better argument in both disputes.
1. Exemptions Applied to Operational Plan for Processing and Removing Haitian Citizens
As previously described, the first dispute centers on an intra-agency draft memorandum,
the Operational Plan, that was attached to email communications between senior management in
the ICE Office of the Principal Legal Advisor and ERO management. See Supp. Fuentes Decl. ¶
26; see also Fuentes Decl. ¶ 57. ICE avers that the Operational Plan “contains opinion and
recommendations regarding ERO’s proposal to accommodate the Haitian citizens subject to
mandatory detention,” including the estimated total cost of the proposal. Fuentes Decl. ¶ 54.
Although the document was initially withheld in full, ICE subsequently produced a partially
redacted version that invokes FOIA Exemption 5 and Exemption 7(E) for the withheld portions.
See id. ¶ 60; Watkins Decl. Ex. 3. The Court will now consider whether ICE has met its burden
regarding the agency’s application of FOIA exemptions to this memorandum.
38
a. Exemption 5
Exemption 5 of FOIA protects “inter-agency or intra-agency memorandums or letters that
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). The Supreme Court and the D.C. Circuit have construed Exemption 5 to
exempt documents “normally privileged in the civil discovery context.” Nat’l Labor Relations
Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see also Martin v. Office of Special
Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987). Exemption 5 thus “‘incorporates the traditional
privileges that the Government could assert in civil litigation against a private litigant’—
including the presidential communications privilege, the attorney-client privilege, the work
product privilege, and the deliberative process privilege.” Brown v. Dep’t of State, 317 F. Supp.
3d 370, 375 (D.D.C. 2018) (quoting Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008)
(internal quotation mark and citation omitted)); see also Baker & Hostetler LLP, 473 F.3d at 321.
The agency invokes both the deliberative process and the attorney-client privilege prongs of
Exemption 5 on the grounds that the intra-agency memorandum at issue involves a policy
dialogue between senior management in the ICE Office of the Principal Legal Advisor and ICE
ERO.
As set forth below, because it is not clear which privilege the agency seeks to apply to
which part or parts of the Operational Plan, the Court will deny Defendants’ motion for summary
judgment regarding ICE’s application of FOIA exemptions and also deny Plaintiff’s cross-
motion for summary judgment on this same matter.
i. Deliberative Process Privilege
The deliberative process privilege aims to “prevent injury to the quality of agency
decisions,” Sears, 421 U.S. at 151. The privilege protects the “decision making processes of
39
government agencies and focus[es] on documents reflecting advisory opinions, recommendations
and deliberations comprising part of a process by which governmental decisions and policies are
formulated.” Sears, 421 U.S. at 150 (internal quotations omitted); see also Loving, 550 F.3d at
38 (quoting Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 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, 532 U.S. at 8–9 (quoting Sears, 421
U.S. at 151). Put briefly, this privilege aims to balance the merits of transparency against the
concern that agencies will be “forced to operate in a fishbowl.” Petroleum Info. Corp. v. Dep’t
of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992).
For the deliberative process privilege to apply, the record must “bear on the formulation
or exercise of agency policy-oriented judgment.” Petroleum Info. Corp., 976 F.2d at 1435. An
agency typically cannot withhold “[p]urely factual material . . . unless it reflects an ‘exercise of
discretion and judgment calls.’” Ancient Coin Collectors, 641 F.3d at 513 (quoting Mapother v.
Dep’t of Justice, 3 F.3d 1533, 1539 (D.C. Cir. 1993)). The party invoking the privilege must
establish that the record is both predecisional and deliberative. See Prop. of the People, 330 F.
