Hussain v. U.S. Department of Homeland Security

• Decision Date: 18 December 2009
• Docket Number: Civil Action No. 07-1633 (PLF).
• Citation: 674 F.Supp.2d 260
• Parties: Samir HUSSAIN, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.
• Court: U.S. District Court — District of Columbia

Page 260

674 F.Supp.2d 260

Samir HUSSAIN, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.

Civil Action No. 07-1633 (PLF).

United States District Court, District of Columbia.

December 18, 2009.

COPYRIGHT MATERIAL OMITTED

Charles D. Tobin, Holland & Knight, L.L.P., Washington, DC, for Plaintiff.

Brian P. Hudak, John G. Interrante, U.S. Attorney's Office, Washington, DC, for Defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

This Freedom of Information Act ("FOIA") matter is before the Court on the parties' cross motions for summary judgment. After careful consideration of the parties' papers and attached exhibits, the relevant case law and the statute, the Court concluded that the defendant's search was adequate, but that its Vaughn Index is inadequate. Accordingly, by Order of September 30, 2009, the Court granted defendant's motion in part and denied it in part without prejudice; it also denied plaintiff's motion without prejudice. This Opinion explains the reasoning underlying that Order.¹

I. BACKGROUND

Plaintiff, Samir Hussain, is an Iraqi citizen who has resided in the United States since 1996. See Pl. Mot., Ex. 2, Declaration of Samir J. Hussain in Support of Plaintiff's Cross Motion for Summary Judgment ("Hussain Decl.") ¶¶ 3-4. The Department of Homeland Security detained him for almost eight months from 2003 through 2004. See id. ¶ 21. He has since been granted asylum in the United States. See id. ¶ 24.

On September 23, 2005, plaintiff submitted a FOIA request to the United States Citizenship and Immigration Services ("USCIS"), Central Office in the District of Columbia ("Central Office") seeking paperwork regarding his detention, specifically his own "`Apprehension Record'; any Border Patrol Disposition; I-213 Record of Deportable Alien; and any other information possessed by DHS regarding Hussain's detention on July 24, 2003." Def. Mot., Defendant's Statement of Material Facts as to Which There is no Genuine Dispute ("Def. Facts") ¶ 1. Based on an initial electronic search, the Central Office determined that the records relevant to plaintiff's request were located at the National Record Center ("NRC"), and it transferred the request to the NRC for a direct response to plaintiff. See id. ¶ 2. The NRC scanned responsive records into an electronic file to facilitate final processing pursuant to the FOIA. See id. ¶ 4. On March 6, 2007, USCIS issued its final determination. See id. ¶ 5. Following plaintiff's administrative appeal, USCIS supplemented its release. USCIS has now released 503 documents in their entirety and has withheld 61 pages in part and 34 pages in their entirety. See id. ¶ 7. Dissatisfied with the production, plaintiff filed suit in this Court.

II. STANDARD OF REVIEW

The fundamental purpose of the FOIA is to assist citizens in discovering "what their government is up to." Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (emphasis in original). The FOIA strongly favors openness, as Congress recognized in enacting it that an informed citizenry is "vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); see also Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (purpose of the FOIA is "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny"). As such, "disclosure, not secrecy, is the dominant objective of the Act." Dep't of the Air Force v. Rose, 425 U.S. at 361, 96 S.Ct. 1592.

The Court will grant a motion for summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits or declarations show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits its own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992).

FOIA cases typically and appropriately are decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. United States Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007). In a FOIA case, the Court may award summary judgment solely on the basis of information provided in affidavits or declarations when the affidavits or declarations are "relatively detailed and non-conclusory," SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991), and describe "the documents and 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." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974); Hertzberg v. Veneman, 273 F.Supp.2d 67, 74 (D.D.C. 2003). An agency must demonstrate that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly [or partially] exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978); see also Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001); Hertzberg v. Veneman, 273 F.Supp.2d at 74.

III. DISCUSSION

Plaintiff argues that the defendant failed to conduct an adequate search and that it has not met its burden to justify its non-disclosure of responsive documents. Plaintiff also seeks an interim award of attorneys' fees. The Court will address these arguments in turn.

A. Adequacy of the 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. United States 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 Campbell v. Dep't of Justice, 164 F.3d 20, 27 (D.C.Cir.1998) (FOIA requires agency to conduct search using methods reasonably expected to produce requested information); Wilderness Soc'y v. Dep't of Interior, 344 F.Supp.2d 1, 20 (D.D.C.2004). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg v. Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency's search. Judicial Watch, Inc. v. Dep't of Justice, 185 F.Supp.2d 54, 63 (D.D.C.2002). While the affidavits or declarations submitted by the agency need not "set forth with meticulous documentation the details of an epic search for the requested records," Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982), they must "describe what records were searched, by whom, and through what processes." Steinberg v. Dep't of Justice, 23 F.3d at 552.

USCIS limited its search to the agency's system of records known as the Alien File/Central Index System ("A-File") because this system "contains the universe of documented transactions between Plaintiff and U.S. immigration authorities in USCIS's custody." See Def. Opp. to 56(f), Ex. A, Supplemental Declaration of Brian J. Welsh ("Supp. Welsh Decl.") ¶ 10. Plaintiff argues that the search was incomplete, based on his belief that certain records were generated during his arrest and detention — specifically a sworn statement, detainee classification records, records and notes of interviews by government officials, records of correspondence with a deportation officer, medical files, incident reports, reports documenting disciplinary and/or administrative segregation, employment records, commissary records, records of law library usage bunk checklists, and a receipt for possessions — which were neither produced nor identified in the Vaughn Index. See Pl. Mot., Memorandum of Law in Support at 7 (citing Hussain Decl. ¶¶ 9, 11-12, 15-20, 22). Plaintiff also provided as exhibits copies of four documents that he believes were responsive to his request, but are not accounted for in the agency's production. See id. (citing Hussain Decl. ¶ 30(a)-(d)).

Defendant argues that USCIS did not possess many of the documents identified by plaintiff, even though other components of DHS might possess them. According to DHS, the majority of the documents that plaintiff believes should have been produced—the detainee classification records, medical files, incident reports, reports documenting disciplinary and/or administrative segregation, employment records, commissary records, records of law library usage, bunk checklists, and a receipt for possession—if they exist, would exist in plaintiff's detention file, not in his A-File. See Def. Rep. at 6 (citing Def. Rep. Ex. A). The detention file is separate from an individual's A-File and is maintained by the United States Immigration and Customs Enforcement ("ICE"), not by USCIS, the entity to which plaintiff sent his FOIA request. See Def. Rep., Ex. A ("ICE/DRO Detention Standard re: Detention Files").

DHS's FOIA regulations state that when responding to an FOIA request, "a component ordinarily will include only records in its possession as of the date the component begins its search for them." See 6 C.F.R. § 5.4(a) (emphasis added). Plaintiff submitted his FOIA request to...