Nat’l Press Club Journalism Inst. v. ICE, No. 18-2932, 2023 WL 9001337 (D.D.C. Dec. 28, 2023) (Contreras, J.)

Nat’l Press Club Journalism Inst. v. ICE, No. 18-2932, 2023 WL 9001337 (D.D.C. Dec. 28, 2023) (Contreras, J.)

Re:  Request for records concerning two individuals, as well as mechanisms used to block or limit calls from detainees at ICE facilities in El Paso, Texas

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment; granting in part and denying in part plaintiffs’ cross-motion for partial summary judgment

• Litigation Considerations, Adequacy of Search:  The court relates that “Plaintiffs no longer contest the adequacy of Defendants’ search for records responsive to their request for records mentioning the [two individuals].”  “They do, however, object to the adequacy of Defendant ICE’s search for records regarding mechanisms used to limit or block calls in the agency’s El Paso facilities.”  “For the reasons set forth below, the Court concludes that ICE has not conducted an adequate search for such records.”  “The locus of the parties’ dispute centers on the phrase ‘any mechanisms used to limit or block phone calls.’”  “ICE contends that this phrase is irreconcilably vague.”  “As a result, ICE avers that it was ‘unable to reasonably ascertain the records’ that the Plaintiffs are seeking and, that being so, was not obligated to conduct a search for such documents.”  “In ICE’s view, the term ‘mechanisms’ could be read to encompass ‘anything.’”  “It could, for example, include technological methods of blocking or limiting calls – such as software or hardware that would allow users to limit or restrict calls from specific numbers or individuals.”  “And it could also include written policies, such as a policy ‘limiting phone calls to fifteen minutes,’ or a policy requiring detainees to eat their meals within set windows of time (on the theory that detainees could not make phone calls during those windows).”  The court finds that “ICE’s attempt to manufacture ambiguity in this way is unconvincing.”  “Agencies must interpret FOIA requests reasonably, and they may not rely on ‘unreasonable reading[s] of a FOIA request’ to argue that a ‘request is deficient.’”  “Reasonably construed and read in context, it is clear that Plaintiffs’ request for records relating to ‘mechanisms used to limit or block phone calls’ does not sweep as broadly as ICE suggests it could.”  “To the contrary, the term ‘mechanisms’ – when read in this context – has a technical connotation, suggesting that the Plaintiffs seek records relating to the physical and technological means that ICE utilizes to restrict calls to or from detainees in its El Paso detention facilities.”  Notably, the court finds that “[t]here is evidence in the record that suggests that ICE officials shared this basic understanding of the types of records Plaintiffs were seeking.”  The court also finds that “[t]o the extent there is any ambiguity in the Plaintiffs’ request, it would seem to stem from the fact that the Plaintiffs have not identified specific mechanisms by which ICE may restrict telephone calls.”  “But just as courts do not require plaintiffs to possess knowledge of the specific ways in which federal agencies store information . . . Plaintiffs here were not required to have special knowledge regarding the mechanisms that ICE may employ to block or limit detainee phone calls.”  “It is ICE – not Plaintiffs – that has a better understanding of the phone systems in place and how those systems may or may not be modified so as to restrict communications.”  “Likewise, it is ICE – not Plaintiffs – that has a better sense of the sources in which information regarding the agency’s ability to restrict detainees’ calls may be located.”  “Finally, it is important to note that Plaintiffs do not seek records relating to ‘mechanisms used to limit or block phone calls’ generally, but rather records fitting that description that also ‘mention or contain’ the name of [the two individuals’] attorney, his law firm, or two specific phone numbers.”  “This added context and specificity illustrates the unreasonableness of at least some of ICE’s purported examples of ambiguity.”  “For all of the above reasons, the Court finds that ‘the description [of the records sought by Plaintiffs] is [not] so broad that it would stymie a reasonable [ICE] official attempting to identify responsive records.’”  “In other words, Plaintiffs’ request was sufficiently clear to trigger ICE’s duty to search for responsive records.”
  
