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

September 30, 2011


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



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.


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


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 ...

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