ACLU of Massachusetts v. Immigration and Customs Enforcement (ICE)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

AMERICAN CIVIL LIBERTIES UNION )

OF MASSACHUSETTS, INC. )

)

Plaintiff, )

)

v. ) Civil No. 19-10690-LTS

)

U.S. IMMIGRATION AND CUSTOMS )

ENFORCEMENT, )

)

Defendant. )

)

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT (DOC. NOS. 20, 25)

March 24, 2020

SOROKIN, J.

This public records lawsuit concerns remarks given by two high-ranking U.S.

Immigration and Customs Enforcement (“ICE”) officials at a 2019 conference held by the

National Sheriffs’ Association (“NSA”). After the American Civil Liberties Union of

Massachusetts, Inc. (“ACLUM”) filed two requests with ICE pursuant to the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552, ICE disclosed almost wholly redacted copies of draft

talking points prepared in anticipation of the remarks, as well as heavily redacted copies of

related emails. Additionally, ICE refused to disclose a draft agenda prepared by the NSA and in

ICE’s possession. ACLUM then filed this lawsuit, arguing that: (1) ICE erroneously asserted the

“deliberative process privilege” to justify its redactions to the draft talking points and related

emails; (2) ICE failed to conduct adequate searches in response to ACLUM’s two FOIA

requests; and (3) ICE improperly withheld the draft agenda prepared by the NSA. Now before

the Court are the parties’ cross-motions for summary judgment. Doc. Nos. 20, 25. For the

following reasons, ACLUM’s motion is ALLOWED IN PART and ICE’s motion is ALLOWED

IN PART and OTHERWISE DENIED.

I. FACTS1

Beginning on February 9, 2019, the NSA held its 2019 Winter Legislative & Technology

Conference in Washington, D.C. Doc. No. 27 ⁋ 1. The next day, on February 10, 2019, the

Bristol County Sheriff’s Office posted a picture to its Twitter page of Matthew Albence, then

ICE’s Executive Associate Director for Enforcement and Removal Operations and Senior

Official Performing the Duties of Deputy Director, Doc. No. 21-1 ⁋ 33, speaking to NSA

conference attendees. Doc. No. 28-2 at 2. Shortly thereafter, on February 22, 2019, ACLUM

submitted a FOIA request to ICE (“the February Request”), seeking information about Mr.

Albence’s address to the conference attendees, including:

1. Records containing some or all of the Address, including without limitation

any prepared remarks, notes, talking points, and outlines, and any drafts thereof.

2. Any slides, powerpoint presentations, and handouts presented or provided in

connection with the Address, and any drafts thereof.

3. Any audio and/or visual recordings of the Address.

4. Correspondence, including email correspondence, between or among ICE

personnel (including Mr. Albence and his staff) and representatives of the

National Sheriff’s Association concerning the planning, delivery, and/or content

of the Address.

5. Correspondence, including email correspondence, between or among ICE

personnel (including Mr. Albence and his staff) and any employees or officers of

the Commonwealth of Massachusetts (including any Massachusetts Sheriff and/or

the employees of any Massachusetts Sheriff’s Department) concerning the

planning, delivery, and/or content of the Address.

1 ICE did not respond to ACLUM’s Statement of Material Undisputed Facts. Doc. No. 27.

Thus, the facts set forth therein “will be deemed for purposes of [this] motion to be admitted[.]”

L.R. 56.1; Zimmerman v. Puccio, 613 F.3d 60, 63 (1st Cir. 2010).

Doc. No. 16-1. On March 15, 2019, ICE sent an email invoking a 10-working-day extension to

respond to ACLUM’s February Request, pursuant to 5 U.S.C. § 552(a)(2)(6)(B). Doc. No. 27 ⁋

7. Upon expiration of that extension, ICE had not provided any other response to ACLUM’s

February Request, nor had it produced any of the records that ACLUM requested. On April 10,

2019, ACLUM filed this lawsuit, seeking, inter alia, the production of responsive records to its

February Request. Id. ⁋ 8.

On April 16, 2019, ICE produced 141 pages of records. Id. ⁋ 9. This document

production included a heavily redacted email chain between various ICE officials in which they

discussed the creation of “draft remarks” for the NSA conference. See Doc. No. 21-6 at 1-51.

Additionally, the document production included an entirely redacted draft agenda for the NSA

conference that had been created by the NSA and later sent to ICE. Id. at 89; Doc. No. 41-1 at 5

(supplemental affidavit of Toni Fuentes stating that the “draft agenda was provided to the agency

by the [NSA] in advance of the meeting to assist in ICE’s general preparation”). Finally, ICE’s

document production included three different versions of a document entitled “Draft Talking

Points Prepared for ICE Acting Director Ronald D. Vitiello . . . February 11, 2019 9 AM.” See

Doc. No. 21-6 at 39-44 (last-in-time version); id. at 74-85 (Version 1, drafted February 4, 2019);

id. at 105-110 (Version 2, drafted February 6, 2019). While the substance of each version of this

document was entirely redacted, the title (which was unredacted) disclosed that then-Acting

Director Vitiello gave an address at the NSA conference in addition to Mr. Albence’s remarks.

Cf. Doc. No. 28-2 at 2 (reproducing Bristol County Sheriff’s Office’s February 10, 2019 tweet

featuring a picture of Mr. Albence at the conference).

Given this revelation, ACLUM submitted an additional FOIA request to ICE on May 16,

2019 (“the May Request”), seeking information concerning Mr. Vitiello’s remarks. See Doc.

