# Harvard Immigration and Refugee Clinical Program v. United States Department of Homeland Security

> District Court, D. Massachusetts · July 21, 2023

URL: https://www.frixlaw.com/law-library/cases/10201275

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** July 21, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10201275

## How later opinions describe it (automated extraction)

- noting that agency must identify the decision being deliberated
- concluding that agency cannot invoke deliberative process privilege without “at the very least identify[ing] the decision contemplated”
- concluding that index descriptions were insufficient because specific policies were “never identified or described”
- noting that the presumption of good faith cannot be rebutted by “purely speculative claims about the existence and discoverability of other documents” (citation and internal quotation marks omitted)

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

)
)
HARVARD IMMIGRATION AND REFUGEE )
CLINICAL PROGRAM, )
)
Plaintiff, )
)
v. )
) Case No. 21-cv-12030-DJC
UNITED STATES DEPARTMENT OF )
HOMELAND SECURITY and UNITED )
STATES IMMIGRATION AND CUSTOMS )
ENFORCEMENT, )
)
Defendants. )
)

MEMORANDUM AND ORDER

CASPER, J. July 21, 2023

I. Introduction

Plaintiff Harvard Immigration and Refugee Clinical Program (“HIRCP”) has filed this
lawsuit against the United States Department of Homeland Security (“DHS”) and United States
Immigration and Customs Enforcement (“ICE”) (collectively, the “Agencies”) alleging
violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, in connection with its
requests for records concerning ICE’s use of solitary confinement in immigration detention
centers. D. 1. HIRCP claims that the Agencies failed to conduct adequate searches in response
to its FOIA requests and improperly redacted or withheld responsive documents. Id. Both the
Agencies, D. 48, and HIRCP, D. 59, now move for summary judgment. For the reasons stated
below, the Court ALLOWS in part and DENIES in part each of the motions and directs the
parties to take the actions as directed in this Order.
II. Standard of Review
“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 (D. Mass. 2020)
(citation and internal quotation marks omitted). Summary judgment is warranted for a defendant
in a FOIA case “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.” Crooker v. Tax Div. of U.S. Dep’t of Just., No. 94-
30129 MAP, 1995 WL 783236, at *7 (D. Mass. Nov. 17, 1995) (citation and internal quotation
marks omitted). An agency discharges its burden when it “prove[s] 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.” Gillin v. IRS, 980 F.2d 819, 821 (1st Cir. 1992)
(alterations in original) (citation and internal quotation marks omitted). “This burden does not
shift even when the requester files a cross-motion for summary judgment because ‘the
Government ultimately [has] the onus of proving that the [documents] are exempt from
disclosure,’ while the ‘burden upon the requester is merely ‘to establish the absence of material

factual issues before a summary disposition of the case could permissibly occur.’” Leopold v.
Dep’t of Just., 301 F. Supp. 3d 13, 21 (D.D.C. 2018) (alterations in original) (quoting Pub.
Citizen Health Res. Grp. v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999)).
III. Factual Background

Unless otherwise noted, the following facts are undisputed. These facts are primarily
drawn from the Agencies’ statement of undisputed material facts, D. 50, HIRCP’s response to
same, D. 58, HIRCP’s statement of undisputed material facts, D. 62, the Agencies’ response to
same, D. 64, and supporting documentation.
On September 4, 2013, ICE published a directive (“the ICE directive”) that specified
“ICE staff responsibilities for placement, review, and notification about segregation of all
detainees, including detainees with special vulnerabilities.” D. 62 ¶ 2; D. 64 ¶ 2. According to
the ICE directive, “[p]lacement of detainees in segregated housing . . . should occur only when
necessary and in compliance with applicable detention standards” and placement in segregated

housing “due to a special vulnerability should be used only as a last resort and when no other
viable housing options exist.” D. 61-1 at 2; D. 62 ¶ 3; D. 64 ¶ 3. On September 29, 2017, the
DHS Office of Inspector General (“OIG”) released a report (“the OIG Report”) that “sought to
determine whether, for detainees with mental health conditions: (1) facility personnel follow
ICE guidance for documenting segregation decisions; (2) facilities report segregation data
accurately and promptly; and (3) ICE field offices follow procedures for reviewing segregation.”
D. 61-2 at 4; D. 62 ¶¶ 5–6; D. 64 ¶¶ 5–6. OIG selected seven facilities “to visit and review
judgmental samples of instances in which detainees with mental health conditions were held in
segregation and to assess the confinement conditions.” D. 62 ¶ 8; D. 64 ¶ 8; D. 61-2 at 18. The

