Harvard Immigr. & Refugee Clinical Program v. DHS, No. 21-12030, 2023 WL 4685961 (D. Mass. July 21, 2023) (Casper, J.)

Harvard Immigr. & Refugee Clinical Program v. DHS, No. 21-12030, 2023 WL 4685961 (D. Mass. July 21, 2023) (Casper, J.)

Re:  Request for records concerning ICE’s use of solitary confinement in immigration detention centers.

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court relates that “the parties dispute whether the adequacy of [the DHS Office of Inspector General (“OIG”)] search is properly before this Court.”  “On December 10, 2018, OIG released one page in full, withheld twenty-nine pages in part and three pages in full, and referred 221 pages to ICE for processing.”  “On April 1, 2019, [plaintiff] filed an administrative appeal with OIG regarding this request, arguing that ‘OIG has failed to meet its statutory obligations under FOIA by failing to respond to the request well past the applicable statutory deadlines.’”  “On April 1, 2020, OIG’s Information Law and Disclosure Division denied [plaintiff’s] appeal, explaining, among other things, that OIG had provided a response to [plaintiff’s] FOIA request on December 10, 2018.”  “The Agencies argue that [plaintiff] ‘waived any challenge to the adequacy of OIG’s search’ because, following OIG’s denial of [plaintiff’s] April 2019 administrative appeal, [plaintiff] failed to ‘challenge that denial or ever file an administrative appeal challenging the adequacy of OIG’s search.’”  “[Plaintiff] argues that it did not further challenge that denial because it was still waiting on the production of the 221 pages referred to ICE.”  “In [plaintiff’s] view, ‘DHS was no longer managing those documents, and [plaintiff] had never seen them, so no appeal could be made regarding their sufficiency.’”  “The Court agrees with [plaintiff] that it did not waive its challenge to the adequacy of the OIG production.”  “Contrary to the Agencies’ assertions, the complaint does not reasonably suggest that [plaintiff] conceded the adequacy of the OIG production, especially where, as here, it is undisputed that not all pages of the production were released to [plaintiff] until after the complaint was filed.”

• Litigation Considerations, Adequacy of Search:  “Given that the burden remains with OIG to ‘demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents,’ . . . and OIG has not submitted an affidavit describing the search terms and methods it used during its search, . . . the Court grants [plaintiff’s] motion for summary judgment as to the adequacy of OIG’s search and denies the Agencies’ motion as to same.”  “The Court orders counsel for the parties to meet and confer to agree on search terms and locations to be searched by OIG and a proposed time frame for such search. Such joint proposal should be filed by September 1, 2023.”
  
  Regarding ICE’s search, the court finds that “[ICE’s] affidavit describes the manner in which ICE employees generally maintain records, specifies the ICE offices that were deemed the most likely to possess responsive records, the folders and email accounts that were searched and the search terms that were used.”  “Accordingly, the Court concludes that the [ICE] affidavit provides sufficient, nonconclusory detail about the searches, which were reasonably calculated to locate responsive documents, and therefore applies a presumption of good faith to ICE’s search.”  “The Court is persuaded, however, that [plaintiff] has introduced sufficient evidence to rebut this presumption of good faith.”  “Specifically, [plaintiff] argues, and the Court agrees, that ICE’s search was ‘inadequate for three reasons:  it did not uncover specifically identifiable responsive documents; it employed unreasonably narrow terms; and it explored unreasonably cabined locations.’”  “[Plaintiff] first argues that ICE’s search was inadequate because it failed to produce documents that ‘indisputably exist and were specifically requested by [plaintiff].’”  “The demonstrated existence of several unproduced but responsive documents does not require, but can give rise to an inference that an agency’s search was inadequate.”  “Although the record suggests that ICE produced these reports weekly, . . .  [plaintiff] maintains that ICE has produced none of these reports in direct response to the Consolidated ICE FOIA Requests and only ‘a small number’ of these reports in total.”  “Moreover, the record also suggests that ICE failed to produce specifically identifiable records related to OIG’s site visits.”  “Accordingly, the Court is persuaded that ICE’s failure to produce . . . reports for the pertinent period or to produce six of the seven OIG site visits reports ‘raises substantial doubt’ that ICE’s search was adequate.”  “[Plaintiff] also argues that ICE’s search was inadequate because it ‘used unreasonably narrow search terms.’”  “The Court is persuaded that at least some of these proposed synonyms and variations are likely to be used in responsive documents and that ICE has not reasonably justified why it did not use them.”  “As [plaintiff] argues, [defendant’s] affidavit does not explain why [a certain] search did not include common variations of the [used search terms] . . . .”  “The affidavit similarly does not explain, as to [other] searches, why [certain compound terms] were searched as opposed to . . . stand-alone terms along with their common variations and synonyms.”  “Accordingly, the Court also concludes that ICE’s failure to reasonably justify its search methodology ‘raises substantial doubt’ that ICE’s search was adequate.”  “Finally, [plaintiff] argues that ‘ICE searched an excessively narrow set of locations, rendering the searches inadequate.’”  “The Court agrees.”  “The Court is persuaded, however, that the specific locations referenced by [plaintiff] as to the Consolidated ICE FOIA Request should have been searched if, as [plaintiff] asserts and the Agencies do not dispute, these entities ‘are most directly responsible for overseeing the management of segregation and detention of vulnerable populations.’”  “ICE’s failure to search the data sources directly managed by these entities, again, ‘raises substantial doubt’ that its search was adequate.”  “On the other hand, the Court is not persuaded that [plaintiff] has rebutted the good faith presumption as to the locations [already] searched . . . .”
   
