Am. Immigration Council v. U.S. Dep't of Homeland Sec., Civil Action No. 11–1971 (JEB).

• Decision Date: 27 November 2012
• Docket Number: Civil Action No. 11–1971 (JEB).
• Parties: AMERICAN IMMIGRATION COUNCIL, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

905 F.Supp.2d 206

AMERICAN IMMIGRATION COUNCIL, Plaintiff,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Civil Action No. 11–1971 (JEB).

United States District Court,

District of Columbia.

Nov. 27, 2012.

Beth Jennifer Werlin, Creighton R. Magid, Dorsey & Whitney LLP, Melissa E. Crow, American Immigration Council, Washington, DC Michelle S. Grant, Dorsey & Whitney LLP, Minneapolis, MN, for Plaintiff.

Marian L. Borum, U.S. Attorney's Office for the District of Columbia Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

After sitting on a fairly standard Freedom of Information Act request by Plaintiff American Immigration Council for almost a year, Defendant U.S. Citizenship and Immigration Services (a component of the Department of Homeland Security, the other Defendant) produced a response riddled with errors. The affidavit meant to demonstrate the adequacy of USCIS's search for responsive records discloses almost nothing about the search itself. The Vaughn index, moreover, which should justify all withholdings of documents, oscillates between sloppy and misleading. After in camera review, the Court concludes that two-thirds of the withheld records contested by the Council should have been largely or wholly released. FOIA cases count on agencies to do their jobs with reasonable diligence. USCIS must do better.

I. Background

FOIA requires that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ..., shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). The Act makes exceptions for certain categories of records, however, which are described as FOIA exemptions. See5 U.S.C. § 552(b).

In March 2011, the Council submitted this FOIA request about the role of counsel in immigration proceedings to USCIS:

AIC requests any and all records which have been prepared, received, transmitted, collected and/or maintained by the U.S. Department of Homeland Security and/or U.S. Citizenship and Immigration Services (USCIS), whether issued or maintained by USCIS Headquarters offices, regional offices, district offices, field offices and/or any other organizational structure, and which relate or refer in any way to any of the following:

• Attorneys' ability to be present during their clients' interactions with USCIS; • What role attorneys may play during their clients' interactions with USCIS;

• Attorney conduct during interactions with USCIS on behalf of their clients;

• Attorney appearances at USCIS offices or other facilities.

Compl., Exh. A (Letter from Emily Creighton, Am. Immigr. Council, to FOIA Office, USCIS (March 14, 2011)), at 1 (footnote omitted). The request “include [d], but [was] not limited to” sixteen specific types of records. Id.; see, e.g., id. at 2 (“[ (6) ] Guidance or any information obtained by the agency regarding circumstances under which an attorney may accompany a client to an interview regarding an N–400, Application for Naturalization, or what role the attorney may play during such questioning”).

After eight months without receiving a determination, the Council filed suit in this Court. See5 U.S.C. § 552(a)(6) (agency normally must make initial determination in 20 days, with another 20 days allotted for administrative appeal). Three months later, USCIS finally responded—releasing 455 pages in full, 418 in part, and withholding 1169 in full. See Mot., Exh. G (Letter from Jill A. Eggleston, Dir., FOIA Operations, USCIS, to Creighton (Feb. 6, 2012)).

USCIS has now filed a combined Motion to Dismiss (asserting partial mootness) and Motion for Summary Judgment (defending the sufficiency of the response itself). The Council contests only the Motion for Summary Judgment.

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505;Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505;Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C.Cir.2011). In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C.Cir.2009) (citation omitted). Such affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existenceand discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (internal quotation marks omitted).

III. Analysis

Because the Council maintained its original Complaint even after USCIS responded to the FOIA request, it falls to the Court to prune away the stale grievances. As the Council agrees, the Complaint's second cause of action—“Violation of the Administrative Procedure Act (APA) for Failure to Timely Respond to Request for Agency Records,” Compl. at 6—must now be dismissed as moot. See Opp. at 2 n. 1. For the records released in full and the portions of records released in part, moreover, the Council's FOIA claim is now moot. See Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) ( per curiam ) (“a case becomes moot when the issues presented are no longer live”) (internal quotation marks omitted). Any complaints relating to those records must also be dismissed. Finally, while USCIS's Motion included a lengthy defense of its Exemption 6 withholdings, the Council ignores Exemption 6 in its Opposition. The Council has therefore forfeited any challenge to these withholdings, and the Court will grant USCIS summary judgment as to the portions of records withheld under that Exemption. See Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 136 (D.C.Cir.2012).

Just two disputes remain. First, the Council complains that USCIS has not demonstrated that it conducted an adequate search. Second, the Council objects to USCIS's application of Exemption 5 and claims that many documents withheld under that Exemption should be turned over to the Council. The Court takes each issue in turn.

A. Adequacy of Search

“An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ ” Valencia–Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C.Cir.1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990)); see also Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984) (emphasis in original). The adequacy of an agency's search for documents requested under FOIA “is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit affidavits or declarations that explain the scope and method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982). Absent contrary evidence, such affidavits or declarations are sufficient to show that an agency complied with FOIA. Id. “If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d at 542.

Here, to demonstrate the adequacy of its search, USCIS offers a declaration by Jill Eggleston, Assistant Center Director of USCIS's FOIA Unit. See Reply, Exh. 1 (Second Decl. of Jill A. Eggleston). She explains that USCIS broke its search here into two steps. First, an officer from USCIS's central FOIA office selected which program offices within USCIS to ask for responsive records. Second, the chosen program offices independently searched for responsive records, turning anything that they deemed responsive over to the FOIA officer. The Council challenges both steps.

1. Selection of Program Offices

Eggleston's Declaration focuses primarily on the first step. Because the Council's FOIA request raised “complex” issues, the FOIA Unit assigned the request to its “Significant Interest Team.” Id., ¶¶ 8–9. The Significant Interest Team then “identif[ied] all USCIS program offices potentially possessing records responsive to the request” by “consult[ing] a variety of sources containing organizational and...