Stevens v. Broadcasting Board of Governors

UNITED STATES DISTRICT COURT

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 filed a lawsuit under the Freedom of Information

Act (FOIA), 5 U.S.C. § 552, seeking to compel disclosure of records relating to various

FOIA requests she submitted to a number of federal agencies. This Court previously

addressed the adequacy of the agencies’ searches in a prior summary judgment

opinion, finding that some agencies did not conduct an adequate search or failed to

explain their search processes. [72]. Defendants believe they have cured those

deficiencies and thus now renew their motion for summary judgment, arguing that

they have performed legally adequate searches and that they properly withheld

information under certain FOIA exemptions. [84]. For the reasons explained below,

this Court grants Defendants’ motion.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). A genuine dispute as to any material fact exists if “the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law controls which facts

are material. Id. After a “properly supported motion for summary judgment is made,

the adverse party ‘must set forth specific facts showing that there is a genuine issue

for trial.’” Id. at 250 (quoting Fed. R. Civ. P. 56(e)).

The Court “consider[s] all of the evidence in the record in the light most

favorable to the non-moving party, and [ ] draw[s] all reasonable inferences from that

evidence in favor of the party opposing summary judgment.” Logan v. City of Chicago,

4 F.4th 529, 536 (7th Cir. 2021) (quotation omitted). The Court “must refrain from

making credibility determinations or weighing evidence.” Viamedia, Inc. v. Comcast

Corp., 951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson, 477 U.S. at 255). In ruling

on summary judgment, the Court gives the non-moving party “the benefit of

reasonable inferences from the evidence, but not speculative inferences in [its] favor.”

White v. City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted).

“The controlling question is whether a reasonable trier of fact could find in favor of

the non-moving party on the evidence submitted in support of and opposition to the

motion for summary judgment.” Id.

BACKGROUND

This Court takes the following facts from Defendants’ statement of facts

(DSOF) [86], Plaintiff’s response to Defendants’ statement (PRSOF) [89-1]. This

Court also reviewed Plaintiff’s statement of additional facts [89-1], and Defendants’

response to Plaintiff’s statement [92], but did not find that they contained any

material facts pertinent to the analysis. This Court presumes familiarity with, and

incorporates by reference, its prior summary judgment ruling [72].

I. The Parties

Plaintiff Jacqueline Stevens is a professor at Northwestern University. DSOF

¶ 3. Defendant Broadcasting Board of Governors (BBG) is a federal agency from

which Plaintiff has sought information via FOIA. Id. ¶ 4. In 2018, BBG changed its

name to U.S. Agency for Global Media (USAGM). Id. Defendant Department of

Health and Human Services (HHS) is an executive branch department from which

Stevens has sought information through FOIA. Id. ¶ 5. Defendants U.S. Citizenship

and Immigration Services (USCIS), U.S. Geological Survey (USGS), U.S. Agency for

International Development (USAID), and Immigration and Customs Enforcement

(ICE) are also federal agencies from which Stevens has served FOIA requests. Id. ¶¶

6–9.

II. The FOIA Request to USAGM

Plaintiff submitted a FOIA request to USAGM in June 2016, seeking:

D3 Systems, Inc. contracts (including addenda) and work products

associated with these contracts produced since January 1, 2003. This

includes but is not limited to background information and work status

updates shared with or received from D3 Systems, Inc. and its

employees or subcontractors, email, system records, reports, draft

reports, and notes.

Id. ¶ 10. According to James McLaren, Acting Deputy General Counsel of USAGM,

the FOIA office sent Plaintiff’s request to employees Carol Prahl and Bill Bell, and

also to Cherlynn Peters of USAGM’s Contracts Office. [86] at 20. The FOIA Office

sent a total of 123 responsive pages to Plaintiff. Id. McLaren attests that, based on

his knowledge of how USAGM retains contracts and conducts searches for FOIA

requests, there is only one methodology the employees could have used: they searched

for “D3 Systems” by vendor code within “Momentum,” a search database available to

the Agency since 2010. Id. The same search conducted today, according to McLaren,

yields all D3 Systems contract actions. Id.

Plaintiff timely appealed but did not contest the adequacy of the original

searches conducted by the FOIA office. Id. at 21. On October 16, 2017, the agency’s

FOIA Access Appeal Committee granted Plaintiff’s appeal, finding that the Contracts

Office failed to search for all the background information and work status updates

shared with and/or received from D3 Systems. Id. The Contracts Office completed a

supplemental search on June 17, 2018, which produced 1,487 additional pages, of

which USAGM withheld 1,195 pages under FOIA exemptions (b)(4), (b)(5), and (b)(6).

Id.; DSOF ¶ 14. After this Court’s 2021 summary judgment ruling, USAGM further

searched its emails and found 65 pages that either mention D3 Systems, were shared

with D3 Systems, or discuss internally any contract that D3 Systems was invited to

bid on, even if D3 Systems were not ultimately awarded the contract. DSOF ¶ 15.

McLaren used the following search parameters: “BBG59-C-10-0104,” “BBG50-P-15-

0859,” “BBG50-P-16-0599,” “D3 Systems,” “Intermedia,” and

matthew.warshaw@d3systems.com. USAGM produced 65 pages in July 2021. Id.

USAGM withheld 14 surveys under Exemption 4, and also withheld one of

those surveys under Exemption 6. Id. ¶ 16. According to McLaren, the questions

posed in a survey “are an important proprietary item,” and that if the surveys and

methodology were published to the general public, that information “could be misused

by foreign governments to thwart agency objectives” and “may distort the market.”

[86] at 22–23.