  “In the alternative, ICE cursorily asserts that, despite the alleged vagueness of Plaintiffs’ request, it ‘performed a good faith search for responsive records’ and determined that there were no records responsive to Plaintiffs’ request.”  “The Court disagrees.”  “Here, the evidence and affidavits show that ICE officials did ‘ma[k]e inquiries within the El Paso field office’ in an effort to unearth information ‘concerning any mechanisms used by that office to limit or block phone calls of detainees.’”  “However, according to the agency’s declarant, those ‘inquiries’ were limited to a ‘brief conversation’ in which an official in the El Paso field office ‘explained [that] the telephone service [in that office] is provided by a third-party contractor and he wasn’t aware of a telephone service operation manual that could be reviewed to verify whether detainee’s [sic] calls can be limited or blocked.’”  “ICE does not cite – and the Court has not found – case law to suggest that a ‘brief conversation’ with one official is sufficient to discharge the agency’s duty to conduct a good faith search for responsive record.”
   
• Exemption 5, Threshold:  The court relates that “Plaintiffs have identified one record . . . that they argue is not covered by Exemption 5 because it is an email that was sent from the office of a former congressman.”  “In its reply brief, ICE makes no mention of this document.”  “The Court finds that ICE has not shown that the document’s ‘source [was] a Government agency,’ . . . and, therefore, the document was improperly withheld to the extent it was withheld pursuant to Exemption 5.”  “Besides this specific document, Plaintiffs have not asserted that any other specific documents fail to pass over the Exemption 5 threshold.”
   
• Exemption 5, Deliberative Process Privilege & Litigation Considerations, Vaughn Index/Declaration:  “Because the Court finds that ICE’s Vaughn index is inadequate, it cannot reach the question of whether the material has been properly withheld under the deliberative process privilege.”  “Instead, the Court directs ICE to revise its Vaughn index, taking into account the issues addressed here.”  “First, for many of the documents described in ICE’s Vaughn index, ICE has failed to adequately describe ‘the nature of the specific deliberative process involved.’”  “Instead, ICE provides only vague descriptions of the documents’ content and repeats boilerplate and conclusory statements regarding the content’s deliberative nature.”  “Put simply, these types of ‘broad and opaque description[s] of the deliberative process[es] involved do[ ] not provide the Court with enough detail about whether these documents are deliberative and predecisional.’”  “Second, for many of the documents withheld by ICE, its Vaughn index fails to sufficiently describe the ‘function and significance of the document[s]’ in the agency’s decisionmaking process.”  “Such context aids the Court in determining whether specific material is predecisional, because ‘if documents are not a part of a clear “process” leading to a final decision on the issue, . . . they are less likely to be properly characterized as predecisional.’”  “Rather than provide the Court with this type of context, many of ICE’s Vaughn index entries provide only vague information regarding the withheld documents’ function and significance.”  “Finally, for at least some of the documents that ICE has chosen to withhold, its Vaughn index and supporting declarations, even when viewed together, do not adequately describe the ‘nature of the decisionmaking authority vested in the office or person issuing the disputed document(s), and the positions in the chain of command of the parties to the documents.’”  “Plaintiffs cite entries in ICE’s Vaughn index in which ICE simply states that emails contain communications ‘between ICE employees.’”  “Entries of that sort are insufficiently specific, as they tell the Court nothing about those employees’ decisionmaking authority or their position in the chain of command.”  “It is true – as ICE contends – that many other entries provide more detail, such as information regarding the titles of individuals involved in the communications at issue.”  “While the inclusion of these officials’ and employees’ titles constitutes a step in the right direction, titles alone do not provide the Court with sufficient information regarding the decisionmaking authority (or lack thereof) that these individuals possess, . . . or the ‘role they played in the relevant discussions’ such that the Court can ‘discern whether these communications “reflect the give and take of the deliberative process”’ . . . .”  “Based on these three overarching deficiencies in the declarations and Vaughn index submitted by ICE, the Court concludes ‘“not that the documents are not exempt as a matter of law, but that the agency has failed to supply” in its Vaughn submissions “the minimal information necessary to make a determination” concerning applicability of the deliberative process privilege.’”

