Hawkinson v. Executive Office for Immigration Review

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JOHN A. HAWKINSON,

Plaintiff,

v. CIVIL ACTION NO. 20-12273-MPK1

EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW,

Defendant.

MEMORANDUM AND ORDER

ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (#23)

AND PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT (#25).

KELLEY, U.S.M.J.

I. Introduction.

On December 23, 2020, plaintiff John A. Hawkinson filed a complaint against defendant

Executive Office of Immigration Review (EOIR), a division of the Department of Justice, alleging

violation of the Freedom of Information Act (FOIA), 5 U.S.C. § 552. In his complaint, plaintiff

identifies himself as a freelance reporter who submitted a FOIA request to EOIR seeking “all

Board of Immigration Appeals (‘BIA’) decisions that date: from December 1, 2019 though

‘present’; and originate from Boston, MA or Hartford, CT immigration courts; and contain the text

1 With the parties’ consent, this case was reassigned to the undersigned for all purposes, including

trial and the entry of judgment, pursuant to 28 U.S.C. § 636(c). (#20.)

‘alternatives to detention’ or ‘alternatives-to-detention.’” (#1 ¶ 3 (footnote omitted2).) Although

Hawkinson claims to be aware of three decisions that would fall within the terms of his request,

on November 16, 2020, EOIR produced only two decisions. Id. ¶¶ 4-5. In response to plaintiff’s

administrative appeal, on December 15, 2020, the DOJ’s Office of Information Policy (OIP)

concluded “that EOIR’s response was correct and that it conducted an adequate, reasonable search

for responsive records subject to the FOIA.” Id. ¶ 7.

Hawkinson contends that EOIR failed to make reasonable efforts to search for the records

he had requested. By way of relief, inter alia, plaintiff asks to have the documents sought by his

FOIA request declared public and EOIR ordered to produce them. Defendant has filed a motion

for summary judgment (#23) and plaintiff a cross-motion for summary judgment (#25), both of

which have been fully briefed. (##24, 25, 27, 28, 31, 32.)

II. Summary Judgment Motions.

“FOIA cases are typically decided on motions for summary judgment.” Am. C.L. Union of

Mass., Inc. v. U.S. Immigr. & Customs Enf’t, 448 F. Supp.3d 27, 35-36 (D. Mass. 2020) (citations

and internal quotation marks omitted). The moving party bears the initial burden of asserting the

absence of a genuine issue of material fact and “support[ing] that assertion by affidavits,

admissions, or other materials of evidentiary quality.” Mulvihill v. Top-Flite Golf Co., 335 F.3d

15, 19 (1st Cir. 2003). A genuine issue of fact exists where a fact finder could find in favor of the

non-moving party, “while material facts are those whose existence or nonexistence has the

potential to change the outcome of the suit.” Green Mountain Realty Corp. v. Leonard, 750 F.3d

30, 38 (1st Cir. 2014) (internal citation and quotations marks omitted). When addressing cross-

2 Although the exact text is omitted, the footnote explains that EOIR searched for decisions dated

from December 1, 2019 through November 16, 2020.

motions for summary judgment, the court “view[s] each motion separately and draw[s] all

reasonable inferences in favor of the respective non-moving party.’” Dahua Tech. USA Inc. v.

Feng Zhang, 988 F.3d 531, 537 (1st Cir. 2021) (quoting Roman Cath. Bishop of Springfield v. City

of Springfield, 724 F.3d 78, 89 (1st Cir. 2013)).

To summarize, in the FOIA context,

[s]ummary judgment is warranted to an agency . . . when the agency proves that it

has fully discharged its obligations under the FOIA after the underlying facts and

the inferences to be drawn from them are construed in the light most favorable to

the FOIA requester. An agency discharges its burden when it proves that each

document that falls within the class requested either has been produced, is

unidentifiable, or is wholly exempt from the FOIA’s inspection requirements.

Summary judgment in FOIA cases may be granted solely on the basis of agency

affidavits.

Mullane v. U.S. Dep’t of Just., No. 19-cv-12379-DJC, 2021 U.S. Dist. LEXIS 53255, at *2-3 (D.

