Nat'l Day Laborer Org. Network v. ICE, No. 16-387, 2017 WL 1494513 (S.D.N.Y. Apr. 19, 2017) (Forrest, J.)

Nat'l Day Laborer Org. Network v. ICE, No. 16-387, 2017 WL 1494513 (S.D.N.Y. Apr. 19, 2017) (Forrest, J.)

Re: Request for records concerning Priority Enforcement Program ("PEP")

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

• Litigation Considerations, Adequacy of Search: "[T]he Court concludes that defendants' searches were reasonable and thus grants summary judgment to defendants FBI and EOIR on this issue[.]" First, "the Court finds that defendant FBI adequately provided a description of the searches that it performed." The court relates that "[defendant's] declarations explain that searches were conducted of the FBI's email systems and certain record repositories[.]" Additionally, "the Court finds that the FBI's search terms were reasonably tailored to discover documents responsive to plaintiffs' FOIA request[]" and that "[d]efendant FBI sufficiently explained why the terms suggested by plaintiffs were not used." Also, the court finds that "the FBI did not fail to search essential agency components reasonably expected to contain responsive records[,]" and that "[p]laintiffs have not rebutted the presumably reasonable decision made by FBI to search only limited individuals." Second, "[a]s with defendant FBI, the Court finds that defendant EOIR adequately provided a description of the searches that it performed." The court relates that "[defendant] describes the searches and search terms used by [the] individuals [conducting the searches]." Also, "the Court finds that the search terms used by EOIR were reasonable[,]" and that plaintiff has not "'identified any flaws that would reveal that [EOIR's] search was not "reasonable."'" Additionally, the court finds that "plaintiffs have not shown that EOIR failed to search essential agency components reasonably expected to contain responsive records."
   
• Procedural Requirements, Proper FOIA Requests: The court holds that "EOIR and USCIS are not required to obtain A-numbers from ICE in order to thereafter search their own databases." The court relates that "[p]laintiffs do not dispute that defendants EOIR and USCIS cannot electronically search their current databases, solely with the data they currently possess, for the information in . . . plaintiffs’ . . . [r]equest." "Rather, plaintiffs maintain that EOIR and UCSIS are obligated to 'obtain from ICE a list of the A-numbers for individuals apprehend through PEP and use those A-numbers to extract the data on these individuals from the EOIR and USCIS databases.'" The court finds that "[t]he list of A-numbers is neither created, obtained, nor under the control of EOIR and USCIS – the list is an agency record of ICE." "USCIS cannot simply access a 'tool to aid in identifying responsive records.'" "Rather, in order to search for records responsive to [part] of plaintiffs' . . . request, defendants EOIR and USCIS would need to obtain agency records from ICE." "As already discussed, this is not required by FOIA."
   
• Procedural Requirements, Searching for Responsive Records: "Based on the . . . information contained in the declarations submitted by ICE in support of their motion, the Court finds that ICE has adequately demonstrated that searching for and producing ["105 different data fields that [plaintiffs] seek regarding any individual affected by PEP" in defined ways] that is contained within the [Enforcement Integrated Database ("EID")] would be unreasonably burdensome." The court relates that "[defendant's] declaration explains that it would take over 600 hours to successfully query the EID database for the 18 data fields contained in that database." "Once the data was located, it would take hundreds of hours to format the data." "[Defendant] further states that were ICE to run the necessary queries against the EID, the resulting data would run into the millions of pages." "ICE would then need to review this data and redact information that is exempt from disclosure." Additionally, "the Court rejects plaintiffs' attempt to unilaterally narrow their request now" because "plaintiffs failed to narrow their request during the administrative stage." However, the court also finds that, "with regards to data that ICE does not maintain in its databases, plaintiffs did timely narrow their request and indicated that they would accept a representative sample." The court rejects defendant's argument regarding this narrowed request because "[defendant's] explanation is conclusory and lacks the required specificity."
   
• Procedural Requirements: "[T]he Court finds that ICE has adequately demonstrated that searching for and producing the data requested in [another part of the request] would be unreasonably burdensome." The court relates that this category "'seeks communications related to PEP.'" The court finds that "[b]ased on a preliminary search and review conducted by six of the . . . field offices [likely to have responsive records], [defendant] estimates that a search for those field offices alone will identify a total of at least 215,850 pages of documents." "Furthermore, ICE FOIA estimates that it would take a minimum of 216 weeks to review those records for redactions." "Applying these estimates to the total number of custodians in all 13 . . . field offices [likely to have responsive records], the total volume of pages could range from about 436,000 to 1.3 million pages of records." "Based on the usual processing rate provided by ICE FOIA, review of that many records would take between 436 and 1,300 weeks."