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Stevens v. HHS, No. 22-5072, 2024 WL 4028304 (N.D. Ill. Sept. 1, 2024) (Kennelly, J.)

Date

Stevens v. HHS, No. 22-5072, 2024 WL 4028304 (N.D. Ill. Sept. 1, 2024) (Kennelly, J.)

Re:  Requests for records concerning third parties

Disposition:  Denying defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

  • Litigation Considerations, Summary Judgment:  The court holds that “there is no legal barrier to consideration of EOIR’s motion, even if it amounts to a second crack at summary judgment.”  “[T]he parties do not cite, nor has the Court found, any Seventh Circuit precedent indicating that treating EOIR’s motion as a renewed motion for summary judgment is in the least bit problematic.”  “The Court also notes that it did not enter a final judgment after the earlier ruling, as the ruling did not dispose of all claims in the case.”
     
  • Litigation Considerations, Adequacy of Search:  The court “directs EOIR to extend its search of e-mails back to August 2015 [and] . . . directs EOIR [to] conduct a further search of e-mails using the A-numbers [provided].”  Regarding plaintiff’s argument “that the omission of the search subjects’ A-numbers was unreasonable,” the court finds that “EOIR has not . . . indicat[ed] that individuals are likely to be referred to by their A-numbers rather than their names in e-mail messages.”  “Nor has [plaintiff] adduced any evidence that referring to individuals solely by their A-numbers is a common practice at EOIR.”  “That said, EOIR bears the burden of establishing why its choice to use the search terms it did was reasonable.”  “It is difficult to determine based on the evidence in the record whether utilizing the individual’s name as the sole search term for each request satisfied the reasonableness standard.”  “Though the Court obviously knows what an A-number is through presiding over other litigation, neither [plaintiff’s] motion nor [defendant’s] declaration describe how often A-numbers are used, nor do they provide any other information shedding light on whether an EOIR representative reasonably would be expected to refer to an individual by his or her A-number in an e-mail.”  “Though the question is arguably a close one, the Court concludes that EOIR has not met its burden of showing that a search using solely the individuals’ names was reasonably calculated to discover responsive records.”  “Reasonableness is a ‘context-dependent standard,’ . . . and in the context of a request for information about a particular individual, it would be logical for EOIR to conduct a search that incorporates the number that EOIR uses to uniquely identify that individual, in addition to the individual’s name.” “Furthermore, [defendant’s] declaration provides no explanation regarding why EOIR elected not to use the individuals’ A-numbers as a search term, even though [plaintiff] specifically included each A-number in her requests.”

    Separately, the court notes that, “[i]n [plaintiff’s] requests, she sought records dating as far back as 1972.”  “Per its official retention policy, EOIR only retains records for up to seven years.”  “EOIR decided to limit its search to e-mails sent or received from August 2017 through August 2022.”  “[Defendant’s] declaration contains no justification for this decision, other than the conclusory statement that she ‘determined that a five year timeframe for all email accounts in EOIR during that time was reasonable.’”  “Given the expansive time frame provided by [plaintiff’s] request, EOIR’s decision to limit[] its search to a seemingly arbitrary five-year time frame rather than the seven-year period provided by its own retention policy gives rise to a genuine dispute regarding whether the search was reasonably calculated to uncover all relevant documents.” “Furthermore, EOIR has provided no justification for the temporal limits it placed on this search.”

    The court also finds that “EOIR’s deduplication process does not undermine the adequacy of its search.”  “[Plaintiff] notes that [defendant’s] declaration does not explain EOIR’s ‘deduplication’ process, which apparently resulted in shrinking the universe of responsive records.”  “In the Court’s view, however, this lack of explanation does not undermine the adequacy of EOIR’s search.”  “The term ‘deduplication’ seems fairly self-explanatory.”  [Defendant] has not provided any evidence to suggest that EOIR may have used this ‘deduplication process’ to shield responsive records that were not otherwise produced by EOIR.”  “[Plaintiff] also contends that deduplication is a per se violation of FOIA because the statute requires the agency to produce all responsive records in the absence of a statutory exemption.”  “But [plaintiff] does not cite any legal authority in support of this argument.”  “The Court has not found any Seventh Circuit case law that directly addresses an agency’s obligation to produce duplicative records.”  “The D.C. District Court, however, has consistently held that ‘FOIA does not require agencies to produce duplicate records.’”  Similarly, the court finds that “[plaintiff] cites no legal authority to support her argument that EOIR’s screening process is indicative of an inadequate search.”  “In fact[], courts have generally approved agencies’ manual review of records prior to production.”

    Also, the court relates that “EOIR has explained that the audio recording of [one] proceeding was damaged.”  “[Plaintiff] asserts that the recording should be produced despite this, but in a supplemental declaration [defendant] clarified that the recording is ‘irreparably damaged’ and cannot be copied or produced.”  “Because there is no reason to question [defendant’s] description of the nature of the damage to the audio recording, EOIR’s failure to produce this recording does not support ruling in [plaintiff’s] favor.”

    Finally, the court relates that “[plaintiff] questions why EOIR’s search ‘failed to locate or release records on the immigration judge (IJ) reassignments in [one] case.’”  “It is unclear how this argument is related to [plaintiff’s] other withholding arguments, but in any event, ‘the failure of a search to uncover a particular sought-after document’ does not support a FOIA requester’s argument regarding the inadequacy of the search.”
     
  • Exemption 5, Deliberative Process Privilege:  The court relates that “EOIR describes the [withheld] documents as ‘drafts of decisions on immigration proceedings and related pre-decisional communications.’” “‘[D]rafts are commonly found exempt under the deliberative process exemption.’”  “But because the withheld documents include e-mails accompanying draft decisions, EOIR’s short description does not allow this Court to assess whether the e-mails were prepared as part of a deliberative process.” “In sum, EOIR has not met its burden to demonstrate that exemption five applies to the withheld material.” “[Plaintiff] also argues that the Vaughn index fails to explain the ‘nature’ of the deliberative process exemption for various documents on pages five and six of the Vaughn index.”  “The deliberative process privilege protects materials ‘reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’”  “Again, EOIR’s short description of the contents of the documents attached to the e-mail messages is insufficient to permit a determination of whether exemption five applies to the messages.”  “For these reasons, EOIR is not entitled to summary judgment on the withholding of records pursuant to FOIA exemption five.”
     
  • Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  “The Court concludes that EOIR is entitled to summary judgment regarding its segregation of non-exempt material.”  The court explains that “‘an agency is entitled to the presumption that it complied with its obligation to disclose all reasonably segregable material.’” “[Plaintiff] has not provided any evidence to rebut that presumption.”
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Litigation Considerations, Adequacy of Search
Litigation Considerations, Summary Judgment
Litigation Considerations, “Reasonably Segregable” Requirements
Updated October 16, 2024