No. 27 ⁋ 11 (mirroring language set forth in ACLUM’s February Request). ICE did not produce

any documents in response to ACLUM’s May Request, nor did it conduct any additional search

in response to the May Request. Id. ⁋ 12. On August 9, 2019, ACLUM filed an Amended

Complaint that added the May Request as an additional basis of relief. Doc. No. 16. On

September 11, 2019, ICE moved for summary judgment, arguing that it had conducted an

adequate search in response to ACLUM’s FOIA requests and that its many redactions were

proper under Exemptions 5 (protecting “inter-agency or intra-agency memorandums or letters

which would not be available by law to a party . . . in litigation with the agency” and thus

encompassing the “deliberative process privilege”), 6 (permitting the government to withhold

personnel and similar files the disclosure of which “would constitute a clearly unwarranted

invasion of privacy”), 7(C) (protecting law enforcement information that “could reasonably be

expected to constitute an unwarranted invasion of personal privacy”), and 7(E) (protecting law

enforcement information which “would disclose techniques and procedures for law enforcement

investigations or prosecutions, or would disclose guidelines for law enforcement investigations

or prosecutions if such disclosure could reasonably be expected to risk circumvention of the

law.”). 5 U.S.C. § 552(b)(5), (b)(6), (b)(7)(C), (b)(7)(E); Doc. No. 21 at 6.2

In support of its motion, ICE included a Declaration from Toni Fuentes (“Fuentes

Declaration”), the Deputy Officer in ICE’s FOIA Office. Doc. No. 21-1 ⁋ 1. Among other

things, the Fuentes Declaration describes ICE’s system for processing FOIA requests. Doc. No.

21-1 ⁋ 16. According to Fuentes, “[o]nce the ICE FOIA Office determines the appropriate

program offices for a given [FOIA] request, it provides the [point of contact] (“POC”) within

2 ACLUM has only contested the agency’s redactions pursuant to Exemption 5. Doc. No. 26 at

2.

each of those program offices with a copy of the FOIA request and instructs them to conduct a

search of responsive documents.” Id. Then, POCs “forward the request and instructions to the

individual employee(s) or component office(s) within the program office[s] that they believe are

reasonably likely to have responsive records, if any.” Id. Finally, “the individuals and

component offices are directed to conduct searches of their file systems, including both paper

files and electronic files[.]” Id.

The Fuentes Declaration also describes the manner in which ICE employees and program

offices maintain records. Id. ⁋ 17. According to Fuentes, “ICE employees may store electronic

records on their individual computer hard drives, their program office’s shared drive (if the

office uses one), DVDs, CDs, and/or USB storage devices.” Id. Additionally, “ICE employees

use various methods to store their Microsoft Outlook e-mail files,” including monthly archives

sorted by subject and storage on hard drives or shared drives. Id. ⁋ 18. Ultimately, according to

Fuentes, “[e]ach ICE employee stores his/her files in the way that works best for that particular

employee.” Id.

Based on the individuals and subject matter identified in ACLUM’s February Request,

the ICE FOIA Office instructed the ICE Office of the Deputy Director, the ICE Office of Public

Affairs (“OPA”), and the ICE Office of Enforcement and Removal Operations (“ERO”) to

conduct searches for responsive documents. Id. ⁋ 22. As to the Office of the Deputy Director,

the Fuentes Declaration states that “the Deputy Director’s Chief of Staff was tasked with a

search of potentially responsive records and utilized the search function to identify any

potentially responsive email correspondence and records contained in shared folders.” Id. ⁋ 25.

As to the OPA, the Fuentes Declaration acknowledges that a specific OPA writer was

“responsible for preparing remarks in advance of the [NSA] meeting for both the Deputy

Director [Mr. Albence] and Director [Mr. Vitiello].” Id. ⁋ 27. The Fuentes Declaration later

clarifies:

[I]t is ICE’s standard practice to draft remarks or talking points based on the

subject matter of the engagement and not the individual scheduled to speak . . .

[S]pecific talking points are generally not separately drafted for Mr. Albence and

Mr. Vitiello. Instead, talking points are drafted that can be utilized by

Mr. Albence, Mr. Vitiello, or any other speaker that may take [sic] need to appear

if the scheduled ICE speaker is unavailable.

Id. ⁋ 34. Given this “standard practice,” the OPA writer who was responsible for preparing the

draft remarks or talking points for the NSA conference, as well as the OPA Deputy Assistant

Director who was “directly responsible for reviewing and overseeing draft remarks prepared for

the Deputy Director and Director,” were “tasked with a search for potentially responsive

records.” Id. ⁋ 27. This search yielded “135 pages of potentially responsive records,” following

which “OPA confirmed that they were not aware of any ‘final’ talking points for [the NSA

conference],” and “that the draft talking points could be used for both Mr. Albence and

Mr. Vitiello.” Id. ⁋ 29.3

The Fuentes Declaration additionally states that the ERO, which was also tasked by the

ICE FOIA Office with conducting a search for responsive documents, “exercise[d] discretion . . .

in choosing the specific search terms utilized to ascertain whether or not potentially responsive

documentation exist[ed].” Id. ⁋ 31. That search, according to Fuentes, yielded “no records

responsive to [ACLUM’s February] request.” Id. ⁋ 32.

3 ACLUM states, and ICE does not dispute, that neither Mr. Albence nor Mr. Vitiello were

“asked what [they] said during [their] address[es], whether [they] used any prepared text or

talking points, whether [they] used any slides, handouts, or PowerPoint presentations, whether

[their] remarks are memorialized anywhere, or whether [they have] in [their] possession any

responsive records.” Id. ⁋⁋ 10, 13.

ICE’s motion was also accompanied by a Vaughn index of its document production.

Doc. No. 21-2; Carpenter v. U.S. Dep’t of Justice, 470 F.3d 434, 442 (1st Cir. 2006) (“Generally,

a Vaughn index provides a broad description of the requested material or information, and the

agency’s reason for withholding each document or portion of a document.”). In relevant part, the

Vaughn index explains that “internal e-mail discussion[s] between ICE employees regarding

draft remarks and preparation for the [NSA conference]” are properly redacted under FOIA

Exemption 5 because “[t]he release of this internal information would discourage the expression

of candid opinions and inhibit the free and frank exchange of information and ideas between

agency personnel resulting in a chilling effect on intra-agency communications.” Doc. No. 21-2

at 1-2. ICE also cites these concerns to justify its complete redaction of the substance of the

three “draft talking points” documents that it identified as responsive. Id. at 3, 7, 10. However,

ICE does not dispute that “[t]he remarks prepared by the OPA writer . . . are not related to any

policy development and policy decision processes, or any not-yet-finalized policy decision.”

Doc. No. 27 ⁋ 19. Finally, ICE states that it applied Exemption 5 to “a draft agenda for the

[NSA] meeting held on Monday, February 11, 2019” because it “contains non-final information

and itineraries for ICE’s speaking engagements for the meeting.” Id. at 9.

