Roseberry-Andrews v. DHS, No. 16-63, 2018 WL 1307635 (D.D.C. Mar. 13, 2018) (Kelly, J.)

Roseberry-Andrews v. DHS, No. 16-63, 2018 WL 1307635 (D.D.C. Mar. 13, 2018) (Kelly, J.)

Re: Request for records concerning plaintiff's employment with ICE

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Relief:  The court holds that "in this case, Defendant cannot – and did not – argue that [plaintiff] failed to exhaust her administrative remedies."  "But Defendant's failure to communicate its initial determination within 30 days does not provide [plaintiff] a separate claim that it violated FOIA."
   
• Litigation Considerations, Pleadings:  The court holds that "'[w]hile [plaintiff]] has shown that [DHS] is indeed slow, [she] has not plausibly alleged that the government subscribes to some policy or practice of slow-walking its requests for information.'"  The court relates that "[plaintiff] 'points to no fact or statement to establish why . . . requests were delayed or how the delays were the result of an either formal or informal DHS policy or practice to violate FOIA's requirements, rather than an inevitable but unintended delay attributable to a lack of resources.'"
   
• Litigation Considerations, Adequacy of Search:  "[T]he Court will deny Defendant's motion for summary judgment without prejudice[.]"  "The Court concludes that Defendant has not provided an adequate explanation for the offices it searched."  "In particular, DHS has not explained why it chose not to search the three additional program offices that [plaintiff] identified as having responsive records, which were, after all, records relating to her own employment."  "It may be that it is not likely these program offices possess records related to [plaintiff's] request; it is also possible that these offices were in fact searched as subcomponents of the other program offices."  "But '[t]he Court cannot fill in these gaps for the agency.'"  Additionally, "the Court concludes that Defendant's affidavits are . . . insufficient because they do not adequately describe the searches that Defendant conducted."  The court explains that "[defendant's] declaration fails in two respects: it does not provide the search terms that two of the offices used to search and it fails to explain why the other offices used inconsistent terms."
   
• Exemption 5, Attorney-Client Privilege:  "The Court concludes that DHS properly withheld materials pursuant to the attorney-client privilege under Exemption 5."  The court relates that "[u]nder the attorney-client privilege, DHS withheld emails between agency employees and agency attorneys regarding [plaintiff's] employment and an EEO complaint."  The court finds that "[t]he information withheld involves communications with agency attorneys regarding compliance with employment laws and legal advice from attorneys about the requirements of certain federal statutes and regulations."  "Such information is covered by the attorney-client privilege."
   
• Exemption 5, Attorney Work-Product:  The court relates that "Defendant asserts that it withheld communications and documents drafted to assist agency attorneys in litigating and managing cases (although it does not say what kind)."  "While it would have been useful for Defendant to have provided additional information about precisely which cases these communications involve, the Court concludes that these withholdings were proper."
   
• Exemption 5, Deliberative Process Privilege:  The court relates that "Defendant withheld discussions regarding [plaintiff's] workplace grievances and the application of ICE policies to potential personnel actions under the deliberative process privilege."  "It also withheld draft documents[.]"  "[T]he Court is satisfied that the agency's withholdings under the deliberative process privilege were proper."
   
• Exemption 6:  "The Court concludes that Defendant's withholdings under Exemption 6 were proper."  The court relates that, "[i]n this case, Defendant withheld 'the names, telephone numbers, email addresses, work locations, and other personally identifiable information for non-leadership, lower-level ICE employees,' as well as the 'names[,] signatures, and home addresses for other individuals and third parties (such as family members and contractors).'"  The court finds that "individuals have a substantial privacy interest in personal information such as their telephone numbers and addresses."  "And releasing the personal information of third parties and 'lower-level ICE employees,' . . . does not 'contribut[e] significantly to public understanding of the operations or activities of the government.'"
   
• Exemption 7(C):  The court relates that, "[p]ursuant to Exemption 7(C), DHS withheld the names and personally identifiable information of ICE employees who 'handle a myriad of tasks relating to the enforcement of federal immigration law.'"  "[The] Court agrees that this information was properly withheld under Exemption 7(C)."  The court relates that "DHS asserts that '[i]f their identities are released, they could become targets of harassment' and '[t]here is no public interest to be served by releasing the identities or personal information of these government employees.'"
   
• Exemption 7(E):  "The Court agrees with Defendant that its withholdings under Exemption 7(E) were proper."  "As an initial matter, [the court finds that plaintiff] is incorrect that Exemption 7(E) applies only to criminal investigations."  "The term 'law enforcement' in Exemption 7 'refers to the act of enforcing the law, both civil and criminal.'"  "And it 'entails more than just investigating and prosecuting individuals after a violation of the law.'"  "The Court is also satisfied that the information DHS withheld pursuant to Exemption 7(E) was 'compiled for law enforcement purposes.'"  "ICE is an agency located within DHS, which is responsible for 'administration and enforcement of laws related to immigration and naturalization.'"  "The Court also agrees with DHS that the information withheld pursuant to Exemption 7(E) would disclose 'techniques and procedures for law enforcement investigations.'"  "Defendant explained that information it withheld can reveal information about the type, scope, and location of an investigation."  "The Court also concludes that these withholdings meet the 'relatively low bar,' . . . to establish that disclosure 'could reasonably be expected to risk circumvention of the law[.]'"  "[Defendant's] declaration explains that '[d]isclosure of these techniques and practices for navigating law enforcement databases could permit people seeking to violate or circumvent the law to take proactive steps to counter operational and investigative actions taken by ICE.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he Court denies Defendant's motion for summary judgment on the question of segregability because it is unclear on the record before the Court whether Defendant withheld any information on the grounds that it was non-segregable (and, if so, what explanation it would offer to justify such withholdings)."