• Exemption 5, Attorney-Client Privilege & Litigation Considerations, Vaughn Index/Declaration:  The court relates that “Plaintiffs first challenge ICE’s withholdings on the ground that ICE has not adequately demonstrated that it kept the withheld information confidential.”  “In response, ICE points to two paragraphs in [its] declaration . . . in support of its position that the withheld ‘communications were confidential.’”  “In addition, ICE cites its Vaughn index, and argues that it is plain that the withheld communications were confidential because ‘there were no third parties present [on the communications] to break the privilege.’”  “ICE misapprehends the fundamental thrust of Plaintiffs’ argument.”  “Plaintiffs do not assert that the information ICE seeks to withhold was never confidential.”  “Rather, Plaintiffs contend that, even if the information in the communications was initially confidential, ICE has not demonstrated that it remained so.”  “As mentioned above, a party invoking the attorney-client privilege must demonstrate a communication’s ‘confidentiality both at the time of the communication’ and that such confidentiality has been ‘maintained since.’”  “An agency may satisfy this burden by ‘“demonstrat[ing] that confidentiality was expected in the handling of the[ ] communications [at issue], and that it was reasonably careful to keep this confidential information protected from general disclosure,” not just within the agency, but also among any other individuals outside the agency who needed access to the information.’”  “Here, ICE’s declaration and Vaughn entries say nothing about the steps that the agency took to protect the withheld information from general disclosure.”  “Nor has ICE attempted to show that ‘information contained within the records, was relayed to anyone outside the sphere of those who needed to know the information within the organization.’”  “Without this type of information, the Court may not conclude that the attorney-client privilege applies.”  “Accordingly, to the extent ICE seeks to continue to shield records from production based on an assertion of the attorney-client privilege, it must provide additional detail regarding the steps it took to reasonably ensure that the information contained within the documents remained confidential at all times.”  “Because the Court finds that ICE has not provided sufficient information to assess whether the attorney-client privilege protects these records from disclosure, the Court need not reach Plaintiffs’ argument that ICE has also failed to show – as it must – that ‘securing legal advice was a “primary purpose” of any of the withheld communications.’”  “To the extent that ICE intends to continue to invoke the attorney-client privilege as a basis for withholding records from production, it should ensure that its submissions provide the Court with sufficient detail to determine whether ‘securing legal advice was a “primary purpose” of the’ withheld communications.”
• Exemption 6; Exemption 7, Threshold; Exemption 7(C):  The court relates that “ICE argues that it properly invoked Exemptions 6 and 7(C) to withhold ‘names, initials, signatures, phone numbers, email addresses, and suite numbers of federal law enforcement officers and other government employees that are found in the documents.’”  “It further argues that it properly invoked the same exemptions to withhold the ‘[n]ames, phone numbers, and email addresses of non-ICE individuals, such as DOJ attorneys.’”  “Plaintiffs do not contest ICE's withholding of phone numbers or signatures under these exemptions.”  “They do, however, lodge a number of objections to the remainder of ICE’s withholdings.”
  
  Regarding the Exemption 7 threshold, the court finds that “ICE has not sufficiently established that the records and information it seeks to withhold pursuant to Exemption 7 were compiled for a law enforcement purpose.”  “For one thing, the declaration it submits is fatally generic.”  The court relates that defendant only states that “‘[t]he ICE information at issue in this case was compiled by ICE because it relates to ICE’s obligation to enforce the immigration laws of the United States by investigating non U.S. individuals who may be illegally present in the United States, including records of interviews, arrest, booking, detention, removal, and other related investigations.”  “Therefore, all of the ICE emails responsive to Plaintiffs’ FOIA request, which pertain to the detention and removal of [a third party not at issue in the requested documents], were compiled for law enforcement purposes and meet the threshold requirement of FOIA Exemption (b)(7).”  The court finds that this explanation “fails to provide the Court with a ‘clear understanding of “how and under what circumstances the requested files were compiled.”’”  “To be sure, [the] declaration is not completely generic; [defendant] does ‘identify a particular individual’ and the purported ‘connection between that individual . . . and a possible security risk or violation of federal law.’”  “The problem, however, is that the individual [defendant] identifies . . . is not an individual to whom the documents in this case pertain.”  “ICE’s overly generic declaration regarding the purported law enforcement purpose of the documents at issue is not saved by its Vaughn index.”  “To the contrary, many of ICE’s Vaughn entries do not adequately demonstrate whether the withheld records or information were compiled for law enforcement purposes.”  “Given these defects in ICE’s current submissions, the Court will not examine each of the withheld documents to ‘attempt to discern for itself whether the documents satisfy Exemption 7’s threshold requirement.’”  “Instead, to the extent ICE seeks to continue to withhold information pursuant to Exemption 7(C), it must supplement its declarations and Vaughn index to provide the Court with a clearer picture of whether the records satisfy the exemption’s threshold requirements.”
  
