Am. Oversight v. DHS, No. 21-3030, 2023 WL 5723459 (D.D.C. Sept. 5, 2023) (McFadden, J.)

Am. Oversight v. DHS, No. 21-3030, 2023 WL 5723459 (D.D.C. Sept. 5, 2023) (McFadden, J.)

Re:  Request for records concerning people who died while in ICE custody

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

• Procedural Requirements & Litigation Considerations:  The court first analyzes defendant’s redaction marking.  The court finds that “ICE never clearly asserted Exemptions 3, 6, and 7(C) for all the same material.”  “So ICE cannot now claim that Exemption 6 and 7 cover all the same material as Exemption 3.”  “Start with ICE’s productions.”  “ICE produced documents with labeled redactions.”  “Some redacted material is labeled ‘(b)(6); (b)(7)(C),’ while other parts are labeled ‘(b)(3):Unspecified Statute’ or ‘(b)(7)(E).’”  “But only a few of the many redactions specifically list all three exemptions:  ‘(b)(6); (b)(7)(C); (b)(3): Unspecified Statute.’”  “The rest list Exemptions 6 and 7(C) separately from Exemption 3.”  “That suggests that Exemption 6 and 7(C) covered the same material as Exemption 3 only where the document specifically says so.”  “Despites its protests, ICE’s Vaughn Index helps it little.”  “In one part, the index explains that Exemption 3 ‘was asserted to [protect] immigration information that is deemed confidential by statute and/or regulation.’”  “And it later says that ‘ICE is also asserting [Exemptions 6 and 7(C)] to protect this information.’”  “Yet read in tandem with the labeled redactions in the documents it produced, that explanation is unclear.”  “True, it could conceivably be read to mean that ICE is invoking all three exemptions any time any one of those three exemptions is listed.”  “But, coupled with the way that ICE labeled redactions, this more plausibly means that ICE is asserting Exemption 6 and 7(C) for some parts of the listed pages and Exemption 3 for others.”  “So ICE’s Exemption 3, 6, and 7(C) withholdings are only coextensive where ICE specifically said so in its labeled productions.”

• Exemption 3:  The court notes that “[t]hat leaves many places where ICE relied on Exemption 3 alone to withhold information.”  “And thus, the next question is whether ICE has met its burden of justifying those Exemption 3 withholdings.”  The court finds that “[i]t has not.”  “In its Motion for Summary Judgment, ICE said only that it was planning to file an ex parte declaration under seal that would ‘support[] the propriety of [its] Exemption 3 withholdings.’”  “ICE did file a motion asking for leave to file that declaration under seal but then withdrew it.”  “So in support, it points to a declaration that it never filed.”  “That is no support at all.”  “Thus, ICE must turn over all material withheld under only Exemption 3 (as determined by the labels in its productions).”

• Exemption 6; Exemption 7(C):  The court finds that “[plaintiff’s] challenge to ICE’s Exemption 6 and 7(C) withholdings is limited.”  “It challenges those exemptions only if the Court buys ICE’s argument that they cover all the same material as Exemption 3.”  “But the Court has found that redactions labeled only as Exemption 3 are not covered by Exemptions 6 or 7(C).”  “And because the Government thus must produce the documents withheld solely under Exemption 3, this is a moot point. [plaintiff] will get those documents.”  “[T]hat resolves [plaintiff’s] belated Exemption 6 and 7(C) challenge, mooting it.”

