WEEK OF OCTOBER 22-26

District Courts

1.  ACLU of S. Cal. v. DHS, No. 11-10148, 2012 U.S. Dist. LEXIS 154893 (C.D. Cal. Oct. 25, 2012) (Wright, J.)

Re: Request for agency records concerning a work-site enforcement operation at a factory in southern California

Holding: Granting motion for summary judgment with regard to the adequacy of DHS's search and denying motion for summary judgment with regard to the adequacy of ICE's search

• Fee waiver/Mootness: The court finds that plaintiff's motion for summary judgment with regard to defendants' denial of plaintiff's fee waiver request is moot.  Defendants granted the request for a fee waiver after the filling of plaintiff's first amended complaint.

• Adequacy of Search: The court determines that DHS's search was adequate.  DHS explained which component it searched for records.  DHS also "describe[d] the databases searched and list[ed] the search terms used."  In response to questions raised regarding its search of the Office of Policy, DHS submitted a supplemental declaration describing its search and how "at least five different officials searched both emails and shared folders using the search terms."  "DHS also explained why the Office of Policy was unlikely to have responsive records regarding the other topics of the FOIA request."  The court also finds that it was reasonable for DHS not to search DHS Office of the Inspector General.  The court noted that "[n]one of [the] categories [set out by plaintiff in its request] concerned internal investigations of alleged DHS employee misconduct.  And any general complaints of misconduct by the ICE employees involved in the enforcement action would likely be handled by ICE [Office of Professional Responsibility], not DHS OIG."  Noting that "the reasonableness of an agency's decision regarding which components to search depends on a reasonable construction of the FOIA request, not upon documents never provided to the agency's FOIA office," the court concludes that DHS's searches were reasonable.
  
  However, the court determines that ICE's searches were not sufficient.  For example, for one portion of the request for records related to a specified individual, ICE's "offices used vastly different search terms and several offices neglected to use variations that were very likely to yield results."  Finding that "the record raises 'substantial doubt' as to the adequacy of the search, particularly in view of positive indications of overlooked materials," the court denies ICE's motion for summary judgment.
  

2.  Immigration Justice Clinic of the Benjamin N. Cardozo Sch. of Law v. U.S. Dep't of State, No. 12-1874, 2012 WL 5177410 (S.D.N.Y. Oct. 18, 2012) (Daniels, J.)

Re: Request for documents concerning plaintiff's client requested in the course of plaintiff's "representation of its client . . .  in removal proceedings"

Holding: Granting plaintiff's motion for summary judgment and ordering defendants to produce a "'three-page, unclassified document containing biographical data and information'" about plaintiff's client

• Exemption 3: The court finds that 8 U.S.C. § 1202(f) cannot be used in conjunction with Exemption 3 to withhold a document merely because it is "located in [State's] Consular Lookout and Support System ('Class') visa database, which it describes as a 'tool for the adjudication of visa … applications.'"  Here, there has been no visa application.  The document contains "biographical data and information about [plaintiff's client's] activities while in immigration detention."  The court notes that 8 U.S.C. § 1202(f) "does not speak to documents held by the State Department that have not been used in determining whether to issue or refuse a visa.  Nor does § 1202(f) refer to all files placed in a database that is used to store visa-related documents."  Accordingly, the court holds that although § 1202(f) is the type of withholding statute contemplated by Exemption 3, the document at issue here does not "fall[] within [§ 1202(f)'s] ambit."
  
  Since the document is "not a document that pertains to the issuance or refusal of a visa because there is no past or pending visa application," State cannot use Exemption 3 to withhold it.  "The plain language of the statute, and weight of authority of those courts that have addressed similar issues, leads to the conclusion that where there is no visa application process to determine the issuance or refusal of a visa, the Government cannot rely on § 1202(f) to withhold information that was neither gathered, used, nor is being used to determine an actual past or pending visa application."  Finally, State does not contend that the document is "inherently confidential."  Accordingly, the court orders State to produce the document.