Stevens v. Broadcasting Board of Governors

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACQUELINE STEVENS,

Plaintiff,

Case No. 18-cv-5391

v.

Judge Mary M. Rowland

BROADCASTING BOARD OF

GOVERNORS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Jacqueline Stevens brings this action against the several federal agencies

under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking to compel the

adequate search and disclosure of all responsive records withheld in response to her

several FOIA requests. On March 2, 2020, Stevens filed a motion to compel the

production of certain documents related to the case. Dkt. 44. In order to facilitate the

litigation, the parties agreed to consolidate their briefing, so that the government

responded to Stevens’s Motion and filed a Motion for Summary Judgement at the

same time. Dkt. 54. In this Opinion, the Court addresses the issues raised in the

Motion to Compel. In a concurrent opinion issued today, the Court addresses the

Motion for Summary Judgement. For reasons stated herein, Stevens’s Motion to

Compel [44] is denied.

I. Background

This case arises from twenty-nine FOIA requests that Stevens, a professor at

Northwestern University, filed with eleven different federal agencies. Dkt. 44, 1.

Stevens filed this lawsuit on August 8, 2018 to compel the disclosure of responsive

records. Id. at 2. At issue in the instant Motion to Compel is the scope and withholding

of documents related to the FOIA requests of six federal agencies—the U.S. Agency

for Global Media (USAGM, formerly the Broadcasting Board of Governors); the

Department of Health and Human Services (HHS); Citizenship and Immigration

Services (USCIS); the United States Geological Survey (USGS); the United States

Administration for International Development (USAID); and Immigration and

Customs Enforcement (ICE). Id. at 3-6.

Several elements of the FOIA requests are relevant to this Motion. Stevens

requested that HHS provide “[a]ll correspondence, including but not limited to email

and text messages, with employees of Immigration and Customs Enforcement or

Customs and Border Protection . . . related to policies, protocols, and practices for

assessing the age of those in the custody of HHS or ICE.” Id. at 4. Similarly, she

requested that ICE provide “[a]ll material . . . related to the use of detainee labor by

private contractors. This includes but is not limited to system records, contracts,

including memorandums of understanding and addenda, letters, memoranda,

reports, draft reports, policy proposals, notes, text messages, faxes, and email.” Id. at

6.

She also requested that HHS produce “[a]ll invoices or other records maintained

or submitted by Southwest Key for documenting expenditures for providing age

assessments to HHS” and documents related to “work requested, performed, OR

discussed in any medium with Professor David R. Senn or his representatives.” Id. at

4. And, finally, she asked ICE to produce “screenshots” of its “PLAnet case

management system.” Id. at 6.

II. Analysis

In her Motion, Stevens raises four issues. First, she argues that the text messages

of government officials should be produced consistent with her FOIA request. She

next asserts that agency records maintained for the agency by government

contractors are subject to FOIA production. She argues that screenshots constitute

records and so must be produced. And she requests limited discovery into the scope

of searches performed or, in the alternative, an order requiring the government to

produce affidavits detailing the search and a Vaughn index of withheld material.

A. FOIA Does Not Require ICE and DHS to Produce Text Messages

Stevens requests that the Court order HHS and ICE to produce text messages by

their employees responsive to her FOIA request. FOIA requires agencies to make

their “records” available upon request. 5 U.S.C. § 552(a)(3)(A). “Records” includes

information stored “in any format, including an electronic format.” Id. at §

552(f)(2)(A). Citing to the Federal Records Act and implementing regulation, Stevens

argues that such records include text messages by an agency’s personnel. See 44

U.S.C. § 2911(c)(1); 36 C.F.R. § 1220.18.

While “records” as defined by FOIA may well include text messages, FOIA does

not requires agency searches that are “literally impossible for the defendants to

conduct.” Moore v. Nat'l DNA Index Sys., 662 F. Supp. 2d 136, 139 (D.D.C. 2009). For

example, courts have held that the FBI is not required to produce a FOIA requestor’s

DNA records on the FBI’s DNA database because the database does not contain

individuals’ names or other personal identifiers, making such a search impossible.

See id. at 138; Lockett v. Wray, 271 F. Supp. 3d 205, 209 (D.D.C. 2017). If they are

impossible to find, an agency does not violate FOIA when it fails to produce

responsive records.

