Am. Civil Liberties Union of Ariz. V. DHS, No. 15-00247, 2017 WL 3478658 (D. Ariz. Aug. 14, 2017) (Tuchi, J.)

Am. Civil Liberties Union of Ariz. V. DHS, No. 15-00247, 2017 WL 3478658 (D. Ariz. Aug. 14, 2017) (Tuchi, J.)

Re:  Request for records concerning "'alleged or actual mistreatment of children in DHS custody from January 1, 2009 to the present'"

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiffs' motion for summary judgment

• Litigation Considerations, Adequacy of Search:  First, "the Court finds that those searches that fail to detail the terms or criteria used to identify responsive documents are inadequate."  "Specifically, any declaration that simply relies on a subject matter expert and manual searches or merely identifies the locations searched, but does not discuss subject matter, search terms, or other criteria, must be supplemented."  The court explains that "[p]roviding such terms is consistent with FOIA's requirement that agencies provide merely a reasonably detailed description of their searches and does not demand 'an exhaustive or meticulous account' of the process."  The court also "agrees with Defendants that it is not its task to oversee the minutia of each search, allow Plaintiffs to dictate search terms, or demand a comprehensive and possibly unreasonable search[,]" but the court does find several instances where plaintiff's submitted evidence that other search terms would yield more results.  Second, the court holds similarly with regard to the search descriptions, finding that "a FOIA responder's task is clear: it must describe what records were searched, by whom, and by what process."  "Here, multiple agencies have failed to describe that process, other than by identifying on the who and where and omitting the what, or vice versa."  "Further, in instances where the agency failed to describe the backgrounds or qualifications of those who conducted the searches, those too must be supplemented."  Third, "[t]he Court agrees with Defendants that they have adequately identified the repositories searched and explained the reasons those sources were chosen, and have provided the requisite explanation for failure to search other locations."
   
• Litigation Considerations, Vaughn Index/Declaration:  "[E]xcept for the specific deficiencies noted below, the Court finds the categorical approach employed conveys enough information to Plaintiffs and the Court to identify the records referenced and understand the reasoning behind the claimed exemptions – all that is required under FOIA."  The court does order defendant to clarify its index in certain areas.
   
• Exemption 7(E):  First, "[t]he Court finds [defendant's] justifications adequate as to [the withholding of "(1) detention standards and procedures for short-term custody, (2) a memo regarding training for apprehension, detention, and transportation of minors, and (3) CBP procedures at ports of entry]."  "However, the Court does not similarly find as to the remaining redactions of . . . codes and web addresses."  Regarding the withholding of "case numbers assigned to allegations of mistreatment of minors," "[t]he Court is at a loss to see how case numbers could possibly reveal a technique or procedure for law enforcement purposes or would otherwise put at risk officers, agencies, or their investigations."  "While CBP contends that revealing the case numbers could allow easy navigation of internal law enforcement computer systems . . ., this too is implausible and does not justify redaction."
   
• Exemption 5, Attorney-Client Privilege:  "Because Plaintiffs do not appear to challenge any of the records withheld under Exemption 5 for attorney-client privilege, and because the Court's review of such records implies that such records are adequately described for exemption, the Court finds Defendants' exemption of ["memoranda from Assistant United States Attorneys to agencies, as well as attorney work product that, although relevant to Plaintiffs' request, was prepared in anticipation of litigation"] FOIA-compliant."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court finds Defendants' descriptions [of several withheld draft documents] inadequate."  "While Defendants have provided ample evidence that the withheld documents are pre-decisional, their declarations do not similarly show that they are deliberative."
   
• Exemptions 6 and 7(C):  "[T]he Court will grant Defendants leave to file a motion for a protective order that would prevent public disclosure of those names while allowing Plaintiffs unfettered access to the information."  "However, any such motion must provide particularized descriptions of any likely danger or retaliation such employees would face."  "If Defendants simply provide conjecture, speculation, or the possibility of harm, the Court will not enter a protective order and will require complete public disclosure of the requested information."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court agrees with Defendants that their Indices are not so general, vague, or conclusory with regard to segregability as to nullify their usefulness."  "Moreover, Plaintiffs' assertion that numerous documents bear full page or large block-quote redactions, without more, is not enough to create a presumption that non-exempt materials were improperly included with justifiably redacted information."