Transgender Law Ctr. v. ICE, No. 21-2153, 2025 WL 604949 (D.D.C. Feb. 25, 2025) (Lamberth, J.)

Transgender Law Ctr. v. ICE, No. 21-2153, 2025 WL 604949 (D.D.C. Feb. 25, 2025) (Lamberth, J.)

Re: Request for records concerning treatment of transgender individuals in DHS and ICE custody

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

• Litigation Considerations, Evidentiary Showing, Adequacy of Search:  “[T]he Court finds that [defendant’s] searches are a mixed bag; several of the searches are insufficient.”  “To remedy this, the Court concludes that ‘the government should be afforded the opportunity to supplement its showing . . . .’”  “Plaintiffs first argue that ICE’s search is inadequate because of the ‘failure to search the email archives of two ICE officials specifically named in Plaintiffs’ requests.’”  “Plaintiffs observe that ICE did not state that it searched for files belonging to [two individuals].”  “To support this contention, ICE included a [supplemental declaration] stating that ‘[t]wo of these individuals were not specifically named in my declaration, rather their titles were named, to protect the privacy interests of these non-public facing ICE employees.’”  “But then, in Plaintiffs’ reply, Plaintiffs retort that ‘ICE does not explain how omitting from its declaration the names of two government officials Plaintiffs specifically named in their requests could possibly protect their privacy.’”  “Not only does the Court agree with Plaintiffs that ICE’s privacy-protecting justification is unavailing in this context, but the Court also cannot conclusively identify the search in which ICE used the titles of those two individuals, as it claims to have done.”  “To remedy this lack of clarity in ICE’s filings and ensure that ICE did indeed conduct a search of [these two individuals’] correspondence, this Court will order ICE to file a further declaration confirming the search of these two individuals’ communications, just as ICE has already done with the search of [one other individual’s] archived emails.”  “The declaration must confirm these two individuals by name, given ICE’s failure to identify a compelling reason for redacting them.”
  
  “Plaintiffs next argue that ICE used ‘facially inadequate search terms’ in many of the subordinate divisions’ searches.” “However, Plaintiffs cite no authority, and this Court is aware of none, for the proposition that an agency’s various departments must use consistent search terms across the board.”  “Just because one of the ICE divisions conducted an exceptionally thorough search, that does not necessarily render all other searches inadequate.”  “ICE is ‘only held to a standard of reasonableness; as long as this standard is met, a court need not quibble over every perceived inadequacy in an agency’s response, however slight.’”  “Therefore, each search must be evaluated under a framework of reasonableness, rather than one of maximal comprehensiveness.”
  
  “That said, examining ICE’s searches with a standard of reasonableness, the Court still finds some of the searches to be unreasonable based on a deficiency identified by Plaintiffs:  Nearly every one of Plaintiffs’ FOIA requests asked for information regarding ‘transgender and/or intersex’ inmates in ICE custody, but not all of ICE’s searches use the term ‘intersex.’”  “It is true that ‘there is no bright-line rule requiring agencies to use the search terms proposed in a FOIA request.’”  “But ‘intersex’ is not simply a proposed term:  rather, it is a population of inmates not necessarily encompassed by the term ‘transgender,’ because ‘transgender’ and ‘intersex’ have different meanings.”  “Failing to include ‘intersex’ as a search term is, in this Court’s view, unreasonable.” “Therefore, for the searches where ICE failed to include the term ‘intersex’ in any capacity, this Court orders ICE to re-run those searches to ensure that information about intersex inmates is returned.”
  
  “Plaintiffs urge this Court to go further, deeming any search short of the broadest, most inclusive list of variations of the term ‘transgender’ to be unreasonable.”  However, the court finds that “‘[w]here the agency’s search terms are reasonable, the Court will not [micromanage or] second guess the agency regarding whether other search terms might have been superior.’”
  
  “Lastly, Plaintiffs take issue with the ICE searches that failed to use ‘transgender’ as a standalone term.”  “ICE insists that these choices were reasonable, arguing that ‘[t]he role of the agency is to determine the best method to search for the records the requester has described.’”  “Short of any unreasonable choices, ICE is correct in its statement of the standard.”  “But the Court finds that ICE’s use of compound terms was unreasonable in the context of those searches.”  “ICE makes no . . . representation” that the request was “too broad and unreasonably burdensome for another round of searches as individually separate terms.”  “[T]here is no reason to think that the term ‘transgender’ by itself would render an unmanageable string of search results from those databases.”  “Given the inclusive nature of Plaintiffs’ FOIA requests, the Court believes that using only compound search terms here is not ‘reasonably calculated to uncover all relevant documents,’ as is required under the FOIA.”
   
