Heartland All. for Human Needs & Human Rights v. ICE, No. 16-204, 2019 WL 4345779 (D.D.C. Sept. 12, 2019) (Contreras, J.)

Heartland All. for Human Needs & Human Rights v. ICE, No. 16-204, 2019 WL 4345779 (D.D.C. Sept. 12, 2019) (Contreras, J.)

Re:  Requests for records concerning "'whether ICE has adopted uniform detention, release, and bond policies that are independent from the bed space inventory and/or from ICE quotas or performance objectives'"

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

• Litigation Considerations, Adequacy of Search:  First, the court holds that, "with respect to prong one of the . . . FOIA request, ICE has provided 'a reasonably detailed affidavit' that sets 'forth the search terms and the type of search performed' and establishes that the agency conducted a search of 'all files likely to contain responsive materials.'"  "[Plaintiff] has not provided specific evidence or argumentation that suggests that ICE's search concerning this prong fell short of the benchmark for the adequacy of an agency's search:  'reasonableness.'"  However, second, the court finds that "[s]ummary judgment on the adequacy of ICE's program office searches regarding 'the bed mandate in general' in response to [two other] FOIA requests is . . . denied."  The court explains that "ICE FOIA's decisions about which program offices to charge with conducting searches appear to reasonably target several sub-components with missions that link up to the content of the request."  "In addition, the supplemental declaration details the searches conducted by each of the program offices tasked by the ICE FOIA Office."  "Nonetheless, the Court agrees with one part of Plaintiff's argument:  ICE has not stated the time frames covered by each of the program office searches regarding the 'bed mandate in general' at any point in the declarations provided."  "[T]he lack of a specified time frame for the search conducted in response to [one] request for records regarding the nationwide policy still amounts to a material fact in genuine dispute that renders summary judgment inapposite."  Additionally, "because the substantively identical . . . FOIA request ultimately tasked a number of other program offices with searching for records responsive to the same set of issues, the lack of a parallel scope of search . . . is suspect."
   
• Exemption 5, Deliberative Process Privilege:  "The Court . . . finds ICE's justification of the deliberative process privilege to be 'logical or plausible' in the manner required by this Circuit."  "The declaration and Vaughn Index are not terribly specific, but they address 'the nature of the specific deliberative process' and make clear that the document was one part of an ongoing deliberation about operational needs."  "ICE addresses the 'function and significance of the document in that process,' . . . explaining that the draft memorandum 'contains opinions and recommendations regarding [a] proposal' as well as 'a proposal of an estimated total cost,' . . . ."  "Finally, ICE indicates 'the nature of the decisionmaking authority vested in the document's author and recipient,' . . . ."
  
  Similarly, the court relates that "OMB has provided a declaration explaining how the deliberative process privilege applies to each of the twelve documents."  "The agency has also offered a Vaughn Index that discusses each of the twelve records that it has withheld under the deliberative process privilege."  "Based on these descriptions, the Court agrees with the agency that the twelve identified documents qualify at least in part for withholding pursuant to the deliberative process privilege."
   
• Exemption 5, Attorney-Client Privilege:  The court first notes that "[n]either the agency's declaration nor its Vaughn Index explicitly state whether the agency applied the deliberative process privilege and the attorney-client privilege to the same 'portions of these records,' or to different portions of the records."  "Because the Court cannot conclude on the record before it that the deliberative process privilege and the attorney-client privilege are entirely coterminous, it will separately consider Defendants' invocation of Exemption 5's attorney-client privilege."  The court finds that," [w]ithout more, [defendants'] showing does not establish that the agency can rely on the attorney-client privilege to shield the Operational Plan attached to the email."  "For one, ICE does not ever state outright that one of the communicating parties was an attorney, instead resting on the implication that a communication between 'senior management' at the Office of the Principal Legal Advisor and other ICE staff is necessarily one between an attorney and the agency (the client)."  "Furthermore, even assuming the referenced 'senior management' is an attorney, there is no specificity as to whether the email communications were in fact between the attorney and the client, such that the privilege applies, or whether the attorney was merely included on communications that involved multiple other parties, such that the attorney is a passive actor and the communications are not necessarily shielded."  "Even more significantly, the agency has failed to explain how the Operational Plan attachment relates to the overall email communication."  "ICE states, to be sure, that the email chain to which the document was attached was 'made for the purpose of securing legal advice or services, here the operational requirements' of the agency's proposed Operational Plan."
   
• Litigation Considerations, Vaughn Index/Declaration:  "The Court . . . orders ICE to produce a Vaughn Index of the records that it processed and provided to [plaintiff]."  "In this instance, because ICE has not provided a Vaughn Index for any records other than the Operational Plan, the Court looks to the two declarations that ICE offers regarding its searches and application of exemptions."  "The problem for ICE is that these declarations focus on the searches conducted and why the FOIA exemptions are apt, and do not at any point speak with more particularity about the nature of the redactions applied to records . . . .'"  "The agency's lack of 'specificity,' the 'defining requirement of the Vaughn Index and [declaration],' . . . falls far short of what FOIA demands."  "The declarations, standing alone, do not permit the Court to conduct the de novo review required by the statute."  "And because there is no Vaughn Index, Plaintiff has no other way to effectively test, nor can this Court independently assess, the application of exemptions to the records at issue and determine whether those exemptions are justified."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[The] Court finds that OMB has discharged its burden concerning segregability."  The court relates that "[defendants'] sworn declaration establishes how the non-exempt material relates to the exempted material by stating that any non-exempt material is 'inextricably intertwined with deliberative discussion, opinions, and policy recommendations,' such that '[a]ny facts in the withheld portions of responsive records . . . also qualify as privileged.'"