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Families for Freedom v. U.S. Customs and Border Protection

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


September 30, 2011

FAMILIES FOR FREEDOM, JANE DOE, MARY DOE, AND JOHN DOE, PLAINTIFFS,
v.
U.S. CUSTOMS AND BORDER PROTECTION, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, AND U.S. DEPARTMENT OF HOMELAND SECURITY, DEFENDANTS.

The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.

OPINION AND ORDER

I. INTRODUCTION

Families for Freedom, a non-profit advocacy organization, along with Jane Doe, Mary Doe, and John Doe, three individuals in deportation proceedings (collectively, "Plaintiffs"), filed suit against U.S. Customs and Border Protection ("CBP"), U.S. Immigration and Customs Enforcement ("ICE"), and the U.S. Department of Homeland Security ("DHS") (collectively, "Defendants"), seeking release of certain government records pursuant to the Freedom of Information Act ("FOIA").*fn1 The requested records pertain primarily to the scope and practices of CBP operations on inter-city buses and trains within the geographic area designated as the "Buffalo Sector."*fn2

Defendants represented that their searches yielded certain "hits" that they nonetheless deemed unresponsive to plaintiffs' FOIA request.*fn3 Plaintiffs conceded that many of those documents were non-responsive, while contesting defendants' assertion of nonresponsiveness as to others.*fn4 On August 15, 2011, after considering both parties' letter submissions, I ordered the production of those documents that I determined, based on defendants' description of the documents, were responsive to plaintiffs' FOIA request.*fn5 On August 29, 2011, defendants moved for partial reconsideration of that Order. Plaintiffs have opposed defendants' motion. For the reasons below, defendants' request is granted in part and denied in part.

II. PROCEDURAL HISTORY

The background and procedural history of this case was described in detail in this Court's previous decision of June 16, 2011.*fn6 I describe here only the procedural history relevant to deciding the instant motion for reconsideration.

Over the course of this litigation, defendants have insisted that many of the requested documents do not exist.*fn7 Skeptical of that representation, plaintiffs have sought to conduct discovery. Recognizing that discovery in FOIA cases is the exception rather than the rule,*fn8 however, I instead urged defendants to conduct further searches that might be more productive.*fn9 Defendants did indeed conduct further searches, but plaintiffs maintain that such searches were still inadequate.*fn10 In addition, defendants have asserted that certain of the documents yielded by their searches were personal rather than agency records, while plaintiffs maintain that whether a document is an agency record is for the Court to determine.*fn11

At a conference on February 1, 2011, I indicated that I would be willing to review the documents that defendants deemed non-responsive in camera, or to review descriptions of the documents to determine whether or not they were responsive.*fn12 Instead, defendants wrote a letter to the Court on July 13, 2011, containing a very general description of why CBP had deemed the documents non-responsive. Defendants wrote, "the vast majority of the documents were 'false positives' -- i.e., they contain words that matched the search terms but, when they were reviewed, it was apparent that they were not documents that Plaintiffs had requested."*fn13 Plaintiffs argued, appropriately, that defendants' response was inadequate, as the Court had asked for a description of the particular documents, not the conclusory paragraph defendants submitted.*fn14

At a conference on July 20, 2011, the Court again gave defendants the option of submitting the documents for in camera review or providing more detailed descriptions of the documents.*fn15 On July 21, 2011, plaintiffs sent the Court a letter providing a description of what they believed would make a document responsive.*fn16 Defendants opted to provide descriptions of the documents by letter dated August 10, 2011.*fn17 Plaintiffs responded on August 11, 2011, conceding the nonresponsiveness of certain documents while stating their objections and their bases for believing that other documents were responsive.*fn18

Defendants did not reply to plaintiffs' letter.*fn19 On August 15, 2011, I issued an Order requiring the release of certain documents by August 29, 2011. Instead, on that date, defendants filed the instant motion for reconsideration.

On August 30, 2011, I asked defendants to submit the contested documents for in camera review, along with "additional information regarding the Microsoft Word document containing a Border Patrol employee's meeting notes," specifically, "information regarding how the notes were kept and whether they were ever distributed, circulated, or sent in any fashion to any other agency employee."*fn20 Defendants finally submitted the documents for in camera review, and subsequently submitted a letter from counsel providing the information requested by the Court.*fn21

III. APPLICABLE LAW

A. Standard for Reconsideration

Motions for reconsideration are governed by Rule 6.3 of the Local Rules of the United States District Courts ("Local Civil Rule 6.3") and are committed "'to the sound discretion of the district court.'"*fn22 A motion for reconsideration is appropriate where "'the moving party can point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'"*fn23 A motion for reconsideration may also be granted to "'correct a clear error or prevent manifest injustice.'"*fn24 The purpose of Local Civil Rule 6.3 is to "'ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.'"*fn25