USAGM also redacted portions of 65 pages of emails under Exemptions 4, 5,

and 6. DSOF ¶ 19. Throughout the 65 pages, USAGM redacted phone numbers,

names of subordinate agency personnel, and names and email addresses of individual

third-party contractor personnel under Exemption 6. Id. ¶ 20. Additionally, USAGM

redacted proprietary or confidential pricing data submitted by Gallup, a third-party

entity, under Exemption 4. Id. ¶ 21.

III. The FOIA Requests to HHS

Plaintiff submitted two FOIA requests to HHS in May 2018. Id. ¶ 24. The first

request sought: (1) all material related to work requested of, performed by, or

discussed with Professor David Senn or his representatives between January 1, 2016

and the date of production; and (2) all correspondence between HHS’ refugee

resettlement office and employees of ICE and CBP related to age assessments of

individuals in the custody of HHS’ refugee resettlement office or ICE. Id. The second

request sought: (1) contracts and related materials produced or received by the

refugee resettlement office related to age assessments of unaccompanied alien

children by refugee resettlement office care provider Southwest Key; and (2) all

invoices or other records maintained or submitted by Southwest Key documenting

expenditures by HHS for conducting age assessments. Id. ¶ 25.

Celeste Smith, FOIA Director for HHS, provided a declaration in this matter.

[86] at 50. In November 2018, she referred part 1 of Plaintiff’s first FOIA request to

the office of the Assistant Secretary for Public Affairs (ASPA). [86] at 50–51. ASPA

concluded that no documents indicated that a contractual relationship existed

between HHS and Professor David R. Senn during the time period listed in the FOIA

request; thus, Smith determined no responsive documents would exist as

correspondence with Professor Senn. Id. In explaining her process for making this

determination, Smith states that she referred a portion of the request to ASPA and

received a response from Garfield Daley, Government Information Specialist, who at

the time, served as Acting FOIA Director at the HHS’ Program Support Center (PSC)

responsible for overseeing the operation of the PSC FOIA office. Id. at 51. Daley

searched the PSC network drive for “David Senn,” “Senn,” and “Professor Senn” and

found no responsive records to indicate that any contracts or correspondence existed

relating to Professor Senn. Id. Daley advised Smith that no records existed for

contracts with or work performed by Professor Senn for HHS. Id. Smith also

contacted Mata Sebgoya, who works as a Policy Analyst in the Division of Policy and

Procedures at the Office of Refugee Resettlement (ORR), who indicated that ORR did

not have a contractual relationship with Professor Senn. Id.

To respond to part 2 of the first FOIA request, Smith explains that the HHS

Information Technology (IT) group conducted a search to identify responsive emails

from ORR’s Federal Field Specialists. Id. at 51–52. The IT group searched emails for

the following terms: “age assessment” or “age assessments”; “age” and “assess*” and

“practice” or “protocol” or “policy.” Id. at 52.

In response to Plaintiff’s second FOIA request, Smith determined that HHS

did not receive or maintain records of invoices or of other records documenting

expenditures made by Southwest Key. Id. at 51. Smith explains in her declaration

that she initially referred this request to ASPA and received a response from Glenn

Voelker, Government Information Specialist, ASPA/HHS. Id. Voelker told Smith that

any invoices would be maintained by the Administration for Children and Families

(ACF). Id. Smith then contacted Sebgoya at ORR, who advised that Southwest Key

would not have been required to submit invoices regarding expenditures for age

assessments. Id. Sebgoya explained that this was the case because a forensic dental

exam was not a line item in Southwest Key’s budget. Id. Smith also attests that she

received confirmation from Bernard Morgan, Senior Grants Management Specialist,

Office of Grants Management, ACF/HHS, that ACF does not receive or collect invoices

from a grantee such as Southwest Key as a standard practice, and that none were

received or collected from Southwest Key. Id.

In November 2018, HHS produced 78 pages of records responsive to part 1 of

Stevens’ second request, including cooperative agreements between HHS and

Southwest Key, along with financial reports submitted by Southwest Key. DSOF ¶

30. HHS also supplemented this production in January 2019 by producing 66 more

pages of cooperative agreements between HHS and Southwest Key. Id.

HHS produced records responsive to Plaintiff’s first request in several rounds.

In January 2019, it produced 88 pages responsive to part 1 of the first request and

identified 471 pages responsive to part 2 of the first request. Id. ¶ 31. Of the 471 pages

responsive to part 2 of the first request, HHS released 29 pages in full and referred

442 pages to DHS for review because the pages originated with that agency. Id. In

February 2019, HHS produced 158 pages without redaction, produced 150 pages with

redactions pursuant to FOIA exemption (b)(6), and referred 989 pages to DHS

because the pages originated with that agency. Id. In March 2019, HHS identified

2,956 responsive pages to Stevens’ first requests, producing 82 pages without

redaction, producing 2,146 pages with redactions under FOIA exemption (b)(6), and

referring the remaining 728 pages to DHS. Id. Smith attests that HHS redacted

employees’ titles in addition to their names to protect the employees’ identities

because in some cases, employees could be identified by their titles. [86] at 52.

IV. The FOIA Request to USCIS

In May 2018, Plaintiff submitted two FOIA requests that USCIS consolidated

into one case for expediency. DSOF ¶ 33. The consolidated request sought: (1) all

information in any form from Northwestern University, Evanston, IL used for

registering, reviewing, and renewing E-Verify for employees at Northwestern

University between January 1, 2008 and the present with the exception of individual-

level data entered into the system. This includes but is not limited to email,

submission forms, data submitted online; (2) all email between Northwestern

employees or agents of Northwestern pertaining to E-Verify, including all

attachments, linked documents, and referenced documents between January 1, 2008

and the present. This includes email related to specific personnel, with the

understanding that names and other identifying information will be redacted; (3)

copies of all contracts (and associated attachments, including for the Scope of Work),

and evaluations of work performed for contractors creating, licensing, maintaining,

supporting, or assessing software and databases used by USCIS and third parties for

verification eligibility of employment through E-Verify between January 1, 2005 to

present; and (4) copies of USCIS evaluations on which contracting officers rely for

purposes of renewing contracts between January 1, 2005 to present. Id.

