RUDOLPH CONTRERAS, United States District Judge.
Plaintiff, Mr. Lonnie Parker, challenges defendant Immigration and Customs Enforcement (ICE)'s response to his FOIA request. Mr. Parker sought records related to ICE's previous criminal investigation of Mr. Parker. ICE responded to Mr. Parker's request, but withheld portions of some documents under various FOIA exemptions. Mr. Parker argues that ICE's search was inadequate because it did not produce any communications between ICE and the FBI — which Mr. Parker asserts must exist — and because it insufficiently searched for responsive emails. The Court grants ICE summary judgment in part but
Mr. Parker filed a FOIA request on ICE in early 2014, seeking:
FOIA Request, ECF No. 17-3, Ex. 1. ICE is "the principal investigative arm of [the Department of Homeland Security] and the second largest investigative agency in the federal government." Pineiro Decl. ¶ 24, ECF No. 18.
After receiving this request, ICE determined that its Office of Enforcement and Removal Operations (ERO) and Homeland Security Investigations (HSI) office were the likely locations of responsive records. Pineiro Decl. ¶ 23. ERO searched the Central Index System database using Mr. Parker's name and date of birth, but did not find any entries in the index suggesting that ERO had any responsive records. Pineiro Decl. ¶ 27. ERO thus concluded its search. HSI searched the TECS system using Mr. Parker's name. Pineiro Decl. ¶ 28. TECS is a law enforcement database that includes case management functions and enforcement, inspection, and intelligence records. Pineiro Decl. ¶ 29. HSI located 60 pages of responsive records within TECS including "search query results, incident reports and reports of investigation from a criminal investigation case." Pineiro Decl. ¶¶ 7, 30. ICE withheld some portions of the records under FOIA Exemptions 6 and 7 and released the rest to Mr. Parker. Pineiro Decl. ¶ 7. Mr. Parker appealed this result administratively, and the ICE Office of the Principal Legal Advisor affirmed ICE's withholdings but instructed ICE to reprocess the request and locate additional potentially responsive records. Pineiro Decl. ¶¶ 8, 9.
Unsatisfied with this resolution, Mr. Parker filed suit against ICE in August of 2015. Compl., ECF No. 1. After Mr. Parker initiated this litigation, "HSI determined that ... additional responsive hard file records beyond what was previously found in TECS" might exist in a Little Rock field office.
Agent Sanders also searched "his personal Outlook email archives" but did not find any responsive records. 2d Pineiro Decl. ¶ 8. Mr. Parker's briefing also discusses the emails and other communications associated with an Agent Mensinger. Agent Mensinger left ICE before Mr. Parker's FOIA request was submitted to ICE. 2d Pineiro Decl. ¶ 10. Given that Agent Mensinger no longer had a functioning ICE email account, and that Mr. Parker sought records from before 2008, the only ICE record system that might still contain copies of any of Agent Mensinger's emails was "various back-up tape systems in regional offices." 2d Pineiro Decl. ¶ 10. Due to their age, these assorted systems are "no longer produced commercially" and "ICE no longer maintains the equipment and software" which would be required to read or search the email files stored within. 2d Pineiro Decl. ¶ 10. ICE does not describe any search for Agent Mensinger's email beyond establishing the inaccessible nature of the email archive tapes.
ICE now moves for summary judgment on the grounds that it performed an adequate search, withheld only material properly within FOIA Exemptions 6 and 7, and released all segregable material. See generally Mem. Law Supp. Def.'s Mot. Summ. J. (Def.'s MSJ), ECF No. 17-2. ICE provides a Vaughn index describing the material withheld from the records. See generally Vaughn Index, ECF No. 17-3, Ex. 5. Mr. Parker did not object to ICE's withholdings, but argues in his cross-motion for summary judgment that ICE did not perform an adequate search because it did not follow up on all of the leads that Mr. Parker identified.
"FOIA cases typically and appropriately are decided on motions for summary
ICE requests summary judgment as to the propriety of its withholdings and its release of segregable materials because Mr. Parker is silent on both issues. See, e.g., Def.'s Reply Supp. Summ. J. & Opp'n Pl.'s Cross-Mot. Summ. J. (Def.'s Opp'n) at 1-2, ECF No. 21.
ICE withholds portions of records under FOIA Exemption 6, Exemption 7(C), and Exemption 7(E).