Local Civil Rule 6.3 must be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court."*fn26 Courts have repeatedly warned parties that motions for reconsideration should not be made reflexively in order to reargue "'those issues already considered when a party does not like the way the original motion was resolved.'"*fn27 A motion for reconsideration is not an "opportunity for making new arguments that could have been previously advanced,"*fn28 nor is it "'a substitute for appeal.'"*fn29

B. FOIA

Under FOIA, "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person."*fn30 "In responding . . . to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format . . ."*fn31 "[T]he term 'search' means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request."*fn32

IV. DISCUSSION

A. Partial Reconsideration Is Appropriate

Plaintiffs urge, in the first instance, that the Court deny the motion on the grounds that defendants have failed to meet the standard for reconsideration.*fn33

Plaintiffs argue that defendants "offer no previously unavailable facts or evidence, and do not demonstrate that the Court has overlooked the arguments they presented during litigation."*fn34 Plaintiffs posit further that the motion for reconsideration "is merely a transparent attempt to pursue theories that Defendants failed to present properly to the Court during litigation."*fn35

Defendants counter that

[t]he Court's order to produce the documents in question did not come after extensive briefing and argument, or even anything that would suffice as an appellate record; rather the sole record the Court had before it was one letter in which the Government (pursuant to Court order) provided descriptions of forty-one 'hits' and attachments falling into eighteen different categories[.]*fn36

Plaintiffs' frustration is understandable. This litigation has dragged on for far too long, and obtaining information from defendants has -- to put it charitably -- not been easy. However, while defendants have had ample time to present the arguments they now make, it is less clear that they have had the opportunity to do so. Certainly, defendants have written letters to the Court in which they have failed to make such arguments, and they have repeatedly ignored the Court's request for in camera review of the documents or for detailed descriptions. Nonetheless, this is the first point at which the Court has ordered formal briefing on the issue of responsiveness. Thus, in the interests of both correcting material error and preventing clear injustice, it is appropriate to consider defendants' arguments, even if they were never fully presented prior to the motion for reconsideration. I will now consider the responsiveness of each set of disputed documents, based on my in camera review, as well as the arguments of counsel.

B. Emails with the Subject Heading "Faxing of I-213s" Are Not Responsive to Plaintiffs' FOIA Requests As described by defendants, these documents consist of "[t]wo email chains with the subject heading 'faxing of I-213[s]'. . . . inform[ing] various employees in Buffalo Sector that they were no longer required to fax I-213s on a daily basis."*fn37 Plaintiffs argue that the documents are responsive insofar as "[t]hey are related to the ongoing monitoring of arrest report information and therefore relate to the FOIA request for information on performance and expectations (4/2010 CBP, ¶[¶] 13, 14)."*fn38 Defendants fail to directly respond to plaintiffs' argument, and instead argue that the documents are not responsive to other components of plaintiffs' FOIA request.*fn39 Having now had the opportunity to view the documents in camera, I no longer believe that they are responsive to plaintiffs' FOIA request.

Plaintiffs argue that the documents are responsive to two components of their FOIA request:

(13) Any documents that contain any information regarding arrest quotas, targets, goals and expectations that BP officers operating in the Rochester BP Station and the Buffalo BP Sector were required to meet for the years 2003, 2004, 2005, 2006, 2007, 2008, and 2009.

(14) Performance review standards for BP officers operating in the Rochester BP Station and the Buffalo BP Sector for the years 2003, 2004, 2005, 2006, 2007, 2008 and 2009.*fn40

Plaintiffs now argue that "documents that monitor arrest information are related to expectations about arrests."*fn41 Leaving aside the confusing grammatical formulation of "documents that monitor . . . information," I do not agree that documents that address purely administrative details of conveying information regarding arrests -- as is now clear to me after reviewing the documents -- are encompassed in plaintiffs' request for "any information regarding arrest . . . expectations." If plaintiffs did mean to include such documents, I do not find that their request "reasonably describe[s]" the records they sought, and I decline to find that defendants should have somehow divined plaintiffs' intent.*fn42 I therefore withdraw that portion of the August 15, 2011 Order that directed defendants to release the two email strings with the subject heading "Faxing of 213s."