Supp. 3d at 382. To be predecisional, a record must be antecedent to the adoption of an agency
policy. See Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991). Although
“the term ‘deliberative’ does not add a great deal of substance to the term ‘pre-decisional,’” it
essentially means “that the communication is intended to facilitate or assist development of the
agency’s final position on the relevant issue.” Nat’l Sec. Archive v. Cent. Intelligence Agency,
752 F.3d 460, 463 (D.C. Cir. 2014).
40
Moreover, the government agency bears the burden of showing that the privilege
properly applies. See Dillon, 2019 WL 249580 at *8 (citing Prop. of the People, 330 F. Supp. 3d
at 380). In contrast to the agency’s burden regarding the adequacy of a FOIA search, the
agency’s burden as to privilege “does not shift even when the requester files a cross-motion for
summary judgment because ‘the Government ultimately [has] the onus of proving that the
[documents] are exempt from disclosure.’” Hardy v. Bureau of Alcohol, Tobacco, Firearms &
Explosives, 243 F. Supp. 3d 155, 162 (D.D.C. 2017) (quoting Pub. Citizen Health Research Grp.
v. U.S. Food & Drug Admin., 185 F.3d 898, 904–05 (D.C. Cir. 1999) (internal citation and
quotation marks omitted). In order to meet its burden, the agency must offer a “relatively
detailed justification” of its application of the privilege. Elec. Privacy Info. Ctr. v. U.S. Drug
Enf’t Agency, 192 F. Supp. 3d 92, 103 (D.D.C. 2016) (quoting Mead Data Cent., Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). “An agency may rely on detailed
affidavits, declarations, a Vaughn index, in camera review, or a combination of these tools.”
Elec. Frontier Found. v. Dep’t of Justice, 57 F. Supp. 3d 54, 59 (D.D.C. 2014) (quoting Comptel
v. Fed. Commc’n Comm’n., 910 F. Supp. 2d 100, 111 (D.D.C. 2012)). “Ultimately, an agency’s
justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.”
Dillon, 2019 WL 249580, at * 8 (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)
(internal quotation marks and citation omitted)).
Here, Defendants invoke the deliberative process privilege on the grounds that the
Operational Plan is a non-final draft memorandum and its disclosure of the Operational Plan
would “compromise[]” “the integrity of the deliberative or decision-making process within the
agency.” Fuentes Decl. ¶ 55. More specifically, Defendants aver that the document contains
“opinions and recommendations regarding [an] ERO[] proposal to accommodate the Haitian
41
citizens subject to mandatory detention by identifying detention capacity of certain facilities.”
Defs.’ Mot. Summ. J. 15 (citing Fuentes Decl. ¶ 57). As even Plaintiff recognizes, the non-
redacted portions of the memorandum confirm this description and affirm its pre-decisional
status. See Watkins Decl. Ex. 3 (“This document outlines the operational needs of U.S.
Immigration and Customs Enforcement (ICE) for a potential change in policy to detain and
effectuate the removal of Haitian nationals.”); see also ICE Vaughn Index, ECF No. 55-1 (noting
DRAFT watermark on the document and reiterating characterization of document).
The Court thus finds ICE’s justification of the deliberative process privilege to be
“logical or plausible” in the manner required by this Circuit. See Wolf, 473 F.3d at 374–75. The
declaration and Vaughn Index are not terribly specific, but they address “the nature of the
specific deliberative process” and make clear that the document was one part of an ongoing
deliberation about operational needs. Hunton & Williams LLP v. U.S. Envtl. Prot. Agency, 248
F. Supp. 3d 220, 241 (D.D.C. 2017) (quoting Nat’l Sec. Counselors v. Cent. Intelligence Agency,
960 F. Supp. 2d 101, 189 (D.D.C. 2013) (internal citations omitted)). ICE addresses the
“function and significance of the document in that process,” id., explaining that the draft
memorandum “contains opinions and recommendations regarding ERO’s proposal” as well as “a
proposal of an estimated total cost,” Fuentes Decl. ¶ 54. Finally, ICE indicates “the nature of the
decisionmaking authority vested in the document’s author and recipient,” Hunton & Williams
LLP, 248 F. Supp. 3d at 241 (internal citations omitted), noting that the draft was attached to an
email between ICE senior management and included legal advisors at ICE, Fuentes Decl. ¶ 54.
42
In short, ICE’s invocation of the deliberative process privilege is justified here, and Plaintiffs
raise no arguments to the contrary. 15
ii. Attorney-Client Privilege
In addition to invoking Exemption 5’s deliberative process privilege, “ICE also applied
Exemption (b)(5) to protect from disclosure subject to the attorney-client privilege.” Id. ¶ 56.
