Leopold v. ICE, No. 18-2415, 2021 WL 4243401 (D.D.C. Sept. 17, 2021) (Moss, J.)

Leopold v. ICE, No. 18-2415, 2021 WL 4243401 (D.D.C. Sept. 17, 2021) (Moss, J.)

Re:  Request for videos, audio recordings, and photographs depicting "treatment of migrants, migrant children, criminal aliens, immigrations fugitives, and reentrants"

Disposition:  Granting defendants' motion to dismiss certain defendants; granting defendants' motion for summary judgment; denying plaintiffs' cross-motion for summary judgment

• Litigation Considerations:  "[T]he Court will dismiss Plaintiffs' claims against DHS, CBP, and USCIS for lack of subject-matter jurisdiction."  The court relates that, "[a]ccording to Defendants, Plaintiffs' claims against DHS, CBP, and USCIS are now moot and, thus, must be dismissed for lack of subject-matter jurisdiction."  "In light of Plaintiffs' repeated representations that the sole remaining issue in this case concerns ICE . . . and [plaintiffs'] failure to address Defendants' arguments for dismissal, the Court concludes that Plaintiffs have conceded that they have no remaining, live claims against DHS, CPB, and USCIS."
   
• Procedural Requirements, Searching for Responsive Records & Litigation Considerations, Adequacy of Search:  The court relates that "ICE maintains that it was never required to provide a response because Plaintiffs' original request is vague and unduly burdensome and thus does not 'reasonably describe' the records sought, as required by FOIA."  "The Court agrees with Plaintiffs that they successfully narrowed the scope of their FOIA request when they proposed various search methodologies to ICE during the course of the litigation."  Specifically, plaintiffs "[proposed] that ICE release only 'audio, video, and photographs that have already been collected, maintained, or identified as associated with five lawsuits involving ICE' that 'depict immigration enforcement or detention' . . . ."  The court relates that, "[a]ccording to ICE, unless and until the agency accepts an offer to narrow a FOIA request, the scope of Plaintiffs' original request governs."  The court disagrees and finds that "what matters in the final analysis is that 'the plaintiff narrowed her FOIA request,' . . . not that the government consented."
  
  "Beyond this point, however, [the court finds that] Plaintiffs' request – even with the narrowed search methodology – runs into trouble."  "The problem lies in Plaintiffs' use of the phrase 'immigration enforcement actions.'"  "The Court agrees with ICE that the phrase 'any and all immigration enforcement actions,' without clarification from Plaintiffs, is too broad and vague to 'reasonably describe' the records sought."  "Standing alone, this description would not enable an ICE employee reviewing photographs, audio recordings, or video footage from one of the hundreds of cameras at ICE detentions centers to identify whether any given depiction reflected an 'immigration enforcement action[ ] undertaken by the agency related to migrants and migrant children seeking asylum, criminal aliens, immigration fugitives, and re-entrants,' . . . ."  "Neither Title 8 of the U.S. Code nor Title 8 of the Code of Federal Regulations defines the phrase 'enforcement action' in the context of immigration, and, as a matter of common usage, the phrase admits of a broad array of possible meanings."  The court relates that "Plaintiffs suggest[] that ICE waived any argument that the request did not 'reasonably describe' the records sought by 'failing to raise it at the administrative stage, or in its Answer, or otherwise raising it until after the parties spent over a year negotiating over the scope of a reasonable search.'"  "The Court is unpersuaded that a waiver, or for that matter forfeiture, has occurred here."  "At least since ICE began exploring the possibility of producing records in late 2020, it has consistently maintained that it is not obligated to provide a response because Plaintiffs' request does not reasonably describe the records sought."