C. Emails with the Subject Heading "Fiscal Year 2010 Cash Award

Targets" Are Not Responsive to Plaintiffs' FOIA Requests Defendants have described these documents as "giv[ing] information to the stations within Buffalo Sector about how much money each will be allocated to give cash awards to employees who demonstrate excellent performance in their job duties."*fn43 Plaintiffs argue that the documents directly relate to their request for "documents related to performance standards and expectations."*fn44 They add that the "document finally brings to light the existence of a cash reward program that creates incentives based on standards of performance for CBP officers."*fn45

Plaintiffs may be correct that these documents are evidence that "there was a program for evaluating performance that necessarily conveys expectations about performance."*fn46 However, having reviewed the documents in camera, I conclude that these are not the program documents that convey expectations about performance in a manner that would be responsive to plaintiffs' FOIA request. These documents are, as defendants have maintained, administrative and fiscal. They do not convey any substantive information about "arrest . . . expectations"*fn47

or "performance . . . standards."*fn48 They merely set out deadlines, procedures, and figures. Furthermore, the documents suggest that the cash awards may have been available to reward the superior work of any CBP employee, including those whose job tasks have nothing to do with making arrests, such as a secretary or janitor. I therefore withdraw that portion of the August 15, 2011 Order that directed defendants to release the emails with the subject heading "Fiscal Year 2010 Cash Award Targets."

Plaintiffs may well be right that the existence of these documents strongly suggests that there are other "documents about this program that would have been responsive to Plaintiffs' request about expectations,"*fn49 as it is very difficult to believe that these documents are "the only one[s] that exist[] with respect to the cash reward program."*fn50 Plaintiffs may wish to make this argument when they brief the adequacy of defendants' search.

D. Emails with Subject Heading "RFI Tasking" Are Responsive to Plaintiffs' FOIA Request This email chain consists of an "original email . . . request[ing] official definitions of 'transportation check' and 'transit nodes,' and also request[ing] certain transportation check apprehension statistics," followed by emails containing "follow-up questions, requests for clarification, and similar work-related internal communications."*fn51 Defendants have produced to plaintiffs redacted copies of the email attachments, which contain statistics, but argue that the emails themselves are not responsive because they contain "no arrest statistics, staffing levels, information regarding arrest quotas, performance standards, or the like."*fn52

Plaintiffs argue that the email chains are directly responsive because they are "from the CBP Deputy Chief of Staff and directly address apprehension statistics related to transportation checks."*fn53 Further, "[t]hey are directly relevant to our request for statistical information since they explain the categorization of the statistics. (4/2010 request to CBP ¶[¶] 2, 3). They are also directly relevant to our request for information on expectations, since they show particular attention to transportation arrests. (4/2010 request to CBP, ¶[¶] 13, 14)."*fn54

I find that defendants have inappropriately separated "parent-child" pairs by withholding the ostensibly non-responsive "parent" while producing the responsive "child." In so doing, defendants have created an artificial distinction between the attachments, which contain the statistics, and the emails, which solicit, provide, define, categorize, and otherwise discuss those same statistics. Context matters. The attachments can only be fully understood and evaluated when read in the context of the emails to which they are attached. That is the way they were sent and the way they were received. It is also the way in which they should be produced. Accordingly, I find that the emails are responsive to plaintiffs' FOIA request for statistical information. I therefore reaffirm that portion of the August 15, 2011 Order that directed defendants to produce the email chains with the subject heading "RFI Tasking" to plaintiffs.

Furthermore, plaintiffs correctly note that the existence of these documents belies defendants' earlier, always dubious claim that statistics are not collected and kept at the national level.*fn55 Plaintiffs may wish to raise this issue in their motion on the adequacy of the search.

E. DOJ Memorandum Is Responsive to Plaintiffs' FOIA Request

This document is a "memorandum from December 2009 authored by an Assistant United States Attorney in the Western District of New York to the chief of the office's civil division, opining on the scope of potential liability of Border Patrol agents performing searches aboard Amtrak trains."*fn56 Plaintiffs argue that the letter is "responsive to our request for documents related to standards governing the conduct of CBP officers during transportation arrests."*fn57 In their motion to reconsider, defendants have once again disregarded plaintiffs' basis for claiming responsiveness, arguing that "it is difficult to see how it could possibly qualify as an agreement, understanding, or communication between Border Patrol and Amtrak."*fn58

I find that this document is responsive to plaintiffs' request for "[a]ny materials concerning the standards that apply to the conduct of CBP officers at the border as well as in the interior of the United States."*fn59 I therefore reaffirm the portion of the August 15, 2011 Order that directed defendants to produce the DOJ memorandum. I am certain -- as plaintiffs have suggested -- that defendants will assert one or more FOIA exemptions over this memorandum. Any such assertion must be made by October 7, 2011.