ICE applied this Exemption to withhold “portions” of the same draft memorandum. Id. ¶ 57.
After reviewing ICE’s declarations and Vaughn Index, the Court is left unclear as to whether the
assertions of the privilege are entirely overlapping. The agency’s declaration references “two
documents [that] were attachments to an email communication.” Supp. Fuentes Decl. ¶ 26. As
previously discussed, these documents appear to be duplicate copies of the Operational Plan.
ICE avers that “Exemption 5 was applied to portions of these documents because they are in
draft format,” such that the deliberative process privilege applies. Id. The agency also states that
“Exemption 5 was applied to protect from disclosure communications between the agency
counsel and its client.” Id.; see also ICE Vaughn Index 1 (referencing a “draft memorandum” for
which “portions” were “withheld pursuant to FOIA Exemption (b)(5) per the deliberative process
privilege and attorney-client privilege”). Neither the agency’s declaration nor its Vaughn Index
explicitly state whether the agency applied the deliberative process privilege and the attorney-
client privilege to the same “portions of these records,” or to different portions of the records.
See ICE Vaughn Index 2 (“[T]he attorney-client privilege is also applicable to the portions of
these records.”). Because the Court cannot conclude on the record before it that the deliberative
15
Plaintiff’s objection to ICE’s invocation of Exemption 5 is not the invocation of a
privilege per se, but rather—as discussed below—the allegation that ICE has not properly
segregated potentially responsive material. See Pl.’s Mem. Opp’n 14 (“Two records the agency
released-in-part . . . lack adequate segregability analysis and thus remain in dispute.”).
43
process privilege and the attorney-client privilege are entirely coterminous, it will separately
consider Defendants’ invocation of Exemption 5’s attorney-client privilege. For the reasons set
forth below, the Court cannot conclude on the record before it that attorney-client privilege
separately shields the material.
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.”
Mead Data Cent., 566 F.2d at 252. The attorney-client privilege is not limited to the context of
litigation. See id. at 252–53. Rather, it “also protects communications from attorneys to their
clients if the communications ‘rest on confidential information obtained from the client.’” Tax
Analysts v. Internal Revenue Serv., 117 F.3d 607, 618 (D.C. Cir. 1997) (quoting In re Sealed
Case, 737 F.2d 94, 98–99 (D.C. Cir. 1984)); see also Hunton & Williams LLP, 248 F. Supp. at
253 (quoting Tax Analysts, 117 F.3d at 618); Judicial Watch, Inc. v. U.S. Dep’t of Homeland
Sec., 841 F. Supp. 2d 142, 153–54 (D.D.C. 2012) (citing In re Sealed Case, 737 F.2d at 98–99)
(discussing attorney-client privilege). A court may infer confidentiality when the
communications suggest that “the Government is dealing with its attorneys as would any private
party seeking advice to protect personal interests.” Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854, 863 (D.C. Cir. 1980). “Like all privileges, . . . the attorney-client privilege is
narrowly construed and . . . ‘protects only those disclosures necessary to obtain informed legal
advice which might not have been made absent the privilege.’” Id. at 862–63 (quoting Fisher v.
United States, 425 U.S. 391, 403 (1976)).
Here, the contested memorandum is an attachment to an email chain between ICE
attorneys, including “senior management at [the] Office of [the] Principal Legal Advisor” and
ICE staff, “including ERO’s senior management . . . and the ICE Deputy Director.” Fuentes
44
Decl. ¶¶ 56–57. The agency’s declaration asserts that “[d]isclosure of these draft memoranda
could chill future interactions and communications between agency employees and their legal
counsel.” Id. ¶ 57; see also Supp. Fuentes Decl. ¶ 26. Nothing in the Fuentes Declaration or
Supplemental Declaration provides additional detail about the attachment or the email chain.
ICE’s Vaughn Index indicates that the email communication that included the attachment was
“made for the purpose of securing legal advice or services, here the operational requirements
such as logistics and the budget in determining the effects of [the proposed] removal process.”
ECF No. 55-1.
