Heartland Alliance for Human Needs & Human Rights v. United States Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
HEARTLAND ALLIANCE FOR )
HUMAN NEEDS & HUMAN RIGHTS, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-211 (RMC)
)
UNITED STATES DEPARTMENT )
OF HOMELAND SECURITY, et al., )
)
Defendants. )
_________________________________ )
MEMORANDUM OPINION
The National Immigrant Justice Center (NIJC) brings this Freedom of Information
Act (FOIA) lawsuit to challenge the adequacy of responses to its FOIA requests from the
Department of Homeland Security (DHS) and its constituent agency, Immigration and Customs
Enforcement (ICE). Following this Court’s order on an earlier partial motion for summary
judgment, DHS and ICE made supplemental productions of the requested statistical data and
draft statistical reports. NIJC now challenges specific redactions made to the records. The
parties filed renewed cross-motions for partial summary judgment. The Court will grant in part
and deny in part both Defendants’ motion for partial summary judgment and NIJC’s motion for
partial summary judgment. Defendants will be directed to provide the location-identifying data
in the produced records, re-produce DHS’s July 20, 2018 production in native format, and
provide the Originating Agency Identifier and Contributing Agency Identifier codes in all
produced records.
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I. BACKGROUND
The facts were described in detail in the Court’s Memorandum Opinion on the
parties’ first cross-motions for partial summary judgment and will only be summarized and
supplemented here. See Heartland All. for Human Needs & Human Rights v. DHS, 291 F. Supp.
3d 69, 74-76 (D.D.C. 2018). NIJC is a nonprofit entity through which the Heartland Alliance for
Human Needs and Human Rights does business. It is “[d]edicated to ensuring human rights
protections and access to justice for all immigrants, refugees, and asylum seekers.” Am. Compl.
[Dkt. 22] ¶ 4. “Secure Communities was an immigration enforcement program administered by
ICE from 2008 to 2014,” id. ¶ 7, and reinstituted in 2017, see Exec. Order No. 13,767, 82 Fed.
Reg. 8,793 (Jan. 25, 2017), which allowed fingerprints collected by police to be provided “to the
FBI for checks against various criminal justice databases” and to DHS to determine “which
fingerprinted arrestees may be removable aliens.” Ex. 6, Am. Compl. (DHS FOIA Request)
[Dkt. 22-6] at 8.1
NIJC submitted requests under the Freedom of Information Act, 5 U.S.C. § 552(2012), on March 14, 2014 to DHS and ICE regarding the Secure Communities program
administered by ICE. See DHS FOIA Request; Ex. 12, Am. Compl. (ICE FOIA Request) [Dkt.
22-12].2 Both FOIA requests asked for a variety of records pertaining to the Secure
Communities program, including “all reports produced related to the Secure Communities
Statistical Monitoring, including all draft reports and reports produced by contracted
statistician(s)” and all underlying statistical data. Am. Compl. ¶ 21.
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All page citations to Exhibits to the Amended Complaint refer to the Electronic Case Filing
(ECF) page number.
2
DHS assigned the FOIA Request reference number 2014-CRFO-00027. Am. Compl. ¶ 23.
ICE assigned the FOIA Request reference number 2014FOIA12739. Id. ¶ 32.
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On February 8, 2016, NIJC filed the Complaint in this case challenging the
adequacy of the agencies’ response to the FOIA requests. See Compl. [Dkt. 1]. NIJC also
submitted additional FOIA Requests to DHS and ICE on November 4, 2016 requesting the same
types of records for the Priority Enforcement Program (PEP), a replacement program for Secure
Communities which was in place from 2014 to 2016, and filed an Amended Complaint. See Am.
Compl. ¶¶ 37-45; Ex. 19, Am. Compl. (DHS Second FOIA Request) [Dkt. 22-19]; Ex. 21, Am.
Compl. (ICE Second FOIA Request) [Dkt. 22-21].
The parties agreed to focus on the reports and statistical data in hopes of resolving
the case without extensive production. The Court, therefore, ordered Defendants to locate and
produce all statistical monitoring reports and underlying data, or indicate in a Vaughn Index3 the
grounds for withholding each record. See 12/1/16 Order [Dkt. 20]. After those productions,
both parties moved for partial summary judgment and, on January 31, 2018, the Court denied
Defendants’ motion and granted in part NIJC’s motion. The Court required DHS and ICE to
search for and produce all underlying data used in the draft statistical reports. See 1/31/18 Order
[Dkt. 41]. For the next six months, DHS and ICE searched for and produced numerous records,
including statistical data and draft reports regarding the data. The parties also conferred
repeatedly and engaged in telephone conferences with the Court regarding challenges to some
redactions made by DHS and ICE. In August 2018, the Court determined that the remaining
disputes should be briefed through another round of cross-motions for partial summary
judgment. See 8/2/18 Order [Dkt. 48]. Those motions are now ripe for decision. 4
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See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973) (requiring agencies to prepare an
itemized index correlating each withheld record, or portion thereof, with a specific FOIA
exemption and the relevant part of the agency’s nondisclosure justification).
