The New Orleans Workers' Center for Racial Justice and eleven individual plaintiffs bring this civil action against the defendant, the United States Immigration & Customs Enforcement ("ICE"), under the Freedom of Information Act ("FOIA"),
I. BACKGROUND
The following facts are undisputed by the parties, unless otherwise indicated. "On November 13, 2013, [the p]laintiffs submitted to [the d]efendant ... [the] FOIA request" that is the subject of this civil action (the "Request"). Def.'s Facts ¶ 1; see Pls.' Facts ¶ 1. "The [stated] purpose of the [R]equest [wa]s to obtain information for the public about ... [ ]CARI[ ] and other ICE programs related to community enforcement[,] ... includ[ing] information on mobile fingerprint units and other technological tools at ICE's disposal, and the collaboration between ICE and local law enforcement in the planning and carrying out of immigration enforcement actions." Pineiro Decl., Ex. 1 (FOIA Request Re[:] CARI and New Orleans Community Raids and Request for Expedited Review ("Request") ) at 1.
On November 26, 2013, the defendant sent a letter to the plaintiffs acknowledging receipt of the plaintiffs' Request. See
Approximately "[sixteen] months after [the p]laintiffs [ ] [filed their] Request ..., [the defendant] had not produced a[ny] ... responsive document[s]." Pls.' Facts ¶ 28; see Def.'s Reply Facts ¶ 28. "As a result, on March 25, 2015, [the p]laintiffs filed their Complaint" in this case. Pls.' Facts ¶ 28; see Def.'s Reply Facts ¶ 28. According to the defendant, "[i]n response to the filing of the [C]omplaint ..., and upon [the defendant's] litigation review, [the] ERO ... tasked [its twenty-three] remaining [ ] Field Offices to search for responsive document[s]," Harrington Decl. ¶ 9, and the defendant also tasked its Office of Public Affairs, see Pineiro Decl. ¶ 31.
On May 7, 2015, the defendant "released its first production set to [the p]laintiffs." Pls.' Facts ¶ 30; see Def.'s Reply Facts ¶ 30. Thereafter, in June 2015, the plaintiffs sent a letter to the defendant, see Pls.' Facts ¶ 31; Def.'s Reply Facts ¶ 31, to which they attached various appendices identifying, inter alia, "[d]atabases, [o]ffices[,] and [i]ndividuals' [f]iles [that the defendant should] [s]earch[ ]," Pls.' Cross-Mot., Ex. 23 (Appendices to Counsel for Plaintiffs' Correspondence with Counsel for ICE, June 22, 2015 ("June 2015 Appendices") ) at 6, as well as "[s]earch [t]erms" that the defendant should use,
"On June 18, 2015, the [defendant] made its second production of responsive material," Def.'s Facts ¶ 13; Pls.' Facts ¶ 13, followed by five additional productions on July 16, August 18, September 17, October 15, and November 18, 2015, see Def.'s Facts ¶¶ 14-17; Pls.' Facts ¶¶ 14-17. "In total, between May 7, 2015[,] and November 18, 2015, [the defendant] produced 3,680 pages of documents, as well as certain spreadsheets of data." Pls.' Facts ¶ 35; Def.'s Reply Facts ¶ 35. Then, "[i]n February [ ] 2016, [the defendant] re[-]released 167 pages of documents with several portions of the documents that were previously redacted now unredacted," and "[o]n March 10, 2016[,] it re[-]released four additional pages with fewer redactions." Pls.' Facts ¶ 36; Def.'s Reply Facts ¶ 36. Following the defendant's final production, the parties filed their cross-motions for summary judgment, see Def.'s Mot. at 1; Pls.' Cross-Mot. at 1, which are the subject of this Memorandum Opinion.
II. STANDARD OF REVIEW
The Court must grant a motion for summary judgment "if 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). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Holcomb v. Powell,
"FOIA cases typically are resolved on a motion for summary judgment." Ortiz v. U.S. Dep't of Justice,
III. ANALYSIS
The plaintiffs challenge the defendant's response to their Request for two main reasons. First, they argue that the defendant's searches for responsive records were inadequate because the defendant failed to (1) "search its headquarters and at least five essential component[ ] [offices]," Pls.' Opp'n at 9; (2) "search critical types of record storage systems where responsive information is stored," id. at 5; (3) "generate reasonable and obvious search terms related to [the p]laintiffs' Request," id.; and (4) "search adequately for several categories of clearly responsive records," id. Second, the plaintiffs argue that the defendant "improperly applied exemptions under
A. The Adequacy of the Defendant's Searches
"The adequacy of an agency's search is measured by a standard of reasonableness[ ] and is dependent upon the circumstances of the case." Truitt v. U.S. Dep't of State,
The Court must first address the defendant's argument that its searches were adequate as a general matter because the "[p]laintiffs' [R]equest failed to 'reasonably describe' the records sought." Def.'s Mem. at 6. Specifically, the defendant argues that the Request was "overly broad" and could be construed to seek "an extremely voluminous set of records, virtually none of which would have any connection to CARI," id. at 6-7, and, "[i]n the context of such a broad request, it is within an agency's discretion to structure a search that is likely to uncover responsive documents without resulting in an unduly burdensome search," Def.'s Reply at 4. Accordingly, the defendant argues that it "properly undertook searches based on its own reasonable interpretation of the scope of the ... [R]equest." Def.'s Mem. at 7. The plaintiffs respond that the defendant's "failure to adhere to its own regulation requiring collaboration with [the p]laintiffs to remedy any issues with the Request forecloses th[e defendant's] argument," and, in any event, the "[p]laintiffs' Request reasonably described the records sought." Pls.' Opp'n at 20.
As an initial matter, the defendant is correct that a FOIA request must "reasonably describe[ ]" the records sought by a requester,
However, the Court cannot conclude for several reasons that the Request's shortcomings justify the scope of the search conducted by the defendant in this case. First, as the plaintiffs correctly note, see Pls.' Opp'n at 20, the defendant failed to timely notify them of any perceived deficiencies in their Request in violation of the defendant's own FOIA regulations in effect at the time. Those regulations required the defendant, upon
determin[ing] that [a] request does not reasonably describe records, ... [to] tell [the requester] either what additional information is needed or why [the] request is otherwise insufficient[, and] ... also [ ] give [the requester] an opportunity to discuss [the] request so that [the requester] may modify it to meet [such] requirements.