F. Meeting Notes Are Agency Records And Are Responsive to Plaintiffs' FOIA Request This document is "[a] Microsoft Word document containing notes from a meeting that took place between Border Patrol and Amtrak Police personnel in March 2008."*fn60 Plaintiffs argue that it is "directly responsive to our request for communications . . . . [I]f there was an in person meeting, there were communications and those communications were memorialized in this set of notes. The notes may also include agreements or understandings."*fn61 Defendants argue first, that the document is not an agency record, because it is "merely the notes of a meeting made by one employee."*fn62 Second, defendants argue that "even if the notes were an agency record, they are not an understanding, agreement, or communication between Border Patrol and Amtrak."*fn63

Defendants are wrong on both scores. First, I find that the notes are an agency record under the totality of the circumstances standard that the Second Circuit adopted in Grand Central Partnership v. Cuomo.*fn64 The relevant factors in that test are:

(i) the circumstances that led to the creation (or "generation") of the document; (ii) the purpose for which the document was created; (iii) the document's actual use, including "the extent to which the creator of the document and other employees acting within the scope of their employment relied upon the document to carry out the business of the agency;" and (iv) the maintenance of the document would be considered to determine whether a document is an "agency record" and not an employee's personal record.*fn65

I find that the circumstances that led to the creation of the document in question are clear: the notes were taken by an Assistant Chief Border Patrol Agent during a meeting between CBP and Amtrak at a time when CBP's statistics reveal that nearly two-thirds of all CBP arrests in Rochester Station occurred on trains and buses.*fn66 The purpose for which the document was created is also clear: to memorialize the discussion and outcomes of the meeting. The document takes the form of meeting minutes, of the sort that are commonly produced following business meetings.

The document's actual use is less clear, although plaintiffs make a compelling argument that "an agency supervisor's notes of a meeting between the agency and an organization it collaborated with to 'routinely inspect' trains . . . almost certainly formed the basis for a number of directives (whether oral or written) issued to his employees[.]"*fn67 The Second Circuit has emphasized the significance of this factor, noting "[t]he importance of a court's evaluation of the use to which such documents were and might be put by the agency and its staff cannot be overestimated."*fn68

My in camera review of the document persuades me that this document was likely intended for some official agency use. The document is not the computerized equivalent of scribbled notes -- unlabeled, unformatted, and replete with abbreviations and incomplete sentences -- which would suggest that the notes were intended only for the author's own use.*fn69 On the contrary, the document is labeled, the date is written out, the full names of the individuals in attendance are listed along with their titles and affiliations, there are section headings, every sentence is complete, and the document is formatted neatly. Every indication is that this is a document that the author spent some time producing for use by other agency personnel, strongly tipping the balance toward it being an agency record.

As for maintenance of the document, defendants have represented that the notes were "generated by one employee and maintained by him exclusively on the [personal drive] of his desktop and were not filed as part of an official Agency file or distributed through normal Agency channels."*fn70 Defendants have further represented that "[t]he Agency has searched the emails and hard drives of the other Border Patrol personnel who attended the meeting and there is no evidence that the notes were sent to them."*fn71

As plaintiffs point out, this information was presented in the form of a letter from counsel rather than a sworn affidavit by the document's author or other agency representative. Defendants have indicated that they did not understand the Court's request to be for an affidavit, but they are willing to obtain one.*fn72

Although defendants are correct that the Court only requested "additional information," and did not ask for an affidavit per se, defendants bear the burden "to demonstrate . . . that the materials sought are not 'agency records.'"*fn73 It is not a court's responsibility to inform counsel of the agency's legal burden. As long ago as January 28, 2011, defendants were on notice that plaintiffs rejected their argument that the documents in question were personal rather than agency records.*fn74 Defendants have had ample time in which to substantiate their argument that these documents are not agency records. I am simply not willing to delay decision in order to give defendants yet another opportunity to present arguments or evidence that they could easily have presented months ago. Furthermore, even if defendants were to submit an affidavit making the same representations that appear in counsel's letter, that would not tip the balance in the "totality of the circumstances" analysis, given my findings as to the other factors. Therefore, I find that this document is an agency record.

Second, I find that the document is clearly responsive to plaintiffs' FOIA request. It memorializes oral understandings, agreements, and communications. Once again, defendants have long been on notice that plaintiffs intended their request for "agreements, understandings, or communications"*fn75 to include communications that were never reduced to written form.*fn76 I have no doubt that defendants will assert FOIA exemptions over this document, which must be done with specificity by October 7, 2011.

V. CONCLUSION

It appears that defendants have produced as few documents as they could possibly produce to plaintiffs without serious consequences. Even more troubling, they have admitted to the existence of as few documents as they could possibly get away with. Defendants' approach frustrates plaintiffs, frustrates the Court, and frustrates the purpose of the Freedom of Information Act.

Defendants are ordered to produce additional documents consistent with this Order by October 7, 2011. Any documents over which defendants assert exemptions must be produced in redacted form with the relevant FOIA exemptions indicated with specificity by that date. A conference is scheduled for 4 p.m. on Wednesday, October 5, 2011 to discuss the briefing schedules for the parties' summary judgment motions on the adequacy of the search and for the parties' summary judgment motions on FOIA exemptions over any and all documents that were not addressed in the last round of briefing on that issue. The Clerk of the Court is directed to close this motion [Docket No. 46].

SO ORDERED.


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