Without more, this showing does not establish that the agency can rely on the attorney-
client privilege to shield the Operational Plan attached to the email. For one, ICE does not ever
state outright that one of the communicating parties was an attorney, instead resting on the
implication that a communication between “senior management” at the Office of the Principal
Legal Advisor and other ICE staff is necessarily one between an attorney and the agency (the
client). Furthermore, even assuming the referenced “senior management” is an attorney, there is
no specificity as to whether the email communications were in fact between the attorney and the
client, such that the privilege applies, or whether the attorney was merely included on
communications that involved multiple other parties, such that the attorney is a passive actor and
the communications are not necessarily shielded. See Hunton & Williams LLP, 248 F. Supp. 3d
at 254 (finding that agency did not “sufficiently explain the application of the attorney–client
privilege” where “the attorney was only a participant in the email chain as a carbon-copy”).
Even more significantly, the agency has failed to explain how the Operational Plan
attachment relates to the overall email communication. ICE states, to be sure, that the email
chain to which the document was attached was “made for the purpose of securing legal advice or
45
services, here the operational requirements” of the agency’s proposed Operational Plan. ECF
No. 55-1. But the agency has not provided enough detail regarding how the memorandum at
issue relates to a communication between the attorney and the client. For instance, in the email
chain, was attorney input specifically sought regarding a particular item in the memorandum, and
did the attorney in fact communicate regarding this matter? Or was the memorandum attached
on a communication with other parties, with no input from the attorney regarding the attachment
at all? It is not clear, on the material provided. And without a more precise articulation of the
relationship between the attachment and the legal advice sought, the Court cannot be certain that
this email chain specifically implicates the content of the memorandum as part of the
confidential attorney-client communication. In short, the agency must establish that obtaining or
providing legal advice was a primary purpose of including the attachment with the
communication, meaning one of the significant purposes of attaching it. In re Kellogg Brown &
Root, Inc., 756 F.3d 754, 760 (D.C. Cir. 2014). The Court thus finds that ICE has not established
that the attorney-client privilege shields the contested memorandum.
That said, because it is possible that further supplemental material could demonstrate that
attorney-client privilege applies to the Operational Plan, and because, for the reasons discussed
above, the deliberative process privilege separately supports the invocation of FOIA Exemption
5, the Court concludes that ICE may shield at least some of the material in this disputed
memorandum under Exemption 5. This conclusion is of little practical moment, however. Until
ICE provides further specification regarding which aspect of Exemption 5 it applies to which
46
portion of the records, the Court cannot determine whether or not the agency’s invocation of that
exemption is statutorily authorized for all of the information withheld. 16
Where, as here, “‘the agency fails to meet [its] burden, a not uncommon event,’ FOIA
provides courts ‘a host of procedures’ to determine whether the claimed exemption is proper,
including discovery, further agency affidavits, and in camera review of the records in question.”
Dillon, 2019 WL 249580 at *8 (quoting Allen v. CIA, 636 F.2d 1287, 1298 (D.C. Cir. 1980),
abrogated on other grounds by Founding Church of Scientology of Washington, D.C., Inc. v.
Smith, 721 F.2d 828, 830–31 (D.C. Cir. 1983))). In this case, the Court believes that further
agency attestation is most appropriate. Accordingly, the Court denies Defendants’ motion for
summary judgment regarding the contested memorandum and also denies Plaintiff’s cross-
motion for summary judgment on this issue, but it grants Defendants leave to renew its motion
for summary judgment. If the agency so chooses, then the Court orders ICE to provide a
supplemental declaration addressing the deficiencies identified here. 17
16
Until this issue is clarified, further analysis regarding the agency’s application of FOIA
exemptions would be speculative and premature. The Court thus defers segregability analysis
regarding the agency’s application of these FOIA exemptions, while recognizing that such
analysis is critical before a final decision regarding the agency’s invocation of any FOIA
exemption. See Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (“Before
approving the application of a FOIA exemption, the district court must make specific findings of
segregability regarding the documents to be withheld.”); see also 5 U.S.C. § 552(b) (“[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.”).