USCIS produced the responsive records in 2018 and did not withhold or redact

any material under any FOIA exemption. Id. ¶ 34. In denying USCIS’ first motion for

summary judgment with respect to the adequacy of the search USCIS performed, this

Court found that USCIA’ search was not reasonably calculated to return all

responsive records insofar as it utilized only the search term “Northwestern

University” and did not additionally search for hits corresponding to the search terms

“NWU” and “NU.” Id. ¶ 35; see [72] at 20. After this Court’s ruling, USCIS’ FOIA staff

contacted USCIS’ Verification Division and asked the office to conduct another

search. DSOF ¶ 36. The Verification Division staff determined that the computerized

databases SAS, AVANT, CRM, and WebHQ were reasonably likely to contain

responsive records and queried those systems using the search terms “NWU,” “NU,”

and “Northwestern University.” Id. ¶ 37. The search returned no additional

responsive records. Id.

USCIS received another FOIA request from Plaintiff in August 2018, seeking

information relating to two particular contracts with General Dynamics. Id. ¶ 39.

This Court previously found USCIS’ search for records responsive to this request was

adequate. Id. ¶ 40; see [72] at 20. USCIS withheld material responsive to Plaintiff’s

August 2018 request under exemptions 3, 4, and 6. DSOF ¶ 41. Plaintiff does not

challenge the withholdings under exemptions 3 and 6. Id. ¶ 42. As for USCIS’

withholdings under exemption 4, USCIS redacted price quotes from General

Dynamics, including projected yearly quantity and price proposals for work

performance under a contract. Id. ¶ 44. USCIS asserts that this information is private

and confidential, as disclosure would threaten the company’s competitive position by

providing competitors with the dollar amounts that it proposed to USCIS. Id. USCIS

also redacted information General Dynamics provided regarding the quantities and

prices of computer equipment that it would provide pursuant to a particular contract.

Id. ¶ 45. USCIS additionally redacted information regarding a contract modification

to add a support facility to be managed by General Dynamics. Id. ¶ 46.

V. The FOIA Request to USAID

Plaintiff submitted a FOIA request to USAID in October 2015, seeking records

relating to contracts or emails with Northwestern University, including records

relating to Northwestern’s campus in Doha, Qatar. Id. ¶ 47. USAID conducted a

search, which this Court discussed and considered in its prior summary judgment

opinion. Id. ¶ 48; see [72] at 21–23. This Court denied summary judgment because

USAID used only the term “Northwestern” without using other common

abbreviations for the school. [72] at 23.

Since this Court’s first summary judgment ruling, an e-discovery expert at

USAID attempted to search USAID’s entire Gmail vault which encompasses USAID’s

email and cloud-stored records. DSOF ¶ 50. USAID searched for the terms “NWU,”

“NU,” and “Northwestern,” which yielded 307,747 items for “NWU”,” more than 1.4

million items for “Northwestern,” and more than 1.3 million items for “NU.” Id.

Christopher Colbow, FOIA Officer for USAID, submitted a declaration for this case.

[86] at 148. Colbow attests that each item could “be an email or a document or one or

more pages.” Id. at 149. Colbow explains that USAID attempted to create a sampling

methodology that would allow it to sample with a 95% confidence level with a

confidence interval of 10 (meaning a 10% margin of error), but faced multiple

challenges attempting to implement this methodology. Id. USAID would have to

export the entire universe of the search, which would result in duplicating potentially

terabytes of data. Id. USAID does not know the length of this process nor the costs,

as the size of the data set is unknown until exporting begins. Id. Even if USAID could

overcome this challenge, according to Colbow, its Forensics/e-Discovery expert

estimated that sampling 96 random items from each of the three sets of records would

take between 7 to 42 days for each set; and even if USAID could dedicate the

manpower for that effort, the exported files remain searchable for only 15 days, so

the process may not even succeed based on the 7-to-42 day estimated time to

completion. Id. Colbow also asserts that a sampling is impractical and unlikely to

result in relevant documents, because: (1) the term “Northwestern” is a directional

locator; “NWU” is an acronym for North-West University in South Africa; and (3)

“NU” is a descriptor of one of the 56 recognized ethnic groups of China and a common

letter combination in words like “January.” Id. at 150.

After this Court’s first summary judgment ruling, USAID’s Mission in

Pakistan, which had already searched the term “Northwestern” previously, searched

its Office of Education’s Google Docs folder using the terms “NWU” and “NU” and

found no responsive records. DSOF ¶ 56. Similarly, USAID’s Bureau for the Middle

East, which had previously searched for the term “Northwestern,” used the search

terms “NWU” and “NU” on its Google drive and on the shared network drive of its

predecessor bureau and found no responsive records. Id. ¶ 57. Since conducting its

previous search, USAID’s Asia Bureau and Office of Afghanistan and Pakistan

Affairs reintegrated into USAID’s Asia Bureau. Id. ¶ 58. After this Court’s first

summary judgment ruling, the Asia Bureau searched its shared drive and Google

drive using the search terms “Northwestern,” “NWU,” and “NU” and found no

responsive records. Id.