In response, ACLUM cross-moved for summary judgment. Doc. No. 25. In its motion,

ACLUM challenged only ICE’s Exemption 5 redactions. Specifically, ACLUM asked the Court

to address five questions:

1. Whether the last-in-time version of the prepared remarks is post-decisional,

and therefore outside the scope of the deliberative process privilege;

2. Whether the deliberative process privilege protects these prepared remarks at

all, when they are not related to any policy-making process;

3. Whether ICE failed to produce segregable factual information from the

prepared remarks and related emails;

4. Whether ICE failed to conduct adequate searches in response to the relevant

FOIA requests; and

5. Whether ICE improperly withheld a document prepared by a third party on

deliberative process grounds.

Doc. No. 26 at 2. ICE opposed the cross-motion, reiterating its positions that: (1) its redactions

were proper under Exemption 5; (2) none of the withheld material contains segregable factual

information; (3) ICE conducted an adequate search for responsive documents; and (4) the draft

agenda created by the NSA and given to ICE was properly withheld under Exemption 5. Doc.

No. 41.

II. LEGAL STANDARD

When Congress enacted FOIA, it codified into law “a general philosophy of full agency

disclosure.’” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting S. Rep.

No. 813, 89th Cong., 2nd Sess., 3 (1965)). It did so because “Congress believed that this

philosophy, put into practice, would help ‘ensure an informed citizenry, vital to the functioning

of a democratic society.’” Id. (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242

(1978)). FOIA “was intended to expose the operations of federal agencies ‘to the light of public

scrutiny.’” Carpenter, 470 F.3d at 437 (quoting Dep’t of the Air Force v. Rose, 425 U.S. 352,

372 (1976)); see also Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004)

(holding that FOIA “defines a structural necessity in a real democracy.”). “The policy

underlying FOIA is one of broad disclosure, and the government must supply any information

requested by any individual unless it determines that a specific exemption, narrowly construed,

applies.’” Church of Scientology Int’l v. U.S. Dep’t of Justice, 30 F.3d 224, 228 (1st Cir. 1994).

“FOIA cases are typically decided on motions for summary judgment.” Am. Civil

Liberties Union Found., Inc. v. United States Dep’t of Educ., 320 F. Supp. 3d 270, 276 (D. Mass.

2018). Summary judgment is appropriate when “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). Once a party “has properly supported its motion for summary judgment, the

burden shifts to the non-moving party, who ‘may not rest on mere allegations or denials of his

pleading, but must set forth specific facts showing there is a genuine issue for trial.’” Barbour v.

Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986)). The Court is “obliged to [] view the record in the light most

favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving

party’s favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the

Court is to ignore “conclusory allegations, improbable inferences, and unsupported speculation.”

Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting Medina–Muñoz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). A court may enter summary judgment “against a

party who fails to make a showing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). When cross-motions for summary judgment are presented, the

Court “must consider each motion separately” and draw all inferences against each moving party

in turn. Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997).

III. DISCUSSION

The Court first considers whether FOIA Exemption 5’s “deliberative process privilege”

applies to (1) any of the three versions of draft remarks or talking points created by the OPA in

preparation for Mr. Vitiello’s and Mr. Albence’s remarks at the NSA conference, or (2) the email

communications between ICE staff members discussing the draft talking points. Then, the Court

considers whether ICE has met its burden to demonstrate that it conducted an adequate search for

documents responsive to ACLUM’s two FOIA requests. Finally, the Court takes up whether a

draft agenda created by the NSA and provided to ICE was properly withheld under Exemption 5.

As to each issue, the Court will first consider ACLUM’s cross-motion for summary judgment

and then turn to ICE’s motion for summary judgment.

A. Exemption 5 is Inapplicable to the Draft Talking Points and Emails

ICE justifies its almost complete redaction of the three versions of the draft talking

points, as well as its partial redaction of email communications discussing those draft talking

points, by asserting the applicability of Exemption 5. ACLUM, for its part, argues that ICE has

not met its burden to demonstrate that Exemption 5 shields the disputed material from disclosure.

“FOIA provides that certain categories of materials are exempted from the general

requirements of disclosure,” but these exemptions “are to be construed narrowly, with any

doubts resolved in favor of disclosure.” Carpenter, 470 F.3d at 438; Moffat v. DOJ, 716 F.3d

244, 250 (1st Cir. 2013). “The government bears the burden of proving that withheld materials

fall within one of the statutory exemptions, and district courts are required to make de novo

determinations as to the validity of the asserted exemptions.” Id. (citing 5 U.S.C. § 552(a)(4)(B))

(additional citations omitted). “This burden does not shift even when,” as here, “the requester

files a cross-motion for summary judgment.” Prop. of the People, Inc. v. Office of Mgmt. &

Budget, 330 F. Supp. 3d 373, 380 (D.D.C. 2018) (internal quotation marks omitted). Thus, it is

the government’s burden to provide “a reasonably detailed explanation for its withholdings” that

“‘afford[s] the FOIA requester a meaningful opportunity to contest, and the district court an

adequate foundation to review, the soundness of the withholding.’” Church of Scientology, 30

F.3d at 231, 233 (quoting Wiener v. F.B.I., 943 F.2d 972, 977 (9th Cir. 1991)).

Under 5 U.S.C. § 552(b)(5), “inter-agency or intra-agency memorandums or letters that

would not be available by law to a party other than an agency in litigation with the agency” are

exempted from disclosure. The First Circuit has held that Exemption 5 “facilitates government

decision making by: (1) assuring subordinates will feel free to provide uninhibited opinions, (2)

protecting against premature disclosure of proposed government policies, and (3) preventing

confusion among the public that may result from releasing various rationales for agency action.”

New Hampshire Right to Life v. U.S. Dep’t of Health & Human Servs., 778 F.3d 43, 52 (1st Cir.

2015).

