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Stevens v. DHS, No. 13-03382, 2014 WL 5796429 (N.D. Ill. Nov. 4, 2014) (Castillo, J.)

Date

Stevens v. DHS, No. 13-03382, 2014 WL 5796429 (N.D. Ill. Nov. 4, 2014) (Castillo, J.)

Re: Request for records concerning allegations of misconduct by U.S. Immigration and Customs Enforcement agents during deportation of Nigerian citizen

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's partial motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  "[T]he Court has reviewed the declarations and finds that they describe DHS's search in sufficient detail, and none of the alleged defects that [plaintiff] observes in the declarations undermine the adequacy of the agency's search."  In response to plaintiff's arguments, the court finds that "a search's failure to turn up documents does not necessarily render it inadequate" and "'the mere allegation of bad faith does not undermine the sufficiency of agency submissions.'"
     
  • Exemption 7, Threshold:  The court holds that "DHS has established that its investigation was for law enforcement purposes" because it "was investigating a complaint . . . that DHS employees stole [certain] property and thereby violated federal criminal law."
     
  • Exemption 7(C):  "[T]he Court concludes that DHS properly redacted" "the names, email addresses and other personally identifiable information of OIG employees, as well as the names and identifying information, including handwriting, pictures and identifying actions of witnesses, private citizens and other non-OIG federal government employees."  The court finds that plaintiff "has not demonstrated any public interest in securing the information, let alone a significant one."
     
  • Procedural Requirements, Referrals and Consultations:  "[T]he Court finds that DHS has properly discharged its responsibility to notify [plaintiff] of its decision to withhold [a] DVD."  The court explains that "[plaintiff] has provided no case law, nor has Court's research revealed any support for the notion that an agency component must provide a response after another component of the same agency has already provided one."
     
  • Procedural Requirements, "Reasonably Segregable" Obligation:  "[T]he Court finds that DHS properly withheld [an] ICE Facility DVD in full."  The court relates that defendant states that its "'FOIA office lacks the technical expertise, hardware and software to convert these files to PDF format or process them in any other manner, and thus is unable to properly redact the exempt information.'"  "The Court is troubled by ICE's inability to segregate video footage, especially given the large number of requests for video records that ICE's FOIA Office receives."  "A large federal government agency such as ICE should have sufficient technological expertise and equipment to segregate data from its video files."  "Nonetheless, [plaintiff] has not provided probative evidence of bad faith on the part of the agency in withholding the ICE Facility DVD."

However, concerning a different DVD, the court holds that "DHS has conceded its failure to discharge its duties pertaining to [this] DVD, and therefore it is unclear whether any segregable, nonexempt portions of [this] DVD were withheld."  The court notes that defendant "attests that OIG's Office of Training and Workforce Development has access to software with video-editing capabilities."  The court rejects defendant's arguments "that OIG's license for use of [this] software is limited to 'developing eLearning applications'" and "that no one in OIG has the experience or training to use the software."

  • Exemption 5, Deliberative Process Privilege:  The court holds that "without further explanation from DHS, the Court cannot conclude that the interview notes are 'predecisonal' or 'deliberative.'"  Specifically, "[t]he Court cannot discern how the interview notes at issue in this case," which "were used in the preparation of a final investigative summary," "pertain to the adoption of any agency policy."

Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 7
Exemption 7(C)
Exemption 7, Threshold
Litigation Considerations, Adequacy of Search
Procedural Requirements, Consultations and Referrals
Procedural Requirements, “Reasonably Segregable” Obligation
Updated January 26, 2022