OIG Report found that the ICE field offices reviewed “did not record and promptly report all
instances of segregation to ICE headquarters, nor did their system properly reflect all required
reviews of ongoing segregation cases per ICE guidance.” D. 61-2 at 4; D. 62 ¶ 9; D. 64 ¶ 9.
There are three FOIA requests that remain at issue between the parties and the Court now turns
to each of them.
A. The OIG and CRCL FOIA Request

On November 21, 2017, HIRCP submitted a FOIA request to ICE seeking records
relating to the 2017 OIG Report, and complaints filed against ICE with DHS’s Office for Civil
Rights and Civil Liberties (“CRCL”) (“the OIG and CRCL FOIA Request”). D. 62 ¶ 10; D. 64 ¶
10; see D. 1-3. Part A of the OIG and CRCL FOIA Request sought “the disclosure of records
submitted by ICE to the OIG between July 2016 and January 2017 pertaining to detainees with
mental health disabilities placed in segregated housing.” D. 1-3 at 4; D. 62 ¶ 11; D. 64 ¶ 11.
“Part B of the OIG and CRCL FOIA Request sought the disclosure of records submitted by ICE
to CRCL in response to complaints received by CRCL relating to the segregation of detainees;

records within ICE’s possession related to the outcomes of CRCL’s investigation into the
‘Primary Allegations’ of the complaints against ICE; Records submitted by ICE to CRCL in
response to the ‘Primary Allegations’; and records within ICE’s possession related to the
outcomes of CRCL’s investigation into the ‘Primary Allegations.’” D. 62 ¶ 12; D. 64 ¶ 12; see
D. 1-3 at 6.
1. The OIG Portion

On February 21, 2018, ICE referred the OIG and CRCL FOIA Request to OIG for
processing. D. 50 ¶ 7; D. 58 ¶ 7; see D. 1-3 at 14, 27. On December 10, 2018, OIG responded to
HIRCP regarding this request, releasing one page in full and twenty-nine pages in part and
withholding three pages in full, citing Exemptions 5, 6 and 7(C). D. 50 ¶ 8; D. 58 ¶ 8; see D. 1-3
at 27–28. OIG also referred 221 pages to ICE for processing. Id. By the time that HIRCP filed
the complaint here on December 13, 2021, D. 1, “ICE had not yet finished processing the 221
pages that OIG had referred to ICE.” D. 50 ¶ 13; D. 58 ¶ 13; see D. 49-17 ¶ 12. HIRCP also
alleged that OIG did not provide it “with the necessary explanations for its withholdings.” D. 1
¶¶ 40, 105–116; D. 50 ¶ 10; D. 58 ¶ 10. Accordingly, at the commencement of this litigation,
HIRCP sought relief “ordering DHS OIG to release any improperly withheld nonexempt
information in the responsive records to the OIG Request,” D. 1 ¶ 119; D. 50 ¶ 10; D. 58 ¶ 10,
and “ordering ICE to process the 221 pages responsive to the OIG Request.” D. 1 ¶ 118; D. 50 ¶
13; D. 58 ¶ 13.
“During this litigation, OIG re-processed the 32 pages that it had previously withheld in
full or in part. Specifically, OIG referred the 3 pages that it had withheld in full to ICE for
processing.” D. 50 ¶ 11; D. 58 ¶ 11; see D. 49-2 at 2. “OIG also removed certain redactions