• Exemption 5, Deliberative Process Privilege & Litigation Considerations, Vaughn Index/Declaration:  “As an initial matter, [the court finds that] several entries in DHS’s Vaughn index and one entry in ICE’s Vaughn index invoking Exemption 5 fail to specify the final agency decision being contemplated.”  “Accordingly, because the Court concludes that the Vaughn index descriptions are inadequate as to the records discussed above, DHS shall either submit a revised Vaughn index by September 1, 2023, correcting the deficiencies outlined above as to those documents withheld or redacted solely on the basis of Exemption 5, or produce those documents to [plaintiff] and inform the Court of its decision, also by September 1, 2023.”
  
  Next, the court relates that “DHS invoked the deliberative process privilege to withhold in full a group of expert reports prepared by [DHS’s Office for Civil Rights and Civil Liberties (“CRCL”)]-retained consultants who investigated civil rights complaints at ICE detention facilities.”  “[Plaintiff] specifically challenges the withholding of the underlying factual material in the reports, arguing that those facts are ‘post-decisional because they describe actions that ICE has already taken in its detention centers.’”  The court relates that “[i]n an affidavit supporting DHS’s Vaughn index . . . the FOIA Officer in the Office for CRCL, stated that the reports ‘contain unverified observations of first impression, expert analyses of facts and information gathered during the course of the expert’s investigation of the facility, and the uninhibited opinions and recommendations of CRCL’s expert consultant intended for evaluation and review by CRCL.’”  The court finds that “‘unverified observations of first impression are not deliberative in nature’ and that ‘the deliberative process privilege applies only to the withholdings in this case that represent the experts’ analysis, opinions, or recommendations.’”  “The Court is further persuaded by the approach of courts that have drawn a distinction between factual material analogous to a ‘complex decision in an adjudicatory proceeding,’ which properly can be withheld under Exemption 5, or analogous to ‘an investigative report prepared only to inform,’ which cannot.”  “This distinction is relevant here.”  “The expert reports, in general, evaluate the medical care available to detainees at certain facilities.”  “‘That structure is more in keeping with an “investigative report” into a specific question, than it is a “complex decision in an adjudicatory proceeding.”’”  “The Court cannot conclude, therefore, that any withholdings of purely factual material in the expert reports were proper.”  “The Court is also concerned that DHS has improperly withheld purely factual and severable material in each of the documents it has withheld in full under Exemption 5.”  “DHS does not provide a sufficient explanation for why it could not segregate and release the underlying factual material contained in [these documents].”  “Accordingly, the Court denies the Agencies’ motion for summary judgment as to Exemption 5 and correspondingly allows [plaintiff’s] motion for summary judgment.”  “The Court orders DHS to produce the documents it has withheld or redacted solely under Exemption 5 or review each document it has withheld under Exemption 5, including all expert reports, and to release the severable factual material contained therein consistent with this opinion, including, but not limited to, all ‘unverified observations of first impression’ by September 1, 2023.”
  
  Exemption 7(E):  “[T]he Court allows the Agencies’ motion for summary judgment as to Exemption 7(E) and correspondingly denies [plaintiff’s] motion for summary judgment.”  “ICE invoked Exemption 7(E) to withhold:  (1) ‘a user guide on how to use [an] electronic medical record system to report on detainees with mental health diagnoses who are placed into segregation,’ (2) several reports detailing instances of sexual abuse and assault in ICE detention, (3) emails, reports and correspondence regarding a mentally ill detainee and his disciplinary appeal and (4) ‘internal emails between the American-Arab Anti-Discrimination Committee and ICE employees pertaining to an issue with an inmate’s religious accommodation; an Inmate/Resident Grievance Form; and an Informal Resolution Form.’”  “As to the medical record system user guide, ICE’s Vaughn index explains that it was withheld under Exemption 7(E) because ‘[d]isclosure of the methods that ICE uses to assess detainees and come to a decision on segregation and mental health status could enable an individual to navigate, alter, and/or manipulate the database in their favor.’”  “The Court is persuaded that there is a rational nexus between disclosure of nonpublic information related to the database ICE uses to assess whether to segregate detainees and a possible security risk were an individual to gain unauthorized access to that system.”  “The Court is also persuaded that the reports relating to sexual abuse and assault were properly redacted under Exemption 7(E).”  “ICE’s Vaughn index indicates that these reports were redacted because ‘disclosure of how ICE classifies abuse allegations is not publicly available information and release of this information could permit people seeking to interfere with law enforcement investigations and/or operations to take proactive steps to counter operational and investigative actions taken by ICE during enforcement operations.’”  “There is a rational nexus between disclosure of ICE’s system of classifying abuse allegations and an increased risk of interference with ICE’s ability to investigate these abuse allegations.”  “Finally, the Court concludes that the redaction of the case numbers in the documents pertaining to a mentally ill detainee and his disciplinary appeal and a detainee’s religious accommodation was proper under Exemption 7(E).”  “According to ICE’s Vaughn index, both sets of documents had case numbers redacted because their release ‘could reveal techniques and/or procedures for law enforcement investigations or prosecutions which could reasonably be expected to risk circumvention of the law.’”  “The Court is persuaded that there is a rational nexus between the disclosure of such case numbers and an increased security risk.”