New Orleans Workers' Ctr. for Radical Justice v. ICE, No. 15-431, 2019 WL 1025864 (D.D.C. Mar. 4, 2019) (Walton, J.)

New Orleans Workers' Ctr. for Radical Justice v. ICE, No. 15-431, 2019 WL 1025864 (D.D.C. Mar. 4, 2019) (Walton, J.)

Re:  Request for records concerning Criminal Alien Removal Initiative ("CARI")

Disposition:  Denying defendant's motion for summary judgment; granting in part and denying in part plaintiffs' motion for summary judgment

• Procedural Requirements, Proper FOIA Requests:  "[T]he Court concludes that summary judgment for the defendant is not warranted . . . ."  The court finds that "the Request fails to identify the non-CARI-specific 'ICE programs' that it targets or define key terms such as 'community enforcement,' 'technological tools,' or 'the enforcement actions,' . . . thus 'leaving unanswered how broadly [the plaintiffs thought] an objective agency professional should construe th[ose] terms' . . . ."  "Moreover, numerous subcategories of requested records seek '[a]ny and all' records 'related to' or 'pertaining to' broad subjects, including 'the policies, procedures[,] or objectives of CARI,' 'CARI teams,' and CARI 'enforcement actions . . . .'"  "However, the Court cannot conclude for several reasons that the Request's shortcomings justify the scope of the search conducted by the defendant in this case."  "First, as the plaintiffs correctly note, . . . the defendant failed to timely notify them of any perceived deficiencies in their Request in violation of the defendant's own FOIA regulations in effect at the time."  "[T]he Court cannot conclude that the defendant's interpretation of the Request was reasonable."  The court explains that defendant "narrowly interpreted the Request as seeking only records related to CARI . . . even though various subcategories of requested records plainly seek records that reach beyond the objectives of CARI . . . ."  "Finally, to the extent that the defendant asserts that supplementing its search as requested by the plaintiffs would be 'unduly burdensome,' . . . it has failed to adequately support such a claim."
   
• Procedural Requirements, Searching for Responsive Records:  "[T]he Court cannot conclude that the offices searched by the defendant were adequate for at least two reasons."  "First, the defendant has failed to 'aver[ ] that all locations likely to contain responsive records were searched.'"  "Additionally, the plaintiffs have identified countervailing evidence undermining the defendant's claim that the offices it chose not to search were 'not likely to have responsive records . . . ."  Also, the court finds that "plaintiffs have identified evidence demonstrating that the defendant failed to search at least six of its offices likely to possess responsive records."  "The defendant makes no meaningful response to the plaintiffs' evidence, other than inexplicably asserting that the evidence is 'not relevant to the question of whether [it] . . . conduct[ed] adequate searches.'"  "Moreover, 'the record[ ] [ ] contains no evidence that [the defendant] limited its search [to exclude these offices] based on ascertained facts about' the offices' involvement in CARI."  Additionally, regarding database searches, the court relates that "defendant does not dispute that its databases or electronic systems contain responsive data on CARI arrests, but instead argues that it would be unreasonably burdensome to search them for such data."  The court finds that "the defendant has failed to identify the specific electronic files or systems to which it is referring or describe in any detail what information they contain and how that information is stored and retrieved."  "Thus, the Court lacks sufficient information to assess the defendant's claim that a search for these records would require an unreasonably burdensome manual search."  "As to the defendant's searches of custodians' email accounts, hard drives, and shared servers, the Court agrees with the plaintiffs that the defendant's declarations fail to demonstrate that these searches were adequate."  The court explains that defendant "fail[ed] to provide the Court with any detail regarding how the defendant's employees conducted these searches, and, thus, they are insufficient."  Additionally, "the Court concludes that such missing attachments are 'part and parcel of the email by which they were sent,' . . . and the defendant 'must search for [these] attachments to emails already deemed responsive and either produce them or explain why they are exempt from disclosure[.]'"  Also, "the Court lacks sufficient information to determine whether the search terms used by the defendant were adequate."  The court explains that "although the defendant asserts that it 'used over eighty terms,' . . . the defendant's declarations reflect that approximately two-thirds of the defendant's custodians searched using only the terms 'CARI' or 'Criminal Alien Removal Initiative . . . .'"  Also, the court finds that "defendant fails to adequately explain why these two terms alone were adequate to uncover all responsive documents."  "Although the majority of custodians 'very well may have made a reasonable decision not to use the[se additional] terms[,] . . . that reason is not at all apparent from [the defendant's] declarations.'"  "Moreover, the defendant's declarations are also insufficient because the defendant failed to explain the wide variance in the search terms used by custodians and offices with 'seemingly similar law enforcement responsibilities.'"
  
