The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
"Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."*fn1
The parties in this litigation have starkly different viewpoints about the wisdom and legitimacy of Secure Communities, which, as an aspect of national immigration policy, is a particularly sensitive and important topic. The three plaintiffs -- the National Day Laborer Organizing Network, the Center for Constitutional Rights, and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law -- did not file this lawsuit seeking information about the program solely out of curiosity or a commitment to government transparency. They did it as part of a major campaign calling to "End Secure Communities. Don't Mend It. Pledge to Break ICE's Hold on Your Community."*fn2 Nonetheless, under the Freedom of Information Act ("FOIA"), plaintiffs are entitled to the disclosure of as much information as the law permits.
The Act is intended to facilitate transparency about the government's policies even -- or perhaps especially -- when members of the public are disturbed by those policies and are fighting to end them. The Act calls on government employees to diligently and honestly respond to requests even from people with whom they disagree. And it calls upon the federal courts and the attorneys who are officers of those courts to cooperate so that the public will have access to information in an efficient, effective, and timely manner. Defendants note that they have spent thousands of hours and hundreds of thousands of dollars responding to plaintiffs' request.*fn3 Transparency is indeed expensive, but it pales in comparison to the cost to a democracy of operating behind a veil of secrecy. This litigation has influenced much of the public debate over Secure Communities. The Act has therefore served its purpose of engendering a more informed public and a more accountable government.
Plaintiffs bring this action for the purpose of obtaining records, pursuant to FOIA,*fn4 from the United States Immigration and Customs Enforcement Agency ("ICE"), United States Department of Homeland Security ("DHS"), the Executive Office for Immigration Review ("EOIR"), the Federal Bureau of Investigation ("FBI"), and the Office of Legal Counsel ("OLC"). Specifically, plaintiffs have sought information regarding Secure Communities, a federal immigration enforcement program launched in 2008. It has long been the practice for local law enforcement agencies to send the fingerprints of individuals arrested and booked into custody to the FBI to be checked against the national criminal history database.*fn5 Under the Secure Communities program, those fingerprints are also now sent to DHS to be checked against immigration records.*fn6 A portion of the requested records related to the issue of whether and how state and local law enforcement agencies may "opt-out" of participation in Secure Communities.
Plaintiffs' FOIA request was twenty-one pages long. The parties eventually negotiated a Rapid Production List ("RPL") -- a limited list of key categories that would be produced by defendants on an expedited basis. In December, 2010, after defendants failed to comply with their obligations under the agreement, I entered an order directing them to produce records relating to the optout question by January 17, 2011 and the remainder of RPL documents by February 25, 2011.*fn7 The defendants' searches involved hundreds of employees and thousands of hours and resulted in the production of tens of thousands of responsive records.*fn8 The parties now cross-move for summary judgment on the adequacy of those searches -- the defendants arguing that the searches satisfied their obligations under FOIA and the plaintiffs arguing that the searches were legally inadequate.
In support of their motions, each of the five defendant agencies has
submitted a declaration (or, in the case of the FBI and ICE, two
declarations each) written by one of its FOIA officers.*fn9
The declarations range from six to thirty-four pages. They
describe which offices (and sometimes which custodians) conducted
searches for records. And, in different levels of detail, they
describe how custodians searched for records.
Plaintiffs make two broad critiques of the agencies' searches.*fn10 First, they argue that the agencies failed to conduct any searches of the files of certain custodians who were likely to possess responsive records. Second, plaintiffs argue that defendants have not established that the searches that they did conduct were adequate. This argument itself has two parts: First, that the agencies' affidavits are insufficiently detailed and therefore do not permit a finding of adequacy; and, second, that even those searches that were described more fully were inadequate.*fn11
I assess each of these arguments below.
The inquiry is intensely fact-specific, particularly because it involves such a massive search. Generalizations about the quality of defendants' searches are difficult because some of the searches appear to have been extremely rigorous, some woefully inadequate, and many simply documented with detail insufficient to permit proper evaluation. For the reasons stated below, the motions of OLC and EOIR are granted*fn12 and the motions of ICE, the FBI, DHS, and plaintiffs are granted in part and denied in part.
