Stevens v. HHS, No. 22-5072, 2024 WL 4007684 (N.D. Ill. Aug. 30, 2024) (Kennelly, J.)

Stevens v. HHS, No. 22-5072, 2024 WL 4007684 (N.D. Ill. Aug. 30, 2024) (Kennelly, J.)

Re:  Requests for records concerning:  1) Congresswoman Lauren Underwood and potential development of an Electronic Health Record (“EHR”) system at DHS; and 2) citizen against whom, plaintiff believes, ICE mistakenly issued deportation order

Disposition:  Granting in part and denying in part one defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  “Before turning to the adequacy of CBP’s searches, this Court addresses [plaintiff’s] objections to various declarations CBP provided.”  “CBP submitted a declaration prepared by . . . a Branch Chief within CBP’s FOIA Division.”  “[Plaintiff] argues that [defendant’s] declaration contains insufficient detail to support a grant of summary judgment in CBP’s favor because it fails to describe ‘DHS and CBP’s respective general file systems,’ ‘the reason for refusing to search databases and locations obviously likely to contain responsive records,’ and ‘reasonable details about the scope and methods of the searches performed in response to the FOIA requests.’”  The court finds that “[plaintiff] cites no binding legal authority in support of her argument that details about an agency’s general record-keeping systems or specific justifications for the failure to search a particular database are necessary to assess the adequacy of the agency’s search.” “Furthermore, [defendant’s declarant’s] descriptions of CBP’s identification of the locations likely to contain responsive materials, the ‘type[s] of search[es] performed,’ and ‘the search terms’ used, are consistent with the categories of information that have been found sufficient to allow a court to analyze the adequacy of the agency’s search.”  “[Defendant’s] declaration also attests that ‘all files likely to contain responsive documents were searched.’”  “This information is sufficient to support an agency’s motion for summary judgment on a FOIA challenge.”  “This Court finds that Howard’s original declaration and supplemental declaration describe the searches conducted by CBP in sufficient detail and therefore will not be disregarded.”
   
• Litigation Considerations, Adequacy of Search:  Regarding plaintiff’s request concerning Congresswoman Lauren Underwood and potential development of an EHR system at DHS, the court first finds that “[plaintiff] originally requested communications and related materials to which Representative Underwood and/or members of her staff ‘were a party.’”  “[Plaintiff’s] assertion that part one of her request sought ‘internal or interagency’ materials that were ‘about the [sic] Underwood and HR3525,’ regardless of whether Representative Underwood or her staff were a party to these materials, would significantly expand the scope of her original request.”  “[The] Court will only assess the adequacy of CBP’s search in response to [plaintiff’s] actual, original request.”  Next, the court relates that “[plaintiff] argues that CBP improperly limited its search to the [CBP Office of Congressional Affairs (“OCA”)].” “But given that [plaintiff] asked for ‘communications and related materials’ regarding a member of Congress, it was not unreasonable for CBP to limit its search to the office that oversees all of CBP’s communications with members of Congress.”  “And [plaintiff] provides no evidence to support any suggestion that CBP employees may have violated CBP's official policy by communicating with Representative Underwood or her staff without OCA authorization.” “[Plaintiff] further argues that it was unreasonable for CBP to search only the e-mail inboxes of OCA directors and not other forms of communication involving lower-level OCA employees.” “Because [plaintiff] requested ‘communications and related materials,’ it was not unreasonable for CBP to search the e-mail records of employees in the office likely to have been involved in communications responsive to the request.”  “Regarding CBP’s decision to search only the inboxes of directors, ‘the agency is in the best position to determine custodians most likely to have relevant records.’”  “And [plaintiff] has not adduced any evidence that any OCA employees in non-director positions communicated with Representative Underwood or her staff or that communications would have been through a means other than e-mail.” “[Plaintiff] also asserts that ‘[d]ocuments obtained from another FOIA case’ indicate that CBP possesses additional responsive records.”  “Even if the Court were to agree with [plaintiff’s] contention that the documents she identified are responsive to her CBP request, the potential existence of additional responsive records is insufficient to demonstrate that CBP’s search in response to the specific request at issue was inadequate.” “[Plaintiff] asserts in her declaration that CBP utilized inadequate search terms and suggests that CBP should have used additional terms such as ‘3525,’ the bill number that she referenced in her request.”  The court finds that “‘agencies retain discretion in crafting a list of search terms they believe to be reasonably tailored to uncover responsive documents.’” “Here, no reasonable trier of fact could find that CBP’s search terms were not reasonably calculated to yield responsive materials.”  “CBP searched the full name and last name of the Congresswoman that [plaintiff] sought information about as well as multiple terms designed to locate information about the relevant subject matter, electronic health records.”  “Because CBP’s search terms were reasonable, the Court ‘will not second guess the agency regarding whether other search terms might have been superior.’”  “[Plaintiff] also questions the circumstances underlying CBP’s discovery of additional responsive records after its original search.”  “But multiple courts have held that the discovery of additional responsive information in a subsequent search does not, without more, render the original search inadequate.”  “The undisputed facts show that CBP’s search in response to part one of [plaintiff’s] Underwood request was adequate.”
  
