Rojas-Vega v. United States Immigration and Custom Enforcement ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
:
DANY ROJAS-VEGA, :
:
Plaintiff, :
:
v. : Civil Action No. 16-2291 (ABJ)
:
UNITED STATES IMMIGRATION AND :
CUSTOMS ENFORCEMENT, et al., :
:
Defendants. :
_________________________________________ :
MEMORANDUM OPINION
Plaintiff Dany Rojas-Vega has brought this action under the Freedom of Information Act
(“FOIA”), see 5 U.S.C. § 552, against United States Immigration and Customs Enforcement
(“ICE”) and the United States Department of Homeland Security (“DHS”). 1 The parties have filed
cross-motions for summary judgment. For the reasons discussed below, the Court will grant
summary judgment in favor of ICE and deny plaintiff’s motion.
FACTUAL BACKGROUND
“Pursuant to the Immigration and Nationality Act . . . the Secretary of Homeland Security
is charged with the administration and enforcement of laws relating to the immigration and
naturalization of aliens.” Mem. of P. & A. in Support of Defs.’ Mot. for Summ. J. (“Defs.’
1
Although plaintiff names United States Customs and Immigration Services (“USCIS”) as a
defendant in this case, plaintiff does not allege that he submitted a FOIA request to USCIS, and
Defendants represent that USCIS did not receive one. See Defs.’ Combined Reply in Support of
its Mot. for Summ. J. (ECF No. 26) & Opp’n to Pl.’s Cross-Mot. for Summ. J. (ECF No. 38) at 1
n.1. Therefore, the Court dismisses USCIS as a party and any claim Plaintiff makes against
USCIS.
1
Mem.”), Declaration of Matthew Riley, Acting Deputy FOIA Officer, U.S. Immigration and
Customs Enforcement (“Riley Decl.”) ¶ 26. According to the declarations submitted in this case,
“ICE is the largest investigative arm of DHS, and . . . is tasked with preventing any activities that
threaten national security and public safety by investigating the people, money, and materials
[supporting] illegal enterprises.” Riley Decl. ¶ 26. It performs “the investigative and interior
enforcement elements of the [former] U.S. Customs Service and the Immigration and
Naturalization Service.” Id. ¶ 6. ICE’s Office of Enforcement and Removal Operations (“ERO”)
is responsible for “identify[ing], arrest[ing], and remov[ing] aliens who present a danger to
national security or are a risk to public safety, as well as those who enter the United States illegally
or otherwise undermine the integrity of our immigration laws and our border control efforts.” Id.
¶ 7. Among other duties, ERO “transports removable aliens from point to point, manages aliens
in custody or in an alternative detention program . . . , and removes individuals from the United
States who have been ordered deported.” Id.
The ICE FOIA Office processes and responds to any FOIA requests that ICE receives. Id.
¶ 2. Its staff determines which program office within ICE is “reasonably likely to possess records
responsive to [each] request[,] if any[,] and to initiate [a] search[] in [that] program office[].” Id.
¶ 5. FOIA Office staff then forwards the request to the appropriate program office’s designated
point of contact (“POC”), the person primarily “responsible for communications between that
program office and the ICE FOIA Office.” Id. The POC reviews the FOIA request and “any case-
specific instructions that may have been provided,” id., and in turn forwards the request and
instructions “to the individual employee(s) or component office(s) within the program office [the
POC believes is] reasonably likely to have responsive records[.]” Id. The designated employee
or component office staff member is directed to conduct a search of the “file systems, including
2
both paper and electronic files, which in [his or her] judgment, based on [his or her] knowledge of
the manner in which [the office] routinely keep[s] records, would most likely be the files
[containing] responsive documents.” Id. Upon completion of the search, the results are provided
to the POC, “who in turn provides the records to the ICE FOIA Office.” Id. At that point, FOIA
Office staff “review[s] the collected records for responsiveness.” Id.