“To invoke the Exemption 5 deliberative process privilege, [ICE] must prove that the

documents at issue ‘were both predecisional and deliberative.’” Am. Civil Liberties Union

Found., Inc., 320 F. Supp. 3d at 277 (quoting N.H. Right to Life, 778 F.3d at 52) (internal

quotation marks omitted). “A document is predecisional if the agency can: ‘(1) pinpoint the

specific agency decision to which the document correlates, (2) establish that its author prepared

the document for the purpose of assisting the agency official charged with making the agency

decision, and (3) verify that the document precedes, in temporal sequence, the decision to which

it relates.’” N.H. Right to Life, 778 F.3d at 52–53 (quoting Providence Journal Co. v. U.S. Dep’t

of Army, 981 F.2d 552, 557 (1st Cir. 1992)). “A predecisional document will qualify as

‘deliberative’ provided it (i) formed an essential link in a specified consultative process, (ii)

‘reflect[s] the personal opinions of the writer rather than the policy of the agency,’ and (iii) if

released, would ‘inaccurately reflect or prematurely disclose the views of the agency.’”

Providence Journal, 981 F.2d at 559 (quoting Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 F.2d

1114, 1118–19 (9th Cir. 1988)).

1. These Draft Talking Points Are Not Deliberative

ICE contends that the deliberative process privilege shields the three versions of the draft

talking points, Doc. No. 21-6 at 39-44 (last-in-time version); id. at 74-85 (Version 1, drafted

February 4, 2019); id. at 105-110 (Version 2, drafted February 6, 2019), arguing that these

documents are both “predecisional” and “deliberative” in nature. However, as ACLUM argues,

even predecisional documents “may still not fall within the confines of [the deliberative process

privilege] if [they] are not part of the deliberative process.” Providence Journal, 981 F.2d at 559.

Here, ICE is unable to meet its burden to demonstrate that Exemption 5 shields the release of any

of the three versions of the draft talking points because it has not provided any evidence, as it

must, that those documents are “deliberative.”

The First Circuit has held that records concerning “how and what to communicate to the

public” may fall within the deliberative process privilege. N.H. Right to Life, 778 F.3d at 54.

For example, courts have routinely held that “‘messaging’ communication[s] can be protected by

the deliberative process privilege,” New York v. United States Dep’t of Commerce, No. 18-CV-

2921 (JMF), 2018 WL 4853891, at *2 (S.D.N.Y. Oct. 5, 2018), so long as they “reflect[] the

give-and-take of the consultative process” and were “prepared to facilitate and inform a final

decision or deliberative function entrusted to the agency.” Providence Journal Co., 981 F.2d at

559-60. They have also held, however, that “where ‘messaging’ communications amount to

little more than deliberations over how to spin a prior decision, or merely reflect an effort to

ensure that an agency’s statement is consistent with its prior decision, protection would do little

to advance the purposes underlying the privilege.” New York, 2018 WL 4853891, at *2. Thus,

for courts determining whether the deliberative process privilege applies to a specific set of

messaging communications, the central inquiry is

whether the disputed materials reflect deliberations about what message should be

delivered to the public about an already-decided policy decision, or whether the

communications are of a nature that they would reveal the deliberative process

underlying a not-yet-finalized policy decision, including the very decision about

what message to deliver—provided that the particular messaging decision is

among those that Congress has asked the agency to make.

Id. (internal quotation marks omitted).

Here, ICE has proffered no evidence that any of the three versions of the draft talking

points involve not-yet-finalized policy decisions or were otherwise bound up with policy matters.

Indeed, the undisputed facts establish that “[t]he remarks prepared by the OPA writer . . . are not

related to any policy development and policy decision processes, or any not-yet-finalized policy

decision.” Doc. No. 27 ⁋ 19. To the extent that ICE has explained its basis for invoking

Exemption 5 to redact these documents, the agency has merely relied on conclusory statements

averring that the documents contain “opinions, conclusions, and recommendations,” asserting

that “[t]he release of [the draft talking points] would discourage the expression of candid

opinions . . . resulting in a chilling effect on intra-agency communications[.]” Doc. No. 21-2 at 7

(describing the basis for withholding Version 1 of the draft talking points); cf. Sensor Sys.

Support, Inc. v. F.A.A., 851 F. Supp. 2d 321, 331 (D.N.H. 2012) (“If [ICE’s] conclusory position

were sufficient to invoke the privilege, the exemption would effectively swallow the FOIA’s rule

of broad disclosure”). Wholly absent from this explanation is any evidence tending to show that

the draft talking points were “anything more than an explanation of existing [ICE] policies and

decisions.” Doc. No. 26 at 11. ICE has given the Court “no basis to conclude that [it] was

exercising its essential policymaking role” when the OPA created various versions of the draft

talking points. New York, 2018 WL 4853891, at *3. Without a showing that the OPA’s process

of creating the draft talking points was “intimately bound up with [the] agency’s central policy

mission,” id. at *2, ICE cannot carry its burden to demonstrate that Exemption 5 justifies its

redactions. Cf. Nat. Res. Def. Council v. U.S. Envtl. Prot. Agency, No. 17-CV-5928 (JMF),

2019 WL 4142725, at *9 (S.D.N.Y. Aug. 30, 2019), reconsideration denied sub nom. Nat. Res.

Def. Council v. U.S. Envtl. Prot. Agency, No. 17-CV-5928 (JMF), 2019 WL 6467497 (S.D.N.Y.

Dec. 2, 2019) (holding that “draft talking points” about “how to present [a preexisting] EPA

program” and “how to respond to the potential questions on . . . a pesticide then under review by

the EPA . . . if it should come up during [a] press conference” were not deliberative and thus

subject to disclosure).

While FOIA does not require ICE “to operate in a fishbowl” when crafting all talking

points for all public statements made by its officials, Wolfe v. Dep’t of Health & Human Servs.,

839 F.2d 768, 773 (D.C. Cir. 1988), the deliberative process privilege does not shield all talking

points, all “draft” talking points, or all prepared public remarks, even when not delivered

verbatim. See New York Times Co. v. U.S. Dep’t of Def., 499 F. Supp. 2d 501, 515 (S.D.N.Y.