In order to win summary judgment under FOIA, an agency must "show beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents."*fn13 "An agency is not expected to take extraordinary measures to find the requested records, but only to conduct a search reasonably designed to identify and locate responsive documents."*fn14
FOIA cases are generally resolved on motions for summary judgment,*fn15 which, as in any other context, requires that the moving party "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn16 "An issue of fact is genuine if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' A fact is material if it 'might affect the outcome of the suit under the governing law.'"*fn17 "In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party."*fn18
As the Second Circuit has explained,
[i]n order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate . . . . Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search . . . are sufficient to sustain the agency's burden. . . [and] are accorded a presumption of good faith.*fn19
Summary judgment is inappropriate "where the agency's response raises
serious doubts as to the completeness of the agency's search, where
the agency's response is patently incomplete, or where the agency's
response is for some other reason unsatisfactory."*fn20
In addition, plaintiffs may defeat summary judgment if they
can show "some tangible evidence" that defendants have not satisfied
their burden.*fn21 Where "an agency has not satisfied
its burden, a showing of bad faith is not necessary" in order to
defeat a motion for summary judgment.*fn22
In their affidavits, agencies must "'identify the searched files and describe at least generally the structure of the agency's file system' which renders any further search unlikely to disclose additional relevant information."*fn23 They must establish that they searched all custodians who were reasonably likely to possess responsive documents.*fn24 And they must "set forth the search terms and the type of search performed."*fn25
"The 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."*fn26 However, "[e]vidence that relevant records have not been released may shed light on whether the agency's search was indeed inadequate."*fn27
A. The Agencies' Selection of Custodians to Search
I begin by assessing the agencies' choices to exclude certain custodians from their searches.
1. ICE Deputy Director -- ICE had not conducted a search of the Deputy Director's records as of the date that it filed this motion. After plaintiffs highlighted this failure, ICE conducted what appears to have been a rigorous search -- using search terms recommended by plaintiffs -- and produced fifty-six responsive records on May 11, 2012. Although the failure to search the Deputy Director's records for a year and a half was unreasonable and therefore inadequate as a matter of law, defendants appear to have finally conducted an adequate search of his records.*fn28
Homeland Security Investigations (HSI): With one exception not at
issue here, this office did not search for records.*fn29
Other than the records of individual aliens and two sample
worksheets that were produced, HSI "determined
the office would not be likely to have any other responsive
according to documents produced by other ICE offices, at least one HSI
employee was involved in opt-out discussions in September,
2010.*fn31 HSI played a role in enforcing Memoranda of
Understanding between local law enforcement agencies and
ICE*fn32 and, in 2011, was tasked, along with other
ICE programs, with "provid[ing] an update on Secure Communities and
its continued expansion."*fn33
ICE has not suggested that HSI became involved in Secure Communities only after the opt-out deadline or explained the existence of these documents (including the 2010 emails) in light of HSI's denial that it had any responsive records.*fn34 It has
therefore failed to carry its burden of establishing that it was reasonable not to search HSI for records.
Contractors: As plaintiffs point out, multiple private contractors "played a direct role in Secure Communities [and in] discussions and decision- making on the opt out issue."*fn35 The ICE declaration does not make clear the extent to which the records of outside contractors were searched and ICE attorneys argue that "plaintiffs incorrectly assume that discussions of staff [described in ICE's Law Declaration] included only agency-employed staff and not outside contractors."*fn36
According to a letter from one contractor who was publicly involved in the opt-out controversy to the ICE assistant director, the FOIA office did instruct him to search his records and he did provide a "comprehensive response."*fn37 The extent to which outside contractors were included in ICE's search is unclear from the Law Declaration, which makes it impossible for me to determine whether an adequate search of those contractors' records was conducted. ICE must therefore inform plaintiffs about the extent to which contractors were included in the searches, and, if plaintiffs are dissatisfied, submit to the Court a supplemental declaration.
Office of State, Local, and Tribal Coordination (OSLTC):
According to ICE, only two members of its OSLTC searched their records
for responsive documents.*fn38 Plaintiffs argue that
other senior OSLTC officials "were directly involved in discussions
and outreach with state and local officials relating to Secure
Communities and the opt-out issue."*fn39 For example,
on January 21, 2011 (which was, admittedly, after the opt-out
cut-off), the OSLTC Chief of Staff circulated to other ICE officials a
summary of OSLTC's outreach efforts; according to the document, the
OSLTC met the next week to discuss how it would "leverage support for
Secure Communities at the state government level."*fn40
the Chief of Staff did not conduct a search for responsive records.
ICE argues that plaintiffs "fail to explain why [the] two custodians
[who did search their records] would not have been the most likely
OSLTC custodians to have responsive records
in light of Law's description."*fn41 But the
government is not required to search only the files of the two
custodians who are "most likely" to have responsive records; it must
also search other locations that are reasonably likely to contain
Because the OSLTC Chief of Staff was circulating memoranda regarding the office's outreach efforts relating to opt-out, his or her files likely contain responsive ...