In this case, the government argues that HHS and ICE cannot produce responsive

text messages because they are technologically incapable of doing so. In support, they

cite to declarations provided by officials in the departments detailing their efforts to

comply with the FOIA process. Both declarations state that their respective agencies

are unable to produce text messages. HHS is unable to do so because “HHS does not

maintain records of text messages.” Dkt. 56-2, Smith Decl. ¶ 14. Meanwhile, ICE

“does not have the technical capability to search for individual employees’ text

messages.” Dkt. 56-6, Fuentes Decl. ¶ 28(b)(1). The agencies cannot produce

responsive text messages because they either do not record them or are unable to

search them.

Stevens objects to this argument. She asserts that some departments within ICE

can search cell phones as part of their investigative mission. But obviously the context

and scope of such a search is different from that contemplated by the FOIA request.

Agency affidavits and declarations in FOIA litigation, meanwhile, are “accorded a

presumption of good faith.” Demma v. U.S. Dep't of Just., No. 93 C 7296, 1996 WL

11932, at *3 (N.D. Ill. Jan. 10, 1996) (quoting Carney v. U.S. Dep't of Just., 19 F.3d

807, 812 (2d Cir. 1994)). These declarations “explain how it is not feasible to search

these messages for responsive material.” Ctr. for Biological Diversity v. U.S. Env't

Prot. Agency, 279 F. Supp. 3d 121, 143 (D.D.C. 2017). This is enough to defeat

Stevens’s speculation to the contrary.

Stevens also argues that the Court must declare that HHS and ICE have violated

the Federal Records Act by failing to store text messages in a searchable form. But

“Congress never intended when it enacted the FOIA, to displace the statutory scheme

embodied in the Federal Records Act and the Federal Records Disposal Act providing

for administrative remedies to safeguard against wrongful removal of agency records

as well as to retrieve wrongfully removed records.” Kissinger v. Reps. Comm. for

Freedom of the Press, 445 U.S. 136, 154, 100 S. Ct. 960, 970, 63 L. Ed. 2d 267 (1980).

FOIA litigation is thus an inappropriate vehicle for this issue. Stevens’s Motion to

Compel denied as to the ICE and HHS text messages.

B. The Government Need Not Produce Records Held by Dr. Senn or

Southwest Keys

Stevens next argues that HHS must produce agency records maintained for it by

Dr. David Senn and a company named Southwest Keys. Stevens seeks various

records allegedly maintained by Senn and “[a]ll invoices or other records maintained

or submitted by Southwest Key for documenting expenditures for providing age

assessments to HHS.” Dkt. 44, 4. FOIA defines “records” subject to production to

include “any information . . . that is maintained for an agency by an entity under

Government contract, for the purposes of records management.” 5 U.S.C. §

552(f)(2)(B). So, insofar as HHS maintained contracts with these actors for the

purposes of records management, those records may be subject to production.

According to HHS’s declaration, however, HHS did not have any kind of contract

with Senn during the relevant period. Dkt. 56-2, Smith Decl. ¶ 11. Stevens has not

offered any evidence or even assertions to the contrary. Because Senn and HHS did

not have a contract, any documents under his control fall outside of the scope of FOIA.

HHS is not responsible for producing them.

As for Southwest Key, it is unclear whether any responsive documents under the

company’s control exist. But even if they do, HHS has not found any evidence

suggesting that Southwest Key maintains records “for” HHS “for the purposes of

records management.” See id. Without that element of agency control, FOIA does not

apply to the documents. See Jud. Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924,

928 (D.C. Cir. 2011) (“[W]here an agency has neither created nor referenced a

document in the conduct of its official duties, the agency has not exercised the degree

of control required to subject the document to disclosure under FOIA.”)

C. The Government Need Not Produce Screenshots

Stevens also demands that ICE produce screenshots of the “PLAnet” computer

program employed by the agency. She argues that screenshots qualify as records and

so may be subject a FOIA request. However, “[t]he Act does not obligate agencies to

create or retain documents; it only obligates them to provide access to those which it

in fact has created and retained.” Kissinger v. Reps. Comm. for Freedom of the Press,

445 U.S. 136, 152 (1980). The ICE official’s declaration makes clear fulfilling this

request would require the creation of new documents—the requested screenshots.