2007) (holding that “[t]he mere fact that a document is a draft . . . is not a sufficient reason to

automatically exempt it from disclosure.” (quoting Lee v. FDIC, 923 F. Supp. 451, 458

(S.D.N.Y. 1996)); Judicial Watch, 349 F. Supp. 3d at 8 (holding that press guidance talking

points were not deliberative); cf. Stalcup v. C.I.A., 768 F.3d 65, 71 (1st Cir. 2014) (holding that a

document labeled “draft” was properly withheld as a deliberative document because it was, inter

alia, “passed on to agency management for possible policy changes”).4

4 Indeed, ICE’s reliance on New Hampshire Right to Life v. U.S. Dep’t of Health & Human

Servs., 778 F.3d 43 (1st Cir. 2015) is misplaced. In New Hampshire Right to Life, the First

Circuit merely held that multiple drafts for a public statement announcing the Department of

Health and Human Service’s intent to issue a grant were “pre-decisional”; it did not address

whether such documents were “deliberative.” N.H. Right to Life, 778 F.3d at 52 (“Right to Life

Put another way, ICE has not made the showing required under the three-part inquiry of

Providence Journal Co. v. U.S. Department of Army, 981 F.2d 552, 559 (1st Cir. 1992)

(describing the characteristics of “deliberative” documents). First, ICE has not demonstrated that

the draft talking points “form[ed] an essential link in a specified consultative process,” id. at 559,

because there is no evidence that the draft talking points played any part in a “deliberative

function entrusted to the agency,” such as developing policy. Cf. Am. Civil Liberties Union

Foundation, Inc., 320 F. Supp. 3d at 279 (holding that “emails pertaining to the development of

[a] Frequently Asked Questions [document]” formed an essential link a specified consultative

process because they were “part of the [agency’s] process of creating future [] policies”).

Second, there is nothing in the record— aside from conclusory statements in ICE’s Vaughn

index and affidavits—tending to show that the draft talking points contain the personal opinions

of the OPA writer who was responsible for their drafting. In fact, it is undisputed that the draft

talking points were created as a resource for “any [ICE] speaker that may need to appear” at the

NSA conference and present on behalf of the agency. Doc. No. 41-1 at 4. Third, ICE has not

met its burden to demonstrate that the draft talking points, “if released, would inaccurately reflect

or prematurely disclose the views of the agency.” Providence Journal, 981 F.2d at 559. Indeed,

argues that the documents are not deliberative only because they are not predecisional, so we

limit our inquiry to whether they are indeed predecisional.”). In any event, the documents at

issue in New Hampshire Right to Life—email communications between agency staff concerning

how to announce a policy decision that had not been previously disclosed to the public—were

“intimately bound up with [the] agency’s central policy mission,” New York, 2018 WL 4853891,

at *2, and “facilitat[ed] and inform[ed] . . . a deliberative function entrusted to the agency,”

Providence Journal, 981 F.2d at 560. Here, ICE has proffered no evidence demonstrating that

these draft talking points were created as a part of a similar agency process. For the same

reasons, the various cases cited by ICE, Doc. No. 41 at 3-4, are inapposite. See also Judicial

Watch, 349 F. Supp. 3d at 7-8, 11 (distinguishing cases cited in ICE’s memoranda and holding

that a “press guidance” document was neither “predecisional nor deliberative” because it

“relay[ed] not a tentative plan but an already settled strategy”).

ICE has repeatedly stated that it “did not record [Mr. Albence’s or Mr. Vitiello’s remarks at the]

event in any manner, including either visually or audibly.” Doc. No. 21-1 ⁋ 35. Thus, to the

extent that ICE has withheld these draft talking points in order to “avoid confusion of the public”

due to potentially conflicting, inaccurate, or prematurely released agency statements, Doc. No.

21 at 8, disclosure of the draft talking points here will pose no such concern.

Accordingly, ICE has not met its burden of proving the applicability of Exemption 5 to

any of the three versions of the draft talking points, Doc. No. 21-6 at 39-44 (last-in-time

version); id. at 74-85 (Version 1, drafted February 4, 2019); id. at 105-110 (Version 2, drafted

February 6, 2019). ICE shall disclose all three versions of the draft talking points.

2. The Last-In-Time Version of the Draft Talking Points is Not Predecisional

Moreover, even if the draft talking points were deliberative documents—which ICE has

not demonstrated—ICE has failed, for an additional reason, to meet its burden with respect to the

last-in-time version of the draft talking points, Doc. No. 21-6 at 39-44: ICE has not shown it to

be a predecisional document. In support of its invocation of Exemption 5 to shield the last-in-

time version of the draft talking points, ICE contends: “By their very nature, draft documents

[like the last-in-time version of the draft talking points] are pre-decisional, preliminary versions

of what may later become a final document . . . [or] may never mature into final form as the

material may be withdrawn or discarded[.]” Doc. No. 21-1 ⁋ 39. ICE argues that the draft

talking points, which were created by an OPA writer and reviewed by the OPA Deputy Assistant

Director, “never became final, as [Mr. Albence and Mr. Vitiello] could use or not use the talking

points as [they] [] desired.” Doc. No. 21 at 10. Contrary to ICE’s assertions, however, this does

not establish that the last-in-time version of the draft talking points is a predecisional document.

First, ICE has not, as is its burden, “pinpoint[ed] the specific agency decision to which

the [last-in-time version of the draft talking points] correlates” or “verif[ied] that the [last-in-time

version of the draft talking points] precedes, in temporal sequence, the decision to which it

relates.” Providence Journal, 981 F.2d at 557. In fact, according to the Fuentes Declaration, the

OPA was tasked with creating the draft talking points as a resource that could be “utilized by Mr.

Albence, Mr. Vitiello, or any other speaker that may [] need to appear if the scheduled ICE

speaker [was] unavailable.” Doc. No. 21-1 ⁋ 34. Thus, rather than correlating to or preceding

another decision, the last-in-time version of the draft talking points is itself post-decisional; the

relevant agency decision—determining the subject matter and substance of the talking points that

ICE officials could reference when presenting to the NSA conference attendees—was resolved

when the OPA finished its drafting and editing process. These talking points, then, were the

agency’s final word on how ICE officials—not just the Acting Director or Deputy Director—

should address the NSA conference attendees.

Second, ICE has not established that the draft talking points were created “for the

purpose of assisting the agency official charged with making the agency decision[.]” Providence

Journal, 981 F.2d at 557. As detailed above, the Fuentes Declaration makes clear that it was “an

OPA writer” who was “responsible for preparing remarks in advance of the [NSA] meeting for

both the Deputy Director and Director[.]” Doc. No. 21-1 ⁋ 27 (emphasis added). Rather than

demonstrating that the OPA writer was “assisting” some other ICE official’s decision, the

Fuentes Declaration, on its face, establishes that the OPA writer was charged with decision-

making authority.

