ACLU Found. of S. Cal. v. ICE, No. 22-04760, 2024 WL 3370532 (C.D. Cal. July 8, 2024) (Kewalramani, Mag. J.)

ACLU Found. of S. Cal. v. ICE, No. 22-04760, 2024 WL 3370532 (C.D. Cal. July 8, 2024) (Kewalramani, Mag. J.)

Re:  Request for records concerning treatment of hospitalized detainees and detainees released from custody prior to their death

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  “The Court finds that Defendants have met their burden of proving that their withholdings fall within the deliberative process privilege.”  “The draft [Memoranda of Activity (“MOAs”)] [at issue] were records ‘that were ultimately included in [Reports of Investigation (“ROI”)].’”  “The ROIs, in turn, ‘review the evidence and the circumstances of the death[s]’ of [several individuals] to assist DHS OIG in ‘its determination as to whether the evidence supported a finding that a criminal, civil, or administrative violation occurred.’”  “These documents were clearly predecisional in that they were antecedent to DHS OIG’s final determination and assisted it in reaching that decision.”  “Moreover, the draft MOAs were deliberative because they reflect DHS OIG’s internal process of sifting through factual investigative material to determine what facts were important, and editing and drafting the final MOA, to be included in the publicly released ROI.”  “Such a selection of which facts are important and how to explain the significance of those facts in reaching DHS OIG’s final decision as to whether a civil, criminal, or administrative violation occurred is protected by the deliberative process privilege.”
  
  However, “[t]he Court agrees with Plaintiff that the ‘foreseeable harm’ provided by Defendants are ‘cookie-cutter formulations [that] nowhere explain why actual harm would foreseeably result from the release of the specific type of material at issue here.’”  “Defendants’ Vaughn indices and affidavits fall short because Defendants do not identify the specific material in the MOAs that, if released, would cause a chilling effect on communications between ‘a case agent and supervising or reviewing agent.’”  “Defendants’ assertion that disclosure of draft documents would ‘confuse the public’ fails for similar reasons.”  “Defendants fail to identify specific changes or differences amongst the drafts and how those changes would ‘lead to questions regarding the internal process of determining how decisions are made not only in regard to the language of the draft, but also whether a finding of a violation is supported, and how questions are answered.’”  “Although Defendants’ claim of foreseeable harm is insufficient due to lack of specificity, the Court sees the plausibility of disclosure ‘chilling’ internal communications or leading to ‘public confusion’ depending on the nature of the withheld information.”  “Therefore, the Court finds in camera review of the documents withheld under Exemption 5 appropriate.”
   
• Exemption 7, Threshold; Exemption 7(C); Exemption 6:  The court relates that “Plaintiff contends Defendants improperly redacted information regarding ‘an official cause of death listed on [a third party] death certificate, diagnostic questions and medical tests conducted by ICE detention medical staff prior to her release from custody, statements describing ICE’s decision to release [the third party] from custody, and information related to her initial entry to the United States.’”  “Plaintiff also objects to Defendants’ redaction of ‘information apparently related to ICE’s attempts to obtain travel documents to deport [the third party] from the United States.’”  The court finds that “Defendants’ evidence is ‘not sufficiently detailed to demonstrate a rational nexus between the agency’s law enforcement duties and the withheld documents.’”  “DHS OIG is a mixed function agency because it not only investigates potential criminal and civil violations, but also ‘administrative’ violations that can result in ‘administrative sanctions’ or ‘personnel actions.’”  “DHS OIG ‘cannot rely on a bare assertion to justify invocation of exemption from disclosure, especially when, as here, [DHS OIG admits part of its function is] government oversight of the performance of duties by its employees.’”  “[Defendant’s] Declaration does not clarify if the ROIs, MOAs, and underlying investigative documents were compiled ‘in response to and focused upon . . . specific, potentially illegal [conduct] by a particular, identified official.’”  “‘The declaration does not discuss:  (1) the underlying [DHS OIG] investigation to show that the investigation was conducted pursuant to [DHS OIG’s] law enforcement duties, or (2) how [DHS OIG] determined that the underlying investigation was for law enforcement purposes.’”  “In sum, ‘[t]he declaration does not make any effort to show that the [DHS OIG’s] investigation was conducted pursuant to [DHS OIG’s] duty to investigate allegations of misconduct which could constitute violations of state or federal criminal law.”  “Because Defendants have not shown a rational nexus between DHS OIG’s law enforcement functions and the withheld documents, the Court cannot conclude that the withheld documents were compiled for law enforcement purposes.”  “Therefore, Exemption 7(C) does not protect the withheld documents from disclosure.”
  
