Nat'l Press Club Journalism Inst. v. United States Immigration & Customs Enf't

• Docket Number: Civil Action 18-2932 (RC)
• Decision Date: 28 December 2023
• Parties: NATIONAL PRESS CLUB JOURNALISM INSTITUTE, et al., Plaintiffs, v. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.
• Court: U.S. District Court — District of Columbia

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NATIONAL PRESS CLUB JOURNALISM INSTITUTE, et al., Plaintiffs,
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants.

Civil Action No. 18-2932 (RC)

United States District Court, District of Columbia

December 28, 2023

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFFS' CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT RE DOCUMENT NOS.: 52, 53

RUDOLPH CONTRERAS United States District Judge.

I. INTRODUCTION

Plaintiffs National Press Club Journalism Institute and Kathy Kiely (collectively, “Plaintiffs”) bring this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against Defendants United States Immigration and Customs Enforcement (“ICE”) and the United States Department of Homeland Security (collectively, “Defendants”). Plaintiffs seek to compel disclosure of records pertaining to two individuals-Emilio and Oscar Gutierrez-Soto-as well as mechanisms used to block or limit calls from detainees at ICE facilities in El Paso, Texas. Defendants' motion for summary judgment and Plaintiffs' cross-motion for partial summary judgment are now ripe for review. For the reasons stated below, the Court grants in part and denies in part Defendants' motion, and grants in part and denies in part Plaintiffs' cross-motion.

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II. BACKGROUND

In 2008, Emilio and Oscar Gutierrez-Soto sought asylum in the United States. See Pls.' Mem. Opp'n Defs.' Mot. Summ. J. & Supp. Pls.' Cross-Mot. Partial Summ. J. (“Pls.' Opp'n”), ECF No. 53-1, at 1. Emilio had been a journalist in Mexico, where he “reported on corruption and abuses by the Mexican military.” Id. at 4. “[A]fter receiving a tip that the military wanted him dead,” Emilio fled the country with his son, Oscar. Id. Following their flight from Mexico, the Gutierrez-Sotos lived in New Mexico for the better part of nine years. Id. Then, in July 2017, an immigration judge denied their asylum claims. Id. In December of that same year, ICE arrested the pair and “attempted to deport them.” Id. Although the Board of Immigration Appeals granted an emergency stay of removal, ICE detained the Gutierrez-Sotos for the next several months at a facility in El Paso. Id. at 4-5. The Gutierrez-Sotos eventually filed habeas petitions, see Gutierrez-Soto v. Sessions, 317 F.Supp.3d 917 (W.D. Tex. 2018), and were released from detention on July 26, 2018 before their claims were fully adjudicated. Pls.' Opp'n at 5-6.

On May 18, 2018-while the Gutierrez-Sotos were still in ICE custody-Plaintiffs filed a FOIA request seeking two categories of records. Compl., Ex. A, Freedom of Information Act Request (“FOIA Request”), ECF No. 1-1, at 1. The first category included “[a]ll records, including but not limited to emails, memos, text messages, and other communications, since January 1, 2017, that mention Emilio Gutierrez-Soto (aka Emilio Gutierrez Soto) or his son, Oscar Gutierrez-Soto (aka Oscar Gutierrez Soto).” Id. The second category included “[a]ll records of ICE facilities and/or personnel in El Paso, Texas, including but not limited to communications (e.g., emails, memos, text messages) and any mechanisms used to limit or block phone calls from detainees at ICE's El Paso facilities, since March 1, 2018, that mention or

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contain” the name of the Gutierrez-Sotos' attorney, his law firm, or two specific phone numbers. Id.

ICE acknowledged receipt of Plaintiffs' FOIA request on June 14, and it also referred a portion of the request to United States Immigration and Citizenship Services (“USCIS”). Pls.' Statement Material Facts & Response Defs.' Statement Material Facts (“Pls.' SMF”), ECF No. 53-2, at ¶¶ 15, 16. On July 17, Plaintiffs filed an administrative appeal, id. ¶ 18, which USCIS denied, id. ¶ 20, and to which ICE responded by remanding Plaintiffs' FOIA request for further processing, id. ¶ 19. On December 13, Plaintiffs filed this lawsuit, asking the Court to order Defendants to conduct a reasonable search for responsive records and to disclose all non-exempt, responsive records to Plaintiffs. See Compl., ECF No. 1, at 13.