VI. The FOIA Requests to ICE

Plaintiff submitted ten FOIA requests to ICE between March and July 2018.

Id. ¶ 59. This Court granted summary judgment to ICE with respect to the adequacy

of its searches for responsive records. Id.

Regarding ICE’s withholdings and redactions, this Court directed ICE to

submit a Vaughn index1 with Defendants’ renewed motion for summary judgment, to

enable it to assess the propriety of withholdings. Id. ¶ 60; [71]. Because ICE produced

more than 8,000 pages of responsive material, the parties agreed to present this Court

with a subset of records to serve as a sample for summary judgment purposes. DSOF

¶ 61. ICE withheld information under exemption 5 based on the deliberative process

privilege, the attorney-client privilege, and the attorney work-product doctrine. Id. ¶

62.

VII. Claims and Procedural History

Plaintiff brought this lawsuit under FOIA, 5 U.S.C. § 522, seeking records she

alleges that the various federal agencies wrongfully withheld from her relating to

twenty-nine FOIA requests she submitted to eleven different federal agencies. [1];

[72] at 5.2

Defendants moved for summary judgment for the first time in March 2021, at

which time outstanding issues remained as to requests Plaintiff submitted to six

1 A “Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked,

and explains why each exemption applies.” White Coat Waste Project v. U.S. Dep’t of Veterans Affs.,

404 F. Supp. 3d 87, 94 n.4 (D.D.C. 2019) (quoting Prison Legal News v. Samuels, 787 F.3d 1142, 1145

n.1 (D.C. Cir. 2015)).

2 Plaintiff’s joinder of the various agencies in a lawsuit challenging unique FOIA requests to each of

those agencies arguably is impermissible under the Federal Rules of Civil Procedure. See Owens v.

Godinez, 860 F.3d 434, 436 (7th Cir. 2017) (“Unrelated claims against different defendants belong in

different suits”) (quoting George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)). Nevertheless, it does not

appear that Defendants have raised the issue of misjoinder, and the case has already reached the

summary judgment stage. Thus, this Court declines at this juncture to sever any parties. See Fed. R.

Civ. P. 21 (“Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the

court may at any time, on just terms, add or drop a party. The court may also sever any claim against

a party.”).

agencies—USAGM, HHS, USCIS, USGS, USAID, and ICE. [72] at 5. After

considering the record, this Court granted summary judgment as to USGS and ICE

on the issue of adequacy of search. Id. at 25. This Court denied summary judgment

to USAGM and HHS because those agencies provided insufficient detail in their

declarations in their declarations describing their search process. Id. This Court also

denied summary judgment to USCIS and USAID because their searches relating to

“Northwestern University” were inadequate. Id. This Court’s first summary

judgment opinion did not consider the propriety of any agencies’ withholding of

documents under any FOIA exemption.

The remaining six agencies now renew their motion for summary judgment,

arguing that the record entitles them to judgment because (1) they have conducted

reasonably adequate searches in response to Plaintiff’s FOIA requests; and (2) they

properly withheld documents under FOIA exemptions. [84]. Plaintiff opposes the

motion, challenging: (1) the adequacy of searches by USAGM, HHS, USCIS, and

USAID; and (2) the withholdings by USAGM, HHS, USCIS, and ICE. [89]. Plaintiff

does not challenge the withholdings made by USGS or USAID. See [85] at 2; see

generally [89].

ANALYSIS

The FOIA requires federal agencies to make their records available to the

public upon request. 5 U.S.C. § 552(a)(3). For summary judgment purposes, the

proper standard on summary judgment depends on whether this Court is considering

the adequacy of an agency’s search or the propriety of its withholdings. Stevens v.

U.S. Dep’t of State, 20 F.4th 337, 342 (7th Cir. 2021).

To “prevail on summary judgment in this type of FOIA claim, the agency must

show that there is no genuine issue of material fact about the adequacy of its records

search.” Rubman v. U.S. Citizenship & Immigr. Servs., 800 F.3d 381, 387 (7th Cir.

2015). A “search is adequate if it is the result of ‘a good faith effort’ and is also

‘reasonable in light of the request.’” Stevens, 20 F.4th at 342 (quoting Rubman, 800

F.3d at 387). Courts presume good faith, and an agency “is entitled to support its

searches through affidavits.” Id. The affidavits must be “reasonably detailed, set forth

the search terms used in electronic searches and the kind of search performed by the

agency, and aver that all files likely to contain responsive documents were searched.”

Henson v. Dep’t of Health & Hum. Servs., 892 F.3d 868, 875 (7th Cir. 2018).

If, on the other hand, a plaintiff challenges an agency’s withholdings, a

different standard applies. If “material is responsive, an agency must release it unless

the agency can carry its burden to establish that the material falls under one of the

nine FOIA exemptions.” Stevens, 20 F.4th at 344 (citing 5 U.S.C. § 552(b)); see also

Stevens v. U.S. Immigr. & Customs Enf’t, 432 F. Supp. 3d 752, 760 (N.D. Ill. 2020)

(“Because disclosure is the ‘dominant objective’ of FOIA, courts are to construe the

exemptions narrowly.”) (quoting Patterson v. Internal Revenue Serv., 56 F.3d 832, 836

(7th Cir. 1995)). A district court may grant summary judgment to the government in

a FOIA case only if ‘the agency affidavits describe the documents withheld and the

justifications for nondisclosure in enough detail and with sufficient specificity to

demonstrate that material withheld is logically within the domain of the exemption

claimed.” Patterson, 56 F.3d at 836 (quoting PHE, Inc. v. Dep’t of Justice, 983 F.2d

248, 250 (D.C. Cir. 1993)).