  Separately, the court finds that “CBP did not conduct a search in response to part two of [plaintiff’s] Underwood request because ‘CBP FOIA staff determined that this part of the request did not seek CBP records.’” “It provides no explanation demonstrating how or why its FOIA staff reached this conclusion.”  “And it is unclear from the language of the request why CBP interpreted the request as only seeking DHS records.”  “Part two of [plaintiff’s] Underwood request asks, in part, for ‘DHS communications and related materials created by or received from other components of DHS.’”  “At first glance, it may appear that this request merely seeks ‘DHS communications.’” “But agencies have a duty to construe FOIA requests liberally.”  “Given that CBP is a ‘component[ ] of DHS’, this request also encompasses materials that are created by CBP and sent to DHS, as well as materials that are developed by DHS and sent to CBP.”  “CBP does not provide any factual or logical support for its determination that a request for materials exchanged between CBP and DHS could only be fulfilled through a search of DHS records.”  “CBP’s determination is especially unreasonable given that the language of this request is not meaningfully different from the language of part one or part three of [plaintiff’s] Underwood request.”  “It is unclear why CBP would determine that requests for records created, maintained or received by DHS and a request for information related to individuals detained by any component of DHS sought CBP records but that a request for information created or received by a DHS component sought only DHS records.”  “CBP’s interpretation of [plaintiff’s] request raises a genuine dispute regarding whether CBP responded ‘reasonably’ and ‘in good faith’ to [plaintiff’s] request.”  “Consequently, the Court finds that CBP is not entitled to summary judgment on part two of [plaintiff’s] Underwood request.”
  
  Regarding part three of plaintiff’s Underwood request, certain communications with private individuals, the court finds that “CBP’s decision to limit its search to the recollection of a single employee may not have rendered the search inadequate.”  “But to prevail on a summary judgment motion, an agency is required to, at a minimum, ‘explain why it believes such limits are reasonable.’” “CBP asserts that this employee was ‘the best possible source of information.’”  “But neither [defendant’s] declaration nor CBP’s briefs establish that this employee’s memory was the only location within CBP likely to identify responsive records.”  “And CBP has provided no information about the employee, such as the duration of her tenure within the Procurement Office, that would allow this Court to assess the reasonableness of CBP’s decision to rely solely on this employee’s recollection.”  “CBP’s failure to explain its reasoning for the limits it applied to its search raises ‘substantial doubt’ about the adequacy of that search.”
  
