Immigrant Def. Project v. United States Dep't of Homeland Sec.
| Decision Date | 13 February 2023 |
| Docket Number | 20-cv-10625 (RA) |
| Parties | IMMIGRANT DEFENSE PROJECT and CENTER FOR CONSTITUTIONAL RIGHTS, Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY and UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants. |
| Court | U.S. District Court — Southern District of New York |
The Immigrant Defense Project and the Center for Constitutional Rights (collectively “Plaintiffs”) bring this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. against the United States Department of Homeland Security (“DHS”) and United States Immigration and Customs Enforcement (“ICE,” and collectively “Defendants”). Plaintiffs seek information concerning an immigration enforcement initiative called “Operation Palladium.” Since the filing of the complaint, Defendants have made rolling productions of responsive documents totaling 1,274 pages. The parties now cross-move for summary judgment on the adequacy of Defendants' search and the applicability of Defendants' claimed exemptions. For the reasons that follow, the parties' motions are granted in part and denied in part.
According to Plaintiffs, “Operation Palladium” is an “immigration surveillance and policing initiative that ICE has implemented in numerous cities across the United States since February 2020.” Compl. ¶ 2. The initiative was allegedly implemented as part of the Trump administration's “widely publicized anti-immigration agenda.” Id. ¶ 13. Plaintiffs allege that, despite the “escalation in aggressive tactics by immigration agents” that corresponded with Operation Palladium, “DHS and ICE have disclosed minimal, if any, information about the policies and guidelines for targeting and surveilling noncitizens” under the initiative. Id. ¶¶ 2-3.
As a result, on June 17, 2020, Plaintiffs submitted a FOIA request to Defendants (the “Request”). The Request sought the following information, as summarized in the complaint:
Id. ¶ 28; see also id., Ex. A Plaintiffs filed this lawsuit after exhausting FOIA's administrative process and receiving no responsive records. Over the course of the next year, ICE made eight rolling productions totaling 1,274 pages. See Schurkamp Decl. ¶ 40; Defs. Br. 3 n.2. Responsive materials were also redacted and withheld pursuant to FOIA Exemptions (b)(5), (b)(6), (b)(7)(C), and (b)(7)(E). Schurkamp Decl ¶ 40; see 5 U.S.C. § 552(b). Although Plaintiffs asked Defendants to “direct this request to all appropriate offices and departments within each agency,” Compl., Ex. A, the only agencies that conducted searches were ICE Enforcement and Removal Operations (“ERO”) and, after negotiations between the parties, ICE Homeland Security Investigations (“HSI”).
The parties then filed cross-motions for summary judgment. Defendants contend that the search was reasonable under FOIA, and that ICE properly withheld materials under the claimed exemptions. Plaintiffs challenge both the adequacy of the search and the withholding of material pursuant to Exemptions (b)(5) and (b)(7)(E).[1]
Summary judgment is appropriate when “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). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” WWBITV, Inc. v. Vill. of Rouses Point, 589 F.3d 46, 49 (2d Cir. 2009) (internal quotation marks omitted). In determining whether there is a genuine issue of material fact, the Court must view all facts “in the light most favorable to the non-moving party.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001). “Challenges to a government agency's response are usually resolved at summary judgment in FOIA actions.” Det. Watch Network v. U.S. Immigr. & Customs Enf't, 215 F.Supp.3d 256, 261 (S.D.N.Y. 2016).
“FOIA was enacted to promote honest and open government, and to ensure public access to information created by the government in order to hold the governors accountable to the governed.” Long v. Off. of Pers. Mgmt., 692 F.3d 185, 190 (2d Cir. 2012) (internal citation and quotation marks omitted). The statute “strongly favors a policy of disclosure and requires the government to disclose its records unless its documents fall within one of the specific, enumerated exemptions set forth in the Act.” Nat'l Council of La Raza v. U.S. Dep't of Just., 411 F.3d 350, 355 (2d Cir. 2005) (internal citation omitted). Agencies “ha[ve] a duty to construe a FOIA request liberally,” Nation Mag., Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995),[2]and “FOIA exemptions are construed narrowly,” Long, 692 F.3d at 190. “[A] court is to resolve all doubts in favor of disclosure.” Id.