Similarly, ICE’s claim that the OPA-created talking points “never became final,” Doc.

No. 21 at 10, cannot help the agency meet its burden. It is of no moment that Mr. Albence or

Mr. Vitiello could have deviated from the last-in-time version of the draft talking points during

their respective NSA conference presentations. Whether or not the last-in-time version of the

draft talking points was read verbatim, loosely paraphrased, or entirely disregarded, that

document remains the final product of an agency decision-making process. As other courts have

held, “[e]xtending [ICE’s reasoning] to its logical limits means any prepared remarks—even the

State of the Union—could be withheld under the deliberative process privilege, since a speaker

could always go off-script, extemporally exposing the final stage of a deliberative process.”

Judicial Watch, Inc., 349 F. Supp. 3d at 7. This Court concurs that the predecisional element of

the deliberative process privilege inquiry may not be “stretched,” as ICE urges, to encompass

finalized agency documents like the last-in-time version of the talking points. Id. Thus, ICE has

not, for this additional reason, met its burden of proving the applicability of Exemption 5 to the

last-in-time version of the draft talking points, Doc. No. 21-6 at 39-44.

Accordingly, ACLUM’s cross-motion as to the last-in-time version of the draft talking

points is ALLOWED and ICE’s motion for summary judgment as to those redactions is

necessarily DENIED. For the foregoing additional reason, ICE shall disclose the last-in-time

version of the draft talking points.

3. Emails About the Draft Talking Points

Next, ICE asserts that the deliberative process privilege shields portions of “internal e-

mail discussion between ICE employees regarding draft remarks and preparation for the [NSA]

Immigration and Border Security Meeting.” Doc. No. 21-2 at 2 (describing emails reproduced at

Doc. No. 21-6 at 1, 11, 12, 13, 14, 15, 19, 22, 26, 29, 32). However, the agency has not met its

burden to demonstrate that the emails are deliberative. See Providence Journal, 981 F.2d at 559

(describing the characteristics of “deliberative” documents).

In its Vaughn index, the agency avers that portions of the emails may be withheld

because disclosure would “discourage the expression of candid opinions and inhibit the free and

frank exchange of information and ideas between agency personnel resulting in a chilling effect

on intra-agency communications.” Doc. No. 21-2 at 2. However, just as with the draft talking

points, see supra section III.A.1, these assertions are insufficient to demonstrate that the email

communications “facilitate[ed] and inform[ed] . . . a deliberative function entrusted to the

agency,” Providence Journal, 981 F.2d at 560, and were “intimately bound up with [the]

agency’s central policy mission,” New York, 2018 WL 4853891, at *2. Moreover, ICE’s

statements about the emails “do not clearly indicate that the emails ‘formed an essential link’” in

a specified consultative process, “nor do they state that the emails reflect the writers’ personal

opinions.” Am. Civil Liberties Union Found., Inc., 320 F. Supp. 3d at 280. Similarly, the

justification offered in ICE’s Vaughn index, Doc. No. 21-2 at 2, and mirrored in the Fuentes

Declaration, Doc. No. 21-1 ⁋ 39, provides no evidence that the redacted portions of the emails

inaccurately reflect the views of the agency or would prematurely disclose agency policy

positions or other agency views.

Accordingly, ACLUM’s cross-motion as to the portions of the email communications

that were redacted pursuant to Exemption 5 is ALLOWED and ICE’s motion for summary

judgment is necessarily DENIED. ICE shall disclose the portions of the emails that were

previously redacted pursuant to Exemption 5.5

5 ACLUM argues, in the alternative, that factually-segregable information contained within the

emails must be disclosed irrespective of whether Exemption 5 generally applies and that the

Court should conduct an in camera review of the emails to determine whether they contain such

segregable information. See Doc. No. 26 at 13-14. As the Court has determined that ICE has

not met its burden to establish that the relevant portions of the emails were properly withheld

under Exemption 5, the parties’ cross-motions as to whether ICE must disclose factually-

segregable information contained in the emails, as well as the parties’ cross-motions regarding

B. ICE Has Not Demonstrated That It Conducted an Adequate Search

In addition to challenging the applicability of Exemption 5 to various documents wholly

or partially withheld by ICE, ACLUM contends that the agency failed to conduct an adequate

search for responsive records. Doc. No. 26 at 14-15.

The burden at summary judgment “rests with the agency subject to a FOIA request to

establish that it has ‘made a good faith effort to conduct a search for the requested records, using

methods which can be reasonably expected to produce the information requested.’” Oleskey ex

rel. Boumediene v. U.S. Dep’t of Def., 658 F. Supp. 2d 288, 294 (D. Mass. 2009) (quoting

Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). “This showing may be made

by affidavits, ‘provided they are relatively detailed and nonconclusory, and are submitted by

responsible agency officials in good faith.’” Stalcup v. Dep’t of Def., No. 13-11967-LTS, 2015

WL 5545059, at *3 (D. Mass. Sept. 18, 2015) (quoting Maynard v. C.I.A., 986 F.2d 547, 559

(1st Cir. 1993)).

An adequate affidavit will “describe in reasonable detail the scope and method by which

the search was conducted” and “describe at least generally the structure of the agency’s file

system which makes further search difficult.” Id. at 559-60 (citations omitted). Further, an

adequate affidavit may “set [] forth the search terms and the type of search performed, and aver

[] that all files likely to contain responsive materials . . . were searched.” Oleskey, 658 F. Supp.

2d at 294 (quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-314 (D.C. Cir.

2003)). If the agency makes a sufficient showing, “a rebuttable presumption that the agency

the propriety of an in camera review of the emails, are DENIED AS MOOT. The Court notes

that ACLUM did not object to any of ICE’s redactions justified pursuant to Exemptions 6, 7(C),

and 7(E). Accordingly, ICE’s motion for summary judgment as to the portions of the emails

redacted pursuant to those Exemptions, Doc. No. 21 at 11-14, is ALLOWED. Those portions

need not be disclosed.

acted in good faith emerges.” Stalcup v. C.I.A., 768 F.3d 65, 74 (1st Cir. 2014). A requester can

rebut that presumption and avoid summary judgment only “by showing that the agency’s search

was not made in good faith.” Maynard, 986 F.2d at 560.