17
Specifically, the Court orders ICE to, in any such supplementation, clarify the
following: (1) whether its invocation of deliberative process privilege and attorney-client
privilege apply to the same, or different, portions of the document; (2) how the Operational Plan
relates to the legal advice sought, as well as what role the attorney played in the email chain to
which the memorandum was attached, to clarify how the memorandum itself constitutes part of
“communications between an attorney and his client relating to a legal matter for which the
client has sought professional advice,” Mead Data Cent., 566 F.2d at 252; and (3) whether any
portions of the document for which it invokes Exemption 7(E) are not also withheld under
Exemption 5 (whether pursuant to the deliberative process privilege, the attorney-client
privilege, or both). Until such clarification is provided, the Court will defer consideration of
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2. Exemptions Applied to Other ICE Records
In addition to specifically contesting the Operational Plan, NIJC argues that summary
judgment should be denied because ICE has not adequately justified its withholdings concerning
“the setting and calculation of bond amounts.” Pl.’s Mem. Opp’n 10–11. This allegation centers
on ICE’s failure to provide a Vaughn Index for any potentially-responsive records other than the
Operational Plan. Id. The disputed documents are not enumerated in Plaintiff’s filings. Rather,
Plaintiff points back to the February 13, 2018 Joint Status Report, quoting the following portion:
“(d) To the extent ICE disclosed records concerning the setting and calculation of bond
amounts, Plaintiff has been hampered in identifying them because of the extensive redactions
applied to ICE’s document productions. Plaintiff requests that ICE produce a Vaughn Index
solely for its withholdings or partial withholdings in the aforementioned categories of records
concerning the setting and calculation of bond amounts.” Id.
In reply, ICE contends that it has attempted to work with NIJC to produce a Vaughn
Index. See Defs.’ Reply 3. Because ICE concluded that the documents identified in the
February 13, 2018 Joint Status Report “likely originated with OMB,” not ICE, and because
Plaintiff has not “provide[d] a list of [B]ates numbers associated with the records at issue so ICE
could properly identify the disputed documents,” ICE avers that “it cannot identify which ICE
documents (if any)” are in dispute. Id. ICE thus argues that it has “provided a Vaughn Index for
the records that Plaintiff properly identified as originating with ICE.” Id. at 3–4. Plaintiff, in
turn, argues that ICE misconstrues which party bears the burden with regard to these records,
asserting that it did not commit to identifying Bates numbers within “ICE’s massively redacted
whether it is necessary to also determine whether Exemption 7(E) applies to the Operational Plan
and, if so, whether ICE has properly segregated material pursuant to 7(E).
48
or entirely withheld releases.” Pl.’s Reply 2. Rather, according to Plaintiff, ICE had the burden
“to produce a Vaughn Index from which a narrower scope of disputed records could be
identified.” Id. For the following reasons, the Court agrees with Plaintiff.
“When a federal district court reviews agency decisions to withhold information
requested through FOIA, a court can request that an agency produce a detailed ‘index’ of the
information withheld.” Pinson v. U.S. Dep’t of Justice, 975 F. Supp. 2d 20, 32 (D.D.C. 2013)
(quoting Campaign for Responsible Transplantation v. U.S. Food & Drug Admin., 180 F. Supp.
2d 29, 33 (D.D.C. 2001); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973)). Such
“[a] Vaughn index is an affidavit that specifically describes the withheld or redacted documents
and justifies, in detail, why each withheld record that would be responsive to the request is
exempt from disclosure under FOIA.” Campaign for Responsible Transplantation, 180 F. Supp.
2d at 32 (citing King, 830 F.2d at 223-24 (D.C. Cir. 1987)). An agency does not necessarily
need to produce a Vaughn Index in every FOIA suit. “Rather, ‘[a]n agency may carry its burden
of properly invoking an exemption by submitting sufficiently detailed affidavits or declarations,
a Vaughn index of the withheld documents, or both.” Dillon, 2019 WL 249580, at *8 n.4
(quoting Hardy, 243 F. Supp. 3d at 162). Regardless of how an agency carries its burden, the
bottom line is that, as a matter of law, “FOIA itself places the burden on the agency to sustain the
lawfulness of specific holdings in litigation.” Natural Res. Def. Council v. Nuclear Regulatory
Comm’n, 216 F.3d 1180, 1190 (D.C. Cir. 2000); see also 5 U.S.C. § 552(a)(4)(B).
