Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec.

• Decision Date: 30 April 2012
• Docket Number: Civil Action No. 04–907 (RBW).
• Citation: 857 F.Supp.2d 129
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.
• Court: U.S. District Court — District of Columbia

857 F.Supp.2d 129

JUDICIAL WATCH, INC., Plaintiff,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.

Civil Action No. 04–907 (RBW).

United States District Court, District of Columbia.

April 30, 2012.

Meredith Leigh Di Liberto, Paul J. Orfanedes, Jason B. Aldrich, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Benton Gregory Peterson, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

Judicial Watch, Inc. (“Judicial Watch”) brings this action against the United States Department of Homeland Security (the “DHS”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2006), seeking the disclosure of records relating to a survey of illegal immigrants. Complaint for Declaratory and Injunctive Relief (“Compl.”) ¶¶ 5, 10. Currently before the Court are the parties' renewed cross-motions for summary judgment concerning the issue of whether the DHS conducted an adequate search for records responsive to Judicial Watch's FOIA request. Upon careful consideration of the parties' submissions,¹ the Court concludes for the following reasons that the DHS's motion must be denied without prejudice, and that Judicial Watch's motion must be granted in part and denied in part without prejudice.

I. BACKGROUND

The DHS is comprised of several component agencies, two of which are implicated in this case: United States Customs and Border Protection (“Customs”) and United States Citizenship and Immigration Services (“Immigration”). See Organizational Chart, U.S. Department of Homeland Security, (Nov. 5, 2010), http:// www. dhs. gov/ xlibrary/ assets/ dhsorgchart. pdf. The United States Border Patrol (“Border Patrol”) is a subcomponent of Customs, see DHS's Mem., Declaration of Magda Ortiz (“Ortiz Decl.”) at 1, and it consists of numerous “[s]ector offices” covering different regions of the United States, DHS's Facts ¶¶ 45–46. The Office of Records Services (the “FOIA Office”), a component office of Immigration, processes FOIA requests on behalf of the Border Patrol. DHS's Mem., Ortiz Decl. at 1.

On February 27, 2004, Judicial Watch submitted a FOIA request to the DHS seeking records relating to a survey of illegal immigrants conducted by the Border Patrol in January 2004 (“amnesty survey”). Pl.'s Facts ¶ 2; DHS's Facts ¶ 1. Specifically, the request sought the following eight categories of records:

(1) Any and all records that refer and/or relate to a survey, developed by Border Patrol officials in Washington, of illegal aliens detained at the US–Mexican border, that had sought to establish whether “rumors of amnesty” had influenced their decision to cross into the United States.

(2) Any and all records that refer and/or relate to the number(s) of illegal immigrants entering the United States as a result of the amnesty and/or guest worker program and/or immigration reforms proposed by President George W. Bush on January 7, 2004.

(3) Any and all records that refer and/or relate to the decision to discontinue the survey on or about January 27, 2004.

(4) Any and all records that refer and/or relate to the results of any survey of illegal immigrants entering the United States as a result of the amnesty and/or guest worker program and/or immigrationreforms proposed by President George W. Bush on January 7, 2004.

(5) Any and all records that refer and/or relate to the number of illegal immigrants apprehended in San Diego county from January 7, 2004 to the present.

(6) Any and all records that refer and/or relate to the reported 13 questions contained on said questionnaire(s).

(7) Any and all records that refer and/or relate to the decision to instruct border patrol agents “not to talk about amnesty, an increase in apprehensions, or give comparisons of past immigration reform proposals” when talking with the media.

(8) The “talking points” distributed nationwide in which border agents are “not to talk about amnesty[,] an increase in apprehensions, or give comparisons of past immigration reform proposals.”

Pl.'s Facts ¶ 2. Judicial Watch received a letter from the DHS acknowledging receipt of its FOIA request on March 2, 2004. Id. ¶ 3. After receiving no “substantive response” from the DHS, Judicial Watch instituted this lawsuit on June 3, 2004. Id. ¶¶ 5–7.