  Regarding Exemption 6, “[t]he Court finds there is only a de minimis privacy interest in the third cause of death listed on [the third party’s] death certificate and the condition identified in a blood test taken by [the third party].”  “Although the decedent has a continuing privacy interest in their sensitive medical data, . . . the diminished nature of that interest, coupled with the fact that [the decedent’s] HIV status and third cause of death were disclosed by ICE to national media, supports a finding of a trivial privacy interest.”  “Whether ICE or DHS OIG itself disclosed this information is irrelevant.”  “The fact that [the third party’s] cause of death and HIV status is already publicly available undermines Defendants’ claims that this information could draw ‘undue public attention, embarrassment, harassment, and derogatory inferences[,]’ . . . because such a threat to the decedent’s privacy interest already exists . . . .”  “However, nothing in the record suggests that the disclosure extends beyond [the third party’s] cause of death and HIV status.”  “Thus, the Court finds that there is a non-trivial interest in the redacted ‘information about how [the third party] may have contracted this condition’ and ‘sample questions considered by [DHS OIG’s] press office about its failure to screen [the third party] for this condition.’”  “Moreover, Exemption 6’s privacy interest ‘encompass[es] the individual’s control of information concerning his or her person[,]’ . . . and thus the Court rejects Plaintiff’s suggestion that ‘personal privacy details pertaining to the subject’s life and immigration history’ is too vague to trigger a privacy interest . . . .”  “The decedents and their next-of-kin have a privacy interest in controlling dissemination of the details of their or their loved one’s personal lives, how they entered to the United States, and interactions with immigration law enforcement.”  “Therefore, the Court finds that Defendants have failed to establish a privacy interest for [the third party’s] third cause of death and the condition identified in a blood test taken by [the third party].”  “Defendants have met their burden with respect to details of [the third party’s] other medical history and [the third party and one other person’s] immigration history.”  “However, . . . the Court finds the public interest in this information outweighs the privacy interest, and should be disclosed.”  “Defendants’ knowledge of [the third party’s] medical conditions leading up to her death is relevant to whether the steps ICE took for her care were sufficient, and whether DHS OIG appropriately addressed any concerns related to Defendants’ handling of [the third party’s] health and death.”  “The redacted details of [the third party and one other individual’s] immigration history are likewise relevant to ICE’s decision to release the decedents from its custody prior to their deaths, and DHS OIG’s investigation into that decision.”  “Such information is sufficiently important to the public’s understanding of how Defendants handle the care of sick detainees, whether Defendants engage in practices intended to conceal the number of deaths of detainees in their custody, and goes to the public’s right to know ‘what their government is up to.’”  “Disclosure of the withheld documents will shed light on Defendants’ practices regarding the releasing detainees facing imminent death.”  “The Court rejects DHS OIG’s narrow reading of the public interest as limited to the conduct of a sub-component of the government agency to which the FOIA request was directed.”  “The public’s interest is in ‘the extent to which disclosure of the information sought would shed light on an agency’s performance of its statutory duties or otherwise let citizens know what their government is up to.’”  “In any event, this argument fails because the Court finds the information sought would shed light not only on ICE’s practices of releasing detainees facing imminent death, but also DHS OIG’s evaluation of whether those practices are appropriate.”  “Both DHS OIG and ICE’s roles, as components of DHS, sheds light on DHS’s activities generally.”  “As such, the public’s interest in [the third party’s and one other individuals’] immigration history, ‘information about how [the third party] may have contracted this condition[,]’ and ‘sample questions considered by [DHS OIG’s] press office about its failure to screen [the third party] for this condition[,]’ . . . outweighs the privacy interests in this information.”  “Therefore, Defendants must disclose this information.”
   
• Procedural Requirements, Searching for Responsive Records; Litigation Considerations, Adequacy of Search:  The court relates that “the parties’ dispute concerns two documents:  (1) ‘an April 5, 2021 letter sent to the DHS Secretary Alejandro Mayorkas, [DHS Office for Civil Rights and Civil liberties (“CRCL”)], and ICE by legal service providers representing detained immigrants as part of the National Qualified Representative Program (‘NQRP’)[,]’ which ‘asked that CRCL ‘initiate an investigation into [one individual’s death][,]’ . . . ; and (2) ‘a 4-page [c]ase [s]ummary [r]eport indicating that DHS[ ]OIG and other DHS components had opened investigations related to the letter[,]’ . . . .”  “Plaintiff contends these two letters provide ‘“clear and certain” leads for additional searches.’”  “Specifically, Plaintiff argues DHS OIG or DHS should have:  (1) ‘searched for records, including email and other correspondence, related to who referred the NQRP letter to DHS[ ]OIG, how the letter resulted in DHS[ ]OIG opening a case in response to it, and where and why DHS[ ]OIG referred the matter out[,]’ . . . ; (2) ‘searched components to which the NQRP providers sent the letter, including CRCL[,]’ . . . ; and (3) ‘searched each of the case numbers referenced on the [c]ase [r]eport[,]’ . . . .”
  