  However, "the Court cannot agree with the plaintiffs’ position that the defendant's production of only few or no documents in certain categories of records demonstrates that the defendant's searches for those records were inadequate."  "Additionally, the Court generally cannot conclude that a defendant's failure to produce the specific documents identified by the plaintiffs demonstrates that the defendant's search was inadequate either."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court agrees with the plaintiffs that the defendant has failed to satisfy its burden to demonstrate that the withheld material is protected by the deliberative process privilege."  "First, for many of the documents at issue in this case, the defendant has failed to adequately describe 'the nature of the specific deliberative process involved,' . . . as it fails to 'pinpoint an agency decision or policy . . . or identify a decisionmaking process to which a document contributed . . . ."  "Instead, it provides only vague descriptions of the documents' content and repeats boilerplate and conclusory statements regarding the content's predecisional and deliberative nature."  "Second, even where the defendant arguably identifies a decisionmaking process to which the withheld documents purportedly contributed, it fails to adequately describe the 'function and significance of the document[s] in that process.'"  "Finally, the defendant has wholly failed to explain '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.'"  However, the court rebuffs plaintiff's contentions and finds that, "in the absence of additional information from the defendant, the Court cannot conclude that the withheld information is not exempt as a matter of law."
   
• Exemption 7, Threshold:  The court holds that "[i]t is undisputed that the defendant is a law enforcement agency, . . . and, thus, its determination that the withheld documents were compiled for law enforcement purposes may warrant the Court's deference . . . ; however, the Court must nonetheless conclude that the defendant has failed to satisfy its burden to demonstrate that the withheld records satisfy Exemption 7's threshold requirement."  "Notably, the defendant's Vaughn entries make no attempt to address the specific law enforcement purpose of the withheld documents."  "The defendant's blanket assertion that all the information withheld 'relates to . . . investigat[ions of] non-U.S. individuals who may be illegally present in the United States, including records of interviews, arrest, booking, detention, removal, other related investigations, etc.,' . . . fails to provide the Court with a 'clear understanding of "how and under what circumstances the requested files were compiled"' . . . ."
   
• Exemption 6:  "[T]he Court concludes that the defendant has failed to adequately describe the privacy interests at stake with respect to the records it has withheld under Exemption 6."  "And, because this failure 'makes it impossible for the Court to balance the private interests with the public's interest in knowing "what their government is up to,"' . . . the Court does not find it useful to conduct an inquiry into any alleged public interest in these records at this time."
   
• Exemption 7(E):  "[T]he Court agrees with the plaintiffs that in many instances, the defendant has failed to demonstrate that the information redacted pursuant to Exemption 7(E) was 'compiled for law enforcement purposes.'"  The court finds that "a significant amount of the information withheld by the defendant under Exemption 7(E) is so vaguely described that the Court cannot discern the nature of the information being withheld, let alone the circumstances under which the information was compiled or whether it relates to the defendant's law enforcement responsibilities."  "As the plaintiffs correctly note . . . the defendant has failed to adequately demonstrate that the disclosure of the information withheld 'could reasonably be expected to risk circumvention of the law . . . .'"  "The Court acknowledges that for a limited set of information withheld, the risks associated with disclosure may ultimately be obvious."  "However, without additional detail as to the type of operation involved or whether any such operation remains in effect, the Court cannot conclude that the information withheld in this case creates . . . a risk."