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  The court relates that “ICE says that it limited its search to two directorates because ‘no other offices were reasonably likely to have responsive records.’”  “And it adds that the two directorates it searched ‘are the two main offices involved in the Detainee Death Review process.’”  The court finds that “[i]n many cases, that explanation might suffice.”  “But here, ICE is missing most of the reports and provides no good explanation for why that is.”  “More, as ICE admits, the Legal Advisor also reviewed at least 24 of the detainee deaths.”  “And ‘senior leadership’ joined those reviews as well.”  “So in [plaintiff’s] view, ICE should have searched those groups too.”  “No matter, says ICE, the two directorates it searched ‘are the only ICE directorates tasked with producing and archiving reports relating to ICE’s Detainee Death Review process.’”  “So ‘any record that ICE leadership or the [Legal Advisor] may have would be duplicative.’”  “But that does not address the glaring problem:  ICE found reports for only six of the 38 detainees mentioned in the third FOIA request.”  “And it gives no good explanation for those missing documents.”  “Unlike other allegedly missing documents, it never says that those documents do not exist nor explains why they have disappeared.”  “So ICE’s counter falls flat, and it must search those other groups.”  “Without more, the Court cannot just assume that any reports found in other units would be duplicative.”
  
  Regarding search terms, the court finds that “[plaintiff] has another winning argument:  ICE never clarified if it used ‘variations of detainees’ names to ensure that responsive results would not be excluded due to choices in the formatting of the term.’”  “In support, [plaintiff] notes that the report for at least one of the detainees used a shortened version of the detainee’s name.”  “So if ICE used detainees’ full names only, it might have missed responsive reports.”  “Rather than responding to that argument, the Government merely notes it, claims that the argument is ‘misplaced,’ and then proceeds to ignore it.”  “That will not cut it, especially given that the naming conventions in the ICE reports appear to depart from the detainees’ full names.”  “So ICE must search again using appropriate name variations.”  “[Plaintiff’s] other arguments fail.”  “[Plaintiff] argues, basically, that an agency loses if it uses the words ‘most likely’ in a declaration about its search.”  “That is not the standard.”  “True, an agency may not ‘limit its search to only one record system if there are others that are likely to turn up the information requested.’”  “But here, ICE said that ‘no other offices were reasonably expected to have responsive records.’”  “That is legally permissible.”  “ICE’s ‘most likely’ language does not make its search inadequate.”
   
• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations:  The court relates that “ICE invokes the deliberative process privilege to withhold draft Healthcare and Security Compliance Analysis reports and draft Root Cause Analysis reports.”  The court finds that “ICE has failed to sufficiently explain how the documents’ release would cause foreseeable harm.”  “So it must turn over all documents withheld under Exemption 5.”  “ICE has met its burden of showing that its withholdings fall within the deliberative process privilege.”  “For one, the information was predecisional.”  “That is, it came before a decision.”  “And it was deliberative because it ‘was written as part of the process by which [ICE] came to that final decision.’”  “The Healthcare reports ‘predate the final [Detainee Death Reviews] in which the final agency position and recommendations from the draft reports were included.’”  “And Root Cause Analysis reports are created as part of ICE’s detainee death review process and precede ICE’s ‘final position as it pertain[s] to the detainee death reviews.’”  “And both the Root Cause Analyses and Action Plans were ‘incorporated into the final Detainee Death Reports.’”  “So those preliminary drafts were part of ICE’s process of determining what to include in its final report.”  “That counts as an agency decision.”  “Still, [plaintiff] is right about foreseeable harm:  ICE has not shown that the release of these documents would harm it.”  “In both its declarations and its Vaughn Index, ICE provides little more than generalized assertions.”  “For example, it says that releasing those drafts ‘would only serve to confuse the public.’”  “And it claims that ‘exposure of [the deliberative] process would result in harm.’”  “More, it insists that releasing the drafts would ‘discourage the expression of candid opinions . . . between agency personnel’ and ‘adversely impact the quality of internal policy decisions.’”  “But that is no better than explanations rejected by the Circuit.”  “Indeed, ICE never tethers its concerns to these particular documents.”  “To do that, it would need to explain how disclosing the documents ‘at issue will, in the specific context of the agency action at issue, actually impede those same agency deliberations going forward.’”  “ICE’s objections could apply to basically any withheld draft.”  “So ICE has not met its burden and must release all documents withheld solely under Exemption 5.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court finds that “here, the Court approves no challenged withholdings; ICE loses on each challenged exemption.”  “So there are no segregability concerns here.”