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Stevens v. ICE, No. 21-2232, 2024 WL 4433709 (N.D. Ill. Oct. 7, 2024) (Alexakis, J.)

Date

Stevens v. ICE, No. 21-2232, 2024 WL 4433709 (N.D. Ill. Oct. 7, 2024) (Alexakis, J.)

Re:  Requests for records concerning third parties, as well as for records concerning FOIA operations

Disposition:  Granting defendants’ motion for summary judgment

  • Litigation Considerations, Exhaustion of Administrative Remedies:  The court relates that “defendants claim [plaintiff] did not administratively appeal either of CBP’s responses and three of USCIS’s responses (specifically, those related to [three individuals]).”  “[Plaintiff] admits she did not administratively appeal either of CBP’s responses and USCIS’s response related to [the request for records concerning one of the individuals].”  “However, she contends that factual disputes exist as to whether she appealed USCIS’s responses related to [the other two requests].”  “Upon reviewing the record, the Court agrees with [plaintiff] that there are factual disputes regarding the [two] requests preventing it from granting the agencies summary judgment on those requests.”  “As for [one of the two] request[s], USCIS contends that [plaintiff] never appealed the adequacy of the search, . . . but [plaintiff] says she did.” “Neither party points to any evidence definitively resolving this dispute.”  “The same is true for the [other] request.”  “USCIS maintains [plaintiff] did not administratively appeal, . . . but [plaintiff] insists her obligation to appeal was never triggered because USCIS never released the records to her.”  “Given these unresolved factual disputes, the following exhaustion analysis applies only to the three requests in which the parties agree [plaintiff] did not exhaust her remedies . . . .”  The court relates that “[plaintiff] . . . argues that the Court may excuse her failure to exhaust because the exhaustion requirement is not jurisdictional.”  “But [the court finds that] jurisdictional or not, ‘[e]xhaustion of administrative remedies is a prerequisite to filing a FOIA suit.’”  “The fact that the administrative exhaustion requirement is not jurisdictional does not somehow make it optional.”  “[Plaintiff] next argues that because exhaustion is typically regarded as an affirmative defense and defendants did not raise it in their answer, defendants cannot now rely on exhaustion at summary judgment.”  The court finds that “[plaintiff] is correct that exhaustion is usually an affirmative defense that should be raised in a defendant’s answer.”  “Even so, ‘nonexhaustion can be asserted even in a motion for summary judgment if the plaintiff is not harmed by the delay.’”  “[T]he litigation would have reached this stage even if exhaustion were raised at an earlier point, and [plaintiff] was not unfairly surprised by the belated assertion of an affirmative defense that she clearly anticipated.”  “[Plaintiff] is therefore not prejudiced by defendants’ failure to raise exhaustion as an affirmative defense earlier in the proceedings.”  “The Court dismisses [plaintiff’s] challenges to CBP’s two responses and USCIS’s response related to [one individual] for failure to exhaust.”
     
  • Litigation Considerations, Evidentiary Showing, Adequacy of Search:  The court analyzes the searches conducted by ICE, CBP, USCIS, EOIR, Department of the Navy, USDA, and the Department of State.  The court finds that each “describes in significant detail the search process,” explains how they “determined [the office or location most likely to contain records,” and relates the search terms used, such as “name and alien number” and “name, date of birth, country of birth, alias, and alien number.”  The court also addresses plaintiff’s arguments. “First, [plaintiff] argues that defendants’ responses are inadequate because each agency fails to describe its general file system, which she claims ‘makes it impossible to determine whether each Defendant has searched the specific databases within each component likely to contain all responsive records.’”  The court finds that “here each defendant agency declared how it located which files to search, often indicating that they used their familiarity with the systems to identify search locations.”  For example, “CBP’s declaration avers that its search locations are based on, among other things, ‘the FOIA Division’s familiarity with the types and locations of the records at issue[ ] and discussions with knowledgeable Agency personnel.’”  “These declarations enjoy a presumption of good faith and are sufficient under the Seventh Circuit’s reasoning . . . .” “[Plaintiff’s] second broad argument is that, except for USDA, defendants’ searches were inadequate because their declarations do not specify the search terms they used or ‘the process of using them.’”  “But even a cursory review of defendants’ declarations reveals the false nature of this statement.”
     
  • Exemption 3:  The court relates that “USCIS originally withheld information under Exemption 3 because it was exempted from disclosure by the Immigration and Nationality Act, 8 U.S.C. § 1202(f).”  “However, in its Vaughn index, USCIS indicated that it would withdraw its reliance on that exception ‘[u]pon closer examination.’”  “[Plaintiff] does not challenge reliance on the exemption.” “Instead, she argues that ‘the records have not been reprocessed and released to [her].’”  “But [plaintiff] does not offer any evidence this is true (for example, a sworn declaration) and instead relies on a conclusory statement in her summary judgment response.”  “Regardless, to the extent [plaintiff] still believes she has not received these records, the Court directs the parties to meet and agree on a new method of transmitting the records that USCIS has now agreed to disclose.” “This production hiccup, however, provides no basis to deny defendants’ motion for summary judgment.”
     