With these standards in mind, this Court turns to the parties’ arguments as to

each of the challenged FOIA requests.

I. USAGM

USAGM moves for summary judgment, arguing that it had performed an

adequate search and that it appropriately withheld documents under Exemption 4.

[85] at 3–5, 11.

A. Adequacy of Search

In this Court’s first summary judgment order, it found that the scope of

USAGM’s search was adequate, but that USAGM failed to adequately describe its

search process, including providing its search terms. [72] at 15–16.

USAGM has remedied this problem. In a new declaration from McLaren,

USAGM details its search process. Specifically, McLaren attests that, based on his

knowledge of how USAGM retains contracts and conducts searches for FOIA

requests, there is only one methodology the employees could have used when they

conducted the initial search for responsive documents in 2016 and 2017: they

searched for “D3 Systems” by vendor code within “Momentum,” a search database

available to the Agency since 2010. [86] at 20. Search of contracts prior to 2010 would

have used another system. Id. The same search conducted today, according to

McLaren, yields all D3 Systems contract actions. Id. McLaren also explains that, after

the FOIA appeals office had determined that the USAGM’s Contracts Office had not

thoroughly searched email, system records, reports, draft reports, and notes, the

Contracts Office in 2018 completed a supplemental search for all contractual material

mentioning “D3” as a contracting party or “D3 Systems,” yielding 1,487 additional

pages. [86] at 21. After this Court’s 2021 summary judgment ruling, USAGM further

searched its emails and found 65 pages that either mention D3 Systems, were shared

with D3 Systems, or discuss internally any contract that D3 Systems was invited to

bid on, even if D3 Systems were not ultimately awarded the contract. DSOF ¶ 15.

McLaren used the following search parameters: “BBG59-C-10-0104,” “BBG50-P-15-

0859,” “BBG50-P-16-0599,” “D3 Systems,” “Intermedia,” and

matthew.warshaw@d3systems.com. USAGM produced 65 additional pages in July

2021. Id. McLaren avers that he has no reason to believe that additional responsive

records exist within the agency’s custody and control. [86] at 22. McLaren’s

declaration satisfies this Court’s initial concerns regarding the adequacy of USAGM’s

search, as it is “reasonably detailed, set[s] forth the search terms used in electronic

searches and the kind of search performed by the agency, and aver[s] that all files

likely to contain responsive documents were searched.” Henson, 892 F.3d at 875.

Plaintiff, for her part, complains that USAGM has merely described the search

of the “Momentum” database and “another system” for pre-2010 contracts without

first describing USAGM’s “general recordkeeping system and how those two systems

fit within the agency recordkeeping.” [89] at 4. But McLaren has explained in his

declaration that the agency’s Contracts Office conducted the search for all D3

Systems, Inc. contracts from 2003 because that office was the “logical location” for

responsive documents based on the FOIA request, and that “Momentum” and the

other “system” for pre-2010 contracts were the two search databases available for the

Contracts Office to conduct the search. [86] at 20. This account of USAGM’s “methods

provides sufficient detail for [this Court] to say that its methods were reasonable.”

Stevens, 20 F.4th at 343.

Plaintiff also argues that USAGM does not adequately detail how it conducted

a supplemental search in 2018 that yielded the additional 1,487 pages of documents.

[89] at 4. This Court disagrees. McLaren explains that, to yield these additional

documents, the Contracts Office searched for contractual material (as opposed to the

initial search by vendor code) for material referencing “D3” or “D3 Systems.” [86] at

21. The “agency’s actions to rectify the failings of the initial search that demonstrate

an adequate search was performed.” Stevens v. U.S. Dep't of Homeland Sec., No. 13

C 03382, 2014 WL 5796429, at *6 (N.D. Ill. Nov. 4, 2014).

Plaintiff additionally criticizes McLaren for conducting an additional email

search in 2021 using expanded search terms, which yielded a few dozen additional

responsive pages. [89] at 4. Plaintiff suggests that this Court should be suspicious

that this additional search yielded new documents that had not previously been

captured by other searches, id., but this Court has the opposite impression. After all,

the agency undertook this search as a show of good faith to ensure that all responsive

documents have been identified. An agency’s good faith “can be reinforced by evidence

of the agency’s attempts to satisfy the [FOIA] request.” Henson, 892 F.3d at 875.

Moreover, the fact that the first searches did not yield these new documents does not

necessarily mean that they were not reasonably adequate. It “is inevitable that a

search may fail to find every single responsive document, but FOIA does not require

such a high standard—a search need not be perfect, only adequate.” Stevens, 2014

WL 5796429, at *5 (internal quotation marks and citation omitted); see also Evans v.

U.S. Dep't of Interior, 135 F. Supp. 3d 799, 825 (N.D. Ind. 2015) (explaining that the

“agency won’t be denied summary judgment simply because a better search could be

imagined”).

In sum, this Court concludes that USAGM has conducted a reasonably

adequate search in response to Plaintiff’s FOIA request.

B. Exemption 4

In opposing summary judgment, Plaintiff also challenges USAGM’s

withholding of surveys Exemption 4. [89] at 9–11.

Exemption 4 protects from disclosure “matters that are . . . trade secrets and

commercial or financial information obtained from a person and privileged or

confidential.” 5 U.S.C. § 552(b)(4). Exemption 4 applies when “disclosing the

contested information would cause ‘substantial competitive harm to the firm that

owns the information.’” Henson, 892 F.3d at 877 (quoting Gen. Elec. Co. v. NRC, 750

F.2d 1394, 1402–03 (7th Cir. 1984)). Information is “confidential” under Exemption 4

where it “is both customarily and actually treated as private by its owner and

provided to the government under an assurance of privacy.” Food Mktg. Inst. v. Argus

Leader Media, 139 S. Ct. 2356, 2366 (2019).

