Brennan Ctr. for Just. at N.Y. Univ. School of L. v. ICE, No. 21-2443, 2021 WL 5562558 (S.D.N.Y. Nov. 29, 2021) (Rakoff, J.)

Brennan Ctr. for Just. at N.Y. Univ. School of L. v. Ice, No. 21-2443, 2021 WL 5562558 (S.D.N.Y. Nov. 29, 2021) (Rakoff, J.)

Re:  Request for five specific Homeland Security Investigations ("HSI") agent handbooks, as well as "'[a]ny memoranda or training materials issued from January 21, 2017 to the date of this request that purport to explain the policies behind, or guide agents in implementation of, the documents above'"

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "The Court . . . finds ICE's search was inadequate and, accordingly, orders ICE to conduct a new search based on a liberal reading of Part Two of the request . . . and that addresses the [below described] inconsistencies and gaps."  "The Court finds that ICE's search was inadequate because it did not comport with the actual terms of [plaintiff's] request."  "ICE was required to construe Part Two of the request 'liberally.'"  "Part Two of [plaintiff's] request seeks '[a]ny memoranda or training materials . . . that purport to explain the policies behind, or guide agents in implementation of' the handbooks requested."  "The language of 'the policies behind' the handbooks seeks on its face more than materials explicitly referring to the handbooks' titles set forth in Part One."  "ICE was required to construe [plaintiff's] request liberally and to interpret Part Two in the way that would be likely to produce the greatest number of responsive documents."  "The search ICE conducted of both Parts One and Two was also inadequate where ICE did not use clearly relevant search terms and where its affidavits fail to provide any rationale for either the failure to use clearly relevant search terms or the substantial differences between the terms used by different divisions."  "First, a single-term search for only the name of a handbook is an inadequate search, without, at minimum, searching for a relevant acronym, short title, or keyword phrase."  "Second, the disparity between the search terms used by various sections also indicates that the search was inadequate where some divisions failed to use what other divisions deemed clearly relevant search terms, including basic phrases like 'training' or 'guideline' when the request called for 'training materials' and any materials that 'guide' agents in implementing the handbooks."  "The agency's affidavits provide no rationale for this failure to use clearly relevant terms or for these disparities."  The court finds that "obvious gaps in the search terms and locations, unexplained in any way by the agency's affidavits, are grounds to find the search inadequate where they show the search was not reasonably calculated to discover the requested documents."  "While an agency need not use the requestor's wish list of search terms in order to conduct an adequate search under FOIA, the agency must 'provide[ ] logical explanations for each of the decisions it made as to search terms to be used and how to conduct the searches,' so as to show that the agency reasonably calculated the search to uncover the relevant documents."  "ICE offers no explanation here, let alone a reasonable one, for why it failed to search using patently obvious search terms, let alone why some of the terms it did use were only used in some searches and locations."  The court also finds that "[t]o the extent the declarations rely on simply stating in conclusory fashion that an officer used his or her 'judgment' to conduct a reasonable search, such a statement is of no use to the Court."
   
• Exemption 7(E):  The court relates that "ICE duly submitted for in camera review the unredacted portions of 11 sections of the National Security Investigation Handbook:  Sections 7.2, 7.4, 7.18, 11.3, 11.4, 11.6, 12.1, 12.2, 12.4, 12.5, and 12.7."  "As discussed below, the Court finds that the redacted portions of Sections 7.2, 7.4, 11.3, and 11.4 are appropriately withheld under FOIA Exemption 7(E), but that the redactions to the other sections are not appropriately withheld under 7(E) and must be disclosed."  First, the court finds that "[t]he redactions in Sections 7.2 and 7.4 contain specific information for accessing, using, and querying classified databases, including internal database codes."  "The redacted sections, as accurately described in the ICE affidavits and Vaughn Indices, are more properly categorized as procedures, rather than guidelines."  "Even if classified as guidelines, the Court finds it reasonable that disclosure of this information could assist third parties in accessing the databases, which could compromise the integrity of the data and risk interference with national security investigations."  "The Court thus finds that the redactions in Sections 7.2 and 7.4 are appropriately exempted from disclosure under 7(E)."  "Section 7.18 discusses investigative tools for use in national security investigations, including how pen registers and Title III intercepts may be useful to gather evidence."  "The affidavits state that this is not a list of tools, but instead specific considerations for how, when, and why to use specific tools and techniques for intelligence reporting."  "The affidavits state that disclosure of this information could assist bad actors seeking to violate or circumvent the law by countering ICE's operational and investigative actions, which could compromise investigations and thereby threaten the public and law enforcement officers."  "Upon actual inspection, however, the Court finds that the redactions are simply a list of tools rather than specific instructions for how, when, and why to use such tools."  "Because the redacted portions of Section 7.18 describe as a general matter that these techniques are available, as opposed to describing how to use them, it is not clear how disclosure of this information could assist bad actors seeking to violate or circumvent the law."  "With regard to the redactions in Section 11.3, ICE's affidavits state that while there is publicly available information about border searches and electronic devices, the information withheld in Section 11.3 has specific information that is not known to the public about where the electronic device will go within HSI and in what order."  "Upon review, the Court finds that the redacted sections are just what ICE says they are and that disclosure of this information could be used to counter operational or investigative actions to thwart investigations and compromise potential evidence."  "The Court thus finds that the redactions in Section 11.3 are appropriately exempted from disclosure under 7(E)."  "With regard to the redactions in Section 11.4, ICE's affidavits note that while there is publicly available information about border searches and electronic devices, the information withheld in 11.4 has specific information that is not known to the public about the internal ICE process of documenting seizure information."  "Upon in camera review, the Court finds that the redactions in Section 11.4 are accurately described in the ICE affidavits and Vaughn Indices."  "The redacted material is more properly categorized as procedures, rather than guidelines."  "Even if these were considered guidelines, the Court finds it reasonable that disclosure of this information could be used to counter operational or investigative actions to thwart investigations and compromise potential evidence."  "The redactions in Section 11.6 state that HSI may not conduct border searches on behalf of a third-party agency and that any electronic media obtained through ICE border search authority must be searched by an HSI agent or other 'customs officer.'"  "It further states that HSI agents 'are encouraged' to contact their local embedded attorney for more detailed information about when and how to share information with law enforcement and intelligence authorities."  "Upon in camera review, however, the Court finds that the first statement is more appropriately categorized as a policy or guideline, not a technique or procedure, and that the second statement is a general guideline."  "Since material withheld under Exemption 7(E) must 'truly embody a specialized, calculated technique or procedure' that would 'not be apparent to the public, . . . the redactions in Section 11.6 do not qualify."  "The Court thus finds that the redactions in Section 11.6 are not appropriately exempted from disclosure under 7(E)."  "The redactions in Sections 12.1, 12.2, 12.4, 12.5, and 12.7 all describe that HSI agents may play a role in Joint Terrorism Task Force investigations."  "The affidavits and Vaughn Indices state generally that this information could be used to thwart investigations and that it would help bad actors anticipate how such investigations would be conducted."  "Upon in camera review, however, the redactions in these sections are more appropriately categorized as guidelines, where they are 'an indication or outline of future policy or conduct.'"  "They do not 'truly embody a specialized, calculated technique or procedure.'"  "All the redacted sections are at such a high level of generality that the Court finds it most highly unlikely that disclosing this information could pose any particular risk that bad actors could thwart investigations."  "The Court thus finds that the redactions in Sections 12.1, 12.2, 12.4, 12.5, and 12.7 are not appropriately exempted from disclosure under 7(E)."