from the 29 pages that it had withheld in part, and re-produced these 29 pages to [HIRCP] on
March 30, 2022.” D. 50 ¶ 11; D. 58 ¶ 11; see D. 49-3 at 2. “On May 18, 2022, in an attempt to
narrow the issues in this litigation, OIG provided [HIRCP] with an informal Vaughn index
explaining the basis for its redactions to the 29 pages that it had withheld in part.” D. 50 ¶ 12; D.
58 ¶ 12; see D. 31 at 2. On July 6, 2022, ICE responded to HIRCP regarding the 221 pages that
OIG had referred to ICE. D. 50 ¶ 14; D. 58 ¶ 14; see D. 49-6 at 2. ICE released 156 pages in
full and 56 pages in part, citing certain exemptions. Id. HIRCP still challenges the adequacy of
this search. D. 60 at 10.
2. The CRCL Portion

ICE determined that it was the appropriate office to respond to the CRCL portion of the
OIG and CRCL FOIA request and tasked Enforcement and Removal Operations (“ERO”) and
the Office of Professional Responsibility (“OPR”) with conducting searches for responsive
records. D. 50 ¶¶ 16–17; D. 58 ¶¶ 16–17; see D. 49-17 ¶¶ 9, 30. On December 21, 2018,
HIRCP submitted an administrative appeal with ICE regarding this request. D. 50 ¶ 18; D. 58 ¶
18; see D. 49-17 ¶ 13. On July 8, 2019, ICE issued a response, but HIRCP did not receive it due
to an “email error” prior to the filing of the complaint. D. 50 ¶ 20; D. 58 ¶ 20; D. 49-17 ¶ 15; see
D. 49-1. Accordingly, at the commencement of this litigation, HIRCP sought an order requiring
ICE to respond to the CRCL Request. D. 1 ¶ 118; D. 50 ¶ 20; D. 58 ¶ 20.
On April 1, 2022, ICE re-issued its response to HIRCP regarding the CRCL request. D.
50 ¶ 21; D. 58 ¶ 21; see D. 49-4 at 2. ICE released 181 pages in full, 125 pages in part and
withheld twenty pages in full, citing Exemptions 5, 6, 7(C), and 7(E). Id. Furthermore, although
ICE’s Office of Diversity and Civil Liberties (“ODCR”) “identified potentially responsive
records, ICE learned during this litigation that these records were inadvertently not processed

and produced” to HIRCP. D. 50 ¶ 19; D. 58 ¶ 19. “Accordingly, ICE produced these records to
HIRCP on February 2, 2023.” Id.; see D. 49-14. HIRCP still disputes ICE’s invocation of
Exemptions 5 and 7(E). D. 60 at 23–28.
B. The Consolidated ICE FOIA Request

On November 30, 2017, HIRCP submitted three related FOIA requests (“ICE FOIA
Request 1”; ICE FOIA Request 2”; and “ICE FOIA Request 3”) (collectively, the “Consolidated
ICE FOIA Request”) to ICE seeking three groups of requested records. D. 62 ¶ 15; D. 64 ¶ 15;
see D. 1-3 at 80–105.
ICE FOIA Request 1 sought “records regarding use of segregation for immigration
detainees within ICE detention facilities and facilities ICE has agreements with or is contracting
with for the purpose of holding immigration detainees” and “[r]ecords and/or data documenting
any changes to the provision of medical and mental health care in segregation . . . .” D. 62 ¶ 16;
D. 64 ¶ 16; see D. 1-3 at 80–86. ICE FOIA Request 2 “sought various documents created,
collected, received, or disseminated by ICE personnel regarding solitary confinement, as well as
findings compiled by ICE.” D. 62 ¶ 17; D. 64 ¶ 17; see D. 1-3 at 88–94. ICE FOIA Request 3
“sought information regarding sexual abuse of LGBT detainees, and solitary confinement related
to special vulnerabilities.” D. 62 ¶ 18; D. 64 ¶ 18; see D. 1-3 at 96–103. “On February 26, 2018,
ICE consolidated the three FOIA requests into one file and assigned” it a control number. D. 62
¶ 19; D. 64 ¶ 19.
Each of these requests asked for records pertaining to ICE facilities “in the state of
Massachusetts.” D. 62 ¶¶ 16–18; D. 64 ¶¶ 16–18; see D. 1-3 at 82, 84, 90, 98. On March 20,
2018 and April 6, 2018, ICE e-mailed HIRCP to clarify “whether the requested records were