Even assuming that it was proper for the defendant to structure its search based on its "own reasonable interpretation of the ... [R]equest," Def.'s Mem. at 7, rather than notifying the plaintiffs of the Request's deficiencies and giving the plaintiffs an opportunity to modify it, the Court cannot conclude that the defendant's interpretation of the Request was reasonable. As this Circuit has instructed, even when a request is "not a model of clarity," an agency must " 'construe [the] request liberally,' " particularly when a "request is reasonably susceptible to a broader reading." LaCedra v. Exec. Office for U.S. Att'ys,
Moreover, the defendant appears to have resolved any issues presented by the specific deficiencies it identifies in the plaintiffs' Request. For example, despite the defendant's position that the Request's definition of the term "CARI" could be *35construed to seek "voluminous ... records, virtually none of which would have any connection to CARI," Def.'s Mem. at 7, the defendant appears to have determined that the term "CARI" should be interpreted to only refer to the Criminal Alien Removal Initiative itself, and not any other programs or topics, see, e.g., Def.'s Mem. at 13 (arguing that the search terms " 'CARI' and 'Criminal Alien Removal Initiative['] were reasonably likely to uncover all relevant records responsive to a reasonable interpretation of ... [the R]equest"), which is an interpretation that the plaintiffs do not appear to dispute, see Pls.' Opp'n at 22 (arguing that the defendant's "criticism of th[e R]equest as 'far too broad' is unfounded[ ] [because the p]laintffs' language sufficiently specified and described records of a particular program" (emphasis added) ); see also id. at 23 (arguing that the "Request adequately described records sought and obviously focused on a particular enforcement initiative" (emphasis added) ). Additionally, although the defendant argues that the plaintiffs' request for "[a]ny and all Records ... related to the ... objectives of CARI," Pineiro Decl., Ex. 1 (Request) at 8, could be construed to "seek[ ] ... every record maintained at ICE that is 'related to' the enforcement of federal immigration laws," Def.'s Mem. at 7 (emphasis omitted), the defendant appears to have wisely concluded that the Request does not sweep so broadly, as it does not represent that it searched for "every record ... 'related to' the enforcement of federal immigration laws," see id. (emphasis omitted).
Finally, to the extent that the defendant asserts that supplementing its search as requested by the plaintiffs would be "unduly burdensome," Def.'s Reply at 4, it has failed to adequately support such a claim. Although the defendant is correct that "an agency need not honor a FOIA request that requires it to conduct an unduly burdensome search," id. at 5 (internal quotation marks and citation omitted), "the burden falls on the agency to 'provide sufficient explanation as to why [ ] a search would be unreasonably burdensome,' " Hainey v. U.S. Dep't of the Interior,
*36Thus, the Court concludes that summary judgment for the defendant is not warranted due to the deficiencies in the plaintiffs' Request. Having rejected the defendant's arguments on this issue, the Court next turns to the plaintiffs' specific challenges to the adequacy of the defendant's search.
1. Offices Searched
The plaintiffs argue that the defendant "[u]nreasonably [l]imited its [s]earch to [t]wo [c]omponent [o]ffices." Pls.' Opp'n at 8. Specifically, they argue that the defendant should have "search[ed] its headquarters and ... essential [agency] components whose involvement in CARI has been confirmed by records [the defendant] produced and whose missions are closely related to the clear themes in [the] Request," id. at 9, namely, the offices of the defendant's Director, Deputy Director, Chief of Staff and Executive Secretariat, Assistant Deputy Director, and Management and Administration (the "headquarters offices"), the OPLA, the Homeland Security Investigations ("HSI") department, the Office of Firearms and Tactical Programs/National Firearms and Tactical Training Unit, the Office of Congressional Relations (the "OCR"), the Office of the Chief Financial Officer (the "OCFO"), id. at 9-10, and the Office of State, Local, and Tribal Coordination, id. at 18. The defendant responds that it was not "obligated to search" these offices because they "had nothing to do with CARI, so [they] would be unlikely to have responsive records." Def.'s Mem. at 10; see Def.'s Reply at 10-11 ("[T]he offices listed by [the p]laintiffs did not implement [CARI] or have any association with it[.]").
Although there is "no requirement that an agency search every division or field office ... in response to a FOIA Request," Oglesby v. U.S. Dep't of Army,
Here, the Court cannot conclude that the offices searched by the defendant were adequate for at least two reasons. First, the defendant has failed to "aver[ ] that all locations likely to contain responsive records were searched." Powell v. IRS,
Additionally, the plaintiffs have identified countervailing evidence undermining the defendant's claim that the offices it chose not to search were "not likely to have responsive records," Harrington Decl. ¶ 28, because "these offices had nothing to with CARI," Def.'s Reply Facts ¶ 44. Specifically, the plaintiffs have identified evidence demonstrating that the defendant "ha[d] reason to know" that at least six other offices may possess responsive documents. Valencia-Lucena,
As to the defendant's headquarters offices, records produced by the defendant demonstrate that at least one headquarters component, then-Director John Morton's office, oversaw and managed the development of an operational plan for CARI. See Pls.' Cross-Mot., Ex. 8 (Examples of Records ICE Produced Evidencing a Quota System and Close Attention to Numbers of CARI Arrests ("Quota Documents") ) at Bates No. 2853 (email with subject line referring to the "Criminal Removals Enforcement Initiative" and stating that "the criminal enforcement operations plan [ ] was briefed to Director Morton," who requested that the plan be "updated to include [additional] information"). Moreover, given other evidence demonstrating that CARI is a nationwide initiative involving the ERO's twenty-four field offices, see, e.g., Harrington Decl. ¶ 6 (representing that the "ERO's mission is carried out nationwide by [twenty-four] ERO Field Offices");
*38Pls.' Cross-Mot, Am. Ex. 17 (Exemption 5 Withholdings Challenged by Plaintiffs ("Exemption 5 Withholdings") ) at Bates No. 2682 (email instructing Field Office Directors to "complete [their] annex to the [CARI] Operational Plan"), the Court agrees with the plaintiffs that "[i]t strains credulity for [the defendant] to assert that [the] ERO could implement ... [CARI] without any involvement whatsoever of any ICE [h]eadquarters office," Pls.' Opp'n at 10; see Defs. of Wildlife v. U.S. Dep't of Interior,
The plaintiffs have also identified evidence demonstrating that responsive records are likely to be possessed by the OCFO,
In sum, the plaintiffs have identified evidence demonstrating that the defendant failed to search at least six of its offices likely to possess responsive records. The defendant makes no meaningful response to the plaintiffs' evidence, other than inexplicably asserting that the evidence is "not relevant to the question of whether [it] ... conduct[ed] adequate searches." See, e.g., Def.'s Reply Facts ¶ 49. Moreover, "the record[ ] [ ] contains no evidence that [the defendant] limited its search [to exclude these offices] based on ascertained facts about" the offices' involvement in CARI. Leopold,
2. Record Storage Systems Searched
The plaintiffs argue that the defendant's search of its record storage systems was inadequate because (1) it "failed to search databases that the record confirms exist and are searchable for CARI-related records," (2) its "searches of most other types of record[ ] storage systems, including [email accounts], hard drives and servers, paper files, USBs, and DVDs were either inadequate or nonexistent," and (3) it "omitt[ed] attachments to many emails from its production to [the p]laintiffs." Pls.' Opp'n at 11. The Court will address each of the plaintiffs' arguments in turn.
