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Stevens v. Broad. Bd. of Governors, No. 18-5391, 2021 WL 1192672 (N.D. Ill. Mar. 30, 2021) (Rowland, J.)


Stevens v. Broad. Bd. of Governors, No. 18-5391, 2021 WL 1192672 (N.D. Ill. Mar. 30, 2021) (Rowland, J.)

Re:  Requests for records concerning "'policies, protocols, and practices for assessing the age of those in the custody of HHS or ICE'"

Disposition:  Denying plaintiff's motion to compel

  • Procedural Requirements, Searching for Responsive Records & Litigation Considerations, Discovery:  The court relates that "[i]n her Motion, [plaintiff] raises four issues."  "First, she argues that the text messages of government officials should be produced consistent with her FOIA request."  "She next asserts that agency records maintained for the agency by government contractors are subject to FOIA production."  "She argues that screenshots constitute records and so must be produced."  "And she requests limited discovery into the scope of searches performed or, in the alternative, an order requiring the government to produce affidavits detailing the search and a Vaughn index of withheld material."

    Regarding plaintiff's first argument, the court finds that "[w]hile 'records' as defined by FOIA may well include text messages, FOIA does not requires agency searches that are 'literally impossible for the defendants to conduct.'"  "In this case, the government argues that HHS and ICE cannot produce responsive text messages because they are technologically incapable of doing so."  "[Defendant's] declarations state that their respective agencies are unable to produce text messages."  "HHS is unable to do so because 'HHS does not maintain records of text messages.'"  "Meanwhile, ICE 'does not have the technical capability to search for individual employees' text messages.'"  The court finds that "[t]he agencies cannot produce responsive text messages because they either do not record them or are unable to search them."  The court relates that "[plaintiff] also argues that the Court must declare that HHS and ICE have violated the Federal Records Act by failing to store text messages in a searchable form."  "But 'Congress never intended when it enacted the FOIA, to displace the statutory scheme embodied in the Federal Records Act and the Federal Records Disposal Act providing for administrative remedies to safeguard against wrongful removal of agency records as well as to retrieve wrongfully removed records.'"  "FOIA litigation is thus an inappropriate vehicle for this issue."

    Regarding plaintiff's second argument, the court finds that "[b]ecause [one contractor] and HHS did not have a contract, any documents under his control fall outside of the scope of FOIA."  "HHS is not responsible for producing them."  Regarding another contractor, the court finds that "HHS has not found any evidence suggesting that [the other contractor] maintains records 'for' HHS 'for the purposes of records management.'"  "Without that element of agency control, FOIA does not apply to the documents."

    Regarding plaintiff's screenshots argument, the court finds that "ICE official's declaration makes clear fulfilling this request would require the creation of new documents – the requested screenshots."  "As such, they are beyond the scope of FOIA and ICE is not required to produce them."

    Regarding plaintiff's discovery argument, while the court denies plaintiff's motion, it finds that "[plaintiff] did not waive withholding issues," as defendant suggested, and finds that "the withholdings and redactions remain a live issue in this case, requiring further briefing."  The court finds that "[t]he government may file a renewed motion for summary judgement."  "Along with the motion, the government must file a Vaughn index or equivalently comprehensive document to aid the Court in its analysis."
Court Decision Topic(s)
District Court opinions
Litigation Considerations, Discovery
Procedural Requirements, Searching for Responsive Records
Updated April 28, 2021