If the agency does not supply sufficient evidentiary support for its search, then the

requester may avoid summary judgment “merely by showing that the agency might have

discovered a responsive document had the agency conducted a reasonable search.” Id.

Critically, however, in assessing the adequacy of a search, “[t]he crucial issue is not whether

relevant documents might exist, but whether the agency’s search was ‘reasonably calculated to

discover the requested documents.’” Id. at 559 (quoting Safecard Servs., Inc. v. S.E.C., 926 F.2d

1197, 1201 (D.C. Cir. 1991)).

Here, ACLUM argues that ICE has failed, in two respects, to meet its burden to

demonstrate that it performed an adequate search. First, ACLUM contends that ICE’s failure to

conduct any additional search for responsive documents after the agency received ACLUM’s

May Request, see Doc. No. 27 ⁋ 12; Doc. No. 21-1 ⁋ 8 (stating that the agency’s “final response

letter” was sent on April 16, 2019), renders ICE’s search inadequate. Second, ACLUM argues

that ICE cannot meet its burden because it never contacted Mr. Albence or Mr. Vitiello to

determine “what they said, what documents they relied upon or distributed [at the NSA

conference], or whether they have retained any records in their possession.” Doc. No. 26 at 15.

ICE, for its part, claims that “there are simply no additional records or locations that could have

been searched” and that it need not “question Mr. Albence and Mr. Vitiello directly” to comply

with FOIA’s requirements. Doc. No. 41-1 ⁋ 9.

In this case, ICE’s affidavits, while detailed in some respects, are insufficient to establish

that the agency “made a good faith effort to conduct a search for the requested records.” Oleskey

ex rel. Boumediene, 658 F. Supp. 2d at 294. First, there is a disconnect between ICE’s

description of its employees’ data storage practices and its account of the search procedure that

program office POCs undertook in response to ACLUM’s February Request. For example, the

Fuentes Declaration states that “ICE employees may store electronic records on their individual

computer hard drives, their program office’s shared drive (if the office uses one), DVDs, CDs,

and/or USB storage devices,” Doc. No. 21-1 ⁋ 17; that “ICE employees use various methods to

store their Microsoft Outlook e-mail files,” including monthly archives sorted by subject and

storage on hard drives or shared drives, id. ⁋ 18; and that “[e]ach ICE employee stores his/her

files in the way that works best for that particular employee,” id. By contrast, the declaration

states only that the Deputy Director’s Chief of Staff “utilized the search function to identify any

potentially responsive e-mail correspondence and records contained in shared folders.” Id. ⁋ 25.

This explanation fails to address where the Deputy Director is likely to store responsive

documents, like “notes” or “outlines” for a speaking engagement, see Doc. No. 16-1 (the

February Request); or why the Deputy Director’s Chief of Staff did not search the Deputy

Director’s individual computer hard drive, which the Fuentes Declaration describes as a primary

data storage location. Id. ⁋ 17. Similarly, ICE’s explanation of the search undertaken by the

POC in the ERO Information Disclosure Unit does not identify the search terms that the POC

utilized or explain why the search was limited to “records contained in shared folders.” Doc. No.

21-1 ⁋ 32. In short, other than the assertion that ICE “appropriately tasked every program office

that was reasonably likely to have responsive records,” Doc. No. 41-1 at 5, a conclusory

representation, the affidavits do not provide a basis for the Court to conclude that ICE reasonably

identified and searched all appropriate electronic locations.

Second, ICE’s affidavits fail to adequately explain the agency’s failure to conduct any

additional search in response to ACLUM’s May Request. Doc. No. 27 ⁋ 11 (seeking records

related to Mr. Vitiello’s remarks at the NSA conference). Contrary to ICE’s assertion, the mere

fact that “specific talking points are generally not separately drafted for Mr. Albence and Mr.

Vitiello,” Doc. No. 21-1 ⁋ 34, does not, in and of itself, render separate searches of the Office of

the Acting Director and Mr. Vitiello’s data storage locations duplicative. Cf. Stalcup, 2018 WL

4963169, at *5 (holding that a “description of the agency’s search provided in [an] affidavit [did]

not cogently explain [the agency’s] decision to search only one Directorate.”) (internal quotation

marks omitted). ACLUM’s May Request clearly sought “[r]ecords containing some or all of the

Address, including without limitation any prepared remarks, notes, talking points, and outlines . .

. thereof.” Doc. No. 27 ⁋ 11. This request was not limited to “draft remarks or talking points,”

as ICE states, Doc. No 21-1 ⁋ 34, and ICE’s conclusory representation that its Front Office is

“unaware of other versions” of the “draft remarks,” id. ⁋ 35, does not cogently explain why a

targeted search for responsive documents—such as “notes” and “outlines”—in data storage

locations utilized by Mr. Vitiello and his office is unnecessary to comply with FOIA’s demands.

For example, neither affidavit submitted by ICE explains why a POC in the Acting Director’s

office was not tasked with searching Mr. Vitiello’s electronic records, including any data that

was housed on his individual computer hard drive before his resignation, as well as the Office of

the Acting Director’s shared drive, if it uses one.

Given that “the affidavits before the Court do not contain information sufficient to

demonstrate that [ICE] undertook a good-faith effort to design a search” of the Offices of the

Deputy Director, ERO, and Acting Director that “was reasonably calculated to return all

documents responsive to [ACLUM]’s request[s], the agency has not met its ‘initial burden of

showing that it conducted an adequate search.’” Stalcup, 2018 WL 4963169, at *6 (quoting

Moffat, 716 F.3d at 254). Accordingly, ACLUM’s cross-motion for summary judgment as it

relates to the adequacy of ICE’s search for responsive documents is ALLOWED and ICE’s

motion for summary judgment is DENIED.

The Court declines, on this record, to require ICE to directly contact Mr. Albence and

Mr. Vitiello, as direct inquiries may not be necessary for ICE to discharge its FOIA obligations.