Here, USAGM properly invoked Exemption 4. The Vaughn Index describes the

withheld surveys as proprietary and redacted emails as containing proprietary or

confidential pricing information, see [86] at 24–27, and McLaren further explains in

his declaration that if the information “were published to the general public, there

would be no benefit to the United States public,” and that instead, “the survey

information could be misused by foreign governments to thwart agency objectives¸ id.

at 22. These assertions that the withheld information was both proprietary and

undisclosed to the general public suffice to meet USAGM’s burden of showing that

Exemption 4 applies. See Henson, 892 F.3d at 877.

For these reasons, this Court grants summary judgment to USAGM.

II. HHS

This Court next considers whether HHS has complied with its FOIA

obligations. In its original summary judgment order, this Court ruled that HHS had

not adequately explained how it determined that it: (1) had no contract with Professor

Senn during the relevant time period; and (2) did not receive invoices or similar

records from Southwest Key. [72] at 16–17. This Court also faulted HHS for not

listing the search terms it used when searching for emails on the subject of “age

assessment.” Id. at 17. This Court found other aspects of HHS’ search adequate. Id.

at 17–18.

A. Adequacy of Search

HHS again moves for summary judgment on the adequacy of its search. This

Court finds that HHS has rectified the errors this Court identified in its first

summary judgment order.

First, HHS explains how it determined that HHS had no contract with

Professor Senn. Smith’s declaration states that Garfield Daley, then acting FOIA

Director for HHS’ Program Support Center (PSC) searched the PSC network drive

for “David Senn,” “Senn,” and Professor Senn,” and found no responsive records

indicating that any contract or correspondence existed relating to Professor Senn.

[86] at 51. Smith also confirmed this through speaking with her colleague Mata

Sebgoya, who reported that James De La Cruz, the senior supervisor of HHS’ refugee

resettlement office, represented that the office had no contractual relationship with

medical services providers such as Professor Senn. Id. These additional details

adequately demonstrate HHS’ good faith effort in searching for whether a contractual

relationship existed between it and Professor Senn during the relevant time period.

Plaintiff argues that Professor Senn conducts age assessments not as a medical

provider but as a forensic investigator at the request of ICE. [89] at 5. If that were

the case, however, it is unclear why HHS (rather than ICE) would have a contractual

relationship with Professor Senn. Plaintiff also insists that a contract must exist

because Professor Senn told her that HHS was paying his university for his services.

[89] at 7. But if that were true, then it would make more sense that HHS maintained

a contract with Senn’s university, not Senn himself.

Likewise, Smith provides more color as to how HHS determined that no

invoices existed for Southwest Key: she avers that she referred the request for

invoices to government information specialist Glenn Voelker, who advised that

invoices would be maintained by HHS’ Administration for Children and Families

(ACF); she also consulted with Sebgoya, who advised that Southwest Key would not

have been required to submit invoices regarding expenditures for age assessments to

ACF; and she received further confirmation from Bernard Morgan, a senior grants

management specialist for ACF, that ACF does not receive or collect invoices from a

grantee such as Southwest Key and that none were received or collected from

Southwest Key. [86] at 51. This detailed description satisfies the Court that HHS

conducted a thorough search of responsive records.

HHS additionally cures its past deficiencies by explaining the search terms it

used relating to age assessment within the email files of ORR’s Federal Field

Specialists. Smith states that HHS used the following terms: “age assessment or “age

assessments”; and (2) “age” and “assess*” and “practice” or “protocol” or “policy.” Id.

at 52. This search, Smith explains, would have located any emails that contained a

combination of the word “age,” any word with the root “assess” (i.e., assessing,

assessment, assessed, assessing), and any of the words “practice,” “protocol,” or

“policy.” Id. at 52. This Court finds these terms reasonable.

B. Exemption 6

HHS also moves for summary judgment, arguing that it appropriately redacted

the names and titles of various employees under Exemption 6. [91] at 13.

Exemption 6 permits an agency to withhold “personnel and medical files and

similar files the disclosure of which would constitute a clearly unwarranted invasion

of personal privacy.” 5 U.S.C. § 552(b)(6). The term “similar files” covers records “on

an individual which can be identified as applying to that individual.” Ayuda, Inc. v.

Fed. Trade Comm’n, 70 F. Supp. 3d 247, 264 (D.D.C. 2014) (quoting U.S. Dep’t of

State v. Wash. Post Co., 456 U.S. 595, 602 (1982)). Here, HHS explained, through

Smith’s declaration, that it redacted employees’ titles in addition to their names to

protect the employees’ identities. [86] at 52. According to Smith, HHS ran Google

searches of titles at specific HHS shelter facilities, and those searches yielded names

of individuals who currently or formerly held those titles. Id. Thus, Smith concluded

that redacting titles would be appropriate because employees can sometimes be

identified by their titles. Id.

Plaintiff’s sole argument posits that public employees’ names and titles are

considered public information by regulation. [89] at 4. Plaintiff cites 5 C.F.R. §

293.311, which states that a federal employee’s name and position, among other

things, is “information” that is generally “available to the public.” But that regulation

also states that the “agency will generally not disclose information where the data

sought is a list of names” or “present or past position titles” “of Federal employees

which . . . [w]ould otherwise be protected from mandatory disclosure under an

exemption of the FOIA.” Id. § 293.311(b). This “regulation accordingly, by its own

terms, does not disarm an otherwise available FOIA exemption.”

