Am. Civil Liberties Union Immigrants' Rights Project v. U.S. Immigration & Customs Enforcement
| Decision Date | 26 January 2023 |
| Docket Number | 21-1233,August Term 2021 |
| Citation | 58 F.4th 643 |
| Parties | AMERICAN CIVIL LIBERTIES UNION IMMIGRANTS’ RIGHTS PROJECT, Plaintiff-Appellant, v. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Noor Zafar, American Civil Liberties Union Immigrants’ Rights Project, New York, NY (Michael Tan; Cody Wofsy, American Civil Liberties Union Immigrants’ Rights Project, San Francisco, CA; Carmen G. Iguina Gonzalez, American Civil Liberties Union Immigrants’ Rights Project, Washington, DC, on the brief), for Plaintiff-Appellant.
Zachary Bannon, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Defendant-Appellee.
Emily J. Creighton, American Immigration Council, Washington, DC, for Amici Curiae The American Immigration Council, Citizens for Responsibility and Ethics in Washington, Emily Ryo, Ingrid Eagly, Tom Wong, American Oversight, Open the Government, National Immigrant Justice Center, National Immigration Project of the National Lawyers Guild, and Refugee and Immigrant Center for Education and Legal Services, in support of Plaintiff-Appellant.
David Greene, Electronic Frontier Foundation, San Francisco, CA, for Amicus Curiae Electronic Frontier Foundation, in support of Plaintiff-Appellant.
Mason A. Kortz, Harvard Law School, Cambridge, MA, for Amici Curiae The Center for Investigative Reporting, The Media Law Resource Center, Inc., and The MuckRock Foundation, in support of Plaintiff-Appellant.
Before: Raggi, Wesley, and Carney, Circuit Judges.
Plaintiff American Civil Liberties Union Immigrants’ Rights Project ("ACLU") brought this Freedom of Information Act ("FOIA") suit in the United States District Court for the Southern District of New York (George B. Daniels, Judge) to compel defendant, United States Immigration and Customs Enforcement ("ICE"), to produce agency records in the form of electronic spreadsheet data pertaining to five stages of the immigration enforcement and deportation process. While ICE produced 21 spreadsheets of responsive data, the agency did not comply with ACLU's request to replace exempt Alien Identification Numbers ("A-Numbers")1 on such spreadsheets with anonymized unique identifiers ("Unique IDs"). ACLU submits that such Unique IDs could be any combinations of numbers, letters, or symbols that, while meaningless in themselves, would allow ACLU to track datapoints pertaining to individual (but unidentified) aliens across ICE databases. On March 10, 2021, the district court granted ICE's motion for summary judgment, ruling that ACLU's requested substitution effectively required ICE to create new records, something the court was powerless to order under FOIA. See ACLU Immigrants’ Rts. Project v. ICE , No. 19-CV-7058, 2021 WL 918235 (S.D.N.Y. Mar. 10, 2021).
For the reasons stated herein, we conclude that ICE was not entitled to summary judgment in the particular circumstances of this case. In reaching that conclusion, we are mindful that ICE has chosen to organize its electronic databases by immigration events (e.g. , arrests, detentions, deportations, etc.), rather than by individual aliens.2 We are further mindful that ICE has chosen—although it was not required—to have FOIA-exempt A-Numbers function as the sole "key" or "code" affording access to electronic data pertaining to individual aliens from its event-centric databases, and that ICE itself uses A-Numbers for that purpose. Thus, by here redacting A-Numbers from the spreadsheets it produced conveying datapoints by event rather than by person, ICE not only shielded the FOIA-exempt personal identifying information ("PII") documented by the A-Numbers, but also effectively deprived the public of access to nonexempt records in the same person-centric manner available to the agency. In these circumstances, we approve the substitution of neutral Unique IDs for exempt A-Numbers. Such substitution does not alter the content of any record, but only preserves the computer function necessary to afford the public access to non-exempt electronic records in the same manner that they are available to the agency.
Accordingly, we reverse the award of summary judgment to ICE, and we remand the case for further proceedings consistent with this opinion.