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See Renewed Mot. for Partial Summ. J. [Dkt. 50]; Pl.’s Renewed Cross-Mot. for Partial Summ.
J. [Dkt. 52]; Pl.’s Mem. in Opp’n to Defs.’s Renewed Mot. for Partial Summ. J. and in Supp. of
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II. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is the typical vehicle to resolve an action brought under
FOIA. See McLaughlin v. DOJ, 530 F. Supp. 2d 210, 212 (D.D.C. 2008). Under Federal Rule
of Civil Procedure 56, summary judgment is appropriate if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P.
56(c). The party seeking summary judgment bears the initial burden of demonstrating the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
In considering whether there is a triable issue of fact, the Court must draw all
reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The party opposing a motion for summary judgment, however, “may not
rest upon the mere allegations or denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial.” Id. at 248.
B. FOIA
FOIA requires federal agencies to release government records to the public upon
request, subject to nine listed exceptions. See 5 U.S.C. § 552(b); Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007). In a FOIA case, a court may award summary judgment solely on the basis of
information provided by the department or agency in affidavits or declarations when the
Pl.’s Renewed Cross-Mot. for Partial Summ. J. (NIJC Mot.) [Dkt. 52-5]; Mem. of P. & A. in
Opp’n to Pl.’s Cross-Mot. for Summ. J. and in Reply to Pl.’s Opp’n to Defs.’s Mot. for Partial
Summ. J. (Gov’t Opp’n) [Dkt. 56]; Reply Mem. in Supp. of Pl.’s Renewed Cross-Mot. for Partial
Summ. J. (NIJC Reply) [Dkt. 58].
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affidavits or declarations describe “the 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.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981). A defending agency in a FOIA case must show 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. See Sanders
v. Obama, 729 F. Supp. 2d 148, 154 (D.D.C. 2010), aff’d sub nom. Sanders v. DOJ, No. 10-
5273, 2011 WL 1769099 (D.C. Cir. Apr. 21, 2011).
III. ANALYSIS
The parties have whittled down the remaining objections to three issues: (1)
redaction of location-identifying data; (2) production of records in non-native format; and (3)
redaction of the Originating Agency Identifier (ORI) and Contributing Agency Identifier (CRI).
NIJC does not object to DHS or ICE’s searches or the withholding of any other information in
the produced records.
A. Location-Identifying Data
DHS and ICE originally withheld location-identifying data in fields titled
“Jurisdiction,” “LEA,” “city,” “state,” “county,” and “FIPS number.” In response to NIJC’s first
cross-motion for summary judgment, both DHS and ICE withdrew arguments regarding those
withholdings and re-produced some documents containing those previously-redacted fields. See
Gov’t Opp’n at 2. NIJC notes in its reply that DHS and ICE have not re-produced all records
with this information and asks the Court to order DHS and ICE to complete its production of the
unredacted location-identifying data. Having withdrawn the arguments for withholding the
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location-identifying data the Agencies have presented no reason to withhold it and the Court will
order DHS and ICE to re-produce all records that have not yet been produced.
B. Native Records
NIJC objects to DHS’s July 20, 2018 production, which was made in non-native,
PDF format. NIJC Mot. at 4. FOIA requires:
In making any record available to a person under this paragraph, an
agency shall provide the record in any form or format requested by
the person if the record is readily reproducible by the agency in that
form or format. Each agency shall make reasonable efforts to
maintain its records in forms or formats that are reproducible for
purposes of this section.
5 U.S.C. § 552(a)(3)(B). NIJC requested records that “can be accessed, searched, and displayed
in a manner comparable to an [DHS Office for Civil Rights and Civil Liberties (CRCL)] user,”
DHS FOIA Request at 2; ICE FOIA Request at 2, and “[w]here data is to be disclosed, to the
extent possible, please produce native files (e.g., Excel spreadsheets).” DHS Second FOIA
Request at 7; ICE Second FOIA Request at 6. DHS does not address this argument in its
opposition to NIJC’s motion and offers no explanation for why the records were not “readily
reproducible” in the native format. The Court will order DHS to re-produce the records included
in the July 20, 2018 production in native format.
C. ORI and CRI Redactions
DHS and ICE withheld ORI and CRI codes under Exemption 7(E), arguing the
information was obtained during law enforcement activity and disclosure would “increase the
risk of law violations or the ability to evade law enforcement consequences.” Gov’t Opp’n at 2.
