ACLU of Mass. v. ICE, No. 21-10761, 2022 WL 1912882 (D. Mass. June 3, 2022) (Kelley, J.)

ACLU of Mass. v. ICE, No. 21-10761, 2022 WL 1912882 (D. Mass. June 3, 2022) (Kelley, J.)

Re:  Request for records concerning ICE's investigation of a certain judge, court officer, and the events giving rise to their indictment

Disposition:  Denying government's motion for summary judgment; denying plaintiff's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  "Plaintiffs first argue that ICE employed unreasonably narrow search terms over the records it collected from OCIO."  "Specifically, Plaintiffs argue that ICE inappropriately searched only for the judge's and court's full and proper names, and that the additional proposed terms that ICE rejected were designed to better capture how these names may have been used in colloquial writing."  "Here, ICE need not establish that its chosen search terms were perfectly tailored to produce each and every document potentially responsive to Plaintiffs' request."  "Further, a failure to use search terms proposed and emphasized by Plaintiffs 'is not automatically unreasonable, "so long as the agency provided an explanation as to why the search term was not used."'"  Here, "ICE's affidavits do not establish reasonable grounds for its exclusion of Plaintiffs' two requested search terms."  "The Boolean connector searches Plaintiffs propose—'judge' w/5 'Newton' and 'court' w/5 'Newton'—are sufficiently distinct from the terms ICE employed to reasonably capture documents that were not captured by ICE's terms."  "Because ICE's affidavits do not contain sufficient evidentiary support for its decision to reject Plaintiffs' two proposed search terms, ICE is not afforded a presumption of good faith on this issue, and Plaintiffs may defeat its motion 'merely by showing that the agency might have discovered a responsive document had the agency conducted a reasonable search.'"  "Here, Plaintiffs have more than carried this burden."  "The terms 'judge w/5 Newton' and 'court w/5 Newton' will potentially capture documents containing colloquial phrases like 'the judge in Newton,' 'outside the Newton court,' 'at his court appearance in Newton,' and myriad others that the formal terms 'Judge Joseph,' 'Judge Shelley M. Richmond-Joseph,' and 'Newton District Court' will not."  "It is unreasonable to expect that the ICE custodians would have referred to the judge and court by their proper titles in all references, and Plaintiffs' proposed Boolean searches are reasonably tailored to return documents responsive to their Requests."  "Accordingly, ICE shall, within 45 days of this Order, run these two additional search terms over the population of documents it collected from OCIO and produce any additional responsive, non-exempt documents to Plaintiffs." 
  
  "Plaintiffs next argue that ICE should have collected files directly from the Homeland Security Investigation unit ('HSI') after its search of records collected from other offices produced a memorandum from HSI."  "Here, ICE's affidavits do not describe the agency's process for retention of HSI documents in sufficient detail to support a grant of summary judgment."  "Nowhere in [ICE's affidavit] does [ICE] describe how and where HSI documents are stored, leaving counsel's bare assertions in ICE's reply brief as the only grounds upon which the Court could conclude that all HSI records would be stored within OCIO."  "Further, it is plausible that ICE's discovery of HSI records during its search of the OCIO collection should have reasonably led it to conduct additional searches for further responsive HSI records."  "The adequacy or inadequacy of an agency's search is not fixed at the outset of the search process: rather, the contours of the search may need to evolve as the agency reviews its collection and obtains information as to where additional responsive records may be found."  "Accordingly, ICE shall, within 45 days of this Order, either (1) file a supplementary affidavit explaining in detail its retention practices for HSI records and the basis for its decision not to conduct additional searches for HSI records, or (2) conduct a search of HSI records consistent with the terms of this Order." 
  
  Additionally, "Plaintiffs argue that ICE improperly excluded text messages from the forms of electronic communications that it collected and searched, and that text messages fell within the scope of the Request."  "ICE argues that it lacks an archival system for text messages, that its employees' phones are routinely wiped clean, and that none of its mobile carriers retain deleted text messages."  "The affidavit further states that when ICE employees do discuss business by text, they are directed to memorialize these discussions in written form so that a retainable record of the discussion will be created."  "ICE alleges that it sent a records retention notice upon receipt of the Request, but the affidavit otherwise does not provide the level of detail required for the Court to conclude that ICE was reasonable in declining to collect text messages from the mobile devices of the named custodians."  "Although the Court accepts ICE's assertion that its mobile devices do not store messages indefinitely, and that the devices of the named custodians have been deactivated and replaced since the incident at Newton District Court, ICE has not provided any detail on when the phones the custodians used during the Request period were deactivated, and whether any steps were taken to preserve data at the time of deactivation."  "This specificity is necessary for the Court to determine whether ICE's non-collection of text messages is reasonable, and further, whether ICE's lengthy delay between its receipt of the Request in November 2019 and its initiation of records collection in the spring and summer of 2021 contributed to the unavailability of text message records."  "Accordingly, ICE shall, within 45 days of this Order, file a supplementary affidavit." 
  
  Lastly, "Plaintiffs argue that ICE's search was insufficient because it did not produce documents relating to conversations between ICE personnel and Department of Homeland Security Director Thomas Homan about the investigation of the judge."  "A New York Times article reported that these conversations took place."  "Although, as discussed above, ICE's search was not legally sufficient, the Court imposes no specific obligation on ICE to locate this purported record of Mr. Homan's conversations, in no small part because the New York Times article that Plaintiffs rely on does not refer to any documentary records related to Mr. Homan's conversations."  "Mr. Homan's statements referenced in the article may be reasonably interpreted as describing oral and telephone communications, which would not be reflected in documents responsive to the Request, rather than describing email communications that would have been captured by an adequate search." 
   
• Exemption 7(A):  "The protections of Exemption 7(A) apply to documents related to the pending criminal prosecution of the judge and court security officer whose actions gave rise to the Request."  "Accordingly, ICE need only demonstrate through affidavits that the 8 pages in question 'relate to' this prosecution, and that this prosecution 'involves one of the law enforcement duties' of ICE."  "Here, ICE provides sufficient support for its invocation of Exemption 7(A)."  "Both the subject matter of the HSI memorandum and the nature of the potential harm ICE foresees from its disclosure fall squarely within the ambit of Exemption 7(A), which was enacted to prevent FOIA requests from obstructing, impeding, or hindering law enforcement efforts."  "ICE has thus established a sufficient nexus between the redacted pages and the ongoing criminal case against the judge and court officer, and has properly invoked the protection of Exemption 7(A) over these pages so long as that prosecution remains pending."