On a motion for summary judgment in a FOIA case, “the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA.” Carney v. U.S. Dep't of Just., 19 F.3d 807, 812 (2d Cir. 1994). “Summary judgment is appropriate where the agency declarations 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 or by evidence of agency bad faith.” Knight First Amend. Inst. at Columbia Univ. v. U.S. Citizenship & Immigr. Servs., 30 F.4th 318, 327 (2d Cir. 2022) (internal quotation marks omitted). Agency declarations must be “sufficiently detailed to have the exemption appear logical and plausible,” Am. Oversight v. U.S. Dep't of Just., 45 F.4th 579, 587 (2d Cir. 2022), and cannot be based on “merely conclusory statements,” Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999).
An adequate search under FOIA is “reasonably calculated to uncover all relevant documents within the scope of the FOIA request.” Radcliffe v. I.R.S., 328 Fed.Appx. 699, 700 (2d Cir. 2009). “An agency's search need not be perfect, but rather need only be reasonable.” McDonald v. Barr, 791 Fed.Appx. 277, 278 (2d Cir. 2020) (quoting Grand Cent. P'ship, 166 F.3d at 489). “Although an agency need not expand a search beyond the four corners of the language of the request, it must ‘adhere to the full scope or the precise language of the plaintiff's request.'” Knight First Amend. Inst. at Columbia Univ. v. Ctrs. for Disease Control & Prevention, 560 F.Supp.3d 810, 821 (S.D.N.Y. 2021) (internal citation omitted) (quoting Charles v. Office of Armed Forces Medical Exam'r, 730 F.Supp.2d 205, 216 (D.D.C. 2010)). “[T]o establish the adequacy of a search, agency affidavits must be relatively detailed and nonconclusory, and submitted in good faith.” Grand Cent. P'ship, 166 F.3d at 488-89 (internal quotation marks and alterations omitted). “If the record ‘leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.'” Banks v. U.S. Dep't of Just., 700 F.Supp.2d 9, 14 (D.D.C. 2010) (quoting Truitt v. U.S. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)).
Plaintiffs challenge the adequacy of the search in two ways: (1) the custodians searched and (2) the search terms used. The Court will address each in turn.
First, Plaintiffs argue that Defendant ICE failed to search additional offices within the agency that were likely to have responsive records.[3] The only two sub-agencies that performed searches were ERO and, after Defendants agreed to supplemental searches, HSI. Plaintiffs argue that it was unreasonable for ICE not to additionally search the ICE Office of Public Affairs (“OPA”) at a minimum. Pls. Br. 13. In her declaration, the Deputy FOIA Officer of the ICE FOIA Office, Lynnea Schurkamp, asserts that the FOIA Office forwarded the Request to ERO because that office “was likely to have responsive records.” Schurkamp Decl. ¶ 19. Schurkamp further states that “Operation Palladium was an ERO-led initiative in concept and execution,” and “[t]herefore, the ICE FOIA Office determined that Plaintiff's FOIA Request sought records that potentially fall within several of ERO's missions and responsibilities.” Id.
This explanation is plainly inadequate. “To satisfy the reasonableness standard [under FOIA], an agency must search all locations likely to contain responsive records not simply where the records are ‘most likely' to be found.” NAACP Legal Def. & Educ. Fund, Inc. v. U.S. Dep't of Just., 463 F.Supp.3d 474, 484 (S.D.N.Y. 2020) (emphasis added); see also Nat'l Day Laborer Org. Network v. U.S. Immigr. & Customs Enf't, 877 F.Supp.2d 87, 98 (S.D.N.Y. 2012) (citing Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)) (“[T]he government is not required to search only the files of the two custodians who are ‘most likely' to have responsive records; it must also search other locations that are reasonably likely to contain records.”); DiBacco v. U.S. Army, 795 F.3d 178, 190 (D.C. Cir. 2015) (...
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