a. Databases
The plaintiffs argue that the defendant failed to search a number of "databases likely to contain [requested data], namely, EARM, EADM, ATD, GEMS, and IDENT," Pls.' Facts ¶ 31, and that it notified the defendant of this fact in its June and September correspondence, id. ¶¶ 31-32. The plaintiffs further argue that the defendant "has produced records showing ... [that these] databases contain[ ] information on CARI arrests[ ] ... [and] that a *40search of the database[s for that information] was possible," Pls.' Opp'n at 12 (internal citations omitted); however, "[o]ut of the 160 ICE custodians tasked with [a] search, only four ICE custodians searched any databases at all," Pls.' Facts ¶ 60, and those four "searched only the EARM database and no other databases," id. ¶ 61. The defendant responds that it instructed "specific individuals and component offices to conduct searches of their file systems, ... which in their judgment, based on their knowledge of the manner in which they routinely keep records, would be reasonably likely to have responsive records." Def.'s Reply at 11. With respect to data on CARI arrests, it asserts that it "did not track electronically whether an arrest related to the CARI program, but if noted at all, it would have been a manual note in [a] physical file or a note in [an] electronic file in a comments or notes section (which is not searchable for reporting purposes)," and thus, "[i]n order to determine the universe of arrests related to CARI, every individual arrest record would need to be manually reviewed to determine if that arrest was part of the CARI program." Harrington Decl. ¶ 32. It further responds that "[a]ny statistics regarding CARI arrests that the agency kept and produced were aggregate numbers kept and reported contemporaneously with the CARI program only and not linked to any individual cases electronically for historical purposes." Id. ¶ 30.
Notably, the defendant does not dispute that its databases or electronic systems contain responsive data on CARI arrests, but instead argues that it would be unreasonably burdensome to search them for such data. Specifically, it argues that it "did not track electronically whether an arrest related to the CARI program," and, thus, "[i]n order to determine the universe of arrests related to CARI, ... [it] would have to manually review over 230,000 A-files, for FY2013 alone." Harrington Decl. ¶ 32. However, these assertions fail to satisfy the defendant's burden to "provide sufficient explanation as to why [ ] a search would be unreasonably burdensome," Hainey, 925 F.Supp.2d at 45 (quoting Nation Magazine,
On the other hand, the plaintiffs have identified countervailing evidence undermining the defendant's blanket claim that it "did not track electronically whether an arrest related to the CARI program." Harrington Decl. ¶ 32. For example, emails produced by the defendant demonstrate that at least two of the defendant's electronic systems contained "CARI drop downs" used to track certain CARI activities, which would be utilized by certain teams. See Pls.' Cross-Mot., Ex. 10 (CARI Tracking Documents) at Bates No. 1601 ("There have been drop downs added in ENFORCE and FCMS to accommodate CARI activity[,] ... [which] will [ ] be utilized when a detailed CARI officer assists in the lead cultivation and arrest of a detainee.");
Thus, "[a]lthough the [defendant's] claim of infeasibility as to [CARI-specific data] may well be correct, the Court cannot credit this bare assertion" in light of the plaintiffs' specific countervailing evidence and the lack of detail provided by the defendant. Int'l Counsel Bureau v. U.S. Dep't of Def.,
b. Other Record Systems
The plaintiffs further argue that the defendant's "searches of ... [custodians' email accounts,] hard drives and servers, paper files, USBs, and DVDs were either inadequate or nonexistent." Pls.' Opp'n at 11. Specifically, the plaintiffs argue that the defendant's declarations "reveal inadequate efforts to search custodians' email accounts" because "[t]hey fail to describe with any detail [the defendant's] methodologies for searching with the limited terms it devised," "do not state which, if any, custodians searched their email archives, and show no systematic effort to ensure that archived emails were searched." Id. at 13. Additionally, the plaintiffs argue that the defendant's declarations "did not describe whether custodians who searched computer hard drives and shared servers did so using keywords, search methods designed to search the full text of documents, or other safeguards to ensure that all files were searched." Pls.' Facts ¶ 73. They further argue that the defendant "should have searched paper files for responsive documents, but it refused to search most paper records because they were allegedly 'too voluminous.' " Pls.' Opp'n at 14. And finally, they object to the fact that "[n]ineteen [ ] custodians who conducted searches did not search their hard drives or shared servers," Pls.' Facts ¶ 73, "[o]nly thirteen ICE custodians searched paper files," "[o]nly a single [ ] custodian searched a thumb drive," and "[n]o other [ ] custodians searched USB/thumb drive[s], CD[s], or DVDs," id. ¶ 75.
As to the defendant's searches of custodians' email accounts, hard drives, and shared servers, the Court agrees with the plaintiffs that the defendant's declarations fail to demonstrate that these searches were adequate. To satisfy its burden, the defendant must "describe in detail how [it] conducted its search[es]." Aguirre v. SEC,
As to custodians' apparent failures to search their hard drives, shared servers, paper files, USB/thumb drives, CDs, or DVDs, the Court also lacks sufficient information to determine whether these failures render the defendant's search inadequate. "While an agency need not search every one of its record systems, a 'reasonably detailed affidavit ... averring that all files likely to contain responsive materials ... were searched, is necessary to ... allow the district court to determine if the search was adequate in order to grant summary judgment.' " Am. Immigration Council v. U.S. Dep't of Homeland Sec.,
Without the additional information described above, the Court cannot determine whether the defendant's searches of, or apparent failures to search, these record systems were unreasonable. Thus, the Court concludes that issues of material fact exist regarding this issue, and thus, summary judgment is inappropriate. See Am. Immigration Council,
c. Email Attachments
Finally, the plaintiffs argue that the defendant's searches of its email records "were inadequately conducted," Pls.' Opp'n at 13, because the defendant *44"produced nearly 200 email records that indicated that they included an attachment, but without explanation, [ ] did not produce the attachments," Pls.' Facts ¶ 74. The defendant responds that "FOIA does not require production of an email and attachment if the attachment is not responsive." Def.'s Reply Facts ¶ 74. However, as other members of this Court have explained, "attachments should reasonably be considered part and parcel of the email by which they were sent" if "the emails ... make explicit reference to, or include discussion of, the [ ] attachments." Coffey v. Bureau of Land Mgmt.,
3. Search Terms Used
The plaintiffs argue that the defendant "failed to generate reasonable and obvious search terms related to [their] Request." Pls.' Opp'n at 5. Specifically, they argue that the defendant improperly "relied on a narrow range of search terms extracted verbatim from section headings in the [ ] Request," and ultimately, "searched for little more than the term 'CARI,' " which is insufficient in light of documents produced demonstrating that "ICE officials understood CARI to be an expansive initiative that subsumed the entirety of ICE's National Fugitive Operations Program,"