Plaintiff alleges that on October 2, 2014, he submitted a FOIA request in an email message
to ICE’s FOIA Office. Compl. ¶ 10. He received no response to the October 2014 email, and
“filed a follow-up request on May 30, 2016.” Mem. of P. & A. in Support of Prelim. Inj., ECF
No. 34-1 ¶ 17; Riley Decl. ¶ 9. ICE treated plaintiff’s May 30, 2016 email as a new FOIA request,
see Riley Decl. ¶¶ 3, 9, and assigned it a reference number, 2016-ICFO-38593, see Pl.’s Opp’n to
[41, 42] Def.’s Response & Mem. of P. & A. in Support of Granting Pl.’s Combined Cross-Mot.
for Summ. J. and Discovery [36] (“Pl.’s Reply”), ECF No. 45-2 at 13 (email to plaintiff from ICE
FOIA Office dated June 13, 2016, acknowledging receipt of ICE FOIA Request 2016-ICFO-38593
on May 30, 2016). “Plaintiff requested all ICE records pertaining to his state criminal court
transcripts for case number M707038.” Riley Decl. ¶ 9.
Plaintiff has filed several exhibits with his many submissions to the Court. Among these
exhibits are 18 pages of email correspondence between plaintiff and the ICE FOIA Office. See
generally Pl.’s Reply, ECF No. 45-2. In an email dated June 17, 2016, plaintiff provides more
specifics about the scope of his original October 2014 request, and he made it clear that he was
still seeking:
Specific transcripts to the Oct[ober] 6, 1995 state proceedings in
case M707038 and the name(s) of the District Counsel (INS) that
was contacted by the District Attorney’s Office on October 6, 1995,
requested by me to former U.S. Immigration and Naturalization
Service (“INS”) and related information . . . .
3
Id., ECF No. 45-2 at 15.
This was not plaintiff’s first effort to obtain transcripts of these state court proceedings
from immigration authorities. See Compl. ¶¶ 3, 6. In June 2003, plaintiff submitted a FOIA
request “to former INS located at 880 Front Street, Suite 1234, San Diego, CA 92101-8834,” Pl.’s
Reply, ECF No. 45-2 at 15 (emphasis removed), seeking, among other information, a verbatim
transcript of proceedings on October 6, 1995 in the San Diego Municipal Court in Case Number
M707038. See id.; Table of Exhibits, ECF No. 8-2 at 15 (Ex. 7, June 2, 2003 Freedom of
Information/Privacy Act Request). INS responded by releasing in full 534 pages of records,
releasing in part four pages of records, and withholding in full 25 pages of records. See id., ECF
No. 8-2 at 17 (Ex. 8-1, June 25, 2003 response to FOIA Request No. SND2003002513) at 1; see
also Compl. ¶ 5. Plaintiff submitted an identical FOIA request to ICE on September 2, 2008
(Request No. 2008FOIA3893), which was referred to United States Immigration and Customs
Enforcement (Request No. NRC2008055319). Compl. ¶¶ 6-7. USCIS released 194 pages of
records in their entirety, and informed plaintiff that “[t]here was no verbatim copy of the
[transcript]” in its files. Table of Exhibits, ECF No. 8-2 at 19 (Ex. 9, June 17, 2009 response to
Request No. NRC2008055319).
Although plaintiff’s 2003 and 2008 FOIA requests have been mentioned in other civil
actions, it does not appear that a federal district court reached the merits of the agencies’ responses.
See Rojas-Vega v. U.S. Citizenship and Immigration Serv., No. 13-CV-172, 2013 U.S. Dist. LEXIS
77801, at *2 (S.D. Cal. May 30, 2013) (noting that plaintiff “first requested [a 1995 state court
transcript, notes and memos related to that case, and the names and titles of the INS official
involved] from the [INS] in June 2003, but never appealed to the district court,” and that the court
had dismissed sua sponte plaintiff’s civil action regarding the 2008 request).
4
Plaintiff did file a previous FOIA action in this court, but it pertained to a 2012 FOIA
request to USCIS’s National Records Center, which resulted in the release of records maintained
in plaintiff’s Alien File. See Rojas-Vega v. U.S. Citizenship & Immigration Serv., 132 F. Supp. 3d
11, 14 (D.D.C. 2015) (identifying the “operative FOIA request in this case [as the one] submitted
to USCIS’s National Records Center . . . in May 2012 (case number NRC2012052309)”), aff’d,
650 F. App’x 36, 37 (D.C. Cir. 2016) (per curiam).
With respect to the request at issue in this case, ICE FOIA Office staff construed ICE FOIA
Request 2016-ICFO-38593 as one “for records related to ERO’s immigration enforcement
mission[.]” Riley Decl. ¶ 10. For this reason, staff identified ERO as the program office most
likely to have responsive records, and forwarded plaintiff’s request to the ERO’s point of contact,
the Information Disclosure Unit (IDU). Id. ERO IDU’s search located “no records . . . pertaining
to the [p]laintiff’s state court transcripts.” Id. ¶ 11.
