Libarov v. ICE, No. 22-6414, 2024 WL 3888761 (N.D. Ill. Aug. 21, 2024) (Cummings, J.)

Libarov v. ICE, No. 22-6414, 2024 WL 3888761 (N.D. Ill. Aug. 21, 2024) (Cummings, J.)

Re:  Request for records concerning plaintiff

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, Exhaustion of Administrative Remedies:  The court holds that “it is undisputed that – as alleged in Count I – ICE failed to respond to [plaintiff’s] FOIA request under the requisite statutory timeframe.”  “Accordingly, the Court finds that [plaintiff] constructively exhausted his administrative remedies under FOIA . . . .”

• Litigation Considerations, Evidentiary Showing, Adequacy of Search:  “[T]he Court finds that ICE’s search was sufficient here.”  “ICE has submitted [a] declaration . . . which described the search ICE conducted in response to [plaintiff’s] request.”  “ICE identified the two program offices . . . best equipped to search for responsive records and, ultimately, searched using [plaintiff’s] name in eleven separate databases, along with the inbox and file of the [special agent in charge] at the Miami Field Office.”  “At the outset, [defendant’s] non-conclusory and detailed affidavit supports the presumption that ICE’s search for responsive documents was reasonable and conducted in good faith.”  The court also finds that plaintiff’s “speculation [that other responsive records exist] simply does not amount to ‘countervailing evidence’ as to the adequacy of ICE’s search.”

• Exemption 7(A); Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court relates that “[t]o support of its motion, ICE initially submitted [an] affidavit, along with its Vaughn index describing the six pages withheld under exemption 7(A), a document it has titled ‘Homeland Security Investigations Report’ (‘the Report’).”  “In the affidavit (and Vaughn index), [defendant] explains that the records relate to an ‘open, active, and ongoing criminal investigation,’ and – if released – could ‘cause an articulable harm to the ongoing investigation.’”  “At the outset, the Court notes that [defendant’s] affidavit and accompanying Vaughn index would likely be sufficient to support ICE’s withholding of the Report under Exemption 7(A) and that [plaintiff] has, once more, offered little beyond speculation to rebut ICE’s reliance on that exemption.”  “More importantly, however, the Court granted ICE’s request to submit the Report for in camera review to facilitate its resolution of the parties’ motions.”  “The Court’s in camera review – together with facts set forth in [defendant’s] affidavit – confirmed that ICE has met its burden to withhold the portions of the Report which could reasonably be expected to interfere with enforcement proceedings if disclosed.”
  
  “At the same time, the Court does not agree that the entirety of the Report has been properly withheld under Exemption 7(A).”  “In particular, several categories of information contained in the Report include basic personal information regarding [plaintiff] himself that [plaintiff] is undoubtedly aware of already.”  “ICE has not articulated why the disclosure of such information to [plaintiff] would interfere with any ongoing proceedings.”  “As such, and because FOIA requires disclosure of ‘[a]ny reasonably segregable portion’ of an otherwise exempt record, . . . the Court directs ICE to disclose the information in the [certain] sections of the Report . . . .”