  “Because the Court cannot conclude that ICE has properly withheld the contested information pursuant to Exemption 7(C), the Court will instead consider whether the agency has properly withheld the same information under Exemption 6.”  “ICE has taken a categorical approach to its Exemption 6 withholdings in this case.”  “The Court finds, however, that ICE has not defined its categories with sufficient precision, nor has it adequately distinguished the various privacy interests at play.”  “ICE’s declaration explains that it redacted personal information for two categories of individuals.”  “The first category includes ‘federal employees’ – a broad grouping that includes ‘federal law enforcement officers and other government employees.’”  “ICE asserts that these employees ‘have privacy interests in not becoming targets of harassment by individuals who may begrudge them and in remaining free of interference in the performance of their duties by persons who are currently of interest to law enforcement or who oppose the ICE mission.’”  “ICE further claims that ‘[p]ublic identification of these employees could also result in them being subjected to personal requests for access to law enforcement information or requests for information about ongoing or closed investigations.’”  “The second category includes ‘third-part[ies],’ which, somewhat confusingly, includes ‘non-ICE individuals, such as DOJ attorneys.’”  “For these individuals, ICE simply asserts that the disclosure of their personal ‘information could constitute an unwarranted invasion of personal privacy and similarly subject these individuals to harassment, and undue public attention.’”  “Despite ICE’s use of these two general categories in its supporting declaration, the agency’s Vaughn index takes a slightly different approach.”  “It broadly groups individuals into ‘ICE employees’ or ‘law enforcement . . . personnel’ on the one hand . . . and ‘third-party individuals’ on the other . . . .”  “Regardless of whether one considers the categories in ICE’s declaration or Vaughn index, these categorical distinctions are far too generic to convince the Court that ICE has adequately accounted for and ‘distinguish[ed] the [various] privacy interests at stake.’”  “For one thing, within the ‘federal employees’ or ‘ICE employees’ categories, ICE has not differentiated between the interests of line-level, lower-ranking employees and individuals with significantly more authority and public exposure.”  “ICE has also failed to differentiate the privacy interests at stake for the large variety of individuals encompassed by the ‘third-party’ category.”  “ICE’s failure to establish the different privacy interests at stake makes it impossible for the Court to balance the private interests with the public's interest in knowing ‘what their government is up to.’”  “Therefore, the Court must deny summary judgment with regard to ICE’s withholdings under Exemption 6.”  “If ICE intends to continue to rely on Exemption 6, it will have another opportunity to present further affidavits justifying its withholdings.”  “Although ICE is not necessarily prohibited from relying on categorical arguments, it should, at the least, ‘make a more particularized showing for defined subgroups.’”
   
• ​​​​​​​Waiver and Discretionary Disclosure, Waiver:  The court relates that “[t]he last issue the Court must address concerns certain documents or portions of documents that ICE inadvertently disclosed during the course of its productions.”  “Despite the inadvertent disclosure of that information, ICE now seeks to variously assert Exemptions 5, 6, and 7(C) to withhold the information that has already been disclosed to Plaintiffs.”  “Although ICE does not say so in so many words, the Court construes ICE’s position to be that the inadvertent disclosure of a few documents does not prevent the agency from later asserting that information contained in those documents is exempt from withholding under FOIA.”  “To the extent that that is ICE’s position, the Court agrees.”  “Here, ICE has consistently maintained that it mistakenly produced the documents in question.”  “Moreover, once it realized its error, ICE reprocessed and reproduced redacted versions of those same documents.”  “These facts support the conclusion that ICE’s disclosure was, in fact, inadvertent.”  “And Plaintiffs at no point contend otherwise.”  “All that being so, the Court concludes that ICE may assert that all or part of the mistakenly disclosed documents are exempt from withholding under FOIA.”  “To be clear, the Court's holding should not be read to suggest that these specific documents (or portions thereof) were lawfully withheld.”  “[T]he Court declines to analyze whether specific documents were properly withheld until ICE has had a chance to provide more fulsome justifications.”