Mass. Mar. 19, 2021) (internal citations and quotation marks omitted); see Am. C.L. Union of

Mass., Inc., 448 F. Supp.3d at 42–43.

III. Background.

In support of its motion for summary judgment, EOIR had filed the declaration (#24-1) and

the supplemental declaration (#27-1) of Shelley M. O’Hara, currently “the Attorney Advisor

(FOIA) Program Manager with the Office of the General Counsel (‘OGC’)” at EOIR. (#24-1 ¶ 1.)3

As the Program Manager, O’Hara manages the FOIA Unit which executes EOIR’s FOIA Program

under FOIA and the Privacy Act, 5 U.S.C. § 552a. Id. ¶¶ 1-2. Her responsibilities include “creating

and implementing policy and procedures for the EOIR FOIA Program, conducting FOIA training

for EOIR personnel, and processing complex FOIA requests.” Id. ¶ 3. O’Hara is familiar with

3O’Hara has been working in the FOIA realm since 2014. Id.

EOIR’s procedures in responding to FOIA requests in general, and with the October 20, 2020,

FOIA request made by Hawkinson in particular. Id.

In her declaration, O’Hara describes in detail the process pursuant to which the EOIR FOIA

Program operates. (#24-1 ¶¶ 4-16.) A FOIA request follows one of two tracks in the EOIR, a

“Simple” or Track 2 request, or a “Complex” or Track 3 request.4 Id. ¶ 4. Simple requests, which

are generally first- or third-party requests seeking a particular alien’s Record of Proceeding (ROP),

are processed at the FOIA Service Center, which manages FOIA intake.5 Id. Complex requests, on

the other hand, “are generally requests seeking agency records other than ROPs and generally

require collection of records from one or more program offices (including field offices), involve a

search for numerous records necessitating a wide-ranging search, and/or involve processing

voluminous records.” Id. Complex requests are forwarded to O’Hara as Program Manager to be

processed or delegated; they stay with the OGC until closed. Id. ¶ 6.

Plaintiff’s FOIA request, ID 166871, reads, in pertinent part, as follows: “Please produce

all Board of Immigration Appeals (BIA) decisions that: date from December 1, 2019 through

present; and originate from the Boston, MA or Hartford, CT immigraton [sic] courts; and contain

the text ‘alternatives to detention’ or ‘alternatives-to-detention.’” (#24-2.) Receipt of the request

was acknowledged on October 30, 2020; the request was assigned Control No. FOIA 2021-02706;

the request was designated Complex; and the request was assigned to O’Hara. (#24-1 ¶ 18; #24-

3.)

4 A Track 1 or Expedited Request is either a Simple or Complex request that moves to the head of

the line, bypassing the first-in, first out process. (#24-1 ¶ 4 & n.1.)

5 The determination of whether a request is designated as either Simple or Complex is made upon

intake. (#24-1 ¶ 6.)

There are two types of FOIA requests for BIA Decisions: untargeted requests and targeted

requests. (#24-1 ¶ 16.) Targeted requests seek BIA Decisions based on an alien’s name or

registration number; these requests are not processed by the FOIA Unit due to invasion of privacy

concerns.6 Id. Untargeted requests do not include personally identifiable information, but rather

seek “BIA Decisions based on a particular immigration judge, a particular immigration court, a

date range, and/or key term.” Id. Such untargeted requests are processed by the FOIA Unit since

the BIA databases can be searched and any personally identifiable information redacted. Id.

O’Hara has direct access to two BIA internal agency databases that contain copies of BIA

unpublished and published decisions on appeal from an immigration judge’s decisions (BIA

decisions) at the lower immigration court. (#24-1 ¶ 13.) One of the databases, BIA eDecisions,

contains BIA unpublished decisions from 2001 to the present. Id. ¶ 14. BIA eDecisions cannot be

searched using key words or terms because copies of the BIA unpublished decisions in the database

are not subject to optical character recognition (OCR). Id. Rather, “[s]earch capabilities are limited

to the following: Date Range, A-Number (alien registration number), Fine Number, Appeal Type,

IJ Name (Immigration Judge Name), and Base City (Immigration Court location).” Id.