Thus, this Court must determine whether the material provided by the agency satisfies the
agency’s burden to “demonstrate that all reasonably segregable information has been released.”
Gatore, F. Supp. 3d at 51 (citation omitted). In this instance, because ICE has not provided a
Vaughn Index for any records other than the Operational Plan, the Court looks to the two
49
declarations that ICE offers regarding its searches and application of exemptions. The problem
for ICE is that these declarations focus on the searches conducted and why the FOIA exemptions
are apt, and do not at any point speak with more particularity about the nature of the redactions
applied to records regarding “the setting and calculation of bond amounts.” The agency’s lack of
“specificity,” the “defining requirement of the Vaughn Index and [declaration],” King, 830 F.2d
at 210 (quoting Vaughn, 484 F.2d at 827), falls far short of what FOIA demands. The
declarations, standing alone, do not permit the Court to conduct the de novo review required by
the statute. See Church of Scientology of California v. Turner, 662 F.2d 784 (D.C. Cir. 1980)
(discussing cases in which court denied summary judgment “based upon agency affidavits that
were too conclusory or vague” to allow the court to conduct the de novo review “required by
FOIA”); see also Queen v. Gonzales, No. 96-1387, 2005 WL 3204160, at *2 (D.D.C. Nov. 15,
2005). And because there is no Vaughn Index, Plaintiff has no other way to effectively test, nor
can this Court independently assess, the application of exemptions to the records at issue and
determine whether those exemptions are justified. Indeed, on the record before the Court, it is
not even apparent how many documents were withheld in part or in full, nor is it clear which
exemptions the agency invokes, for anything other than the Operational Plan. Thus, ICE has not
met its burden to “sustain the lawfulness” of its “specific holdings.” Natural Res. Def. Council,
216 F.3d at 1190.
Nor can ICE shift this burden to NIJC based on the allegation that “Plaintiff never
provid[ed] a list of [B]ates numbers” to identify the documents at issue. Def.’s Reply 3.
Although Bates numbers might make the agency’s task easier, there is no legal requirement that
Plaintiff provide this information. And although Plaintiff’s references to the February 13, 2018
Joint Status Report leave more room than ideal for ambiguity and misunderstanding, when the
50
excerpt from that status report is read in context, NIJC does indicate which records it contests.
In this joint status report, the excerpted portion regarding “the setting and calculation of bond
amounts” followed Plaintiff’s quotation of prong one of the 2014 and 2017 FOIA requests,
which addressed ICE’s San Antonio and Seattle AORs. The most logical interpretation, then, is
that Plaintiff contests redactions within records that refer to “the setting and calculation of bond
amounts” in the context of the San Antonio and Seattle AORs (prong one of the FOIA request).
It blinks reality to conclude, as Defendants urge, that all potentially responsive records
referenced in the joint status report “likely originated from OMB,” Def.’s Reply 3, when the
records request specifically references two ICE Field Offices. 18 The Court thus orders ICE to
produce a Vaughn Index of the records that it processed and provided to NIJC after conducting
updated searches regarding the AOR component of the 2017 FOIA request. 19
C. Material Withheld by OMB
The final issue facing this Court is whether OMB has justified its application of FOIA
Exemption 5, as Defendants argue, or whether OMB has improperly withheld material, as
Plaintiff contends. Defendant OMB invokes Exemption 5’s deliberative process privilege to
withhold in full twelve records. To meet its burden, the agency provided both a declaration and
18
The Court notes, for instance, that the parties’ September 14, 2018 Joint Status Report
regarding the supplemental AOR searches identified 40 pages, apparently produced by ICE, with
Bates numbers 2016-ICLI-00019 6937 through 2016-ICLI-00019 6976. See Joint Status Report
(Sept. 14, 2018).
19
As discussed previously, the supplemental search of the AORs conducted in the wake
of Defendants’ litigation review updated the time frame that applied to field office searches
(prong one), and thereby subsumed the 2014 search. Thus, ICE’s Vaughn Index must address
the entirety of the updated 2017 search of the field offices (spanning June 1, 2013 to August 1,
2018, see Fuentes Decl. ¶ 46), but need not address the records produced in the original 2014
search of the Seattle and San Antonio Field Offices, except to the extent that the Seattle Field
Office’s searches conducted in response to the 2017 request relied upon the earlier request. See
Fuentes Decl. ¶ 44.