The following facts derive largely from the sworn declaration of Donna Vassilio-Diaz, Unit Chief of the Statistical Tracking Unit within Enforcement and Removal Operations Law Enforcement and Systems Analysis at ICE, submitted in support of ICE's motion for summary judgment, as well as from matters of which the court may take judicial notice. In FOIA cases, we accord such declarations "a presumption of good faith," Carney v. DOJ , 19 F.3d 807, 812 (2d Cir. 1994) (internal quotation marks omitted), and can rely on them to support an award of summary judgment, at least to the extent "they are not called into question by contradictory evidence in the record or by evidence of agency bad faith," Grand Cent. P'ship, Inc. v. Cuomo , 166 F.3d 473, 478 (2d Cir. 1999) (internal quotation marks omitted).
Some understanding of certain ICE databases is useful to our discussion of the issues on appeal.
ICE's Enforcement Integrated Database ("EID") is the agency's "common database repository for all records created, updated, and accessed by a number of software applications." Vassilio-Diaz Decl. ¶ 6. EID allows ICE officials, along with other law-enforcement components of the Department of Homeland Security, "to manage cases from the time of an alien's arrest, in-processing, or placement into removal proceedings, through the final case disposition." Id. EID, however, does not store data on a person-centric basis; rather, it stores data in an event-centric manner. Thus, when a particular enforcement event occurs, ICE officers enter it into EID where it is stored with data recording similar events rather than with data pertaining to the same alien. Nevertheless, ICE software does permit the agency to retrieve EID data on a person-centric basis. Specifically, with an appropriate identifier—here the alien's A-Number—ICE can search on an ad hoc basis for all events pertaining to that particular alien.
Another ICE database, the Integrated Decision Support System ("IIDS"), contains a subset of data from EID, maintained in "distinct data sets[,] which capture populations of aliens at various points in the removal lifecycle." Id. ¶ 12. Thus, it too is event-centric, with data pertaining to categories of events, e.g. , removals, detentions, administrative arrests, stored separately within IIDS. Updated regularly, IIDS functions as a "snapshot" of EID. Id. ¶¶ 9, 11. ICE queries IIDS to create reports for external stakeholders and to respond to requests for information, including FOIA requests.
Alien-risk-classification-assessment data and bond data are stored differently. The former are stored in the Risk Classification Assessment module of ICE's Enforcement Case Tracking System, which is stored in EID but not in IIDS. The latter are housed in a separate database called the Bond Management Information System.3
On October 3, 2018, ACLU submitted a FOIA request to ICE for "electronic spreadsheet data," i.e. , "data in a spreadsheet format" for five categories of information, each pertaining to a stage of the deportation process: (1) initial apprehensions, (2) risk classification assessments, (3) detentions, (4) removals, and (5) immigration bonds. FOIA Request from David Hausman, ACLU to ICE 1 (Oct. 3, 2018) ("ACLU FOIA Request"). ACLU's request also denoted specific fields of data sought for each category—e.g. , "Gender," "Birth Date," "Entry Date"—modeling its request in part on spreadsheet data that ICE had produced in response to prior FOIA requests. Id. at 2.
In its request, ACLU instructed ICE that there should be "a row in the spreadsheet for each individual or case." Id. at 1. Further, and as relevant here, ACLU instructed ICE that, in deleting exempt A-Numbers from the spreadsheet, the agency should substitute anonymized Unique IDs for each unit of observation because such a substitution is necessary to allow ACLU to track individual (but unidentified) aliens across the five different categories of data.4
On July 29, 2019, ACLU brought this court action charging ICE with failing timely to search its records and to produce responsive documents as required by FOIA. Reiterating its request for "five categories of ‘spreadsheet data’ " and again specifying the particular data fields requested for each category, ACLU emphasized that it largely sought "records that [ICE] ha[d] previously disclosed under the FOIA." Compl. ¶¶ 7-8. ACLU asserted that its FOIA request was critical to informing the public about the government's then-operative immigration-enforcement policies and to understanding changes in those policies.
On September 30, 2019, ICE responded to ACLU's FOIA request by producing 21 Microsoft Excel spreadsheets, containing 40 tabs of data. This equated to eight spreadsheet tabs of data for each of the five categories of information sought, containing between 2,000 and 1,000,000 rows of data per year. ACLU viewed this production as only partially responsive to its request because, although spreadsheets for four of the five categories of data included a column for "A-Numbers," the A-Numbers themselves were redacted and replaced, not with the requested Unique IDs, but with repeated abbreviated citations to the two FOIA exemptions supporting redaction, specifically, 5 U.S.C. § 552(b)(6) and § 552(b)(7)(C),5 a substitution that did not permit person-centric tracking.
On March 30, 2020, the district court so ordered the parties’ partial...
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