Smith v. ICE, No. 16-2137, 2019 WL 6838961 (D. Colo. Dec. 16, 2019) (Martinez, J.)

Smith v. ICE, No. 16-2137, 2019 WL 6838961 (D. Colo. Dec. 16, 2019) (Martinez, J.)

Re:  Request for records concerning plaintiff's client

Disposition:  Granting plaintiff's motion for summary judgment; denying defendant's motion for summary judgment

• Litigation Considerations, Standing & Pattern-or-Practice Claims:  The court holds that "[plaintiff] has standing to challenge the [Standing Operating Procedure ("SOP")], assuming there [is] such a thing as a 'pattern or practice' claim under FOIA – which the parties dispute."  The court first finds that "the SOP is the only policy currently in force relevant to [plaintiff's] claims of expected future injury, but also that the SOP continues to threaten the same alleged injury as the Fugitive Practice."  The court relates that the SOP replaced the Fugitive Practice which was in effect at the time that plaintiff filed the lawsuit.  The court finds that "the SOP is somewhat narrower than the Fugitive Practice, but not in a way that matters."  "ICE will continue to withhold under the SOP a substantial portion of the records it would have withheld under the Fugitive Practice."  Second, the court finds that "[plaintiff] may pursue her claim that the Fugitive-Practice-become-SOP is unlawful, whether that claim is dubbed a 'pattern or practice' claim or otherwise."  The court explains that "[w]hen a plaintiff can establish a likelihood that an agency policy will be invoked against his or her FOIA request(s) in the future, the plaintiff may, through the Declaratory Judgment Act, invoke the 5 U.S.C. § 552(a)(4)(B) cause of action to enjoin the agency from withholding agency records."  Finally, the court finds that "ICE's summary judgment briefing never attempts to defend the SOP as a proper application of the fugitive disentitlement doctrine."  "ICE instead argues that 'as long as documents are properly withheld under a FOIA Exemption (here, Exemption 7(A)), then the invocation of an incorrect basis for withholding records by the agency would not amount to a FOIA violation.'"  "In other words, from ICE's point of view, its case stands or falls with Exemption 7(A)."
   
• Exemption 7(A):  The court holds that "ICE's SOP is not a proper categorical application of Exemption 7(A) because it withholds records based on the container in which they are found, and not based on the type of record itself."  The court explains that while "some types of records in [ICE's Office of Enforcement and Removal Operations ("ERO")] databases may be the sorts of records to which Exemption 7(A) could apply categorically," "ICE has failed to show that the ERO databases contain only these types of records."  Additionally, "[n]ot only has ICE failed to make the appropriate record, the evidence in the record shows there is no genuine dispute that [ICE's ERO] databases contain more than the type of document to which a proper categorical 7(A) exemption may apply."  As a remedy, "[t]he Court . . . enjoin[s] ICE from withholding its records pursuant to the SOP or any other policy or practice not materially different from the SOP."