The defendant responds that "[t]he various ERO program offices and field offices searched with and used the search terms that they determined, based on their experience and knowledge of their office's practices and activities, would be reasonably likely to locate responsive records." Def.'s Facts ¶ 7. Additionally, the defendant argues that it "used over eighty terms," Def.'s Mem. at 7, and that "[t]hese search *45terms, in particular 'CARI' and 'Criminal Alien Removal Initiative,' were reasonably likely to uncover all relevant records responsive to a reasonable interpretation of [the p]laintiffs' vague [ ] [R]equest,"
"Agencies enjoy discretion in crafting search terms designed to identify responsive records, but that discretion 'is not boundless.' " Am. Ctr. for Equitable Treatment, Inc. v. Office of Mgmt. & Budget,
Here, the Court lacks sufficient information to determine whether the search terms used by the defendant were adequate. As an initial matter, although the defendant asserts that it "used over eighty terms," Def.'s Mem. at 7, the defendant's declarations reflect that approximately two-thirds of the defendant's custodians searched using only the terms "CARI" or "Criminal Alien Removal Initiative," Pls.' Cross-Mot., Ex. 15 (Chart of ICE's Searches by Custodian, Storage System, and Search Terms Summarizing Declarations of Paula Harrington and Fernando Pineiro ("Custodian Chart") ) (demonstrating that, of the 153 custodians who searched for responsive records, 59 searched using only "CARI" and an additional 43 searched using only "CARI" and "Criminal Alien Removal Initiative"). Additionally, many of the remaining custodians effectively searched using only these terms, as they used terms containing, and thus, duplicative of, the term "CARI," see Harrington Decl. ¶ 13 (representing that thirty-eight of the eighty search terms used contained the term "CARI"), or terms that quoted language in the Request verbatim and, thus, were likely too narrow to yield any meaningful results, see Harrington Decl. ¶ 13 (representing that the custodians' search terms included the following: "Total number of individuals fingerprinted using ICE's mobile fingerprinting units," "What the federal government is saying about CARI," "What ICE is saying re: CARI," and "Race or ethnicity of each individual arrested and/or fingerprinted"); see Coffey I,
However, the defendant fails to adequately explain why these two terms alone were adequate to uncover all responsive documents. Its assertion that these terms are sufficient because "every topic [of requested records] is connected to CARI," Harrington Decl. ¶ 14, falls short for several reasons. First, the plaintiffs' Request seeks records not necessarily linked to CARI, see, e.g., Pineiro Decl., Ex. 1 (Request) at 11 (seeking "[t]otal number of ICE arrests per week in [ ] designated jurisdiction[s]" in New Orleans, the "[t]otal *46number of individuals fingerprinted using ICE's mobile fingerprinting units and/or other technological tools per week," and the "[r]ace or ethnicity of each individual arrested and/or fingerprinted" in those categories), and, thus, the Court finds it difficult to conclude that such terms are reasonably tailored to uncover such records. Additionally, evidence in the record suggests that the terms "CARI" and "Criminal Alien Removal Initiative" may not be sufficient to uncover responsive records specific to CARI either. For example, documents produced by the defendant suggest that CARI activities may be referred to using other terms, such as "Fugitive Operations," Pls.' Cross-Mot., Ex. 10 (CARI Tracking Documents) at Bates No. 813 (email stating that "[a]nything and everything Fugitive Operations ... is doing right now is considered CARI"), or "Criminal Removals Enforcement Initiative,"
Although the majority of custodians "very well may have made a reasonable decision not to use the[se additional] terms[,] ... that reason is not at all apparent from [the defendant's] declarations." Am. Ctr. for Equitable Treatment, Inc.,
Moreover, the defendant's declarations are also insufficient because the defendant failed to explain the wide variance in the search terms used by custodians and offices with "seemingly similar law enforcement responsibilities." Tushnet v. United States Immigration & Customs Enf't,
In sum, "the failure of the [defendant] to explain its [search term] choices prevents the [C]ourt from evaluating the reasonableness of the [defendant's] search method." Am. Ctr. for Equitable Treatment, Inc.,
4. Documents Allegedly Omitted
The plaintiffs also argue that the record contains "positive indications of serious oversights in [the defendant's] searches." Pls.' Reply at 13. Specifically, they argue that the defendant's production of "very few" or "no" records in "several [ ] categories of clearly responsive records" demonstrates that the defendant "failed to search adequately" for responsive records within these categories. Id. at 6-7; Pls.' Facts ¶ 59 ("ICE has produced very few records related to CARI's fiscal impact."); id. ¶ 71 ("ICE has produced no records showing assessments of CARI or an organizational chart."); id. ¶ 76 ("ICE produced *48very few records relating to ICE's involvement of local or state law enforcement officials in their field operations."); id. ¶ 77 ("ICE produced no racial profiling training or policy records."). They further argue that records produced by the defendant demonstrate that the defendant "omitted clearly responsive documents from its production," Pls.' Reply at 6; see, e.g., id. at 13-14 (asserting that, although records produced by the defendant demonstrate that "every ERO field office was tasked with implementing its own CARI Plan version, ICE has produced CARI plans for at most eight of the 24 ERO field offices, without explanation for the sixteen omissions" (internal citations omitted) ). The defendant disputes the plaintiffs' position on several different grounds, including that the missing records identified by the plaintiffs are "irrelevant to the question of whether [it] has ... conduct[ed] adequate searches," Def.'s Reply Facts ¶ 78, and that its "search need not produce every document in existence," id. ¶ 47.
An agency may not ignore "positive indications of overlooked materials." Valencia-Lucena,
First, the Court cannot agree with the plaintiffs' position that the defendant's production of only few or no documents in certain categories of records demonstrates that the defendant's searches for those records were inadequate. "[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search." Iturralde,
Additionally, the Court generally cannot conclude that a defendant's failure to produce the specific documents identified by the plaintiffs demonstrates that the defendant's search was inadequate either. For example, as to the sixteen CARI plans that the plaintiffs assert were improperly omitted from the defendant's production, although the plaintiffs have identified evidence that the ERO's field offices were instructed to create them, Pls.' Cross-Mot., Am. Ex. 17 (Exemption 5 Withholdings) at Bates No. 2682 (email from the Assistant Director for Field Operations to Field Office *49Directors and Deputy Field Office Directors instructing them to "complete and submit your annex to the [CARI] Operational Plan to Unit Chiefs ... by ... May 10, 2012"), the plaintiffs have not identified any evidence establishing that they were in fact created, see, e.g., Pls.' Facts ¶ 78. And, in any event, the absence of specific documents from the defendant's production does not necessarily establish that the defendant's search was inadequate because "particular documents may have been accidentally lost or destroyed, or a reasonable and thorough search may have missed them." Iturralde,
The Court notes that the defendant's failure to produce certain documents or categories of documents very well may be due to deficiencies in its search that the Court has already addressed, such as its failure to search certain offices, databases, or other locations. However, the Court simply cannot conclude that the absence of such records alone renders the defendant's search inadequate.