  Regarding DHS OIG, the court relates that “defendant DHS OIG objects arguing it did not need to conduct additional searches outside of its electronic case management system, EDS, regarding these two letters because ‘the information included in the produced case summary report was derived directly from the NQRP correspondence letter.’”  “DHS OIG did not conduct an investigation in response to the NQRP letter, and thus, the ‘“Date Closed’ [field] is the date on which the complaint was referred [out] for consideration[.]’”  “Further, the ‘“Ref Cases” fields in this case summary report’ do not ‘reflect a case number for another, independent complaint or investigation.’”  “The Court finds DHS OIG failed to adequately conduct a search regarding the NQRP letter and case summary report related to [one individuals’] death.”  “The Court is not persuaded that ‘[b]ecause DHS OIG did not conduct an investigation into the death[ ] of . . . [the individuals at issue], the Office of Investigations’ electronic case management system, EDS, would house all relevant material pertaining to these two individuals.’”  “Plaintiff correctly points out that the case summary report indicates ‘the first date that the complaint was reviewed’ and ‘the date on which the complaint was referred for consideration.’”  “This would indicate that, at the very least, someone within DHS OIG reviewed the NQRP letter, concluded it should be referred out, and identified the appropriate DHS components to which the complaint was referred.”  “Defendants’ insistence, therefore, that the ‘[c]ase [s]ummary [r]eport was solely derived from the submitted complaint’ is not the case.”  “Defendants seem focused on the fact that the NQRP letter did not turn into a DHS OIG investigation, without ever addressing how the complaint was handled by its office.”  “In fact, Defendants’ declarations do not address whether the EDS would contain communications regarding the decision to refer out a complaint, where such records would otherwise be housed, or why a search of the emails of the DHS OIG employee who handled the referral of the NQRP letter would not be appropriate.”  “Accordingly, Defendants have not demonstrated beyond a material doubt that it has ‘undertaken all reasonable measures to uncover all relevant documents.’”
  