Judicial Watch's FOIA request was then forwarded to the Border Patrol on June 10, 2004. DHS's Facts ¶ 2. Upon receiving the request, the Border Patrol “sent out search requests” only to those “offices and personnel that were likely to have responsive records.” Id. ¶ 3. “These offices were the [Border Patrol's] Southwest Border Sectors and Headquarters' liaison agents; the Office of Congressional Affairs; the Office of Policy and Planning, and the [Border Patrol's] Headquarters [l]iaison [a]gents who had duties relating to the Southwest border.” Id. The “search requests directed the recipients to provide a copy of all responsive records[, and] if no records were found, that information was to be conveyed as well.” DHS's Mem., Ortiz Decl. at 5. The Border Patrol “determined that other offices within [Customs] would not have responsive records, and did not forward the FOIA request to those offices.” DHS's Facts ¶ 4. Responsive records were located by the various offices and then forwarded to the FOIA Office for processing. Id.

The DHS produced its first set of responsive records to Judicial Watch on May 6, 2005. Id.; Pl.'s Facts ¶ 8. Of the 965 pages of records it identified as responsive to Judicial Watch's FOIA request, the DHS released 88 pages in full and 852 pages in part, and it withheld 25 pages in full. DHS's Facts ¶ 4. On June 15, 2005, the DHS released to Judicial Watch five pages previously withheld in full, and on August 26, 2005, it released a spreadsheet containing results from the amnesty survey. DHS's Facts ¶¶ 7–8; Pl.'s Facts ¶ 11.

On February 9, 2006, this Court granted the DHS's motion for a 90–day stay to allow the agency to conduct a second search for responsive records. See February 9, 2006 Order, Judicial Watch v. DHS, Civil Action No. 04–907 (D.D.C.) (RBW). That same day, “the Acting Commissioner of [Customs] signed a memorandum directing every office within [Customs] to conduct a new search for records responsive to [Judicial Watch's] FOIA request.” DHS's Facts ¶ 13 (emphasis added). “The February 2006 search was more extensive than the prior searches because every [Customs] office was ordered to search for responsive documents instead of the offices where such documents would logically reside.” Id. The Acting Commissioner's memorandum “set[ ] forth the eight categories of information specified in the original FOIA request by [Judicial Watch]” and “directed each office to identify potentially responsive documents.” Id. ¶ 14 (internal quotation marks omitted). The memorandum also instructed responding offices to “describe[ ] in detail how the search was actually conducted,” including information such as (1) “who in your office directed the search”; (2) “how the relevant agency files are kept”; (3) “where these files are located”; (4) “where your office looked for responsive records”; (5) “the date(s) you conducted this search”; (6) “the search terms or process used by your office to conduct this search when searching databases or other record systems”; and (7) “which documents were identified using each such search.” DHS's Mem., Declaration of Shari Suzuki (“First Suzuki Decl.”), Exhibit (“Ex.”) 1 (Memorandum re Search for Responsive Records) at 2. According to the DHS, “[e]ach office within [Customs] conducted a search for responsive records and provided information ... in accord with the [Acting] Commissioner's memorandum.” DHS's Facts ¶ 15. Following this second search, the DHS produced 125 pages of responsive records to Judicial Watch on May 22, 2006. Pl.'s Facts ¶ 16. The DHS also provided Judicial Watch with declarations from agency officials “purport[ing] to describe the second search performed by [the] DHS and its findings.” Id.

Judicial Watch thereafter moved for partial summary judgment, asserting that both of the DHS's searches were inadequate, in response to which the DHS cross-moved for summary judgment. By order dated August 10, 2007, the Court denied both parties' summary judgment motions without prejudice because the DHS had “not attempted to demonstrate the adequacy of its first search” and instead opted “to presume incorrectly that its voluntary second search ha[d] obviated any need to continue to defend the adequacy of its first search.” August 10, 2007 Order at 12, Judicial Watch v. DHS, Civil Action No. 04–907 (D.D.C.) (RBW) (“August 10, 2007 Order”). Because the Court found that “the adequacy of the two searches [was] inextricably intertwined and must be evaluated collectively,” it directed the parties “to file renewed motions addressing the [DHS's] efforts to respond to [Judicial Watch's] FOIA request as a whole, accompanied by declarations addressing the nature, scope, and overall adequacy of both searches under the FOIA.” Id. at 10, 12 (emphasis in original). In accordance with this order, the parties have submitted renewed cross-motions for summary judgment along with supplemental declarations.

II. STANDARD OF REVIEW

“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) (collecting cases). Summary judgment must be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In assessing whether a genuine issue of material fact exists, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The...