SAI v. Transp. Sec. Admin., 315 F. Supp. 3d 218, 260 (D.D.C. 2018). Plaintiff does not

otherwise argue that HHS employees do not have a privacy interest in keeping their

titles private. Thus, this Court grants summary judgment to HHS.

III. USCIS

In its original summary judgment order, this Court found that USCIS had

adequately searched all files reasonably likely to contain responsive material to

Plaintiff’s FOIA requests, but that USCIS might have missed responsive documents

by searching only “Northwestern University” and not also “NWU” and “NU” for

responsive documents. [72] at 18–20.

A. Adequacy of Search

USCIS argues that it has now cured the search term issue this Court

previously identified because its Verification Division—which this Court previously

approved as the office reasonably likely to maintain responsive records—queried its

computerized databases (named SAS, AVANT, CRM, and WebHQ) and found no

additional responsive records using the additional search terms. [86] at 7–8. USCIS’

representative, Cynthia Munita, submits an affidavit attesting to this fact and

asserting that USCIS believes that all responsive records have been located and

produced. [86] at 75.

Plaintiff contends that “there is no way” for this Court to determine whether,

in fact, these four databases were reasonably likely to contain responsive records. [89]

at 5. But Munita avers that the Verification staff determined that those computerized

databases were the ones “reasonably likely to contain responsive records,” and that

USCIS has no reason to believe additional records exist within its custody and

control. [86] at 75. This satisfies the Court that USCIS has searched the correct

databases for responsive documents. See, e.g., Stevens v. U.S. Dep’t of State, No. 17 C

2494, 2020 WL 1330653, at *4 (N.D. Ill. Mar. 23, 2020) (holding that the plaintiff’s

“speculation that responsive records may be found in other locations is not enough to

undermine” the agency’s detailed affidavit stating that it conducted a thorough

search of all “locations that were reasonably likely to contain records responsive to”

the FOIA request), aff’d, 20 F.4th 337 (7th Cir. 2021); see also, e.g., Knight First

Amend. Inst. at Columbia Univ. v. Centers for Disease Control & Prevention, 560 F.

Supp. 3d 810, 825 (S.D.N.Y. 2021) (noting that an “an agency need not search an

office that individuals well-positioned to have knowledge of the offices reasonably

determine is unlikely to have responsive documents”) (internal quotation marks and

citation omitted).

B. Exemption 4

As she did with USAGM, Plaintiff challenges USCIS’ invocation of Exemption

4. [89] at 10–11. Plaintiff argues that USCIS’ Vaughn index is “formulaic” and

“ambiguous.” Id. at 11. This Court overrules Plaintiff’s challenge. USCIS’ detailed

Vaughn index, which this Court has reviewed, explains USCIS’ basis for redacting

under Exemption 4. For instance, many of the redactions concern “price quotes” that

USCIS’ contractor, General Dynamics, provides to USCIS. E.g., [86] at 102–03. As

USCIS explains, it redacted actual dollar figures provided by General Dynamics

because this information “is customarily and actually treated as private confidential,

since disclosure would threaten the company’s competitive position within the

business arena by providing competitors an unfair advantage if competitors knew the

exact dollar amount the contractor was proposing to charge the government.” Id.

Contractors’ pricing information falls squarely within Exemption 4’s ambit. See

Canadian Com. Corp. v. Dep’t of Air Force, 514 F.3d 37, 43 (D.C. Cir. 2008); Skybridge

Spectrum Found. v. F.C.C., 842 F. Supp. 2d 65, 80 (D.D.C. 2012).

For these reasons, this Court grants summary judgment to USCIS.

IV. USAID

In considering USAID’s efforts on Defendants’ first summary judgment

motion, this Court identified only one issue with USAID’s searches: like USCIS,

USAID searched their files using only the search term “Northwestern” and not other

common terms like “NWU.” [72] at 22–23. USAID now renews its motion for summary

judgment, arguing that it rectified the omission where it could and explained why it

was not able to do so where it could not. [85] at 8–10.

As USAID explains, it conducted the additional searches for the terms “NU”

and “NWU” for the Mission in Pakistan and for the Bureau for the Middle East; and

as it turned out, USAID found no responsive documents in either place. [86] at 150–

51. These places have now indisputably conducted reasonably adequate searches.

As to other locations, USAID was less successful in executing searches.

USAID’s Mission in West Bank and Gaza asked its IT specialist to search local drives

and shared drives using the terms “NWU” and “NU.” [86] at 150. The specialist

declined to conduct the additional searches, representing that it believed the

Mission’s system would be at an elevated risk of crashing and having an elongated

recovery period, if recovery could even be accomplished. Id. And USAID also faced

issues when performing a more global search for the terms “NWU,” “NU,” and

“Northwestern” on its cloud drive, which houses all agency email and shared

information. Id. at 148–49. As USAID’s declarant, Christopher Colbow, explains,

those searches hit on millions of items, and to even sample items from each search

would present an “incredibly burdensome task.” Id. at 149. Colbow estimates that

even sampling 96 items from each dataset would entail 7 to 42 days of work, and that

conducting that sampling might be rendered even more impracticable by security

concerns rendering exported files searchable for only 11 working days. Id. at 149–50.

Further, Colbow explains that based on other searches conducted by USAID, he

believes that there would be a high yield of false positives—that is, the terms “NU,”

“NWU,” and “Northwestern” are likely to turn up items having nothing to do with

Northwestern University. Id.

Under FOIA, “an agency shall provide the record in any form or format

requested by the person if the record is readily reproducible by the agency in that

form or format.” 5 U.S.C. § 552(a)(3)(B) (emphasis added). The term “readily

reproducible” is not synonymous with “technically feasible.” Long v. Immigr. &

Customs Enf’t, 149 F. Supp. 3d 39, 55 (D.D.C. 2015) (quoting Scudder v. CIA, 25 F.

