ACLU v. DHS, No. 20-3204, 2023 WL 2733721 (D.D.C. Mar. 31, 2023) (Moss, J.)

ACLU v. DHS, No. 20-3204, 2023 WL 2733721 (D.D.C. Mar. 31, 2023) (Moss, J.)

Re:  Request for records concerning “‘the Trump Administration’s response to the risk of COVID-19 in immigration detention facilities’”

Disposition:  Granting plaintiff’s motion for partial summary judgment; denying plaintiff’s cross-motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  “The Court . . . concludes that DHS’s responsibility to conduct an adequate search for responsive records was not curtailed simply because [plaintiff] submitted its FOIA request to the Privacy Office and did not send it to each component that [plaintiff] believed has responsive records.”  “DHS has [now] clarified that ‘OIG is not excepted from the requirement that the DHS Privacy Office must forward FOIA requests to the appropriate component’ for processing.”  “As a result, the parties now agree that the only question presented is whether the Privacy Office should have forwarded the [plaintiff’s] FOIA request to OIG for processing.”  The court reviews defendant’s “governing regulations and guidance,” specifically 6 C.F.R. § 5.3(a)(1), and finds that, based on the wording, “a FOIA requester has the option of either submitting its request to the ‘the component that maintains the records being sought,’ which carries the benefit of receiving ‘the quickest possible response’ to the request, . . . or submitting it to the Privacy Office, which ‘will forward the request to the component(s) that [the Privacy Office] determines to be most likely to maintain the records’ . . . .”  “According to DHS, by opting for the second alternative, [plaintiff] left it to the Privacy Office to determine which DHS offices or components were, in its view, ‘most likely to maintain the records that’ [plaintiff] sought.”  “DHS further maintains or at least suggests that that determination is one that is static in time – it applies only at the moment in time when the Privacy Office decides where to direct the FOIA request – and it does not require the Privacy Office ‘to look beyond the four corners of the request for leads to the location of responsive documents.’”  “To read the regulation otherwise, DHS adds, would ‘transform the DHS Privacy Office into a central clearinghouse, compelled to divine the hidden intent of all FOIA requests, [which] would . . . impose an unreasonable burden on that Office.’”  “For several reasons, the Court declines to read 6 C.F.R. § 5.3(a)(2) in this grudging manner.”  “First, the structure of the regulations makes clear that a requester has two options.”  “If it submits its request directly to the component that maintains the records at issue, the requester ‘will receive the quickest possible response.’”  “But the alternative path, even if slower, does not limit DHS’s obligation to conduct an adequate search for records.”  “Notably, section 5.3(a)(2) recognizes that, at times, more than one component will be ‘likely to maintain the records’ at issue, so it refers to ‘the component(s)’ – rather than to a singular ‘component’ – that are ‘most likely’ to maintain responsive records.”  “Understood in this light, moreover, the phrase ‘most likely’ cannot reasonably be construed to require a ranking of components ‘likely’ to maintain records and to permit the Privacy Office to ignore components that are ‘likely’ to maintain responsive records, so long as another component is even more ‘likely’ to have responsive material.”  “[R]elatedly, although the regulation provides that, ‘[t]he Privacy Office will forward the request to the component(s) that it determines to be most likely to maintain the records that are sought,’ . . . there is no indication that the Privacy Office must make that determination once and for all time when it makes its initial referral.”  “Had DHS intended to limited section 5.3(a)(2) in this manner, it could easily have done so.”  “Finally, DHS’s concern that the Privacy Office may become overburdened as the ‘clearinghouse’ for DHS FOIA requests is both overstated and, in event, an ill that DHS can remedy by amending its own regulations.”
  
  Based on this understanding, the court finds that “where DHS was on notice before it even commenced its search – that is, it certainly should have known before starting its search – that responsive records will almost certainly be found in OIG's files, it must search those files.”  “In other words, without conducting such a search, DHS will be unable to carry its burden of demonstrating that it conducted a search ‘reasonably calculated to uncover all relevant documents.’”  The court finds that “[a]t the time [plaintiff] submitted its FOIA request, OIG was already investigating ‘Early Experiences with COVID-19 at ICE Detention Facilities.’”  “That study spanned the period from April 8 to April 20, 2020, . . . before [plaintiff] submitted its FOIA request on May 22, 2020  . . .”  “Moreover, even if the Privacy Office was unaware that this particular study was underway, and even if DHS is not reasonably charged with the knowledge of all of its components (including OIG), DHS nonetheless had good reason to believe that OIG would have responsive records.”  “As noted above, among other records, [plaintiff] requested ‘[a]ll communications and documents regarding COVID-19-related grievances or complaints, including, but not limited to, those discussing access to hygiene, protective equipment, social distancing or lack thereof, or other risks of exposure to COVID-19 within immigration detention facilities.’”  “And, as the Privacy Office was surely aware, OIG is responsible for conducting internal DHS investigations . . . .”  Additionally, the court relates that “[plaintiff] informed DHS that OIG is a likely source of responsive records on numerous occasions before DHS commenced its search.”