On June 27, 2016, plaintiff pursued an administrative appeal, id. ¶ 12, and ICE’s Office of
the Principal Legal Advisor, Government Information Law Division, affirmed the adequacy of
ERO IDU’s search, id. ¶ 13. Plaintiff then filed this civil action on October 24, 2016, 2 seeking
judicial review of ICE’s final determination and the denial of his appeal on the ground that the
agency’s search for responsive records was inadequate. Compl. ¶ 14.
According to the Acting Deputy FOIA Officer “ICE conducted a litigation review of the
FOIA request and administrative records, and the associated dockets proffered by [p]laintiff.”
2
Plaintiff’s original complaint bears a date stamp indicating that the Clerk of Court received the
pleading on October 24, 2016. Review of the Court’s CM/ECF docket reveals that the Court
granted plaintiff’s application to proceed in forma pauperis on November 10, 2016, and that the
Clerk of Court officially filed the complaint, ECF No. 1, and application to proceed in forma
pauperis, ECF No. 2, on November 14, 2016. The Court treats the complaint as if it had been filed
on October 24, 2016.
5
Riley Decl. ¶ 15. “On January 30, 2017, [a Management and Program Analyst] conducted a search
using the ENFORCE Alien Removal Module (EARM) application,” which yielded “thirteen . . .
pages of EARM case summaries.” Id. These summaries were considered “non-responsive to
[p]laintiff’s FOIA request [because they] do not pertain in any way to any state court transcripts,
record of proceedings, or state plea bargain.” Id. ¶ 16. Nevertheless, “out of [an] abundance of
caution and in the agency’s discretion,” ICE released the EARM case summaries, id., after having
redacted certain information under Exemptions 6, 7(C), and 7(E), see id. ¶¶ 24, 28, 30.
“Due to an administrative error, ICE believed it mailed these records on February 27,
2017[.] Upon discovering the error, on April 4, 2017, ICE immediately sent [p]laintiff the records
on that same date,” id. ¶ 16 n.1, “via Federal Express,” id. ¶ 17. “On April 20, 2017, the records
were returned . . . as undeliverable to the address in Costa Rica provided by [p]laintiff.” Id. ICE
then “disseminated the responsive records to [p]laintiff via email on May 11, 2017.” Id. ¶ 18.
LEGAL STANDARD
“FOIA cases are typically and appropriately decided on motions for summary judgment.”
Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). On a motion for summary judgment, the
Court generally “must view the evidence in the light most favorable to the nonmoving party, draw
all reasonable inferences in his favor, and eschew making credibility determinations or weighing
the evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Ordinarily, where the agency moves for
summary judgment, it must identify materials in the record to demonstrate the absence of any
genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1). Plaintiff as the non-moving party
must point to specific facts in the record to show that there remains a genuine issue suitable for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). But where, in a FOIA case, a
6
plaintiff has not provided evidence that an agency acted in bad faith, “a court may award summary
judgment solely on the basis of information provided by the agency in declarations,” Moore, 601
F. Supp. 2d at 12, provided that the declarations are not “conclusory, merely reciting statutory
standards, or . . . too vague or sweeping.” King v. U.S. Dep’t of Justice, 830 F.2d 210, 219 (D.C.
Cir. 1987) (footnote omitted).
ANALYSIS
Plaintiff identifies “[t]he operative FOIA request in this case” as the one he “submitted
directly with ICE[’s] Freedom of Information Act Office back in October 02, 2014 . . . and was
again submitted to ICE [on] May [30], 2016 (case number ICE FOIA Case Number 2016-ICFO-
38593)[.]” Compl. ¶ 10. Therefore, while plaintiff discusses other matters in his pleadings, none
of his prior FOIA requests is relevant. This lawsuit not an opportunity to revisit legal issues that
may have arisen in any other civil action plaintiff has filed, or to challenge responses to plaintiff’s
2003, 2008 or 2012 FOIA requests, or to raise new claims unrelated to ICE’s response to Request
No. 2016-ICFO-38593, or to demand relief that is unavailable under FOIA.