  Regarding the failure to search CLCR, the court relates that “Plaintiff takes issue with Defendants’ position that DHS’s Privacy Office had no obligation to search other DHS components, particularly the CRCL, after the Privacy Office initially determined DHS OIG and ICE would likely have responsive records.”  “Plaintiff argues, ‘[e]ven if the DHS FOIA Office did not initially believe components other than ICE and DHS[ ]OIG were likely to have responsive records, it became aware that it should refer the Request to other DHS components including CRCL as early as August 2023, when DHS[ ]OIG consulted with the Privacy Office[,]’ and subsequently when Plaintiff requested that DHS refer the Request to CRCL.”  “Defendants respond arguing the Privacy Office does not ‘serve as an ongoing monitor for any FOIA request it receives and then forwards.’”  “Defendants explain that DHS has a ‘decentralized system for responding to FOIA Requests’ and the Privacy Office ‘“will forward a request to the DHS component(s) that it determines to be most likely, as of the date of the request for information, to maintain the records that are sought.”’”  “According to Defendants, the Privacy Office was not aware of the documents that mentioned CRCL, and did not consult with DHS OIG about them until after it had administratively closed Plaintiff’s Request.”  “Additionally, Defendants add that if Plaintiff was dissatisfied with the Privacy Office’s response or decision to administratively close the Request, it could have either submitted a new FOIA request or exhausted administrative remedies through an appeal within the agency.”  “Plaintiff counters this by stating ‘DHS had an obligation at various stages of the litigation to task DHS[ ]CRCL to search for those records based on “leads that emerge[d] during [the agencies’] inquiry,” . . . as well as “in particular, the leads provided by [Plaintiff],’’ . . . .’”  “Plaintiff also argues it was not required to appeal the Privacy Office’s administrative closure of its Request because the closure did not constitute [a] final determination under FOIA or an adverse determination as defined by 6 C.F.R. § 5.6(d).”  “The Court agrees with Plaintiff that DHS’s search was inadequate for its refusal to refer Plaintiff’s Request to CRCL for several reasons.”  “First, the Court does not agree with DHS’s position that its determination of where to direct a FOIA Request ‘is static in time – it applies only at the moment in time when the Privacy Office decides where to direct the FOIA request[.]’”  “By DHS providing an ‘alternative path’ for a FOIA requestor to direct its request to the Privacy Office, the Privacy Office is subject to the ‘standard that governs all FOIA requests[,]’ which requires ‘[t]he agency [to] make a “good faith effort to conduct a search for requested records, using methods which can be reasonably expected to produce the information requested.”’”  “It would be contrary to the letter and spirit of FOIA if the Privacy Office could skirt this obligation by initially identifying certain components to which to refer a request, immediately administratively closing the request thereafter, and then refusing to revisit its determination upon receiving ‘positive indications of overlooked materials’ both internally and from the requestor.”  “Second, Defendants do not address the fact that DHS regulations ‘contemplate that [FOIA] requests may travel between components as more information becomes available.’”  “Indeed, a component is ‘duty-bound to forward the request’ when it determines either another component was the intended addressee, and is required to consult or coordinate with, or refer a request to, another component where the responsive information originated from, was provided by, or is of substantial interest to another component.”  “These DHS regulations, and the case law, support that the Privacy Office’s FOIA obligations are not cabined to its initial referral determination . . . .”  “Third, any concern that ‘the Privacy Office must effectively serve as an ongoing monitor for any FOIA request it receives and then forwards,’ is overstated.”  “Here, on July 6, 2023, DHS OIG consulted with the Privacy Office about the NQRP letter and case summary report related to the complaint inquiring about [one individual’s] death.”  “The consultation process is triggered when ‘one component or agency, while processing records, determines that a record considered for production may contain equities or information belonging to another component or agency.’”  “Although the Privacy Office ‘does not review consultations . . . and then cross reference[] them against past received FOIA requests[,]’ . . . , when DHS OIG alerted the Privacy Office that the NQRP letter and case summary report was reviewed in response to Plaintiff’s Request and involved a request to CRCL to investigate [one individual’s] death, the Privacy Office was put on notice that responsive records were likely maintained with the CRCL.”  “Moreover, Plaintiff requested that DHS search other components in September 2023 because ‘it [was] apparent that other DHS components possess responsive records that have not been searched or produced[.]’”  “Defendants did not have to continually monitor the Request, nor is this a case where the requestor asked an agency ‘to search anew based upon a subsequent clarification’ from the requestor or where the agency would have to ‘speculate about potential leads.’”  “Fourth, and finally, Plaintiff was not required to appeal the administrative closure of the Request.”  “On May 18, 2022, the Privacy Office sent Plaintiff a letter stating it administratively closed its Request ‘and will refer to the OIG and ICE’s response(s).’”  “The Privacy Office’s administrative closure of a request after referral to another component does not constitute a final determination or denial triggering administrative appeal obligations under FOIA.”  “Defendants do not explain how the administrative closure after referral constitutes a ‘determination’ under FOIA, or an ‘adverse determination’ under 6 C.F.R. § 5.6(d), which, in turn, triggers the obligation to administratively appeal under 6 C.F.R. § 5.8(e).”  “Nor could they because the Privacy Office’s closure letter ‘did not identify that Plaintiff was required to appeal its determination that only DHS[ ]OIG and ICE had responsive records, which under DHS FOIA regulations is a prerequisite for a “denial” of a request that triggers appeal obligations[.]’”  “Defendants’ case law holding that an administrative closure constituted a final determination triggering exhaustion is inapposite, . . . because those closures were caused by the plaintiffs’ failure to perfect their requests, which is not the case here.”  “As such, DHS’s search was inadequate because it refused to search CRCL despite being aware that CRCL maintained records relevant to Plaintiff's Request.”
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court relates that “Plaintiff’s MSJ raised two issues regarding DHS OIG’s referral of ‘1,420 pages to ICE’ for production:  (1) that 16 pages were not produced in legible form and (2) Defendants failed to produce a remaining 853 pages.”  “Defendants respond that they ‘can only produce the best copies they themselves have’ and ‘[t]his argument . . . is also moot because ICE has processed and produced all records referred to it by DHS OIG.’”  “Plaintiff seems to concede this point, noting in its Reply that ‘[a]fter Plaintiff filed its Motion for Summary Judgment, Defendants produced records referred by DHS[ ]OIG to ICE.’”  “Therefore, the Court grants Defendants summary judgment on the issue of DHS OIG’s referral of certain documents to ICE for production.”