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a Vaughn Index that covers each of these records. Plaintiff contends that OMB has not provided
adequate justification for this withholding. See Pl.’s Mem. Opp’n 13. NIJC does not offer any
specific argumentation on this point, instead invoking D.C. Circuit precedent regarding the limits
of Exemption 5 and indicating in broad strokes what an agency must provide in order to support
its segregability analysis. Id. at 13–14. For the reasons set forth below, the Court finds that
OMB has met its burden regarding segregability and may withhold these twelve records in full.
1. Application of Exemption 5 to OMB Records
As previously explained, FOIA Exemption 5’s deliberative process privilege aims to
“prevent injury to the quality of agency decisions.” Sears, 421 U.S. at 151. It does so by
protecting “the decision making processes of government agencies,” with an emphasis on
protecting “documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated.” Id.
at 150 (internal quotations omitted). Again, for the privilege to apply, the record must “bear on
the formulation or exercise of agency policy-oriented judgment.” Petroleum Info. Corp., 976
F.2d at 1435 (emphasis in original). The party invoking the privilege bears the burden of
showing that the record is both predecisional and deliberative. See Prop. of the People, 330 F.
Supp. 3d at 382. To satisfy this burden, “a government agency must usually submit a
sufficiently detailed Vaughn index for each document and an affidavit or declaration stating that
it has released all segregable material.” Bloche v. Dep’t of Defense, 370 F. Supp. 3d 40, 55
(D.D.C. 2019) (citation omitted).
Here, OMB has provided a declaration explaining how the deliberative process privilege
applies to each of the twelve documents. See Walsh Decl. ¶¶ 11–15. The agency has also offered
a Vaughn Index that discusses each of the twelve records that it has withheld under the
52
deliberative process privilege. Document numbers 2, 3, 7, 9, 11, and 13 are specifically
identified as communications between OMB staff and senior OMB policy leadership or other
senior officials regarding a proposed or non-final policy option. OMB Vaughn Index, ECF 54-3;
see also Walsh Decl. ¶ 8. Document numbers 1, 4, 5, 8, 10, and 12 are specifically identified as
items prepared by OMB staff for senior OMB policy leadership as well as between senior OMB
leadership “in the process of preparing the President’s Budget” or in other “budget formulation
activities.” OMB Vaughn Index; see also Walsh Decl. ¶ 9. Based on these descriptions, the
Court agrees with the agency that the twelve identified documents qualify at least in part for
withholding pursuant to the deliberative process privilege. 20
2. Segregability
Before concluding that OMB’s application of the exemption is proper, a separate
segregability analysis is required. See, e.g., Johnson v. Exec. Office U.S. Att’y, 310 F.3d 771,
776 (D.C. Cir. 2002) (citing 5 U.S.C. § 552(b) and Mead Data Cent., 566 F.2d at 260). As
indicated previously, Plaintiff contends that OMB has not complied with FOIA’s segregability
requirement because “segregability is only tersely addressed” in the agency’s declaration, and
the Vaughn Index offers no additional segregability analysis. Pl.’s Mem. Opp’n 12–13. NIJC
protests OMB’s withholding of twelve records “in their entirety,” id. at 13, arguing that OMB
has not provided “an adequate justification for concluding that there are no segregable portions”
of the twelve records at issue, id. at 14; see also Pl.’s Reply Mem. 10. Defendants respond that
20
The Walsh Declaration and the Vaughn Index in fact address thirteen documents.
Document number 6, titled “Secretary’s Enforcement Priority Memo,” was mentioned in the
body of an email that was produced but was not located in OMB’s search. See OMB Vaughn
Index 1. Because Plaintiff does not contest the adequacy of OMB’s search, the Court need not
address Document number 6 further.
53
OMB did in fact conduct a full segregability analysis and notes that Plaintiff “offers no specific
dispute” regarding OMB’s application of FOIA exemptions. Defs.’ Reply 5.