I. The Sufficiency of the Search for Responsive Records
The D.C. Circuit has explained that in order to obtain summary judgment, the agency must
show that it made a good faith effort to conduct a search for the requested records, using methods
which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep’t
of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “The Court applies a reasonableness test to
determine the adequacy of search methodology . . . consistent with the congressional intent tilting
in favor of disclosure.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998)
(citations and internal quotation marks omitted). An agency “fulfills its obligations under FOIA
if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover
7
all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514
(D.C. Cir. 2011) (citations and internal quotation marks omitted). “[T]he issue to be resolved is
not whether there might exist any other documents possibly responsive to the request, but rather
whether the search for those documents was adequate.” Weisberg v. U.S. Dep’t of Justice, 705
F.2d 1344, 1351 (D.C. Cir. 1983) (citing Perry v. Block, 684 F.2d 121, 128 (D.C. Cir. 1982)). The
agency may submit affidavits or declarations to explain the method and scope of its search, see
Perry, 684 F.2d at 126, and such affidavits or declarations are “accorded a presumption of good
faith, which cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991) (internal quotation marks and citation omitted). However, if the record “leaves substantial
doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt
v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990).
The declarant explains that ICE’s FOIA Office referred plaintiff’s request to ERO because
it construed the request as one “for records related to ERO’s immigration enforcement mission.”
Riley Decl. ¶ 10. Although the declaration does not describe the search originally conducted in
2016, it explains the search conducted in 2017 in the course of its litigation review of the case:
On January 30, 2017, ERO IDU conducted a search using the
ENFORCE Alien Removal Module (EARM) application. EARM is
a web based application that supports ICE’s processing and removal
of aliens from the United States. EARM includes personal
identifiers, photographs, and details of removal case proceedings to
aid ERO in carrying out the removal of aliens from the United
States, in accordance with the law. Through EARM, ERO accesses
records related to the investigation, arrest, booking, detention, and
removal of persons encountered during immigration and criminal
law enforcement investigations and operations conducted by ICE,
U.S. Customs and Border Protection (CBP), and U.S. Citizenship
and Immigration Services (USCIS), the three agencies within DHS
immigration enforcement responsibilities. An ERO IDU
Management and Program Analyst conducted a search using the
8
Plaintiff’s first name, last name, country of birth, date of birth, and
alien file number.
Id. ¶ 15. The search results are 13 pages of EARM case summaries “listing information pertaining
to [p]laintiff’s immigration history.” Id. ¶ 16. The declarant goes on to state that “transcripts of
state court proceedings do not reside under the purview of ICE,” id. ¶ 14, and that none were found
among ERO’s records, id. ¶ 11.
ICE’s supporting declaration shows that, based on information plaintiff provided in his
FOIA request and supporting documents, see, e.g., Pl.’s Reply, ECF No. 45-2 at 4, 9, it was
reasonable that ICE FOIA staff referred plaintiff’s request to ERO, the program office responsible
for removing individuals from the United States who have been ordered deported, and that ERO
IDU staff searched EARM, where records regarding the processing and removal of aliens from the
United States are maintained, and that staff conducted a search using plaintiff’s personal
identifying information as search terms. The Court concludes that ICE’s search for responsive
records was reasonable under the circumstances.