For all the foregoing reasons, the Court finds that the defendant has in many respects failed to "demonstrate beyond material doubt that its search[es] w[ere] 'reasonably calculated to uncover all relevant documents.' " Ancient Coin,
B. The FOIA Exemptions Applied by the Defendant
The plaintiffs argue that the defendant "has improperly applied exemptions under
1. Exemption 5
The plaintiffs challenge the defendant's withholding of documents, or portions of documents, under the deliberative process privilege of Exemption 5. See Pls.' Opp'n at 24-30; Pls.' Cross-Mot., Am. Ex. 17 (Exemption 5 Withholdings) at 1-8. The documents withheld include documents described by the defendant as an "NGO Meeting Memorandum," Pineiro Decl., Ex. 7 (Vaughn Index) at 17 (entry for Bates Nos. 370-71); "draft" operational plans, see, e.g.,
The deliberative process privilege protects "documents 'reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.' " NLRB v. Sears, Roebuck & Co.,
"To justify its application of the deliberative process privilege, an agency must address the following areas: '(1) the nature of the specific deliberative process involved, (2) the function and significance of the document in that process, and (3) the nature of the decisionmaking authority vested in the document's author and recipient.' " Hunton & Williams LLP v. EPA,
First, for many of the documents at issue in this case, the defendant has failed to adequately describe "the nature of the specific deliberative process involved," Hunton & Williams LLP,
Second, even where the defendant arguably identifies a decisionmaking process to which the withheld documents purportedly contributed, it fails to adequately describe the "function and significance of the document[s *52] in that process." Hunton & Williams LLP,
Also insufficient to demonstrate the "function and significance" of the withheld documents are the defendant's assertions that the operational plans and other documents withheld are "drafts" and "replete with edits, strike through[s] and other formatting changes, marginal suggestions and comments, and/or embedded questions regarding content." Pineiro Decl. ¶ 47. "The fact that [ ] documents are drafts and contain edits does not, alone, qualify them for protection under the deliberative process privilege[.]" Heartland All. for Human Needs & Human Rights,
*53Heartland All. for Human Needs & Human Rights,
Finally, the defendant has wholly failed to explain "the nature of the decisionmaking authority vested in the office or person issuing the disputed document(s)[ ] and the positions in the chain of command of the parties to the documents." Arthur Andersen & Co.,
On the other hand, although the plaintiffs argue with respect to many of these documents that the defendant's representations or the context of the withheld content "make[s] clear [that] the [defendant's] Vaughn descriptions are inaccurate *54and the [e]xemption is misapplied," Pls.' Opp'n at 27, the Court cannot agree. For example, the plaintiffs argue that certain "draft" operational plans withheld are not predecisional because the defendant "has afforded ... [them] operational effect,"
Thus, the Court concludes that the defendant has failed to provide "the minimal information necessary to make a determination concerning application of the deliberative process privilege."
*55Hunton & Williams LLP,
2. Exemptions 6 and 7(C)
The plaintiffs next challenge the defendant's withholding of "names or, in some cases, email addresses or case histories" pursuant to Exemptions 6 and 7(C). Pls.' Reply at 20 n.9. Specifically, they argue that the defendant "improperly applied 7(C) exemptions to records not compiled for law enforcement purposes" and "applied [both] exemptions where a de minimis privacy interest was at stake and where that interest was heavily outweighed by the public interest in disclosure of [the defendant's] involvement [in] and planning of enforcement activities that may have exceeded constitutional bounds." Id. at 20 (emphasis omitted).
Exemption 6 permits agencies to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
a. Exemption 7(C)
" '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.' " 100Reporters LLC,
It is undisputed that the defendant is a law enforcement agency, see Pineiro Supp. Decl. ¶¶ 15-16; Barnard v. Dep't of Homeland Sec.,
the [ ] information at issue in this case was compiled by ICE because it relates to ICE's obligation to enforce the immigration laws of the United States by investigating non-U.S. individuals who may be illegally present in the United States, including records of interviews, arrest, booking, detention, removal, other related investigations, etc. Therefore, all the ICE records responsive to Plaintiffs' FOIA request were compiled for law enforcement purposes and meet the threshold requirement of FOIA Exemption (b)(7).
Supp. Pineiro Decl. ¶ 17.
The defendant's blanket assertion that all the information withheld "relates to ... investigat[ions of] non-U.S. individuals who may be illegally present in the United States, including records of interviews, arrest, booking, detention, removal, other related investigations, etc.,"
The Court acknowledges that the context for some of the withheld information appears to support the defendant's claim that the records were compiled for a law enforcement purpose. See, e.g., Pls.' Cross-Mot, Am. Ex. 19 (Exemptions 6 and 7(C) Withholdings) at Bates Nos. 2960-61 (record of a call received on the HSI Tip Line "report[ing] a previously deported alien"). However, the Court declines to "physically examin[e] each [withheld] document" and attempt to discern for itself whether the documents satisfy Exemption 7's threshold requirement. Arthur Andersen & Co.,
In sum, although a criminal law enforcement agency's "decision to invoke [E]xemption 7 is entitled to deference," Campbell,
Having concluded that the defendant has failed to satisfy its burden to demonstrate that the redacted information was "compiled for law enforcement purposes," the Court cannot conclude that the defendant properly withheld these records under Exemption 7(C). Thus, the Court turns to whether the defendant has properly withheld these documents under Exemption 6.
b. Exemption 6
"The balancing analysis for FOIA Exemption 6 requires that [the Court] first determine whether disclosure of the files 'would compromise a substantial, as opposed to de minimis, privacy interest,' because '[i]f no significant privacy interest is implicated ... FOIA demands disclosure.' " Multi Ag Media LLC v. Dep't of Agriculture,
*59The defendant groups the individuals whose identifying information it seeks to protect into three categories: (1) "federal employees," Supp. Pineiro Decl. ¶ 22; (2) "immigration officers," id. ¶ 23; and (3) "third parties," id. ¶ 24-25. As to the "federal employees" category, the defendant represents that these employees, "by virtue of the[ir] positions ..., [ ] are permitted access to official law enforcement investigation information," and, thus, they have
privacy interests ... in not becoming targets of harassment-whether in the form of requests for authorized access to law enforcement information or requests for information about ongoing or closed investigations-and ... in remaining free of interference in the performance of their duties by persons who are currently of interest to law enforcement or oppose the ICE mission.
Id. ¶ 22.
