Libarov v. ICE, No. 24-2620, 2025 WL 1501020 (7th Cir. May 27, 2025) (Hamilton, J.)

Libarov v. ICE, No. 24-2620, 2025 WL 1501020 (7th Cir. May 27, 2025) (Hamilton, J.)

Re: Request for records concerning requester

Disposition:  Affirming district court’s grant in part and denial in part of government’s motion for summary judgment

• Litigation Considerations, Relief:  The Court of Appeals for the Seventh Circuit holds that “[the requester] is not entitled to a declaratory judgment against ICE for delayed FOIA responses.”  The court relates that the requester argues “that he is entitled to a declaratory judgment that ICE violated FOIA because it failed to issue a threshold ‘determination’ on [the requester’s] FOIA request in the required statutory timeframe.”  “[The court] [has] held at least twice that a suit filed to compel FOIA production becomes moot once the government produces the requested documents.” “The statute itself spells out what happens if the agency fails to issue a timely determination:  the requester ‘shall be deemed to have exhausted his administrative remedies.’”  “‘This constructive administrative exhaustion, and resulting ability to begin litigation, is the exclusive remedy for the failure of an agency to respond in a timely manner.’”
  
  “[The requester’s] next argument is that ICE, to this date, has not made a required ‘determination’ under the statute.”  “He cites [a] D.C. Circuit[] decision . . . for the principle that an agency making a ‘determination’ must ‘(i) gather and review the documents; (ii) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and (iii) inform the requester that it can appeal whatever portion of the “determination” is adverse.’”  “But [the D.C. Circuit] actually explained that those three steps are required for an agency to ‘trigger the administrative exhaustion requirement,’ not that they are always required.”  “While [the requester] may be right that ICE never issued a formal ‘determination’ as contemplated by 5 U.S.C. § 552(a)(6)(A), he received the relief allowed by the statute.”
  
  “[The requester’s] next statutory argument is that disallowing declaratory relief under FOIA after an agency produces documents renders superfluous 5 U.S.C. § 552(a)(6)(C)(i), which permits district courts to ‘allow the agency additional time to complete its review of the records’ if the agency can show that ‘exceptional circumstances exist and that the agency is exercising due diligence in responding to the request . . . .’” “Why, [the requester] asks, would Congress have allowed an agency to seek additional time to process requests if the agency could simply delay production indefinitely once the lawsuit begins?”  “The answer is that, once in court, an agency faces the possibility of a court order obliging it to disclose documents immediately.”  “The safety valve allows agencies to avoid those orders in exceptional circumstances by requesting additional time to respond.”
   
• Exemption 7(A): The Court of Appeals for the Seventh Circuit holds that “[t]he district court’s summary judgment ruling on the 7(A) withholding is affirmed.”  The court relates that “[t]he district court here viewed the document in camera and concluded that ICE should disclose the portions of the report containing ‘basic personal information regarding [the requester] himself that [the requester] is undoubtedly aware of already.’” “The court granted summary judgment for ICE on its decision to withhold ‘the portions of the Report which could reasonably be expected to interfere with enforcement proceedings if disclosed.’” The court finds that “the district court here had an ‘adequate factual basis . . . to make a legally sound decision about whether an exemption applies.’”  “The court reviewed an affidavit from ICE’s FOIA Director, . . . which explained that the document was created for law enforcement purposes because it is ICE’s mission to investigate ‘individuals who may be present in the United States illegally.’”  “[ICE’s FOIA Director] also explained:  ‘Release of the documents could potentially interfere with an open and ongoing case and investigation being conducted, as well as enforcement proceedings.’”  “‘Release of the records would most certainly jeopardize an investigation that has been ongoing for a long period of time.’” “ICE also provided a Vaughn index, which in a case involving just one document was not particularly helpful.”  “It simply designated all six pages as protected under exemption 7(A).”  “The affidavit was fairly conclusory too, so without more it might have been difficult to affirm withholding the remaining information.”  “The Vaughn index and conclusory affidavit are offset, though, by the fact that the district court conducted an in camera review.”  “[The court] conclude[s] that the district court had an adequate factual basis to determine whether exemption 7(A) applied.”  “The court’s conclusion about exemption 7(A) was not clearly erroneous.” “[The court] conducted [its] own in camera review of the document and see parts that could have been (1) compiled for law enforcement purposes and (2) could reasonably be expected to ‘interfere with enforcement proceedings.’” “ICE contends that release of this information could ‘jeopardize an investigation that has been ongoing for a long period of time.’”  “There is enough information in the redacted part of the report for the district court to conclude that disclosure could interfere with ongoing law enforcement proceedings.”  “The district court did not clearly err when it concluded that disclosure of records like this one ‘would generally “interfere with enforcement proceedings.”’” “[The requester’s] last argument is that the withheld pages cannot ‘reasonably be expected to interfere with enforcement proceedings,’ . . . because he applied for lawful permanent resident status in 2016, nine years ago and well outside the general five-year statute of limitations in 18 U.S.C. § 3282.”  “This does not persuade us to reverse the district court’s 7(A) decision.” “While [the requester’s] own conduct itself may fall outside the statute of limitations, those events may still be relevant to an investigation of an ongoing or long-term scheme or conspiracy to commit further violations.”