Supp. 3d 19, 38 (D.D.C. 2014)). Thus, the Court may consider the burden on the

agency in determining whether the documents are readily reproducible. Id. The

agency’s evidence of burden “must be not only compelling, but also demonstrate that

compliance with a request would imposes a significant burden or interference with

the agency’s operation.” Public.Resource.org v. U.S. Internal Revenue Serv., 78 F.

Supp. 3d 1262, 1266 (N.D. Cal. 2015). Courts “often look for a detailed explanation by

the agency regarding the time and expense of a proposed search in order to assess its

reasonableness.” Wolf v. C.I.A., 569 F. Supp. 2d 1, 9 (D.D.C. 2008). Assuming an

agency details the burden of such a process, it is excused from complying with FOIA

requests where it must review a “vast quantity of material.” Am. Fed’n of Gov’t Emps.,

Loc. 2782 v. U.S. Dep’t of Com., 907 F.2d 203, 209 (D.C. Cir. 1990).

Based on Colbow’s representations, this Court finds that USAID has offered a

sufficiently detailed explanation regarding the burden of conducting additional

searches of “NU” and “NWU” in the cloud drive and in the Mission in West Bank and

Gaza. Based on the technological challenges, the overwhelming number of

documents, and impracticability of reviewing such a vast quantity of material, this

Court concludes that FOIA does not require USAID to: (1) run the additional searches

for the Mission in West Bank and Gaza; or (2) extract and review samples of

documents hitting on “Northwestern,” “NWU,” and “NU” from its cloud drive. USAID

is excused from running those searches and has now conducted a reasonably

adequately search for responsive documents.

Moreover, Plaintiff has not challenged any of USAID’s withholdings. See

generally [89]. This Court therefore grants summary judgment to USAID.

V. ICE

This Court previously found that ICE conducted an adequate search in

response to Plaintiff’s FOIA request and granted summary judgment on that point.

[72] at 25. ICE moves now for summary judgment on its withholdings based on

Exemption 5. [85] at 13–14.

Exemption 5 allows the agency to withhold “inter-agency or intra-agency

memorandums or letters which would not be available by law to a party other than

an agency in litigation with the agency.” 5 U.S.C. § 522(b)(5). Exemption 5 covers the

deliberative-process privilege, which protects government “documents reflecting the

deliberative or policy-making processes of governmental agencies.” Enviro Tech Int’l,

Inc. v. U.S. E.P.A., 371 F.3d 370, 374 (7th Cir. 2004). This privilege distinguishes

between “predecisional, deliberative documents, which are exempt from disclosure,

and documents reflecting a final agency decision and the reasons supporting it, which

are not.” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785–86 (2021).

Documents are “predecisional” if generated before the agency’s final decision, and

“deliberative” if prepared to help the agency formulate its position. Id. at 786.

Exemption 5 also incorporates the attorney-client privilege and the attorney work-

product protection. Id. at 785; Nat’l Immigrant Just. Ctr. v. U.S. Dep’t of Just., No.

12-CV-04691, 2018 WL 1508531, at *3 (N.D. Ill. Mar. 27, 2018), aff’d, 953 F.3d 503

(7th Cir. 2020).

Here, ICE provided a Vaughn index describing eighty-one entries of documents

it withheld or redacted under Exemption 5, pursuant to the deliberative-process

privilege, the attorney-client privilege, the attorney work product privilege, or a

combination of those privileges. [86] at 156, 160–74. This Court has reviewed the

Vaughn index and finds the entries very detailed as to the bases under which ICE

has withheld certain documents. For instance, ICE describes entry 2 as a document

comprising a “draft Request for Proposal – Questions and Answers relating to a

detention facility in Houston, Texas.” Id. at 160. ICE describes the draft as

“incomplete in that it contains unanswered questions, suggestions of who could

address the questions, draft answers and edits, as well as internal questions.” Id. The

document is an attachment to emails between ICE Enforcement and Removal

Operations employees and refers to aspects regarding “contract/set-up of a contract

detention facility.” Id. ICE withheld this document to “prevent[] the premature

disclosure of proposed policies.” Id. This description satisfies the Court that the

document is both predecisional and deliberative. See, e.g., Stevens, 20 F.4th at 345

(finding emails containing preliminary agendas for official visits, memo drafts, and

the like to be protected under Exemption 5).

Although Plaintiff contests ICE’s withholdings, she lodges no specific objection

to any entry on the Vaughn index, instead arguing generally that ICE does not show

that its communications warrant protection. [89] at 13. Absent any specific objection,

however, this Court will not further question ICE’s withholdings, particularly in light

of its independent review of the adequacy of ICE’s Vaughn index and the fact that

ICE has produced already 8,000 pages of material. See Stevens, 20 F.4th at 345

(overruling the plaintiff’s “general objections” to the agency’s Exemption 5

withholdings, because the plaintiff “provides no specifics” and the court was satisfied

with its independent review of the Vaughn index and the fact that the agency had

produced 350 documents); see [86] at 156. Accordingly, this Court grants summary

judgment to ICE.

CONCLUSION

For the reasons explained above, this Court grants summary judgment [84] to

the remaining agencies—USAGM, HHS, USCIS, USAID, ICE, and USGS. The Clerk

is directed to enter judgment in Defendants’ favor. Civil case terminated.

ENTER:

/4f

Dated: March 9, 2023 Mug Vf bt L/

MARY M. ROWLAND

United States District Judge

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