Plaintiff challenges the adequacy of ICE’s search on two grounds. First, plaintiff contends
that ICE did not search “the location [where he] indicated that responsive records [were]
originally[] requested, processed, located and withheld;” nor did it produce “his copy of the
transcripts it withheld in 2003.” Pl.’s Cross-Mot. for Summ. J. and for Orders Allowing Him to
Conduct Discovery and Requiring Defs. To Process his Requests In Accordance [with the]
Freedom of Information Act, ECF No. 36 (“Pl.’s Opp’n”) at 6. According to plaintiff, his May 30,
2016 and June 17, 2016 emails to the ICE FOIA Office “gave the location of 880 Front Street,
Suite 1234, San Diego, CA 92101-8834 as the INS branch office where his June 3, 2003 request
was mailed,” Mem. of P. & A. in Support of Opp’n to Def.’s Mot. for Summ. J. and in Support of
Pl.’s Cross-Mot. for Summ. J., ECF No. 36-1 (“Pl.’s Mem.”) at 8 ¶ 11, and he faults ICE for
9
limiting its search to EARM records only, id. at 11 ¶¶ 18-19. Because the May 30, 2016 request,
No. 2016-ICFO-38593, is the operative FOIA request in this case, the 2003 FOIA request is not
relevant. The fact that plaintiff informed ICE that he had previously requested the same or similar
information from the San Diego office of the former Immigration and Naturalization Service did
not give rise to an obligation on the part of ICE to search that location in response to the new
request, and the fact that it did not so does not make the search inadequate.
Plaintiff’s second challenge presumes that ICE previously maintained a copy of the state
court transcripts he seeks, and that it improperly destroyed or otherwise wrongfully withheld them
from him. 3 See, e.g., Pl.’s Opp’n at 6; Pl.’s Mem. at 9 ¶¶ 13-14. But this is speculation on
plaintiff’s part, and he does not point to any facts that would counter defendants’ showing that it
searched for records related to the plaintiff and turned over what it found. See Grimes v. District
of Columbia, 794 F.3d 83, 94 (D.C. Cir. 2015) (noting that plaintiff bears “burden to identify
evidence that a reasonable jury could credit in support of each essential element of [his] claims”
and “cannot rely on the allegations of [his] own complaint in response to a summary judgment
motion, but must substantiate them with evidence”); Fed. R. Civ. P. 56(e)(2) (authorizing court,
when non-moving party “fails to properly address another party’s assertion of fact as required by
Rule 56(c),” to “consider the fact undisputed for purposes of the motion”).
Moreover, the adequacy of ICE’s search for responsive records depends on the methods,
not the results, of the search. See Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C.
Cir. 2003). “[T]he agency’s failure to turn up a particular document, or mere speculation that as
3
Plaintiff believes that the transcript he seeks is among the 25 pages of records responsive to his
2003 FOIA request and have been withheld improperly in violation of the FOIA. See Compl. ¶¶
14, 16; see Rojas-Vega v. Cejka, No. 09CV2489, 2010 U.S. Dist. LEXIS 37897, at *12 (S.D. Cal.
Apr. 14, 2010).
10
yet uncovered documents might exist, does not undermine the determination that the agency
conducted an adequate search for the requested records.” Wilbur v. CIA, 355 F.3d 675, 678 (D.C.
Cir. 2004). See Parker v. U.S. Immigration & Customs Enforcement, 238 F. Supp. 3d 89, 102
(D.D.C. 2017) (“In this circuit, it is clear that a plaintiff’s unsubstantiated belief that missing
records exist cannot demonstrate the inadequacy of an agency’s search.”). Particularly in this case,
where the agency’s declarant averred that the transcripts in question are not the type of records
that the agency maintains, plaintiff’s speculation that the records have either been destroyed or
withheld is not enough to defeat the defendant’s motion for summary judgment.
II. Exemptions 6, 7(C) and 7(E)
Defendants filed their motion on May 17, 2017, and on the following day, the Court issued
an Order, ECF No. 28, advising plaintiff of his obligation under the Federal Rules of Civil
Procedure and the local rules of this Court to respond to the motion. Plaintiff did file a timely
response, but he did not address defendants’ legal arguments for withholding information under
Exemptions 6, 7(C) and 7(E).
The District of Columbia Circuit held that “[u]nder the Federal Rules of Civil Procedure,
a motion for summary judgment cannot be ‘conceded’ for want of opposition.” Winston & Strawn,
LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016). It underscored that the “District Court ‘must
always determine for itself whether the record and any undisputed material facts justify granting
summary judgment.’” Id. (quoting Grimes, 794 F.3d at 95). However, that ruling arose in the
context of a case in which the district court exercised its discretion under the Local Rules to treat
a summary judgment motion as conceded when the non-moving party failed to file any opposition
at all. The Court stated:
A party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
11
motion, and identifying those portions of the record which it
believes demonstrate the absence of a genuine issue of material fact.