Specifically, ORI and CRI codes are “unique identifiers/computer codes” assigned to law
enforcement organizations, which DHS and ICE argue could be used to “provide unauthorized
access to specific terminals on a secured law enforcement network.” Id. at 2-3. DHS and ICE
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state that the codes are not generally known to the public. Id. at 3. NIJC responds and refutes
DHS and ICE’s statements that the codes are not publicly known by pointing to numerous
directories available on the internet, including lists on the website of the National Criminal
Justice Reference Service. See NIJC Reply at 5-9.
Exemption 7(E) protects the disclosure of law enforcement records 5 that “would
disclose techniques and procedures for law enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). “Exemption
7(E)’s requirement that disclosure risk circumvention of the law ‘sets a relatively low bar for the
agency to justify withholding.’” Public Emps. for Envtl. Responsibility v. U.S. Section, Int’l
Boundary and Water Comm’n, U.S.-Mexico, 740 F.3d 195, 204-05 (D.C. Cir. 2014) (quoting
Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011)). “To clear that relatively low bar, an agency
must demonstrate only that release of a document might increase the risk ‘that a law will be
violated or that past violators will escape legal consequences.’” Id. at 205 (quoting Mayer
Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009)).
The Court first notes that the ORI and CRI codes themselves are neither
“techniques and procedures for law enforcement investigations” nor “guidelines for law
enforcement investigations.” 5 U.S.C. § 552(b)(7)(E). DHS and ICE argue that disclosure might
allow individuals to circumvent the law or access records, but the fact that the codes are publicly
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Law enforcement records include both criminal and civil investigatory and non-investigatory
materials. See Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002); North v. Walsh, 881 F.2d
1088, 1098 (D.C. Cir. 1989); Rural Hous. All. v. USDA, 498 F.2d 73, 81 & n.46 (D.C. Cir.
1974), suppl. op. 511 F.2d 1347 (D.C. Cir. 1974). DHS and ICE were responsible for
monitoring the use of data in the Secure Communities and PEP programs and the internal
investigation that resulted in the records at issue was one into the success or possible misuses of
the programs.
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available on multiple websites, including those of federally-funded organizations, is “contrary
evidence” that refutes this concern. Military Audit Project, 656 F.2d at 738. While withholdings
under Exemption 7(E) must only meet a very low bar, the Court cannot find that release of
already publicly-available information under these FOIA requests might increase the risk of law
violations or able violators to escape detection. DHS and ICE will be required to re-produce all
records that include ORI and CRI fields without those redactions.
D. Segregability
If a record contains information that is exempt from disclosure, any reasonably
segregable information must be released after redacting the exempt portions, unless the non-
exempt portions are inextricably intertwined with exempt portions. See 5 U.S.C. § 552(b);
Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1027-28 (D.C. Cir. 1999).
A court errs if it “simply approve[s] the withholding of an entire document without entering a
finding on segregability, or the lack thereof.” Powell v. U.S. Bureau of Prisons, 927 F.2d 1239,
1242 n.4 (D.C. Cir. 1991) (citing Church of Scientology v. Dep’t of the Army, 611 F.2d 738, 744
(9th Cir. 1979)). To demonstrate that all reasonably segregable material has been released, the
agency must provide a detailed justification rather than conclusory statements. See Mead Data
Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977).
With the exception of the location-identifying data and the ORI and CRI codes,
the Court finds that DHS and ICE have adequately explained that the records were carefully
reviewed and any non-exempt, reasonably segregable material was provided. See Decl. of
Fernando Pineiro [Dkt. 50-2] ¶¶ 59-60 (“My staff, under my supervision, has reviewed each
record line-by-line to identify information exempt from disclosure or for which a discretionary
waiver of exemption could be applied. With respect to the records that were released in part, all
information not exempted from disclosure . . . was correctly segregated and non-exempt portions
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were released.”); Suppl. Decl. of James V.M.L. Holzer [Dkt. 50-3] ¶ 62 (“In processing the
records described above, DHS made significant and organized efforts to segregate non-exempt
portions of documents from exempt portions in order to provide plaintiff with all responsive
information not subject to FOIA exemptions. . . . Each responsive record was reviewed page by
page, and line by line. Based upon that review, the documents were redacted and the redacted
versions released to plaintiffs. Responsive records that contained no FOIA exemptions were
released in their entirety. As a result of the review and redaction process any reasonably
segregable portions of the records were released to plaintiff.”).
IV. CONCLUSION
For the reasons discussed above, DHS’s Motion for Partial Summary Judgment,
Dkt. 50, will be granted in part and denied in part and NIJC’s Cross-Motion for Partial Summary
Judgment, Dkt. 52, will be granted in part and denied in part. Defendants shall provide the
location-identifying data in all produced records, re-produce DHS’s July 20, 2018 production in
native format, and provide the Originating Agency Identifier and Contributing Agency Identifier
codes in all produced records. As conceded by NIJC, all other withholdings are proper. A
memorializing Order accompanies this Memorandum Opinion.
Date: July 29, 2019
ROSEMARY M. COLLYER
United States District Judge
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