ACLU Immigrants’ Rts. Project v. ICE, No. 21-1233, 2023 WL 405766 (2d Cir. Jan. 26, 2023) (Raggi, J.)

ACLU Immigrants’ Rts. Project v. ICE, No. 21-1233, 2023 WL 405766 (2d Cir. Jan. 26, 2023) (Raggi, J.)

Re:  Request for records concerning immigration apprehensions, detentions, removals, risk classification assessments, and bond management information

Disposition:  Reversing and remanding district court’s grant of government’s motion for summary judgment

• Procedural Requirements, Responding to FOIA Requests & “Reasonably Segregable” Obligation:  “[The Court of Appeals for the Second Circuit] conclude[s] that, in the circumstances of this case, A-Numbers are simply a tool – a sort of key or code – chosen by ICE to access its event-centric databases in such a way as to obtain existing datapoints.”  The court relates that “the question [it] consider[s] is whether under FOIA, ICE’s acknowledged ability to access immigration records in a person-centric manner – in other words, its own ability to track a single individual across the various stages of immigration proceedings – requires ICE to afford the public (here, [the requester]) similar access to the data.”  “In urging a negative answer, ICE relies essentially on (1) the exempt status of A-Numbers; and (2) FOIA’s requirement that agencies produce existing records, not that they create new ones.”  “[The court] note[s] ICE’s acknowledgment that, at present, exempt A-Numbers are the only datapoints within its databases ‘that connect[ ] an entry uniquely to an individual.’”  “Thus, ICE concedes that ‘[w]ithout . . . A-numbers, [the requester] cannot use ICE’s data to track individuals between the separate IIDS datasets.’”  “[The court is] further mindful . . . that A-Numbers are not essential to perform this function; other numbers, letters, symbols, or combinations thereof could be substituted to the same effect.”  “In these circumstances – i.e., where ICE has chosen to make exempt A-Numbers the essential code for gaining person-centric access to datapoints in its event-centric databases, and where ICE itself uses that key or code to gain such access – [the court] conclude[s] that ICE may not rely on A-Numbers’ exemption from FOIA disclosure to deny the public equal access to non-exempt records.”  “Rather, ICE must find an alternative means to provide [plaintiff] with responsive person-centric access to non-exempt records.”  “Indeed, to hold otherwise could have the perverse effect of encouraging agencies to make exempt records the singular means for gaining access to non-exempt records responsive to a particular query and, thereby, effectively to conceal those records from the public, at least in the way responsive to the query.”  “Such an outcome is contrary to the ‘clear legislative intent’ underlying FOIA:  ‘to assure public access to all governmental records whose disclosure would not significantly harm specific governmental interests.’”  “Here, [the requester’s] proposed substitution of Unique IDs for A-Numbers is a reasonable step for affording the public the same person-centric access to non-exempt records that is available to ICE.”  The court again takes note of “the function that ICE has assigned A-Numbers within its electronic databases, which is to afford person-centric access to non-exempt records across ICE's event-centric databases.”  “As already noted, [the court finds that] it was not necessary for ICE to use an exempt record to perform this function.”  “Any combinations of numbers, letters, or symbols would do.”  “Moreover, precisely because Unique IDs can be meaningless in themselves, they do not alter the content of any exempt record.”  “Nor do they document any new information, or otherwise create any new records.”  “Rather, Unique IDs serve only to substitute for deleted exempt A-Numbers in order to preserve a function necessary to afford the public the same person-centric access to non-exempt records that ICE already has.”  “In these circumstances, the substitution of Unique IDs for A-Numbers is a reasonable step in shielding the exempt PII content of A-Numbers, while preserving the access function formerly performed by those exempt records.”
  