• Exemption 5, Attorney-Client Privilege:  “[T]he Court finds that ICE has failed to properly support its Exemption 5 withholdings.”  “Here, ICE relied on the attorney-client privilege to redact communications between attorneys from ICE’s Office of the Principal Legal Advisor and their intra-agency clients (namely, the ICE Enforcement and Removal Operations Unit and ICE Health Services Corps personnel) ‘relating to the legal issues pertaining to the transfer, parole and litigation of transgender detainees.’” “ICE is required to show that specific steps were taken to preserve the confidentiality of the communication.”  “Here, ICE’s declaration ‘say[s] nothing about the steps that the agency took to protect the withheld information from general disclosure.’” “Therefore, ICE ‘must provide additional detail regarding the steps it took to reasonably ensure that the information contained within the documents remained confidential at all times.’” “The Court will order ICE to provide that additional detail, or else produce any material withheld or redacted pursuant to attorney-client privilege that is not protected by some other privilege.” “Additionally, ICE must demonstrate in its supplemental filings that each withheld communication was made ‘for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.’”  “And of course, as with all other withholdings, ICE must describe with reasonable particularity the ‘foreseeable harm’ that would result from disclosure . . . .”
  
  Additionally, “Plaintiffs argue that ‘ICE’s inability to correlate its purported attorney-client privilege withholdings with specific pages in its production calls all of its descriptions of its redactions into serious question.’”  “The Court also believes that ICE’s repeated errors are unacceptable, but not enough to infer intentionality or bad faith.”  “Instead, the Court will conclude that . . . only [certain] documents rely[] on the attorney-client privilege . . . and all other invocations of the attorney-client privilege [are] waived.”
   
• Exemption 5, Deliberative Process Privilege:  “[T]he Court finds that ICE has failed to properly support its Exemption 5 withholdings.” “Here, ICE relies on the deliberative-process privilege to withhold ‘emails between the Enforcement and Removal Operations Unit and ICE Health Services Corps.’”  “ICE provides a long list of topics discussed in these emails.” “Some examples are:  1) ‘recommendations to improving training slides and policy documents relating to transgender and LGBT detainees, including recommended edits, thoughts, concerns and suggestions on the updates to and creation of these records;’ 2) ‘how to respond to or engage with [NGOs] and the media regarding transgender detainees, transgender transfers, and transgender detainee complaints;’ and more, with corresponding Bates numbered pages.” “ICE also relies on the deliberative-process privilege to withhold ‘various draft documents of transgender care memorand[a], contract modifications, training slides, and checklists, which all contain “draft” watermarks as well as red-lined edits and comments.’” “Whether it is because of a failure to show foreseeable harm, or a failure to show the predecisional and deliberative nature of the documents, or a basic lack of specificity in the declaration itself, the Court agrees with Plaintiffs that ICE’s use of the deliberative-process privilege is not adequately supported for either the emails or draft memoranda.”  “Regarding the withheld emails, the Court is unable to identify the author and recipient of each email, because ICE merely buckets all emails as ‘amongst the Enforcement and Removal Operation and ICE Health Service Employees . . . for the purpose of making recommendations to senior Enforcement and Removal Operation and Ice Health Service Corps employees and officers.’”  “For ICE to prevail on summary judgment, the Court must be able to assess ‘the nature of the decisionmaking authority vested in the document’s author and recipient.’”  “This shortcoming in ICE’s descriptions overlaps with Plaintiffs’ two other challenges; that ICE has failed to provide the requisite specificity in their description of a large set of withheld emails, and that a blanket statement of foreseeable harm – essentially restating the rationale for the deliberative-process exemption in the first place – is insufficient to invoke the deliberative process privilege.”  “Therefore, ICE must provide better support for its withheld emails under the deliberative process privilege.”  “Regarding the withheld draft memoranda, the Court similarly agrees with Plaintiffs that critical information is missing from ICE’s descriptions of these drafts.” “Although drafts are ‘typically’ predecisional and deliberative . . . this is not automatically true . . . .” “ICE must identify the ‘who,’ ‘what,’ ‘where,’ and ‘how’ for each draft document, which it has failed to do.” “Additionally, ICE must indicate whether the draft was ‘(1) “adopted formally or informally, as the agency position on an issue;” or (2) “used by the agency in its dealings with the public.”’” “To remedy these inadequacies, the Court concludes that ICE must file a Vaughn index including the necessary foundation to withhold each individual document under the deliberative-process privilege, or else disclose the documents in full.”  “And the Court once again emphasizes the requirement that ICE describe with reasonable particularity the ‘foreseeable harm’ that would result from disclosure . . . .”
   