However, ACLUM may, within sixty days, take limited focused discovery, including depositions

of POCs who were tasked with conducting searches in the relevant ICE program offices, in order

to develop the record necessary to determine whether ICE’s search procedures were reasonably

calculated to return all documents responsive to ACLUM’s two FOIA requests. Cf. El Badrawi

v. DHS, 583 F. Supp. 2d 285, 299-301 (D. Conn. 2008) (permitting limited discovery where

agency did not explain why it chose to search only one database and not others); Long v. DOJ,

10 F. Supp. 2d 205, 210 (N.D.N.Y. 1998) (finding discovery appropriate to test adequacy of

search); Pub. Citizen Health Research Grp. v. FDA, 997 F. Supp. 56, 72 (D.D.C. 1998) (holding

that discovery would be limited to “investigating the scope of the agency search for responsive

documents, the agency’s indexing procedures, and the like”), rev’d, in part, on other grounds,

185 F.3d 898 (D.C. Cir. 1999).6 Within seven days after the completion of this discovery period,

the parties shall file a joint status report setting forth their joint or separate positions as to the

resolution of this dispute. Absent further order of the Court, thirty days after the completion of

this further period of discovery, ICE shall file a renewed motion for summary judgment on the

6 The Court declines, now, to order specific further searches. While the present record plainly

falls short of establishing that ICE conducted reasonable searches as the law required it to do, the

record is insufficient to permit the Court to dictate the proper search to be conducted.

reasonableness of the search with an opposition/cross-motion due thirty days thereafter, followed

by a reply in fourteen days, and a surreply fourteen days thereafter.

C. Exemption 5 is Inapplicable to the Draft Agenda

Finally, ACLUM argues that ICE improperly invoked Exemption 5 to withhold a draft

conference agenda that was, according to ICE, “provided to the agency by the [NSA] in advance

of the [NSA conference] to assist in ICE’s general preparation.” Doc. No. 41-1 ⁋ 10. ICE

contends, however, that this document was properly withheld because it “contains non-final

information and itineraries for ICE’s speaking engagements for the [NSA conference] meeting.”

Doc. No. 21-2 at 3.7

By its plain terms, Exemption 5 shields certain “inter-agency or intra-agency

memorandums or letters” from disclosure. 5 U.S.C. § 552(b)(5). The statute further clarifies

that the term “agency” refers to executive branch government authorities, including “any

executive department, military department, Government corporation, Government controlled

corporation, or other establishment in the Executive Branch of the Government . . . or any

independent regulatory agency.” 5 U.S.C. § 552(f)(1). It stands to reason, then, that an intra-

agency document is one that was created within the halls of one of the statutorily enumerated

government entities. See Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1,

8 (2001) (holding that “[t]o qualify [for Exemption 5’s protection], a document[’s] . . . source

must be a Government agency”). Plainly, the NSA is not one of the statutorily enumerated

government entities. ICE makes no colorable or non-frivolous argument that the NSA so

qualifies.

7 Understandably, ICE did not invoke Exemption 4, which shields “trade secrets and commercial

or financial information obtained from a person and privileged or confidential.” N.H. Right to

Life, 778 F.3d at 49 (quoting 5 U.S.C. § 552(b)(4)).

Some United States Courts of Appeals have recognized a narrow exception to this

general rule for “communications between Government agencies and outside consultants hired

by them.” Id. at 9-10 (collecting cases). ICE has not advanced this ground; thus, it is waived. In

any event, this possible exception has no application to this case. ICE has proffered no evidence

tending to show that the NSA was retained by ICE as a consultant, let alone as a consultant that

“does not represent an interest of its own, or the interest of any other client.” Id. at 11; cf. About

NSA, https://www.sheriffs.org/about-nsa (last visited March 24, 2020) (describing the NSA as “a

professional association” that “represents thousands of sheriffs, deputies and other law

enforcement, public safety professionals, and concerned citizens nationwide.”).

In short, there is no colorable argument to support invocation of Exemption 5 to protect a

document created by a non-federal entity not serving as a paid consultant to the agency and not

otherwise protected by another FOIA exemption. Indeed, ICE’s memoranda in support of its

motion cite no legal authority for its remarkable proposition that a draft document created by a

third-party organization and provided to an agency may generally be withheld from disclosure

under Exemption 5. See, e.g., Doc. No. 41 at 8. In these circumstances, ICE cannot, as a matter

of law, meet its burden to demonstrate that Exemption 5 was properly invoked to shield the draft

agenda.

Accordingly, ACLUM’s cross-motion is ALLOWED as to the draft agenda, Doc. No. 21-

6 at 38, and ICE’s motion for summary judgment is necessarily DENIED. ICE shall disclose the

draft agenda.

IV. CONCLUSION

For the foregoing reasons, ACLUM’s cross-motion for summary judgment (Doc. No. 25)

is ALLOWED IN PART and ICE’s motion for summary judgment (Doc. No. 20) is ALLOWED

IN PART and OTHERWISE DENIED. Within twenty-one days,8 ICE shall, consistent with this

Order, disclose:

• The last-in-time version of the draft talking points, Doc. No. 21-6 at 39-44;

• The two earlier versions of the draft talking points, id. at 74-85 (Version 1, drafted

February 4, 2019); id. at 105-110 (Version 2, drafted February 6, 2019);

• The portions of the relevant email communications previously withheld under Exemption

5, id. at 1, 11, 12, 13, 14, 15, 19, 22, 26, 29, 32;

• The draft agenda, id. at 38.

During the next sixty days, ACLUM may conduct limited focused discovery regarding the

reasonableness of the searches performed by ICE. Within seven days after the completion of this

discovery period, the parties shall file a joint status report setting forth their joint or separate

positions as to the resolution of this dispute. Absent further order of the Court, thirty days after

the completion of this further period of discovery, ICE shall file a renewed motion for summary

judgment on the reasonableness of the search with an opposition/cross-motion due thirty days

thereafter, followed by a reply in fourteen days, and a surreply fourteen days thereafter.

SO ORDERED.

/s/ Leo T. Sorokin

Leo T. Sorokin

United States District Judge

8 In establishing this deadline, the Court has considered the ongoing coronavirus pandemic as

well as the important public interests served by FOIA. The Court understands that the

documents ICE must disclose are all in electronic form; therefore, the entire disclosure process

can occur electronically while counsel work from home. Of course, nothing in this Order

precludes a request for a reasonable extension related to the coronavirus pandemic or for any

other proper reason.