The sole exemption at issue here is Exemption 5’s deliberative process privilege.
Invocation of the deliberative process privilege, even if justified, “does not protect documents in
their entirety; if the government can segregate and disclose non-privileged factual information
within a document, it must.” Loving, 550 F.3d at 38. Because the agency “ultimately [has] the
onus of proving that the [documents] are exempt from disclosure,’” Hardy, 243 F. Supp. 3d at
162 (quoting Pub. Citizen Health Research Grp., 185 F.3d at 904–05), the agency bears the
burden of establishing that it has released all nonexempt segregable information. Nonetheless,
“[a]gencies are entitled to a presumption that they complied with the obligation to disclose
reasonably segregable material.” Sussman, 494 F.3d at 1117 (citing Boyd v. U.S. Marshalls
Serv., 475 F.3d 381, 391 (D.C. Cir. 2007)). To overcome this presumption, the requestor must
provide a “quantum of evidence.” Id. At a minimum, “[g]iven FOIA’s pro-disclosure purpose,”
the requester seeking to rebut the presumption that the agency is due must “produce evidence
that would warrant a belief by a reasonable person that the alleged Government impropriety
might have occurred.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 159 (2004);
see also Sussman, 494 F.3d at 1117.
In this case, OMB withholds the 12 disputed documents in their entirety. The agency
states that, “[i]n determining the information to be withheld, OMB staff carefully assessed
whether factual or nonexempt information could be segregated and disclosed.” Walsh Decl. ¶
15. The agency further avers that it has released “[a]ll nonexempt segregable information” that
was responsive to Plaintiff’s requests and that “[t]he information that was withheld consists of
discussions involving economic, legal, and policy issues in which facts are inextricably
54
intertwined with deliberative discussion, opinions, and policy recommendations.” Id. Plaintiff
offers no evidence of government impropriety beyond broad allegations that withholding
documents in their entirety compels the conclusion that the agency did not properly segregate
exempt from nonexempt material.
Granting the agency the presumption of regularity it is due, see Sussman, 494 F.3d at
1117, this Court finds that OMB has discharged its burden concerning segregability. Under the
law of this Circuit, an agency is required both to provide “a statement of its reasons,” and to
“describe what proportion of the information in a document is non-exempt and how that material
is dispersed throughout the document.” Trea Senior Citizens League v. U.S. Dep’t of State, 923
F. Supp. 2d 55, 70 (D.D.C. 2013) (quoting Mead Data Cent., 566 F.2d at 261). OMB has
satisfied both requirements. Its Vaughn Index provides a statement of its reasons for each of the
documents. See generally OMB Vaughn Index. And its sworn declaration establishes how the
non-exempt material relates to the exempted material by stating that any non-exempt material is
“inextricably intertwined with deliberative discussion, opinions, and policy recommendations,”
such that “[a]ny facts in the withheld portions of responsive records . . . also qualify as
privileged.” Walsh Decl. ¶ 15. Exemption 5 only requires an agency to disclose non-exempt
portions of a document if they are not “inextricably intertwined with exempt portions.” Mead
Data Cent., 566 F.2d at 261. Here, the agency has specifically stated that they are so
intertwined, such that it cannot disclose the non-exempt materials. Contrary to what Plaintiff
contends, without a further showing of “Government impropriety,” see Nat’l Archives & Records
Admin., 541 U.S. at 159, that NICJ does not offer and which is not apparent in the record, this
explanation is an “adequate justification for concluding that there are no segregable portions of
any of the twelve (12) fully-withheld records,” Pl.’s Mem. Opp’n 14.
55
Thus, the Court concludes that OMB has met its burden regarding application of FOIA
Exemption 5 and may withhold in full all twelve documents. Defendants’ motion for summary
judgment concerning this matter is granted, and Plaintiff’s cross-motion for summary judgment
regarding OMB’s withholdings is denied.
V. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED IN
PART and DENIED IN PART, and Plaintiff’s cross-motion for summary judgment is
GRANTED IN PART and DENIED IN PART. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued.
Dated: September 12, 2019 RUDOLPH CONTRERAS
United States District Judge
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