Because "`[d]isclosure, not secrecy, is [FOIA's] dominant objective,' ... agencies may withhold only those documents or portions thereof that fall under one of nine delineated statutory exemptions." Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 845 (D.C. Cir. 2010) (second alteration in original) (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) and citing 5 U.S.C. § 552(b)). The agency's documents supporting the exemption, including the Vaughn index, must "permit adequate adversary testing of the agency's claimed right to an exemption." Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 840 F.Supp.2d 226, 230 (D.D.C. 2012) (quoting Kimberlin v. U.S. Department of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998)); see also 5 U.S.C. § 552(a)(4)(B). However, "a reviewing court should `respect the expertise of an agency' and not `overstep the proper limits of the judicial role in FOIA review,'" Pinson v. U.S. Dep't of Justice, 160 F.Supp.3d 285, 293 (D.D.C. 2016) (quoting Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979)), and an agency's explanation is thus "sufficient if it appears `logical' or `plausible,'" Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007).
ICE claims that Exemption 7(C) and 7(E) apply to some withheld material. "In order to withhold documents under Exemption 7, the agency must, as a preliminary matter" make a "threshold" showing demonstrating "that the records were compiled for a law enforcement purpose." Kay v. FCC, 976 F.Supp. 23, 37 (D.D.C. 1997). Here, ICE asserts that it meets this threshold requirement because "the Secretary of Homeland Security is charged with the administration and enforcement of laws relating to the Customs and the importation and exportation of goods in the country" and "ICE ... is responsible for identifying and eliminating vulnerabilities within the nation's borders.... that threaten national security and public safety." Pineiro Decl. ¶ 46. The specific "records at issue in this matter were compiled as part of a criminal investigation by ... [the] U.S. Customs Service." Pineiro Decl. ¶ 46. Mr. Parker does not argue that any of the records withheld or redacted by ICE under Exemption 7 were not compiled for a law enforcement purpose, and
ICE uses Exemption 7(C) to justify withholding the names, initials, signatures, and phone numbers of ICE employees and third-party individuals. See generally Vaughn Index. ICE may also have withheld email addresses and room numbers of ICE employees under Exemption 7(C). Pineiro Decl. ¶ 49. According to ICE, each affected individual "has an interest in remaining free from harassment." Def.'s MSJ at 12.
Under Exemption 7(C), an agency is exempt from producing "records or information compiled for law enforcement purposes ... to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). A court first determines if there is a privacy interest in the information to be disclosed, ACLU v. U.S. Dep't of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011), and then balances the individual's privacy interest against the public interest, considering only the public interest "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) (quoting U.S. Dep't of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)). It is a FOIA requester's obligation to articulate a public interest sufficient to outweigh an individual's privacy interest, and the public interest must be significant. See Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004).
Here, as ICE notes, the individuals and ICE employees do clearly have a privacy interest as the names, addresses, and phone numbers redacted could be linked to them and potentially expose them to harassment. Mr. Parker does not articulate a public interest in learning personal information about the ICE agents or third-party individuals mentioned in these documents. Even if such an interest existed — for example, if identifying particular ICE employees revealed some slight amount of information about how the government was fulfilling its duties — the Court concludes that this interest is outweighed by the private interest in privacy. Information about "private individuals appearing in files within the ambit of Exemption 7(C)" is categorically exempt from disclosure unless disclosure "is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity." See Pinson v. U.S. Dep't of Justice, No. 12-1872, 202 F.Supp.3d 86, 102, 2016 WL 4074130, at *7 (D.D.C. July 29, 2016) (quoting SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1206 (D.D.C. Cir. 1991)). Here, there is no allegation of illegal activity by the agency, and the private individuals' data must therefore be withheld. Although private information about agency employees is somewhat less protected, the D.C. Circuit has consistently held that the privacy interests of investigators justifies withholding their information in many circumstances. See Schrecker v. Dep't of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003). Mr. Parker articulates no public interest in obtaining information about the particular investigators involved in his case. The
ICE applies Exemption 7(E) to withhold "internal case numbers and internal system codes" from several documents.
Exemption 7(E) protects law enforcement information 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). The D.C. Circuit has "set[] a relatively low bar for the agency to justify withholding," Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011), such information may be withheld "not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk." Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009).