And then a district court must always determine for itself whether
the record and any undisputed material facts justify granting
summary judgment. These standards cannot be satisfied if, as
allowed by Local Rule 7(b), the District Court simply grants
judgment “as conceded” when the nonmoving party fails to meet a
deadline.
Id. at 507 (internal citations, quotation marks, and edits omitted).
But that is not what happened in this case. Defendant met its initial responsibility to inform
the Court of the basis of its motion, and it pointed to the portions of the record demonstrating the
lack of any genuine issue of material fact. And here, unlike in Winston & Strawn, plaintiff filed a
timely opposition to the motion for summary judgment. Thus, plaintiff availed himself of the
opportunity provided in Rule 56(c) to address all of defendant’s assertions of fact, and, pursuant
to Rule 56(e), the Court may consider facts “undisputed for purposes of the motion” when “a party
fails to properly support an assertion of fact or fails to properly address another party’s assertion
of fact . . . .” Fed. R. Civ. P. 56. Since plaintiff has not presented facts that would give rise to a
genuine dispute of material fact concerning the invocation of Exemptions 6, 7(C) and 7(E), there
is a basis to find that there is no dispute for the Court to adjudicate, and the requirements of Rule
56 have been satisfied. See e.g., Shapiro v. U.S. Dep’t of Justice, 239 F. Supp. 3d 100, 105-06
(D.D.C. 2017) (finding that where an exemption under FOIA is not challenged, there is no dispute
for the Court to resolve). In any event, the record reflects that there was a sound legal basis for
the application of the exemptions.
A. Law Enforcement Records
FOIA Exemption 7 protects from disclosure “records or information compiled for law
enforcement purposes,” but only to the extent that disclosure of such records would cause an
enumerated harm. 5 U.S.C. § 552(b)(7); see FBI v. Abramson, 456 U.S. 615, 622 (1982). “To
12
show that . . . documents were compiled for law enforcement purposes, the [agency] need only
establish a rational nexus between the investigation and one of the agency’s law enforcement
duties and a connection between an individual or incident and a possible security risk or violation
of federal law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation marks and
citations omitted).
The declarant explains that ICE “is the largest investigative arm of DHS . . . tasked with
preventing . . . activities . . . threaten[ing] national security and public safety by investigating the
people, money, and materials . . . support[ing] illegal enterprises.” Ridley Decl. ¶ 26. The EARM
case summaries “pertain to ICE’s immigration enforcement actions” taken under DHS’s authority
to administer and enforce laws regarding the immigration and naturalization of aliens. Id. Thus,
ICE meets its threshold requirement by demonstrating that the responsive records were compiled
for law enforcement purposes.
B. Exemptions 6 and 7(C)
Exemption 6 protects “personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Any
information that “applies to a particular individual” qualifies for consideration under this
exemption. U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982). Exemption
7(C) protects from disclosure information in law enforcement records that “could reasonably be
expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552 (b)(7)(C).
Analysis under either exemption requires the Court to balance the privacy interests of the
individuals mentioned in the records against the public interest in the records’ disclosure. See
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004); Am. Civil Liberties Union
v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011). When balancing the private interest against
13
the public interest in disclosure, the relevant public interest “is one that focuses on the citizens’
right to be informed about what their government is up to.” Davis v. U.S. Dep’t of Justice, 968
F.2d 1276, 1282 (D.C. Cir. 1992) (citation and internal quotation marks omitted).
ICE relies on Exemption 6 in conjunction with Exemption 7(C) to withhold “personally
identifiable login information of ICE employees who accessed EARM.” Ridley Decl. ¶ 8; see id.
¶ 28. The declarant explains that disclosure of this login information “could lead to the
identification of the ICE employees and subject [them] to harassing telephone calls and
unwarranted hostility, which could disrupt and impede official law enforcement activity.” Id. ¶
28. According to the declarant, these ICE personnel “handle a myriad of tasks relating to the
enforcement of federal immigration law, including the investigation of noncitizens [who] may be
illegally present in the United States.” Id. These ICE employees “have a privacy interest in not
being targeted by individuals who may begrudge them for [their] affiliation [with ICE],” the
declarant states. Plaintiff fails to articulate and ICE does not identify a public interest or benefit
in disclosure of this login information, as it “would not assist the public in understanding how ICE
is carrying out its statutory responsibilities.” Id.