The defendant's representations are insufficient. Although "[t]he privacy interest of civilian federal employees includes the right to control information related to themselves and to avoid disclosures that 'could conceivably subject them to annoyance or harassment in either their official or private lives,' " Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec.,
Moreover, although "a categorical approach" to describing the privacy interests of individuals may be appropriate in some instances, Prison Legal News,
The "immigration officers" category suffers from similar deficiencies as the "federal employees" category. Although the "immigration officers" category purports to be a narrower subgroup of "federal employees," the defendant again fails to define this category or "distinguish the privacy interests at stake." 100Reporters LLC, 248 F.Supp.3d at 164. Rather, it simply asserts that
the privacy consideration at issue is the interest of each of these individuals in remaining free from harassment and annoyance in conducting their official duties in the future, their interest in remaining free from harassment and annoyance in their private lives, and their interest in not being targeted by individuals in the future who may begrudge them.
Supp. Pineiro Decl. ¶ 23. However, this description makes no effort to explain the "context" in which the identities of these officers appear in the subject documents, see Armstrong,
The defendant's description of the interests at stake with respect to "third parties" is also insufficient. As to these individuals, the defendant argues that "[t]he disclosure of third party information could constitute an unwarranted invasion of personal privacy and subject the individuals to embarrassment, harassment, and undue public attention," "could expose the individual to identity theft[,] and may reasonably lead to unwanted contact from persons that might seek to harm the individual." Supp. Pineiro Decl. ¶ 24. It further argues that "third party individuals have a recognized privacy interest in not being publicly associated with law enforcement investigations through the release of records compiled for law enforcement purposes[,] ... in recognition of the stigmatizing connotation carried by the mere mention of individuals in law enforcement files." Id. ¶ 25.
As an initial matter, the defendant undermines its own claims that the information it has provided satisfies the requirements of Exemption 6 because it asserts that public disclosure of the withheld information "could" or "may reasonably lead to" the risks identified, id. ¶ 24, whereas Exemption 6 requires an agency to demonstrate that "disclosure ... would constitute a clearly unwarranted invasion of personal privacy,"
For all of these reasons, the Court concludes that the defendant has failed to adequately describe the privacy interests at stake with respect to the records it has withheld under Exemption 6.
3. Exemption 7(E)
The defendant invokes Exemption 7(E)
to protect from disclosure law enforcement sensitive database, system, and event codes, law enforcement equipment, law enforcement operations information, law enforcement techniques and procedures, law enforcement system URLs, law enforcement system, program, *64or database names, internal website links, law enforcement guidelines and instructions, database screenshots, law enforcement staffing or capability information, law enforcement team names or abbreviations, internal telephone passcodes, event numbers, records check information, program codes, charge codes, system codes, and law enforcement sensitive information found in the Enforcement Integrated Database (EID).
Pineiro Decl. ¶ 59. Exemption 7(E) protects from disclosure 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."
The plaintiffs first argue that the defendant improperly invoked Exemption 7(E) because it "has failed to show ... that the information [withheld] was compiled for law enforcement purposes." Pls.' Opp'n at 39. Specifically, they argue that "[s]everal of the documents redacted under Exemption 7(E) were compiled for purposes other than law enforcement, ... [including] media inquiries, responses to the media, news articles, correspondence with congressional staff, overtime requests, and many other records not related to an investigation of a person or incident connected to a potential violation of the law," and the defendant "offers no reason why [these documents] ... are related to law enforcement." Id. at 40. The Court must correct two apparent misperceptions of the law in the plaintiffs' argument. First, an agency need not show that a document from which information is redacted under Exemption 7 was itself compiled for a law enforcement purpose. Rather, Exemption 7 applies to "records or information compiled for law enforcement purposes,"
Nonetheless, the Court agrees with the plaintiffs that in many instances, the defendant has failed to demonstrate that the information redacted pursuant to Exemption 7(E) was "compiled for law enforcement purposes." As already explained, to make this showing, the defendant must provide the Court with sufficient information to understand "how and under what circumstances the requested files were compiled, and 'whether the files sought relate to anything that can fairly be characterized as an enforcement proceeding.' " Jefferson,
Furthermore, although some information withheld appears to relate to "guidelines, techniques, sources, and procedures for law enforcement investigations and prosecutions," Tax Analysts,
Here, the defendant's vague, categorical descriptions of the information withheld under Exemption 7(E) and the alleged risks of disclosure are insufficient. For nearly every Vaughn entry regarding information withheld under Exemption 7(E), the defendant states that disclosure of the information
could reveal techniques and/or procedures for law enforcement investigations or prosecutions, or disclose guidelines for law enforcement investigations or prosecutions which could reasonably be expected to risk circumvention of the law. Disclosure of these techniques and practices could permit people seeking to violate or circumvent the law by taking proactive steps to counter operational and investigative actions taken by ICE during enforcement operations. Further, how law enforcement officers access databases, conduct investigations, use systems, or allocate resources, are all law enforcement techniques and procedures that are not commonly known.
See, e.g., Pineiro Decl., Ex. 7 (Vaughn Index) at 58 (entry for Bates No. 716). Given the apparently varied nature of the information withheld, see Pineiro Decl. ¶ 59, and the defendant's vague descriptions of that information, this "categorical indication of [the] anticipated consequences of disclosure is clearly inadequate," Campbell,
Although the defendant identifies an additional set of concerns with respect to certain information withheld, the Court cannot conclude that these concerns adequately justify the defendant's Exemption 7(E) withholdings either. For example, for "codes" and database-related information, such as "law enforcement sensitive code[s]," see, e.g., Pineiro Decl., Ex. 7 (Vaughn Index) at 70 (entry for Bates No. 836), the defendant asserts variations of the following:
The disclosure of this information could reasonably be expected to risk the circumvention of law by allowing individuals to access law enforcement sensitive information as well as personally identifying information of DHS personnel thereby potentially interfering with ICE ongoing investigations, obstructing enforcement proceedings, and endangering the safety of DHS employees. Disclosure could also assist third parties in deciphering the meanings of the codes and could allow an individual to alter or manipulate law enforcement databases if they were to gain access to the system. Disclosure of these techniques and practices in navigating the databases could permit people seeking to violate or circumvent the law by taking proactive steps to counter operational and investigative actions taken by ICE during enforcement operations,
see, e.g., Pineiro Decl., Ex. 7 (Vaughn Index) at 7 (entry for Bates No. 121). Although "courts in this District repeatedly have held that information connected to law enforcement databases qualifies for exemption under 7(E)," Levinthal,
Additionally, the defendant's assertions regarding the disclosure of "[l]aw enforcement database numeric references/query codes ... used ... to index, store, locate[,] and retrieve information," Pineiro Decl. ¶ 60, also fall short of satisfying the burden it bears. Because the defendant makes no effort to further describe this information or associate it with specific Vaughn entries, it is entirely unclear to the Court which of the withheld information this category includes. In any event, the defendant has again failed to adequately describe the "guidelines, techniques, sources, [or] procedures" this information would reveal, Tax Analysts,
[r]elease of law enforcement database numeric references/query codes could allow a person seeking improper access to law enforcement data to decipher the meaning of the codes, navigate the law enforcement system, and/or compromise the integrity of the data by deleting or manipulating law enforcement information thereby placing law enforcement officers, other DHS personnel, and the public at risk. The release of this information could also reasonably be expected to allow a person to breach sensitive law enforcement systems and to potentially circumvent detection or manipulate law enforcement sensitive information, thus placing law enforcement officers and the public at risk, or to attempt to sabotage their removal or ICE enforcement proceedings.
