Stevens v. ICE, No. 17-2853, 2020 WL 108436 (N.D. Ill. Jan. 9, 2020) (Pallmeyer, J.)

Stevens v. ICE, No. 17-2853, 2020 WL 108436 (N.D. Ill. Jan. 9, 2020) (Pallmeyer, J.)

Re:  Request for records including memoranda regarding claim to U.S. citizenship or indicia of U.S. citizenship, "'USC Claims Memos'"

Disposition:  Denying defendant's cross-motion for summary judgment in part

• Litigation Considerations, Adequacy of Search:  "[T]he court concludes that it cannot properly grant summary judgment in ICE's favor concerning the adequacy of its search."  "'To support an agency's assertion that it conducted a reasonable search,' an affidavit must, among other things, 'aver that all files likely to contain responsive documents were searched.'"  "ICE's affidavit does not do so."  "Rather, it states that the [two divisions] do have responsive documents – but that ICE did not search those divisions because it determined that the searches would not yield unique responsive documents."  "Later, in a reply, ICE clarified that 'ERO searched for responsive records and determined during that search that it did not possess any [unique] responsive documents.'"  "This statement, however, still falls short of an averment that ICE searched 'all files likely to contain responsive documents.'"  Additionally, the court relates that "[plaintiff] . . . explains how . . . three units [not searched] . . . serve different functions, and argues that those divisions might have different documents as a result."  "Moreover, according to a regulation [plaintiff] cites, [one unsearched unit] stores information concerning U.S. citizenship claims in a database that is separate from the . . . email system [searched]."  "Significantly, [plaintiff's] FOIA request can fairly be read as requesting responsive information contained in that database."  "The court finds that "[a]t this point neither [plaintiff] nor the court has solid information about what ICE's records contain."
   
• Exemptions 6 & 7(C):  "[T]he court denies ICE's cross-motion for summary judgment that its redactions under Exemptions 6 and 7(C) to the 'statement of the case' and 'facts' sections of finalized USC Claims Memos are appropriate."  The court notes that "[i]n response to [plaintiff's] separate FOIA request in 2010, ICE appears to have released the very information it is now withholding."  "ICE attempts to justify its new approach by arguing that today, it is easier to find individuals' identities using contextual information."  "To support the broad assertion that information available online today is so different than it was in 2010 that complete redaction of contextual information is required, ICE offers little:  two cases that state general propositions regarding privacy (both of which predate 2010 . . . ) and the opinion of its acting FOIA officer."  "What this means is that ICE has not yet persuaded the court that releasing the contextual information [plaintiff] seeks would jeopardize third-party privacy interests at all."  "On the other side of the scale, [plaintiff] argues that when ICE in 2010 released contextual, factual information from finalized USC Claims Memos, that information 'shed[ ] light on' how ICE responds to citizenship claims of individuals it encounters."  "ICE's release of similar information in response to the present FOIA request would serve the same function, she suggests."  "ICE's contention that third-party privacy interests outweigh any public interest in disclosure . . . fails because ICE has not established that the disclosure [plaintiff] seeks poses a threat to privacy interests."
   
• Exemption 5, Deliberative Process Privilege & Attorney Work-Product Privilege:  "[T]he court denies ICE's cross-motion for summary judgment on the adequacy of redactions under Exemption 5 to 'statement of the case' and 'facts' sections of finalized USC Claims Memos."  "The court is not satisfied that ICE has provided information sufficient to determine whether the redactions properly fall within that exemption."  "Namely, in asserting that the redacted pages contain work product and deliberative material, ICE simultaneously indicates that they contain purely factual passages – that is, passages that lack any 'legal evaluation[ ]' or 'commentary' by attorneys."  "Even assuming for the sake of argument that the work product and deliberative process privileges cover attorney recommendations and agency decision-making reflected in finalized USC Claims Memos, ICE has not adequately explained why it cannot segregate and produce statements that are purely factual."