The Court concludes that ICE properly withholds the names of and identifying information
about third parties appearing in the responsive EARM case summaries. See, e.g., Parker, 238 F.
Supp. 3d at 99; Rojas-Vega, 132 F. Supp. 3d at 18.
C. Exemption 7(E)
Exemption 7(E) protects law enforcement records that “would disclose techniques and
procedures for law enforcement investigations or prosecutions, or would disclose guidelines for
law enforcement investigations or prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). “D.C. Circuit precedent ‘sets a relatively
14
low bar for the agency to justify withholding’ information under FOIA Exemption 7(E).” Ortiz v.
U.S. Dep’t of Justice, 67 F. Supp. 3d 109, 122 (D.D.C. 2014) (quoting Blackwell, 646 F.3d at 42).
“[I]nternal agency materials relating to guidelines, techniques, sources, and procedures for law
enforcement investigations and prosecutions, even when the materials have not been compiled in
the course of a specific investigation” may be protected under Exemption 7(E), Tax Analysts v.
IRS, 294 F.3d 71, 79 (D.C. Cir. 2002) (citation omitted), and even if the documents “are not ‘how-
to’ manuals for law-breakers,” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009).
Under Exemption 7(E), ICE withholds “internal URLs, case numbers, case categories,
subject identification numbers, case identification numbers, and internal identifying codes and
departure statuses.” Ridley Decl. ¶ 30; see id., Vaughn Index at 3. The manner by which ICE
employees label cases, access databases, and maintain information regarding a case “is both a law
enforcement technique and procedure that is not commonly known to the public,” the declarant
states. Id. ¶ 31. Further, the declarant explains that disclosure of this information “could assist
unauthorized parties in deciphering the meaning of the codes and numbers, gaining improper
access to law enforcement databases, and [could] assist in the unauthorized party’s navigation of
the law enforcement database.” Id. If this information were not protected, persons “seeking to
violate or circumvent the law [could] take proactive steps to counter operational and investigative
actions taken by ICE during enforcement operations.” Id.
The Court concludes that this type of information properly is withheld under Exemption
7(E). See Parker, 238 F. Supp. 3d at 100 (concluding that ICE properly withheld “sensitive
database and event codes, identification numbers, law enforcement system URLs, internal website
links, record identification numbers, event numbers, category codes, TECS codes, method codes,
file numbers, . . . status codes, internal agency codes, case numbers, program codes, and system
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codes” under Exemption 7(E)); Ortiz, 67 F. Supp. 3d at 123 (concluding that ICE properly withheld
“external system identification numbers, and other law enforcement agency database case
numbers, or identifiers, means of access to intra-agency databases to include case file numbers,
event numbers, internal codes, computer function commands, identification numbers, and other
law enforcement codes and numeric references” under Exemption 7(E)).
D. Segregability
If a record contains some information that is exempt from disclosure, any reasonably
segregable information not exempt from disclosure must be released after deleting the exempt
portions, unless the non-exempt portions are inextricably intertwined with exempt portions. 5
U.S.C. § 552(b); see Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022,
1027 (D.C. Cir. 1999).
The declarant avers that ICE staff under his supervision “has reviewed each record line-
by-line to identify information exempt from disclosure or for which a discretionary waiver of
exemption could be applied.” Ridley Decl. ¶ 33. He concludes that “all information not exempted
from disclosure pursuant to [Exemptions 6, 7(C) and 7(E)] was correctly segregated and non-
exempt portions were released.” Id. ¶ 34.
Based on the Court’s review of ICE’s supporting declaration and redacted copies of the
EARM records themselves, see Notice and Motion to Compel, ECF No. 31-1, the Court finds that
all reasonably segregated material has been released.
CONCLUSION
The Court concludes that ICE has conducted a reasonable search for records responsive to
Request No. 2016-ICFO-38593, and that it properly has withheld information under Exemptions
6, 7(C) and 7(E). ICE has fulfilled its obligations under the FOIA, and the Court therefore grants
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its motion for summary judgment. Plaintiff’s cross-motion is denied. An Order is issued
separately.
/s/
AMY BERMAN JACKSON
DATE: March 26, 2018 United States District Judge
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