  Regarding plaintiff’s request concerning a third-party, the court finds that, “[u]pon reviewing [plaintiff’s] . . . request, CBP’s FOIA division determined that the databases most likely to have responsive documents were its E3 portal and TECS.”  “E3 contains information about individuals encountered by the U.S. Border Patrol and TECS contains records for travelers encountered at United States ports of entry.”  “After entering [the third-party’s] name, birthdate and A-file number into E3 and TECS, CBP FOIA staff did not discover any responsive records.”  “[Plaintiff] argues that CBP did not adequately explain why it limited its search to E3 and TECS records.”  “Not so.”  “[Defendant] explains in his declaration that E3 and TECS are two systems that are reasonably likely to have a record of individuals that arrive at ports of entry and encounter United States Border Patrol.”  “Because [plaintiff] submitted a broad request for ‘all records’ pertaining to [the third-party], [defendant’s] explanation is sufficient to show that CBP focused its search on the two databases that were likely to indicate whether any records on [the third-party] existed in CBP’s systems.” The court also relates that “[plaintiff] contends that there are other sources of information that CBP did not search that are likely to contain responsive records.”  “According to a Federal Register notice that [plaintiff] cites, DHS is mandated by statute to create an ‘automated entry and exit system that records the arrival and departure’ of ‘certain’ non-citizens.” “Biometric data obtained from these non-citizens is stored in DHS’s Automated Biometric Identification System (“IDENT”).”  “[Plaintiff] questions why CBP did not search IDENT.”  “But as [plaintiff] acknowledges, the evidence she provides simply shows that CBP contributes to the ‘creation of agency records and data’ that are ‘housed within IDENT.’”  “There is no evidence in the record that CBP, which is a component of DHS, maintains control over or is able to access all of the records contained within . . . a DHS identification system such as IDENT.”  “An agency’s FOIA obligations generally do not “extend to documents that are not in the agency’s immediate custody or control.’”  “[Plaintiff] also identifies another Federal Register notice indicating that CBP maintains a system called CBP-007 Border Crossing Information (BCI) that contains various records from people crossing the U.S. border.” “In his supplemental declaration, [defendant] clarifies that BCI records reside on the TECS platform and thus that BCI records were already searched during CBP’s initial response to [plaintiff’s] request.”  “[Plaintiff] also asserts that [defendant’s] declaration fails to explain whether CBP determined whether a ‘legacy INS A-File’ exists for [the third-party].” However, the court finds that “[plaintiff] did not request [the third-party’s] A-file in her original request.”  “The fact that CBP's search did not produce this specific file does not undermine the adequacy of its search.”  “CBP contends that it did not respond to one of [plaintiff’s] [third-party] requests because [plaintiff] did not submit a signed third-party authorization form.”  “[Plaintiff] disputes this contention and argues that she attached [the third-party’s] authorization form to the e-mail containing her request.” “In support of her argument, [plaintiff] points to an e-mail message that she sent to CBP’s FOIA division on March 10, 2022 that contains an attachment . . .”  “But [plaintiff] has not produced the waiver form or any other admissible evidence to establish that this form was signed.”  “In the absence of evidence supporting [plaintiff’s] argument that CBP’s determination that her request did not include a signed authorization form was made in error, [plaintiff] has not shown that there is a genuine dispute over this fact.”
   
• Exemption 5, Deliberative Process Privilege:  Regarding plaintiff’s request concerning Congresswoman Lauren Underwood and potential development of an EHR system at DHS, the court relates that “CBP invoked the deliberative process privilege to support the withholding of multiple draft briefing memos developed to prepare the DHS Secretary for Congressional meetings and hearings.”  The court finds that “[p]re-decisional briefing materials developed as part of the agency's legislative or policy-making process are generally protected by the deliberative process privilege.”  “And CBP has asserted that all of the documents contain ‘initial opinions and recommendations before agency decisions were made.’”  “Based on the descriptions provided in the Vaughn index, this Court finds that CBP has met its burden of establishing the proper application of FOIA exemption five to these documents.”
   
• Exemption 6; Exemption 7(C):  Regarding plaintiff’s request concerning Congresswoman Lauren Underwood and potential development of an EHR system at DHS, the court relates that “[o]n a number of documents, CBP redacted the names of CBP employees and third-party individuals who did not consent to the release of their personal information.”  The court finds that “‘[P]ersonal identifying information is regularly exempt from [FOIA] disclosure.’”  “And [plaintiff] has not demonstrated a ‘public interest’ in the disclosure of these names that outweighs potential privacy concerns.” “The Court finds that CBP has met its burden of establishing the proper application of FOIA exemptions six and seven.”
   
• Litigation Considerations, Relief:  The court relates that “[plaintiff] argues that she is entitled to summary judgment because CBP failed to comply with FOIA’s statutory deadline.”  “But [the court finds that] she raises this argument for the first time in her reply brief, which is not the appropriate vehicle for new legal arguments.”  “Second, in a prior opinion in this case, [the] Court rejected [plaintiff’s] argument that she is entitled to summary judgment based solely on an agency’s failure to adhere to FOIA’s statutory deadlines.”  “Third, [plaintiff’s] argument is foreclosed by well-settled precedent.”