Dkt. 56-6, Fuentes Decl. ¶ 27(n). As such, they are beyond the scope of FOIA and ICE

is not required to produce them.

Stevens argues that the demand is appropriate because FOIA requires the agency

to provide the record “in any form or format requested by the person.” 5 U.S.C.

§552(a)(3)(B). Software programs can sometimes qualify as agency records. See

Cleary, Gottlieb, Steen & Hamilton v. Dep't of Health & Hum. Servs., 844 F. Supp.

770 (D.D.C. 1993). Stevens has not produced any cases, however, to support the view

that a screenshot is a “form” of a software program. Common sense suggests

otherwise. A screenshot is a representation of a program in action, but it lacks any of

the functionality or utility associated with the program. It is not, then, comparable to

producing the same document on either a CD-ROM or a flash drive. Because

producing screenshots would require creating a new record, ICE need not do so.

D. Withholdings

Finally, Stevens requests the opportunity to perform limited discovery to

determine the scope of the government’s search. In the alternative, she requests that

the Court order the government to produce affidavits detailing the search and a

record, known as a Vaughn index, that details the rationale for withheld documents.

In its subsequent Motion for Summary Judgement, the government has produced

affidavits discussing the search process of each agency. The adequacy of these

affidavits is discussed in the Opinion addressing that motion. We focus here on the

Vaughn index.

In FOIA cases, the government bears the burden of justifying its decision to

withhold requested information. See, e.g., Canning v. U.S. Dep't of Just., 848 F. Supp.

1037, 1042 (D.D.C. 1994). A Vaughn index, named for the D.C. Circuit case where

one was first ordered, is one way the government may attempt to satisfy that burden.

When many documents are withheld or redacted, supporting each withholding with

sufficient specificity is an organizationally difficult task. The index creates a system

that “would correlate statements made in the Government's refusal justification with

the actual portions of the document.” Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir.

1973). The end result is “an indexing system [that] … subdivide[s] the document

under consideration into manageable parts cross-referenced to the relevant portion

of the Government's justification.” Id.

Although useful, a Vaughn index is not the only way the government can satisfy

its burden. A sufficiently detailed affidavit, for example, can serve the same function.

Miscavige v. I.R.S., 2 F.3d 366, 368 (11th Cir. 1993). Although sometimes ordered

earlier, courts usually require the government to submit a Vaughn index or similar

document at the same time they file for summary judgement. See Mullen v. U.S. Army

Crim. Investigation Command, 2011 WL 5870550, at *5–6 (E.D. Va. 2011). The

plaintiff can then review the justifications and object to specific withholdings in her

response.

In this case, the government has yet to submit a Vaughn index or similar

justification for its withholdings. Instead, it argues that Stevens has waived any

objections she may have to the agencies’ withholding and redaction of responsive

documents. The Court disagrees.

In support of its view, the government cites an email exchange between counsel

that took place after Stevens filed the Motion to Compel. In it, a government lawyer

writes, “Just confirming our understanding from the call that exemptions and

redactions are not at issue in this case, and what is at issue per the motion are

adequacy‐of‐the‐search issues.” Dkt. 67-1, 1. Stevens’s counsel replies, “Yes, the

motion to compel we filed does not challenge any redaction/exemptions applied.” Id.

On this basis, the government argues that Stevens waived any issues related to

withholding.

Stevens did not waive withholding issues. Rather, she stated that the Motion to

Compel did not address them. As Stevens points out, it would have been difficult for

the Motion to have addressed withholding issues at that time; because she lacked a

Vaughn index, she did not have the information necessary to raise objections to

specific withholding decisions. The fact that the Motion specifically requests a

Vaughn index, which would be useless if withholdings were not at issue, supports

this view.

As a result, the withholdings and redactions remain a live issue in this case,

requiring further briefing. The government may file a renewed motion for summary

judgement. Along with the motion, the government must file a Vaughn index or

equivalently comprehensive document to aid the Court in its analysis. Given the

delay, the Court expects that the government will provide exceptionally clear and

detailed justifications to allow for a comprehensive resolution of the issues.

III. Conclusion

For the stated reasons, Stevens’s Motion to Compel [44] is denied.

ENTER:

Dated: March 30, 2021 Marg Ve bo L/

MARY M. ROWLAND

United States District Judge

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