Nat'l Immigrant Justice Ctr. v. U.S. Dep't of Homeland Sec.
| Decision Date | 02 February 2015 |
| Docket Number | No. 12 C 5358,12 C 5358 |
| Parties | NATIONAL IMMIGRANT JUSTICE CENTER, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, and UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
The National Immigrant Justice Center (NIJC) is a non-profit organization whose stated mission is to obtain access to justice and human rights protections for immigrants, refugees, and asylum seekers. In April 2011, NIJC submitted a request under the Freedom of Information Act (FOIA) to the United States Department of Homeland Security (DHS) and United States Immigration and Customs Enforcement (ICE). It asked these agencies to produce documents relating to immigrant detention facilities. When no documents were produced, NIJC filed suit, in July 2012. Nearly two years later, DHS and ICE still had not produced the requested documents, even though NIJC narrowed its request significantly after it filed this lawsuit.
The NIJC has moved for summary judgment,1 and DHS and ICE have cross-moved for summary judgment, arguing that they have conducted a reasonable search for responsive documents. In their cross-motion, the agencies ask the Court to permit them to continue producing documents on a rolling basis, once a month, until production is complete. They offer no anticipated completion date, however. The Court also notes that although it has had the present motions under advisement for an inordinately long time—for which it apologizes to the parties—the agencies have not come back to advise that they have completed production or even that they have made significant progress toward conclusion of the production process. Nor is it apparent that the agencies have even identified all responsive records.
For the reasons stated below, the Court denies the agencies' motion for summary judgment. The Court also finds that the agencies have not conducted a search reasonably calculated to identify and produce documents responsive to NIJC's FOIA request and therefore grants NIJC's motion. The Court also sets a final deadline for production of all remaining responsive documents.
DHS and ICE house immigrant detainees at a variety of detention facilities, both governmental and private, pursuant to contracts and intergovernmental agreements. The agencies also periodically evaluate and audit these detention facilities. The NIJC contends that "[i]t is crucial to [its] mandate to obtain information regarding the government's detention of non-citizens . . . ." Pl.'s Opening Br. at 3.
On April 27, 2011, NIJC filed with DHS and ICE a FOIA request seeking documents relating to immigrant detention facilities. Specifically, NIJC requested the following:
The agencies received NIJC's FOIA request on May 3, 2011. On June 21, 2011, they notified NIJC in writing that the "'ICE FOIA Library'" section of the ICE website contained information addressing requests one through three and five through eight. Pl.'s Compl., Ex. B at 2. The agencies stated that request four was "still out for processing" and that they had "queried the appropriate offices within ICE for responsive records." Id.
On August 26, 2011, NIJC informed the agencies in writing that many of the documents it sought were unavailable on the ICE website and that the agencies' response to requests one through three and five through eight was therefore incomplete. On October 22, 2011, the agencies sent NIJC a letter that indicated they had treated NIJC's August 26 correspondence as an appeal of the adequacy of the search. They "remanded" the matter to the ICE FOIA office for "processing and re-tasking to the appropriate agency/office(s) to obtain any responsive documents." Pl.'s Compl., Ex. D at 1.
On March 20, 2012—about eleven months after submitting the FOIA request—NIJC filed an internal appeal because it still had not received even a single document responsive to its FOIA request. Compl., Ex. E at 1. NIJC stated that "pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), we expect you will make a determination with respect to our appeal within twenty days . . . after the receipt of our appeal. " Id. at 4. On April 18, 2012, the defendants acknowledged the appeal and noted that "[w]hile we will make every effort to process your appeal on a timely basis, there may be some delay" because "[a] high number of FOIA/PA requests have been received by the Department." Pl.'s Compl., Ex. F at 2. On June 1, 2012, the agencies again "remanded" the matter tothe ICE FOIA office "so that they may complete their processing of these records and provide a direct response to [the NIJC]." Pl.'s Compl., Ex. G at 2. The defendants stated that "[d]ue to the voluminous nature of your request, the ICE FOIA Office anticipates that an interim release of responsive records will be complete by June 29, 2012." Id. June 2012 came and went, however, with no interim release of records.
By the end of June 2012, fourteen months had passed from the filing of NIJC's FOIA request, and it still had received not a single document. On July 9, 2012, NIJC filed the present lawsuit, seeking a declaratory judgment that defendants' search for records was inadequate and an order directing them to produce all responsive documents by a date certain.
On September 17, 2012, the Court held an initial scheduling conference / status hearing in the case. The Court held the conference in chambers per its usual practice. The Assistant United States Attorney representing the agencies told the Court and counsel for NIJC that the agencies had initially estimated that it would take them eighty-eight weeks to complete production of the requested records but that he had been able to get them down to forty weeks. The Court notes that forty weeks from September 17, 2012 would have been approximately the end of June 2013. (Eighty-eight weeks would have been approximately the end of May 2014.)
From November 1, 2012 to March 27, 2013, the agencies released about 11,000 pages of documents, with some document production occurring approximately every two weeks. This, however, did not get the agencies anywhere close to full compliance, even though by the end of March 2013 twenty-seven weeks had passed since the initial scheduling conference. In March 2013, NIJC offered to narrow the scope of its requestfrom documents relating to 250 detention facilities to documents relating to the "top 100" based on the number of detainees. Pl.'s Opening Br. at 7. NIJC says that it narrowed its request because the documents it had received at that point were "largely unresponsive," and it wished to "expedite production and help lessen the burden on the Federal Defendants . . . ." Id.
From April 12, 2013 to May 2013, the agencies produced about 800 pages of documents. Around June 2013, they asked NIJC to further narrow its request by accepting summary review reports of the facilities in lieu of quality control checklists. NIJC agreed, but it reserved the right to review the reports and request the checklists if it still needed them.
By the end of July 2013—after the full compliance date that the agencies' attorney had set at the initial scheduling conference-the agencies were still nowhere near full compliance with NIJC's requests, despite the fact that NIJC had twice narrowed them significantly. From August 1 to September 24, 2013, the agencies released approximately 3,000 pages of documents. Despite this, however, they were still just scratching the surface.
On November 7, 2013, the Court held another status hearing. At this point, the Court allowed discovery to proceed, largely to enable NIJC to obtain evidence regarding the nature and location of responsive records that had not been produced. The Court set a...
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