• Exemption 7, Threshold:  The court relates that “[h]ere, as a bare attempt to meet the ‘law enforcement purposes’ threshold, ICE merely states that ‘[t]he records and information at issue in this matter pertain to ICE’s obligation to enforce the immigration laws of the United States by investigating non-U.S. individuals who may be present in the United States illegally, including records of interviews, arrests, bookings, detentions, removals, and other related investigations.’” “This showing plainly fails to meet the Exemption 7 threshold.”  “In fact, ICE’s exact language offered in this matter (other than changing the word ‘relates’ to ‘pertains’) was rejected by another court in this district as insufficient to meet the law enforcement purposes threshold.”  “As ICE undoubtedly knows, ‘not every document compiled by a law enforcement agency is compiled for a law enforcement purpose.’”  “ICE has not offered any proof regarding the purposes of the records.”  “The Court ‘will not examine each of the withheld documents to “attempt to discern for itself whether the documents satisfy Exemption 7’s threshold requirement.”’”  “To the extent ICE seeks to continue to withhold information pursuant to Exemption 7(C), it must provide a Vaughn index giving the Court a clearer picture of whether the records satisfy the law enforcement purposes threshold.”  Similarly, the court finds that “ICE must properly explain why these documents meet the law enforcement purposes threshold to the extent ICE wants to continue asserting Exemption 7(E) redactions.”
   
• Exemption 6:  “Because Exemption 7 was not properly supported here, the Court will go on to evaluate ICE’s privacy withholdings under Exemption 6.” “Here, ICE applied Exemption 6 to withhold ‘the names (with the exception of senior and public-facing ICE employees . . .), contact information, including domain names and email addresses, office numbers, initials, and other personally identifiable information (‘PII’) of third-party individuals and ICE employees.’”  “ICE withheld this information because release ‘would cause harm to the individual, expose the individual to identity theft and may reasonably lead to unwanted contact from persons that might seek to harm the individual.’”  “ICE also asserts that ‘ICE employees have received an increase in threats, intimidation and personal attacks in recent years.’”  “[T]he Court finds that ICE has failed to properly support its Exemption 6 withholdings.”  “ICE cannot redact email domain names under Exemption 6.”  “ICE withheld email domain names, i.e. the portion of email addresses after the @ symbol, because ‘[p]ublicly disclosing domain names would make it easier for someone who is able to learn the naming conventions used by ICE to contact ICE employees or target ICE employees.’”  “Plaintiffs argue that categorically withholding domain names is improper because they are not specific to particular individuals, and so are not protected under this privacy-focused exemption.”  “The Court agrees with Plaintiffs.”  “The Ninth Circuit has held the same, finding that email domains cannot be withheld pursuant to Exemption 6 because ‘email domains are shared by all employees within a given DHS component.’”  “The Court adopts such reasoning here – and also observes that, because ICE was already ordered to release domain names to [Plaintiff] in this Ninth Circuit case, it is inaccurate for ICE to characterize domain names as ‘not publicized.’”  “Furthermore, as the Ninth Circuit observed, there is a legitimate public interest in the domain names because they help litigants understand ‘which agencies and departments are involved in making different types of decisions.’”  “Therefore, there is no need for more briefing from ICE on this point; ICE is directed to release the requested documents with the email domains unredacted, and Plaintiffs’ motion for summary judgment is granted in part regarding this improper use of Exemption 6.”
  