  • Exemption 4:  The court relates that, “[h]ere, ICE withheld contract pricing information from an order for services and supplies, which included information such as discount terms, the total amount of the contract, unit price, and quantity.”  “[Plaintiff] mounts two attacks on ICE’s use of Exemption 4.”  “First, she argues that the records were ‘generated by the federal government itself’ and are therefore not from ‘a person’ as § 552(b)(4) requires.” “But there are at least two parties to every contract.”  “At some point, ICE would have received the withheld information from the other party to the contract (i.e., the requisite ‘person’).”  “This inference is especially reasonable where the agency withheld ‘pricing information’; that is precisely the type of information that the government would have solicited rather than generated.”  “Second, [plaintiff] argues that the Vaughn index does not provide enough information to ascertain whether Exemption 4 has been properly applied.”  “But the Court has reviewed the relevant entry in the Vaughn index (and the index more generally) and finds that the description is sufficiently specific to counter [plaintiff’s] contention.”  “It describes the withholding as a partial redaction on an order for services or supplies and describes the redacted information as ‘discount terms, contract total, contract grand total, unit price, amount, fast redaction annual licenses amount, [and] total amount of award.’”  “This level of detail is more than enough to permit the conclusion that the redacted records were appropriately withheld pursuant to Exemption 4.”  “[Plaintiff’s] third argument is that ‘old prime labor contracts are neither confidential nor privileged; they pertain to the historical working of the government and should be subject to disclosure.’”  “[Plaintiff] offers no case law to support this conclusory statement.” “In any case, the pertinent question to Exemption 4 is whether the information is ‘customarily and actually treated as private.’”  “According to ICE’s Vaughn index, the information is confidential because its disclosure would be ‘likely to cause substantial harm to the competitive position of the person who submitted the information’ and is the ‘kind of information that the provider would not customarily make available to the public.’”  “Based on this description, the Court concludes the information withheld under Exemption 4 was ‘logically within the domain of the exemption claimed.’”
     
  • Exemption 5, Attorney-Client Privilege & Deliberative Process Privilege:  The court relates that “USCIS withheld legal advice an ICE attorney provided to assist in determining a citizenship issue.”  “EOIR also withheld bond records for citizenship adjournments and terminations.” The court finds that “USCIS’s Vaughn index indicates that the agency invoked the exception because ‘[t]he ICE attorney was providing legal advice to assist the client in determining and deciding issue of citizenship.’” “[Plaintiff] offers no reason to doubt the accuracy of this statement.”  “[Plaintiff] . . . contends that the documents cannot be privileged because they were not kept confidential.”  “But, like before, she provides no evidence (besides a conclusory statement) that the information was ever provided to a third party.”

    “Next, [plaintiff] contends that none of the records USCIS withheld are covered by the deliberative process privilege because they do not pertain to the formation or adoption of an official agency policy.”  “But the Seventh Circuit has rejected the argument that ‘a document is only predecisional if it pertains “to the formation or adoption of an official agency policy” or “adjudication.”’”  “In any case, USCIS appropriately withheld the records because they fall under the attorney-client privilege.”
     
  • Exemption 6:  The court relates that “ICE and USCIS say they withheld certain names, identification codes, phone numbers, and signatures of federal law enforcement officers and other government employees, as well as personally identifiable information of third parties.”  “EOIR also withheld certain personally identifiable information from the datasets it produced as part of its search.”  “[Plaintiff] . . . maintains that ICE unnecessarily withheld recipient email addresses because the names of public officials are a matter of public record.”  The court finds that “[plaintiff] is correct that, under 5 C.F.R. § 293.311, the names and titles of federal employees must be available to the public.”  “But based on the record before this Court, the names and titles of public employees here do not appear in isolation.”  “Instead, ICE contends (and [plaintiff] does not dispute) that the redacted information ties the names of individuals to certain actions – a form of information not deemed public by federal regulation.”

    “The Court is . . . not persuaded that, under Supreme Court precedent, the individually identifying information [plaintiff] seeks will contribute ‘to public understanding of the operations or activities of the government.’”  “Based on the information presented before it, the Court concludes ICE properly withheld information pursuant to Exemption 6.”
     
  • Exemption 7, Threshold; Exemption 7(C); Exemption 7(E):  The court relates that “ICE says it withheld information under Exemption 7(C) to protect the names, identification codes, phone numbers, and signatures of federal law enforcement officers and other government employees.”  “Meanwhile, [the Department of State] asserts that it redacted material under Exemption 7(E) that would have disclosed the types of information it considers when investigating passport fraud.”  “[T]he Court concludes that ICE’s method of disclosure was reasonable under the circumstances.”  “That ICE provided the same reason, across multiple documents, to justify withholding information under Exemption 7 does not suggest the withholding was invalid.”  “It simply reflects that the withheld information implicated the same set of interests covered by Exemption 7.”  “[The Department of State] withheld a form it used to track and report passport fraud.” “It also redacted certain information it collected related to [one particular] passport fraud investigation.” “These documents were clearly collected for ‘law enforcement purposes’ under § 552(b)(7).”  “That DOS may not be a traditional law enforcement agency does not warrant denying summary judgment on Exemption 7.”  “[Plaintiff] does not contend that this information is insufficiently detailed, and this Court’s review suggests the opposite.”  “The declaration describes in detail what was withheld (information about how the agency investigates passport fraud) and why (because disclosure could help individuals circumvent the [Department of State’s] passport enforcement efforts).”
     
  • Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  “Based on the arguments presented, the Court finds the agencies properly met their § 552(b) obligation to segregate.”  “[Plaintiff] has not identified any specific agency documents she believes were not reasonably segregated.”  “And, without being directed toward a specific document or set of documents, the Court will not search through each disclosed withholding on its own to substantiate [plaintiff’s] claim.”  “What is more, even a cursory review of the Vaughn indices suggests that the agencies did segregate data where possible.” 
Court Decision Topic(s)
District Court opinions
Exemption 3
Exemption 4
Exemption 5, Attorney-Client Privilege
Exemption 6
Exemption 7(C)
Exemption 7(E)
Exemption 7, Threshold
Litigation Considerations, Adequacy of Search
Litigation Considerations, Exhaustion of Administrative Remedies
Litigation Considerations, “Reasonably Segregable” Requirements
Updated November 22, 2024