Following the initiation of Plaintiffs' lawsuit, Defendants began processing records responsive to Plaintiffs' FOIA request. See Joint Status Report, ECF No. 9, at 2 (stating that productions began on December 17, 2018). Over the course of the next three and a half years, Defendants continued to produce responsive records. See Joint Status Report, ECF No. 41, at 1 (reporting that last production was made on July 21, 2022). The parties also negotiated over the scope of Plaintiffs' request. As relevant here, one topic of negotiation centered on Plaintiffs' request for records relating to mechanisms used to limit or block phone calls from detainees at ICE's El Paso facilities. See Joint Status Report, ECF No. 25, at 2 (“The parties are still conferring on the issue raised by Plaintiffs with respect to ICE's search for records responsive to the second prong of their request.”). They were not, however, able to make significant progress on that front. See Joint Status Report, ECF No. 33, at 3 (“As to the other issues about which the parties had been conferring . . ., the parties have not been able to reach resolution of those issues.”).

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Ultimately, ICE processed approximately 12,000 pages of responsive records, of which “174 pages of ICE records were withheld in full and approximately 3,000 pages . . . were withheld in part.” Defs.' Statement Material Facts (“Defs.' SMF”), ECF No. 52-1, at ¶ 9. USCIS produced approximately 3,000 pages of records, of which 16 pages were withheld in full and 121 were withheld in part. Id. ¶ 10.

Defendants moved for summary judgment that they had conducted reasonable searches and properly withheld information under FOIA exemptions 5, 6, 7(C), and 7(E). See generally Defs.' Mot. Summ. J. (“Defs.' Mot.”), ECF No. 52. Plaintiffs opposed and cross-moved for partial summary judgment that Defendants did not conduct reasonable searches and that ICE did not properly withhold certain records and information. See generally Pls.' Opp'n. The motions are fully briefed. See Defs.' Reply Supp. Mot. Summ. J. & Opp'n Pls.' Cross-Mot. Partial Summ. J. (“Defs.' Reply”), ECF No. 55; Pls.' Reply Supp. Cross-Mot. Partial Summ. J. (“Pls.' Reply”), ECF No. 57.

III. LEGAL STANDARD

Congress enacted FOIA to permit citizens to discover “what their government is up to.” U.S. Dep't of Just. v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (quoting EPA v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J. dissenting)). FOIA operates via several steps. First, upon an agency's receipt of a request that “reasonably describes” the records being sought, 5 U.S.C. § 552(a)(3)(A), the agency must “conduct[] a search reasonably calculated to uncover all relevant documents.” Weisberg v. U.S. Dep't of Just., 705 F.2d 1344, 1351 (D.C. Cir. 1983). Then, FOIA requires the agency to disclose responsive records revealed by the search, unless material in the records falls within one of FOIA's nine statutory exemptions. 5 U.S.C. § 552(b); see also Jud. Watch, Inc. v. U.S. Dep't of Def., 847 F.3d 735,

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738 (D.C. Cir. 2017) (“The Act requires government agencies to make information available upon request, unless the information is protected by one of nine statutory exemptions.” (internal quotation marks omitted)).

“FOIA cases typically and appropriately are decided on motions for summary judgment.” Pinson v. Dep't of Just., 236 F.Supp.3d 338, 352 (D.D.C. 2017) (quoting Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). A court addressing a motion for summary judgment in a FOIA suit is to review the matter de novo. See 5 U.S.C. § 552(a)(4)(B); Life Extension Found., Inc. v. IRS, 915 F.Supp.2d 174, 179 (D.D.C. 2013). In general, summary judgment is appropriate when “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). A “material” fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable factfinder to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380 (2007). In a FOIA case, “summary judgment is appropriate if there are no material facts genuinely in dispute and the agency demonstrates ‘that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information.'” Prop. of the People, Inc. v. Office of Mgmt. and Budget, 330 F.Supp.3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F.Supp.3d 172, 181 (D.D.C. 2017)).

The reviewing court may grant summary judgment based on the record and agency declarations if “the agency's supporting declarations and exhibits describe the requested documents and ‘the justifications for nondisclosure with reasonably specific detail, demonstrate

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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.'” Pronin v. Fed. Bureau of Prisons, No. 17-cv-1807, 2019 WL 1003598, at *3 (D.D.C. Mar. 1, 2019) (quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal citation omitted)). An agency's “[c]onclusory and generalized allegations of exemptions” are not sufficient justification. Morley v. CIA, 508 F.3d 1108, 1114-15 (D.C. Cir. 2007) (internal citations omitted); see also Pinson v. Dep't of Just., 313 F.Supp.3d 88, 106 (D.D.C. 2018). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Scudder v. CIA, 254...