The second BIA internal database which O’Hara can access directly is called BIA

Decisions Portal. (#24-1 ¶ 15.) This database contains copies of BIA unpublished decisions from

2016 to the present, and, because those unpublished decisions are subject to OCR, they can be

searched using key words or terms, and the “search results can be filtered by BIA Decision Date,

Appeal Type, Filed By, Circuit Court, Base City, Immigration Judge, BIA Decision Code, Board

Member [and] BIA Attorney/Paralegal.” Id.

6 An exception would be if the requester submits a proper verification of identity. (#24-1 ¶ 16.)

O’Hara conducted a search in the BIA Decisions Portal database regarding Hawkinson’s

FOIA request, inputting the key term “alternatives to detention” limited to the period from

December 1, 2019, to November 16, 2020, the date the search was undertaken. (#24-1 ¶ 19.) Of

the 85 hits that resulted, two were from the Boston Immigration Court and none were from the

Hartford Immigration Court. Id. In a second search, O’Hara inputted the key term “alternatives-

to-detention” for the period from December 1, 2019, through November 16, 2020. Id. The single

hit was from the Ninth Circuit, and so was not relevant to the FOIA request. Id.; #24-4.

The same day she conducted the searches, O’Hara issued a response to plaintiff’s FOIA

request, granting partial access to the two BIA Decisions from the Boston Immigration Court.7

(#24-5.) Hawkinson emailed back the same day, stating that the response appeared to be

incomplete and indicating that he had expected to receive a specific named case. Id. Because

plaintiff’s email essentially was a targeted request, and Hawkinson did not provide proper

verification of identity for the alien identified, a further search for the specific case was not

undertaken. (#24-1 ¶ 20.) Plaintiff was advised that if he did not agree with the response, he could

follow the appeal procedures outlined in the email. (#24-5.)

IV. Discussion.

Hawkinson contends that EOIR’s search was “plainly inadequate” because it resulted in

the production of two documents but did not include a BIA decision he already had in his

possession. (#1; #25 at 1.) In addition, he argues that EOIR failed to explain why the searches

conducted did not produce the missing document and should have searched its internal shared

drive for responsive documents. (#25 at 1, 10-11, 17.) Defendant’s position is that its search was

adequate under First Circuit precedent, despite the missing document. (#24 at 14.)

7 Portions of the decisions were redacted in accordance with a FOIA Exemption. (#24-5.)

A. Legal Standard for Sufficiency of FOIA Responses.

In the context of summary judgment in a FOIA suit, “the burden 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)). The agency can

make “[t]his showing . . . 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 U.S. Dist. LEXIS 125097, at *9 (D. Mass. Sept. 18, 2015) (quoting Maynard v.

C.I.A., 986 F.2d 547, 559 (1st Cir. 1993)).

“A satisfactory agency affidavit should, at a minimum, describe in reasonable detail the

scope and method by which the search was conducted. . . . [and] should . . . ‘describe at least

generally the structure of the agency’s file system which makes further search difficult.’”

Maynard, 986 F.2d at 559-560 (quoting Church of Scientology of Cal. v. I.R.S., 792 F.2d 146, 151

(D.C. Cir. 1986)). In addition, an affidavit may include details “setting forth the search terms and

the type of search performed, and averring 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 is able to make a sufficient showing, then

“a rebuttable presumption that the agency 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.’” Am. C.L. Union of Mass., Inc.,

448 F. Supp.3d at 42–43 (quoting Maynard, 986 F.2d at 560).

This inquiry concentrates on the search itself, not the results of the search. Oleskey, 658 F.

