Skip to main content

ACLU v. ICE, No. 23-03450, 2024 WL 4258775 (N.D. Cal. Sept. 20, 2024) (Ryu, C. Mag. J.)

Date

ACLU v. ICE, No. 23-03450, 2024 WL 4258775 (N.D. Cal. Sept. 20, 2024) (Ryu, C. Mag. J.)

Re:  Request for records concerning “‘electronic legal research media’” provided by ICE to individuals detained in ICE facilities

Disposition:  Granting defendants’ motion for summary judgment; denying plaintiff’s motion for summary judgment

  • Procedural Requirements, Agency Records:  The court relates that “[t]he parties dispute whether the Offline Lexis Materials are agency records subject to FOIA.”  The court notes that “[t]he parties do not dispute that ICE ‘obtained’ the Offline Lexis Materials, satisfying the first part of the test.”  “Only the second part of the test regarding ICE's ‘control’ of the materials is in dispute.”  The court holds that “in light of governing Ninth Circuit authority and consideration of the evidence bearing on the question of Defendants’ ‘control’ over the requested materials, the court concludes that ICE lacks sufficient control over the Offline Lexis Materials to make them ‘agency records’ for purposes of FOIA.”  The court first notes that plaintiff “does not seek material ‘maintained solely for reference purposes’; rather, it seeks reference materials that are the product of ICE’s decision-making with respect to fulfilling its mandate to provide such materials to detainees.”      The court then notes that the Court of Appeals for the Ninth Circuit “expressly declined to adopt the [D.C. Circuit’s four-factor agency control] test.”  “It held instead that courts ‘may consider a range of evidence to determine’ whether an agency ‘controls’ a record for purposes of FOIA.”  “The parties dispute whether the Master Agreement limits ICE’s use of the Offline Lexis Materials, which bears on the control inquiry.”  “Defendants argue that the Master Agreement’s restrictions on ICE’s use of the materials demonstrate ICE’s lack of ‘control.’”  “[Plaintiff] contends that Defendants have failed to establish that the Master Agreement applies to the Offline Lexis Materials.”  “Defendants originally submitted somewhat conclusory evidence in support of their claim that the Master Agreement applies to ICE’s contract with [RELX Inc. (“RELX”), “which owns the LexisNexis Research Service”].”  “Defendants offered a declaration . . . [which] stated only that ‘ICE’s use of the Offline Lexis Materials is subject to the terms of the LexisNexis Master Agreement’ and that ‘[b]y purchasing a subscription to the Lexis Nexis Research Service’ pursuant to the RELX contract, ‘ICE is a party to the Master Agreement.’”  “[Defendant] did not provide details about when or how he obtained the Master Agreement and did not explain the basis for the statement that the Master Agreement governs ICE’s contract with RELX.”  “As noted, the court granted Defendants leave to submit a supplemental declaration(s) supporting their claim that the Master Agreement governs the contract between ICE and RELX for the electronic law library.”  “The court concludes that Defendants have submitted sufficient evidence that their installation and use of the Offline Lexis Materials is conditioned on acceptance of the Master Agreement with RELX.”  “As noted, ‘control’ under FOIA ‘mean[s] “that the materials have come into the agency’s possession in the legitimate conduct of its official duties,” or “in connection with the transaction of public business.”’”  “Here, ICE does not have the ability to use and dispose of the Offline Lexis Materials as it sees fit.”  “Instead, any use of the materials is subject to the terms of ICE’s ‘non-exclusive, non-transferable limited license,’ which is limited by the ‘Restrictions on Use’ and ‘Prohibited Uses’ set forth in the Master Agreement.”      “Courts have held that similar contractual restrictions on use and transfer of records placed them outside the agency’s control and thus not subject to FOIA.”  “In this case, ICE’s use of the Offline Lexis Materials is restricted by its limited license . . . .”  “Here, ICE has ‘a non-exclusive, non-transferable limited license to access and use the Legal Research Service for [its] own internal use,’ while RELX remains the owner of the materials.”  “With respect to the agency’s ‘reliance on’ the materials, . . . Defendants have submitted uncontroverted evidence that ICE personnel do not use the Offline Lexis Materials to conduct any agency decision-making or agency research.”  “Instead, the Offline Lexis Materials are maintained for the use of detained noncitizens in ICE custody.”

    “In response, [plaintiff] disputes that the Master Agreement applies to the Offline Lexis Materials.”  “As discussed above, the court concludes that Defendants have submitted sufficient evidence to support the Master Agreement’s application to the materials.” “[Plaintiff] also argues that ICE ‘intended to and retains control over’ the Offline Lexis Materials, as evidenced by the contract and Statement of Work, which ‘lay out in painstaking detail the specific requirements, format, audience, screen display, content, research features, functionality, and form of the electronic law library.’”  “This argument appears to be based on the first factor of the D.C. Circuit’s four-factor test for determining whether a document is in the control of an agency; that factor examines ‘the intent of the document’s creator to retain or relinquish control over the records.’” “As an initial matter, [the Court of Appeals for the Ninth Circuit] discounted this factor, noting that it ‘is in tension with’ the Supreme Court’s conclusion in Tax Analysts that ‘“the intent of the creator of a document” is not relevant to a determination of whether the document is an agency record[.]’”  “Even if it were appropriate to consider intent, the first factor looks at the intent of the ‘document’s creator’ – in this case, RELX, which created the materials and licensed them to ICE.”  “[Plaintiff] offers no argument or evidence about RELX’s intent with respect to the Offline Lexis Materials.”  “It also offers no authority that ICE’s provision of detailed specifications for the services RELX must provide pursuant to the contract bears on the issue of control, where ‘[r]esponsibility for programming and maintaining the Offline Lexis Materials rests with the contractor, RELX, not the agency,’ . . . and RELX retains ownership of the Offline Lexis Materials.”
Court Decision Topic(s)
District Court opinions
Procedural Requirements, Agency Records
Updated October 28, 2024