ACLU of Mass., Inc. v. ICE, No. 19-10690, 2020 WL 1429882 (D. Mass. Mar. 24, 2020) (Sorokin, J.)

ACLU of Mass., Inc. v. ICE, No. 19-10690, 2020 WL 1429882 (D. Mass. Mar. 24, 2020) (Sorokin, J.)

Re:  Request for records concerning address of Executive Associate Director for Enforcement and Removal Operations and Senior Official Performing the Duties of Deputy Director to National Sheriff's Association conference attendees

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

• Exemption 5, Deliberative Process Privilege:  The court holds that "ICE is unable to meet its burden to demonstrate that Exemption 5 shields the release of any of the three versions of the draft talking points because it has not provided any evidence, as it must, that those documents are 'deliberative.'"  The court finds that "ICE has proffered no evidence that any of the three versions of the draft talking points involve not-yet-finalized policy decisions or were otherwise bound up with policy matters."  The court finds that "ICE has given the Court 'no basis to conclude that [it] was exercising its essential policymaking role' when the OPA created various versions of the draft talking points."  "Moreover, [the court finds that] even if the draft talking points were deliberative documents – which ICE has not demonstrated – ICE has failed, for an additional reason, to meet its burden with respect to the last-in-time version of the draft talking points . . . :  ICE has not shown it to be a predecisional document."  The court finds that "ICE has not, as is its burden, 'pinpoint[ed] the specific agency decision to which the [last-in-time version of the draft talking points] correlates' or 'verif[ied] that the [last-in-time version of the draft talking points] precedes, in temporal sequence, the decision to which it relates.'"  "Similarly, [the court finds that] the justification offered in ICE's Vaughn index, . . . and mirrored in [defendant's] Declaration, . . . provides no evidence that the redacted portions of the emails inaccurately reflect the views of the agency or would prematurely disclose agency policy positions or other agency views."
  
  Separately, regarding "a draft conference agenda that was, according to ICE, 'provided to the agency by the [National Sheriff's Association] in advance of the [National Sheriff's Association conference] to assist in ICE's general preparation,'" the court holds that "there is no colorable argument to support invocation of Exemption 5 to protect a document created by a non-federal entity not serving as a paid consultant to the agency and not otherwise protected by another FOIA exemption."
   
• Litigation Considerations, Adequacy of Search:  The court holds that "the agency has not met its 'initial burden of showing that it conducted an adequate search.'"  The court finds that "ICE's affidavits, while detailed in some respects, are insufficient to establish that the agency 'made a good faith effort to conduct a search for the requested records.'"  "First, there is a disconnect between ICE's description of its employees' data storage practices and its account of the search procedure that program office POCs undertook in response to [plaintiff's] [first] Request."  "Second, ICE's affidavits fail to adequately explain the agency's failure to conduct any additional search in response to [defendant's second] Request."  The court explains that "[t]his request was not limited to 'draft remarks or talking points,' as ICE states, . . . and ICE's conclusory representation that its Front Office is 'unaware of other versions' of the 'draft remarks,' . . . does not cogently explain why a targeted search for responsive documents – such as 'notes' and 'outlines' – in [other locations] is unnecessary to comply with FOIA's demands."