  “Plaintiffs also challenge the categorical withholding of the names of ICE employees under Exemption 6, arguing that ICE does not explain the criteria it used to decide which employees are public-facing and which are line level.”  “Here, ICE has categorically withheld the names of all individual ICE employees ‘with the exception of senior and public-facing ICE employees, such as senior leaders who are identified on the ICE public-facing website or members of the Office of Public Affairs.’”  “The Court finds that this category is sufficiently defined because it accounts for the divergent privacy interests of employees in higher-profile roles as opposed to lower-profile roles.”  “Indeed, another court in this district has held that ICE properly withheld the names of ‘non-leadership, lower-level ICE employees,’ without disclosing the exact criteria in categorizing employees as such, and without distinguishing between sensitive and non-sensitive occupations.”  “And in any event, the Court questions Plaintiffs’ contention that ICE has provided no information on how it categorized higher-profile versus lower-profile employees:  indeed, ICE explained that public facing employees include those that are identified on ICE’s public website and those who work in ICE’s Office of Public Affairs.” “However, within the category of non-public-facing employes, ICE has not adequately differentiated between ICE employees with sensitive occupations and those with non-sensitive positions.” “ICE ‘must establish, at the very least, that the employees whose names have been withheld not only “are employed in a sensitive agenc[y],” but also that they have “sensitive occupations.”’” “However, ‘because ICE has “asserted a potential substantial privacy interest,” it should be permitted to “provide additional information in the form of supplemental declarations or affidavits”’ regarding the ‘privacy interests in withholding these names.’”
  
  “Plaintiffs separately challenge ICE’s Exemption 6 withholding of the names of ‘third parties,’ such as professors, contractors, and other non-ICE individuals, arguing that ICE’s categorical withholding fails to reflect varying privacy interests among those third parties.” “The Court agrees with Plaintiffs that ICE has failed to distinguish at all between the varying privacy interests among third parties, which problematizes its assertion of Exemption 6’s protection.”  “This is most glaringly reflected by ICE redacting presenters’ names from slides that accompanied an LGBT awareness seminar, even when the presenter lists this presentation on their public curriculum vitae.”  “So, as with ICE’s redactions of employee names under Exemption 6, the same result will hold:  because ICE has ‘asserted a potential substantial privacy interest,’ it is permitted to ‘provide additional information in the form of supplemental declarations or affidavits’ as to the named person’s privacy interests in having their names withheld.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The court relates that “Plaintiffs argue that ICE has failed to show that it released all non-exempt information that reasonably could be separated from information that was legitimately withheld.”  “Given the outstanding issues that ICE must address in its upcoming Vaughn index, the Court will defer a finding on segregability until ICE addresses those issues – i.e., the adequacy of the search and the proprietary of ICE’s withholdings under claimed Exemptions.”
   
• Exemption 6; Exemption 7(C):  The court relates that “[a]t the time of the parties’ July 8, 2024 status report, the only responsive record yet to be produced was a training video from 2016, approximately 26 minutes, 38 seconds long.”  “On July 23, 2024, this Court ordered ICE to provide the video by August 12.” “ICE produced the video, with the name of the presenter ‘bleeped’ out, on July 24.”  “The video consists of a slideshow and narration of a presentation entitled ‘Providing treatment to adult transgender patients in ICE custody: update on IHSC clinical guidelines[]’ . . . .”  “At the outset, the Court concludes that Exemption 7(C) does not apply to the video because it was not created for law enforcement purposes.”  “The video is a training presentation to ICE medical staff regarding transgender detainees’ medical needs; ‘[i]t was not created as part of any investigation of any kind of misconduct, nor does it disclose any guidelines, techniques, sources or procedures for law enforcement investigations or prosecutions.’”
  
  “Applying the Exemption 6 standard,” “the Court concludes that ICE insufficiently supported its decision to withhold the name of the narrator.”  “On one end of the scale, ICE has failed to lay the foundation for asserting a compelling privacy interest based on fear of harassment.”  “As explained in the Exemption 6 discussion [above], ‘[t]he fact that federal employees have an identifiable privacy interest in avoiding disclosures of information that could lead to annoyance or harassment . . . does not authorize a ‘blanket exemption’ for the names of all government employees in all records.’”  “‘[T]o justify the redactions of the names of employees because of feared harassment, there must be some competent evidence that disclosure of that information could lead to harassment.’”  “And on the other end of the scale, contrary to ICE’s representations, Plaintiffs have identified a public interest in the narrator’s name.”  “The narrator’s identity would reveal their relationship to ICE, their medical training and status as a licensed health care provider, and potentially their experience with transgender health issues – all of which would provide context for the public to understand ICE’s approach to health care for transgender detainees.”  “This context sheds light on ‘what [the] government is up to.’”