  “This conclusion not only comports with the strict application of FOIA exemptions, but also finds some support in the statutory provision requiring agencies to provide their non-exempt records to the public in ‘any form or format . . . readily reproducible.’”  “[The court] conclude[s] that ICE’s substitution of Unique IDs for A-Numbers would effectively allow it to provide non-exempt records in the requested person-centric form or format.”  “Additionally, although E-FOIA’s legislative history sometimes references different media when discussing ‘form,’ . . . it elsewhere emphasizes that the purpose of the ‘form or format’ provision is to ‘provide public access to information in more meaningful formats’ so that information can be more ‘useable’ . . . .”  “E-FOIA’s legislative history suggests that Congress anticipated that agencies might store electronic records in ways different from how the public might request them.”  “In such circumstances Congress, nevertheless, expected agencies to take reasonable steps to effect retrieval in the requested form or format, even if that required some conversion of data.”  “Here, person-centric access to non-exempt records in ICE databases is ‘dependent upon’ A-Numbers, records that because of their PII content are ‘unavailable to the public.’”  “One way of ‘convert[ing]’ exempt A-Numbers to afford the public the same person-centric access to non-exempt records as is available to ICE could be to produce all responsive datapoints from its event-centric databases but to substitute Unique IDs for exempt A-Numbers, as [the requester] requests.”  “This would allow [the requester] to arrange the non-exempt records for itself in a person-centric manner or ‘format.’”  “In approving this course, [the court is] mindful that Congress foresaw the need for an agency to apply ‘codes or some form of programming’ to retrieve records in a requested electronic format, and expressly stated that the use of such codes or programming would ‘not amount to the creation of records.’”  “That conclusion applies as much to substituted access code numbers – here, Unique IDs in place of exempt A-Numbers – as it does to the application of new computer coding or programming to retrieve responsive records.”  “Though the tools are different, each functions to retrieve non-exempt records in their existing state but organized in a particular format.”
  
  “The approved substitution also finds support in principles applicable to FOIA’s segregation and redaction provisions, which expect an agency to produce the segregable, non-exempt information in a record after ‘deleti[ng]’ exempt information.”  “In the physical context, deletion is frequently accomplished by cutting or blacking out exempt text from paper records.”  “But such techniques do not always transfer to more complex electronic formats.”  “Thus, some courts have approved the use of unique identifiers or other anonymization techniques to segregate exempt from non-exempt information within an electronic record.”  The court finds that it “need not here decide that such substitution should be approved in all circumstances.”  “[The court] conclude[s] only that Unique IDs are apt here where they do not substitute for any content in an exempt document.”  “Indeed, in responding to [the requester’s] FOIA request, ICE can withhold exempt A-Numbers in their entirety.”  “The substitution of Unique IDs for redacted A-Numbers here serves only to maintain a function within ICE databases without which the public cannot access non-exempt records in the same manner as the agency does.”  “[T]he substitution of Unique IDs here would make no changes to the substantive content of exempt A-Numbers.”  “Nor would it permit A-Numbers to be produced in some altered state.”  “Rather, Unique IDs would replace A-Numbers in their entirety for the sole purpose of preserving the access function A-Numbers perform within ICE’s computer system.”
  
  “Finally, [the court] consider[s] whether the substitution of Unique IDs for A-Numbers is a reasonable or unduly burdensome means for producing the requested non-exempt records.”  “Focusing first on value, ICE itself acknowledges that, without exempt A-Numbers, it is impossible to access any non-exempt records in the same person-centric manner that ICE can.”  “Thus, to the extent the proposed substitution is necessary to afford such comparable access, it yields high informational value.”  “ICE has conceded that ‘the burden’ involved in substituting Unique IDs for A-Numbers ‘would not meet the threshold applied to the burden for segregability.’”  “Insofar as any questions may remain as to ICE’s technical capability to substitute Unique IDs for A-Numbers consistently across all five databases, [the court] leave[s] those to be addressed by the district court on remand consistent with this opinion and after any further inquiry into the nature of ICE databases that may be warranted.”
  
  The court also notes that “[a]lthough the issue on summary judgment (and, thus, on appeal) was limited to whether FOIA requires ICE to substitute Unique IDs for A-Numbers, lingering in the record is the unanswered question of whether ICE might also satisfactorily respond to [the requester’s] FOIA request by producing a ‘Big Spreadsheet,’ each line of which contains all datapoints retrieved from across ICE databases pertaining to a single (unidentified) alien.”  “At oral argument before this court, ICE suggested that the Big Spreadsheet option was an alternative means to provide [the requester] with a person-centric view of the responsive records without entailing record creation.”  “Meanwhile, both in its brief to this court and at oral argument, [the requester] not only stated that ICE could avoid the substitution of Unique IDs for A-Numbers by producing a ‘Big Spreadsheet,’ but also indicated that such production ‘would [be] a sufficient response to the [requester’s] request.’”  “[The court does] not [itself] reach any conclusions regarding a ‘Big Spreadsheet’ response to [the requester’s] FOIA request.”  “[The court] state[s] only that nothing in this opinion should be understood to foreclose further consideration of this alternative on remand.”