Finally, the defendant's explanation of the risk associated with disclosing "search results and various fields of analysis relating to queries run against non-ICE law enforcement/databases and case/investigation notes," Pineiro Decl. ¶ 62, is likewise insufficient. Again, it is entirely unclear which withheld information this category includes, and the defendant has provided only the same type of vague assertions regarding the alleged risks associated with *69its disclosure. See Pineiro Decl. ¶ 62 (asserting, without further explanation, that "disclosure could ... giv[e] subjects or potential subjects of an investigation the ability to anticipate the circumstances under which a particular investigative technique might be employed and/or identify such techniques as they are being employed in an attempt to obstruct an investigation or evade detection").
The Court acknowledges that for a limited set of information withheld, the risks associated with disclosure may ultimately be obvious. For example, to the extent that withheld information described by the defendant as "instructions for performing records checks," see, e.g., Pineiro Decl., Ex. 7 (Vaughn Index) at 168 (entry for Bates No. 2447), constitutes "information revealing ... procedures" for "[b]ackground investigations," this Circuit has held that "[i]t is self-evident that information revealing [such] procedures could render [them] vulnerable and weaken their effectiveness at uncovering background information," Morley,
In sum, the defendant has failed to provide sufficient information to allow the Court to conduct a de novo review of the withholdings that the defendant has made pursuant to Exemptions 5, 6, 7(C), and 7(E). Accordingly, the Court will deny both parties' motions for summary judgment without prejudice and order the defendant to supplement its Vaughn indices or submit additional affidavits that provide the *70missing information identified in this Memorandum Opinion. See Clemente,
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the defendant has in many respects failed to demonstrate that its search for records responsive to the plaintiffs' Request was reasonably calculated to uncover all responsive documents. Specifically, the defendant has failed to demonstrate that it searched all locations reasonably likely to contain responsive records because it failed to search the six additional offices identified by the plaintiffs, failed to search its databases for CARI-related data, and failed to produce responsive email attachments. However, the Court lacks sufficient information to determine whether the defendant conducted an adequate search of its other record systems or employed reasonably tailored search terms. Accordingly, the Court will deny the defendant's motion for summary judgment without prejudice, grant in part and deny without prejudice in part the plaintiffs' motion for summary judgment as to the adequacy of the defendant's search, and order the defendant to conduct additional searches or provide additional affidavits in accordance with this Memorandum Opinion. Additionally, the Court concludes that the defendant has failed to provide sufficient information to allow the Court to evaluate the propriety of its withholdings under Exemptions 5, 6, 7(C), and 7(E). Accordingly, the Court will deny the parties' motions for summary judgment without prejudice as to the applicability of these exemptions and require the defendant to supplement its Vaughn indices or submit additional affidavits that address the Court's concerns as indicated in this Memorandum Opinion.
SO ORDERED this 4th day of March, 2019.
In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Defendant's Statement of Undisputed Material Facts ("Def.'s Facts"); (2) the Memorandum of Law in Support of Defendant's Motion for Summary Judgment ("Def.'s Mem."); (3) the Declaration of Fernando Pineiro in Support of the United States Immigration and Customs Enforcement Agency's Motion for Summary Judgment ("Pineiro Decl."); (4) the Declaration of Paula Harrington in Support of the United States Immigration and Enforcement Agency's Motion for Summary Judgment ("Harrington Decl."); (5) the Plaintiffs' Memorandum in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiffs' Cross-Motion for Summary Judgment ("Pls.' Opp'n"); (6) the Plaintiffs' Statement of Issues and Response to Defendant's Statement of Material Facts ("Pls.' Facts"); (7) the Defendant's Reply in Support of Its Motion for Summary Judgment and Opposition to Plaintiffs' Cross-Motion for Summary Judgment ("Def.'s Reply"); (8) the Defendant's Response to Plaintiffs' Statement of Material Facts ("Def.'s Reply Facts"); (9) the Supplemental Declaration of Fernando Pineiro in Support of the United States Immigration and Customs Enforcement Agency's Motion for Summary Judgment ("Supp. Pineiro Decl."); (10) the Plaintiffs' Reply Memorandum in Further Support of Plaintiffs' Cross-Motion for Summary Judgment ("Pls.' Reply"); and (11) the Defendant's Surreply to Plaintiffs' Reply Memorandum ("Def.'s Surreply").
According to the plaintiffs, "CARI appear[ed] to be a new or expanded ICE enforcement program operated with new mobile fingerprint technology and formal collaboration with local law enforcement officials," Pineiro Decl., Ex. 1 (Request) at 6, which was "created ... to increase the number of ICE ... arrests," Pls.' Facts ¶ 20.
The plaintiffs sought expedited processing of their Request, see Pineiro Decl., Ex. 1 (Request) at 5, which the defendant initially denied, see
Although another portion of the Request suggests that "community enforcement" encompasses "homes, driveways, supermarkets, laundromats, and other spaces of day-to-day life," Pineiro Decl., Ex. 1 (Request) at 2, this list of locations is not exhaustive and it is not clear "how broadly [the plaintiffs thought] an objective agency professional should construe the term[ ]" "other spaces of day-to-day life," Freedom Watch, Inc., 925 F.Supp.2d at 62.
The Court notes that
The defendant represents that it "attempted to work with [the p]laintiffs to narrow and better articulate the FOIA request, but such attempts were unavailing." Def.'s Mem. at 7 n.2 (citing Harrington Decl. ¶ 13-32). However, the portions of its affidavit that it cites for this proposition only refer to the plaintiffs' post-litigation correspondence to the defendant regarding locations it believed should be searched and search terms it believed should be used, see Harrington Decl. ¶ 13-32, which appears to have gone unanswered by the defendant, see
The defendant implies in a footnote that the plaintiffs' "failure to reasonably describe the records sought [i]s a failure to exhaust administrative remedies." Def.'s Mem. at 4 n.1. However, assuming for the sake of argument that the defendant is correct, the Court declines to find that any failure to exhaust administrative remedies in this regard would bar judicial review of the plaintiffs' claims. As this Circuit has held, "[b]ecause a FOIA requester's failure to exhaust administrative remedies 'is not [a] jurisdictional' bar to review, it is within [a court's] discretion to entertain [a requester's] arguments[ ] ... [where,] in the specific circumstances of [a] case, the purposes of the exhaustion doctrine would not be served by declining to hear [the requester's] claim." Nat'l Sec. Counselors v. U.S. Dep't of Justice,
As to the OCFO, the plaintiffs have identified evidence demonstrating, for example, that the defendant's FOIA office believed in 2014 that the OCFO was likely to possess "financial records related in whole or in part to ... [ ]CARI," Pls.' Cross-Mot., Am. Ex. 19 (Withholdings Under Exemptions 6 and 7(C) Challenged by the Plaintiffs) at Bates No. 3638 (email from the defendant's FOIA office "task[ing]" the "CFO" to search for, inter alia, "financial records related in whole or in part to ... [ ]CARI[ ]"), which are records likely to be responsive to the plaintiffs' request for records related to "CARI's [c]ost and [f]iscal [i]mpact," including "[r]ecords related to actual, estimated, or projected costs of the CARI program to the federal government," Pineiro Decl., Ex. 1 (Request) at 12.