The "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 codes" withheld by ICE create such a chance of a reasonably expected risk of circumvention of the law. Pineiro Decl. ¶ 57. According to ICE, this information, which is used to store and index data and is "not readily known by the public," "could be used by persons seeking improper access to law enforcement data" to navigate law enforcement databases and possibly even "breach into sensitive law enforcement systems" and manipulate data. See, e.g., Pineiro Decl. ¶ 57, Vaughn Index at 1. ICE also notes that revealing these codes "would not assist the public in understanding how the agency is carrying out its statutory responsibilities." See, e.g., Vaughn Index at 1-2. The Court agrees that disclosing this information could reasonably be expected to create a risk of circumvention by revealing how ICE's databases work and rendering them more vulnerable to manipulation. Mr. Parker does not object to the withholdings, and similar material has been withheld under Exemption 7(E) by other courts in this jurisdiction. See, e.g., Skinner v. U.S. Dep't of Justice, 893 F.Supp.2d 109, 114 (D.D.C. 2012), aff'd sub nom. Skinner v. Bureau of Alcohol, Tobacco, Firearms & Explosives, No. 12-5319, 2013 WL 3367431 (D.C. Cir. May 31, 2013) (withholding TECS user access codes and TECS numbers under Exemption 7(E)); Abdelfattah v. U.S. Immigration & Customs
ICE's declaration states that their employees "reviewed each record line-by-line to identify information exempt from disclosure" and released all reasonably segregable, non-exempt portions. Pineiro Decl. ¶ 59-60. FOIA requires that any reasonably segregable portion of a record shall be provided to any person requesting such record after removal of exempt portions, unless the non-exempt portions are inextricably intertwined with exempt portions. See 5 U.S.C. § 552(b); see also Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002). Given that "[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material," Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007), and that Mr. Parker does not dispute ICE's release of reasonably segregable material, the Court grants ICE summary judgment on its obligation to release all non-exempt portions of records.
Plaintiff's reply included a motion for telephonic discovery. Pl.'s Reply at 5-6, ECF No. 24.
The main bone of contention between the parties is the adequacy of ICE's search. Mr. Parker objects on two grounds: first, that ICE did not identify any records of communications between ICE and the FBI, and second, that ICE insufficiently searched for emails from its agents. The Court agrees that ICE's search is not inadequate simply because it has not located communications with the FBI, but denies ICE summary judgment as to the adequacy of its email search because it does not provide sufficient detail about the search terms used to search Agent Sanders's email or the backup system that potentially contains Agent Mensinger's email.
FOIA obligates agencies to perform an adequate search — one "reasonably calculated to uncover all relevant documents." Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (internal quotation mark omitted) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). The search need not encompass "every record system," but must be "a good faith, reasonable search of those systems of records likely to possess the requested records." Marino v. Dep't of Justice, 993 F.Supp.2d 1, 9 (D.D.C. 2013) (citing Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). The agency must document its search by providing a "reasonably detailed" affidavit describing the scope of that search. Iturralde v. Comptroller of the Currency, 315 F.3d 311, 313-14 (D.C. Cir. 2003) (quoting Oglesby, 920 F.2d at 68). Such an affidavit must be detailed enough to "allow the district court to determine if the search was adequate" and will typically contain "the search terms and the type of search performed." Oglesby, 920 F.2d at 68. "Agency
First, Mr. Parker argues that the search was inadequate because ICE did not sufficiently search for communications between ICE and the FBI, focusing in particular on emails or other communications by ICE Agents Mensinger and Sanders. Pl.'s MSJ at 5. In support of this contention, Mr. Parker provides his own declaration stating that he has "personal knowledge," based on the "court room testimony of several ICE agents" in the criminal matter and "interactions with ICE agents involved in that criminal investigation," that Agents Mensinger and Sanders "were working closely and in cooperation with the Federal Bureau of Investigation." Parker Decl. ¶¶ 2-3, ECF No. 19-2. Mr. Parker essentially argues that, because the ICE agents collaborated with the FBI, ICE must possess records memorializing these communications and ICE's failure to locate any such records is thus evidence that their search was inadequate.
The Court rejects Mr. Parker's argument that ICE's search fails because it did not locate communications between ICE and the FBI. 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. The D.C. Circuit has dismissed as "mere speculation" similar arguments from plaintiffs that the agency did not locate documents that the plaintiffs suspected to exist. Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (citing Steinberg v. Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994)); Media Research Ctr. v. U.S. Dep't of Justice, 818 F.Supp.2d 131, 138 (D.D.C. 2011) (rejecting plaintiff's speculative argument "that the search was inadequate because certain documents they believe must have been created have not been produced" because plaintiff's position was "conjecture" and the agency provided sufficiently detailed affidavits describing its search); see also Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) (acknowledging that an agency has a "difficult" task to "demonstrate that a specific file does not exist' and holding that "a search need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the specific request").
Here, Mr. Parker presents no evidence that any records ever existed of communication between ICE and the FBI, much less that such records were possessed by ICE at the time of its search.
Although originally focusing on purportedly missing communications between ICE and the FBI, in his reply, Mr. Parker focused on his observations about ICE's declarations supporting its search. According to Mr. Parker, ICE "changed" its position between its initial declaration and the second declaration attached to its opposition. In the initial declaration, ICE stated that the search of its Little Rock office proceeded as follows: first, the special agent conducting the search determined that in "his experience and knowledge" of the storage system, relevant files might be located "in a file cabinet in a secure room within the office;" second, the special agent searched that file cabinet and identified some responsive records; and third, given the request, the special agent concluded that "there were no additional locations in the Little Rock office likely to contain responsive records." Pineiro Decl. ¶ 31. In its second declaration, ICE clarified that the previously described search of the Little Rock office was in fact performed by Agent Sanders, a focus of Mr. Parker's briefing. 2d Pineiro Decl. ¶ 8, ECF No. 21-1. ICE further clarified that, in addition to searching the file cabinet, Agent Sanders searched "his personal Outlook email archives for responsive records" but that search revealed no records. 2d Pineiro Decl. ¶ 8. Mr. Parker points to this discrepancy as evidence that ICE's search was inadequate. Pl.'s Reply at 2-3.