Supp.2d at 298; see Hornbostel v. U.S. Dep’t of the Interior, 305 F. Supp.2d 21, 28 (D.D.C. 2003)

(stating that “the focus of the adequacy inquiry is not on the results”). “Even if a plaintiff is correct

that additional responsive records exist, an agency’s failure to locate them ‘does not ipso facto

render its search inadequate.’” Mullane, 2021 U.S. Dist. LEXIS 53255, at *7 (quoting Oleskey,

658 F. Supp.2d at 298).

B. The Sufficiency of EOIR’s Response.

Having reviewed O’Hara’s affidavits (discussed in detail, supra) and in light of the relevant

legal standard, the court finds that O’Hara’s “declaration[s] provided a reasonable explanation for

the agency’s process,” creating a presumption that EOIR acted in good faith. Stalcup, 768 F.3d at

74.

Plaintiff attempts to rebut this presumption in several ways. First, he argues that defendant

failed to search the so-called “data library,” which he states contains native electronic versions of

decisions that are purportedly searchable without the errors often introduced by OCR. (#25 at 10-

11.) As Hawkinson acknowledges, however, “he has no direct knowledge of Defendant’s filing

systems and databases.” (#32 at 6.) Defendant notes that the data library Hawkinson references is

an internal agency shared drive containing draft versions of BIA decisions. (#27 at 7; #27-1 ¶¶ 2,

4.) O’Hara explains in her supplemental declaration that the data library contains only draft

decisions, not final agency decisions. (#27-1 ¶¶ 2, 4.) Official BIA decisions, unpublished and

published, are signed by at least one BIA Appellate Immigration Judge. Id. ¶ 6. “The originally

signed BIA Decision is the official BIA Decision with respect to the particular Respondent’s

appeal and is stored in the hard-copy Record of Proceedings.” Id.8 Given the non-final status of

the materials plaintiff seeks, he fails to show that defendant acted in bad faith by not searching

within the data library for materials responsive to his request.

Next, Hawkinson argues that the two databases available to conduct the searches he

requested are problematic because of the way documents are scanned and OCR is performed. (#25

at 11-14.) Even if defendant’s scanning system and the OCR technology in general may be error-

prone, “FOIA contains no requirement that the government maintain its files in a particular way

so as to facilitate such a search.” Oleskey, 658 F. Supp.2d at 297. In addition, “[p]erfection is not

the standard by which the reasonableness of a FOIA search is measured.” Id. at 298 (quoting

Judicial Watch v. Rossotti, 285 F. Supp.2d 17, 26 (D.D.C. 2003)).

Finally, Hawkinson takes issue with defendant’s perceived inability to explain why the

missing document was not identified through the searches defendant performed when the

document was clearly responsive. (#25 at 17.) As O’Hara noted in her affidavit, EOIR has a policy

of not responding to document requests about particular individuals absent a requestor providing

verification of identity for that individual. (#24-1 ¶¶ 9, 16, 20.) This same verification is required

for targeted searches, which is in essence what Hawkinson was asking EOIR to perform in order

to locate the missing document and explain its omission. (#24-5 at 2 (copy of email correspondence

between Hawkinson and O’Hara, in which he asked about a decision concerning a named

individual).) In any case, the First Circuit has determined that, “[c]ritically, . . . 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.’”

8 Hawkinson insists that draft decisions can be deemed final even without a signature, but this is

his opinion rather than EOIR policy.

Am. C.L. Union of Massachusetts, Inc., 448 F. Supp. 3d at 42–43 (quoting Maynard, 986 F.2d at

559); see Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir.

1995) (stating that an agency’s “failure to turn up [a] document does not alone render the search

inadequate; there is no requirement that an agency produce all responsive documents”).

Ultimately, “[t]he omission of a single document in this case does not negate what [was]

otherwise a reasonable inquiry.” Stalcup, 768 F.3d at 75. Hawkinson has failed to rebut the

presumption that defendant’s search was reasonable and made in good faith. See id. at 74.

V. Conclusion and Order.

For the reasons stated, Defendant’s Motion for Summary Judgment (#23) is GRANTED

and Plaintiff’s Cross-Motion for Summary Judgment (#25) is DENIED. Judgment shall enter for

EOIR.

/s/ M. PAGE KELLEY

September 27, 2021 M. Page Kelley

Chief United States Magistrate Judge