As to the HSI, the plaintiffs have identified evidence suggesting that CARI officers coordinated with HSI personnel on CARI operations, see Pls.' Cross-Mot., Ex. 14 (Examples of Records Indicating Homeland Security Investigations' Involvement in CARI) at Bates No. 2958 (email from the Deputy Field Office Director of the Boston Field Office inquiring about "the topic of sharing leads with [the] HSI with regard to CARI" and stating that "HQ would like us to share leads with HSI with the goal of arresting and removing more criminal aliens"), which suggests that the HSI is likely to possess documents responsive to the plaintiffs' request for, inter alia, "[r]ecords containing information related to ... arrests by ICE agents who work in whole or in part o[n] CARI teams," Pineiro Decl., Ex. 1 (Request) at 11.
As to the Office of Firearms and Tactical Programs/National Firearms and Tactical Training Unit, the plaintiffs have identified documents demonstrating that this component provided training for CARI officers, see Pls.' Cross-Mot., Ex. 11 (Examples of Training Materials in ICE's Possession but Not Produced) at Bates Nos. 58-59 (emails reflecting plans for persons on the "CARI roster" to participate in training "taught by the National Firearms and Tactical Training Unit"), which suggests that this office would likely possess documents responsive to the plaintiffs' Request for "information related to training administered or received by ICE agents ... related to CARI," Pineiro Decl., Ex. 1 (Request) at 10.
As to the OCR, the plaintiffs have identified documents demonstrating the OCR's involvement in requests for prosecutorial discretion submitted on behalf of detained individuals, see, e.g., Pls.' Cross-Mot., Ex. 12 (Examples of Records Indicating the Office of Congressional Relations' Involvement in CARI) at Bates No. 99 (email from the "ERO Liaison/Office of Congressional Relations" regarding the status of the defendant's review of the denial of a request for prosecutorial discretion for an individual detained in connection with the New Orleans Field Office), which implicates the plaintiffs' request for "information on ICE's review and decision on requests for prosecutorial discretion file[d] by individuals arrested by CARI officers participating in a CARI team enforcement action in a designated CARI jurisdiction," Pineiro Decl., Ex. 1 (Request) at 13.
The Court also cannot conclude that genuine issues of material fact exist regarding the defendant's failure to search the additional offices and custodians identified in the plaintiffs' June and September 2015 correspondence to the defendant, see, e.g., Pls.' Cross-Mot., Ex. 24 (September 2015 Appendices) at 6-7, as the plaintiffs have not identified any evidence to demonstrate that these offices and custodians are likely to possess responsive records, see generally Pls.' Facts (identifying evidence only for the offices already addressed); Pls.' Opp'n (same); see Nolen,
The Court declines to order the defendant to search the specific terms identified in the plaintiffs' September 2015 correspondence at this time. See Pls.' Opp'n at 8. "In general, a FOIA petitioner cannot dictate the search terms for his or her FOIA request," Bigwood,
The defendant's failure to adequately describe the records withheld under the deliberative process privilege also precludes the Court from determining whether the defendant has satisfied its obligation to release all reasonably segregable material. See Pls.' Opp'n at 30 (arguing that the defendant "improperly redacted segregable factual and similar information related to the CARI program under the deliberative process privilege"). Although the Pineiro Declaration attests that "all information not exempted from disclosure pursuant to the FOIA exemptions [claimed] was correctly segregated and non-exempt portions were released," Pineiro Decl. ¶¶ 64-65, "absent a sufficient Vaughn index, an agency must provide other facts, beyond its good-faith assurances, ... establish[ing] that it released all reasonably segregable, non-exempt information[,] [s]uch [as] ... a description of 'what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document,' " Trea Sr. Citizens League,
The plaintiffs do not dispute that the information withheld under Exemption 6 constitutes "personnel and medical files and similar files."
Additionally, this Circuit has "suggest[ed] that federal employees' privacy interests" may depend on their "rank within the agency," Miller v. U.S. Dep't of Justice,
Although 100Reporters LLC and other cases cited by this Court in its Exemption 6 analysis involved Exemption 7(C), because "the privacy inquiry for each [exemption] is 'essentially the same[,]' " Walsh v. FBI,
The Court acknowledges that the supplemental Pineiro declaration asserts that the defendant "determined that the disclosure of the information described in Paragraphs 16 though 23 [of his declaration] would constitute a clearly unwarranted invasion of personal privacy," Supp. Pineiro Decl. ¶ 26, which includes the third party information described in paragraph 21, see id., ¶ 21. However, this conclusory assertion does not satisfy the defendant's burden to demonstrate that the requirements of Exemption 6 are satisfied. See, e.g., Story of Stuff Project v. U.S. Forest Serv.,
The defendant also argues that its withholding of the personal identifying information of third parties is appropriate because "the third parties ... have not provided consent to the release of their personally identifying information as required by
Because the "the privacy inquiry for [Exemption 7(C) ] is 'essentially the same' " as the privacy inquiry for Exemption 6, Walsh,
Although the plaintiffs raise several arguments for why the Court should conclude that disclosure of the information withheld does not pose a risk of circumvention of the law, see, e.g., Pls.' Opp'n at 42 (arguing that the defendant's "re-release of certain information without redaction, while leaving apparently similar information redacted on other pages, casts further doubt on [the defendant's] vague assertions of a risk of circumvention of the law"); Pls.' Facts ¶ 97 (asserting that information withheld regarding the defendant's mobile fingerprinting technology is "already known to the public"), and for why the Court should order disclosure notwithstanding any such risk, see Pls.' Opp'n at 43 (arguing that information withheld is "of significant interest to the public and should be released"), absent additional information from the defendant regarding the nature of the information withheld or the nature of the alleged risks of circumvention of the law associated with disclosure, the Court cannot properly evaluate these arguments either. Thus, the Court will not address them at this time.
Given that the "number of documents involved in this case is substantial[,] [i]f the parties can agree on a representative sample of documents for which the [defendant can] produce a more detailed Vaughn index, they should do so." Clemente,
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.