Mr. Parker accurately notes that ICE's description of its search has changed. However, the Court does not agree with Mr. Parker that ICE's clarifications demonstrate bad faith or an inadequate search. The Court has no reason to conclude that ICE's clarification about
However, although the Court rejects Mr. Parker's argument based on ICE's expanded descriptions, the Court agrees with Mr. Parker that ICE has provided insufficient detail as to the "search terms on the nature of that electronic search process" for Agent Sanders's email. Pl.'s Reply at 3. ICE indeed provides no details about the method of the search for Agent Sanders's email, except that it involved "searches of his personal Outlook email archives." 2d Pineiro Decl. ¶ 8. It is not enough for the agency to conclusorily state that it searched relevant records, Weisberg, 627 F.2d at 370, instead, the agency must provide additional detail, including the search terms used. See also Pinson v. U.S. Dep't of Justice, No. CV 12-1872 (RC), 2016 WL 29245, at *18 (D.D.C. Jan. 4, 2016) (denying agency summary judgment as to the adequacy of its search when the agency did not provide a search method or search terms used). The Court therefore cannot grant ICE summary judgment as to the adequacy of its search for Agent Sanders's email until it describes with additional specificity how that search was performed.
Finally, the parties disagree about the extent of ICE's duties to investigate Agent Mensinger's email. Both ICE and Mr. Parker agree that ICE has not searched any systems for potentially responsive emails of Agent Mensinger. According to ICE, Agent Mensinger is no longer with the agency. 2d Pineiro Decl. ¶ 10, ECF No. 21-1. His status as a former employee, combined with the fact that Mr. Parker sought records created prior to 2008, means that relevant emails would be found, if anywhere, on "various back-up tape systems in regional offices," which are "no longer produced commercially" and for which "ICE no longer maintains the equipment and software." 2d Pineiro Decl. ¶ 10. ICE argues that because it has no capability to read or search any extant email archives, it has discharged its search obligations. Def.'s Opp'n at 6 n.3.
Mr. Parker first questions the veracity of ICE's assertion that it can search Agent Sanders's email but not Agent Mensinger's. Pl.'s Reply at 4. The Court is persuaded by ICE's explanation of the difference in accessibility between the agents' email accounts. As ICE explains, Agent Sanders — unlike Agent Mensinger — is a current employee with an active email account
However, the Court is more sympathetic to Mr. Parker's argument that ICE must provide more information about the backup systems that may contain Agent Mensinger's email (and possibly Agent Sanders's older emails as well). Pl.'s Reply at 4-5. Mr. Parker argues that ICE provides "no meaningful details" such as the "computer programs" the backup system uses or descriptions of any attempts by ICE to search the backup system. Pl.'s Reply at 4-5. The D.C. Circuit has required that an agency "inform the court and plaintiffs whether backup tapes of any potential relevance exist" and "whether there is any practical obstacle to searching them." Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 515 (D.C. Cir. 2011). As the mention of obstacles suggests, not every backup system is amenable to a search. The D.C. Circuit noted that searching a backup system could be "impossible, impractical, or futile" if the system was configured only to restore data after a disaster and did not include the ability to locate a specific file. Id. at 514 (citing Stewart v. U.S. Dep't of the Interior, 554 F.3d 1236, 1243-44 (10th Cir. 2009)). In Safety Research & Strategies, Inc., another court in this jurisdiction found that the Ancient Coin Collectors requirement was satisfied based on an affidavit from the agency's deputy chief information officer. Safety Research & Strategies, Inc. v. U.S. Dep't of Transp., 903 F.Supp.2d 1, 7 (D.D.C. 2012). That affidavit "provided a detailed description" of the agency's backup system and explained the obstacles to searching the system. Id. The Court directs ICE to provide an affidavit from an information-technology professional — like the affidavit cited in Safety Research & Strategies, Inc. — that describes the email backup system potentially containing Agent Mensinger's emails with greater specificity and describes any practical obstacles to searching that system. Without such a meaningful description of the agency's search process, Mr. Parker cannot adequately assess and potentially challenge the agency's claims, thus, this Court may not grant ICE summary judgment.
For the foregoing reasons, Defendant's motion for summary judgment (ECF No. 17) is