limited to the state of Massachusetts, or all ICE facilities.” D. 62 ¶ 20; D. 64 ¶ 20; see D. 1-3 at
112, 114. On April 1, 2018 and April 8, 2018, HIRCP responded that it was seeking records
“pertaining to all detainees in segregation, for the date range requested, as well as the total
numbers of detainees in ICE facilities in each state,” but noted that it “would be willing to accept
the Massachusetts data first.” D. 1-3 at 111, 113; D. 62 ¶ 20; D. 64 ¶ 20.
On April 16, 2019, HIRCP submitted an administrative appeal with ICE regarding the
Consolidated ICE FOIA Request because ICE had not yet responded. D. 1-3 at 119, 121; D. 50
¶ 25; D. 58 ¶ 25. On May 11, 2022, ICE responded. D. 50 ¶ 28; D. 58 ¶ 28; see D. 49-5 at 2.
ICE released 164 pages in full and 345 pages in part, citing Exemptions 5, 6, 7(C), and 7(E). D.

50 ¶ 26; D. 58 ¶ 26; see D. 49-5 at 2–3. HIRCP disputes the adequacy of this search and the
application of Exemptions 5 and 7(E). D. 60 at 10, 23–28.
C. The OSC FOIA Request

“On December 21, 2017, [HIRCP] submitted a FOIA request to the U.S. Office of
Special Counsel (OSC) seeking records created on or after September 2013 related to any
complaints about the use and/or substantive impact of segregation of civil immigration detainees
including 1) any complaints with and/or investigations by the Disclosure Unit; 2) any and all
records and responses related to any complaints and/or investigations; 3) any and all records used
to prepare any responses, memoranda, or reports related to segregation of civil immigration
detainees; 4) any and all records related to the Special Counsel’s ‘determination as to the
completeness and apparent reasonableness’ of any and all agency reports on solitary confinement
of civil immigration detainees’; and 5) any and all OSC communications transmitted to any other
agencies or branches of government.” D. 62 ¶ 22; D. 64 ¶ 22; see D. 1-3 at 131.
On May 19, 2020, OSC responded to HIRCP regarding the OSC FOIA Request, releasing

800 pages in full, 241 pages in part and withholding 101 pages in full, citing Exemptions 3, 5, 6,
7(C), and 7(D). D. 50 ¶ 31; D. 58 ¶ 31; see D. 1-3 at 134. “In connection with this May 19,
2020, response, OSC also referred 1,593 pages to DHS for processing.” D. 50 ¶ 32; D. 58 ¶ 32;
see D. 1-3 at 134. “DHS, in turn, referred these 1,593 pages to CRCL for processing.” D. 50 ¶
32; D. 58 ¶ 32; see D. 49-7 at 2. On July 7, 2022, CRCL responded to HIRCP, releasing 42
pages in full and 159 pages in part, and withholding 349 pages in full, citing Exemptions 5, 6,
7(C), and 7(E). D. 50 ¶ 35; D. 58 ¶ 35; see D. 49-7 at 2. “CRCL also found 283 pages to be
duplicates, and 91 pages to be non-responsive.” Id. “In connection with this July 7, 2022,
response, CRCL also referred 644 pages to ICE, 15 pages to OIG, 8 pages to the DHS Privacy

Office (DHS Privacy), and 2 pages to the Department of Justice (DOJ) for processing.” D. 50 ¶
36; D. 58 ¶ 36; see D. 49-7 at 2.
On August 4, 2022, OIG, in response to the fifteen-page referral, released two pages in
full and thirteen pages in part, citing Exemptions 6 and 7(C). D. 50 ¶ 37; D. 58 ¶ 37; see D. 49-
8. On August 15, 2022, DOJ (through CRCL) responded to HIRCP regarding the two-page
referral from CRCL and released these two pages in full. D. 50 ¶ 38; D. 58 ¶ 38; see D. 49-9.
On September 14, 2022, ICE responded to HIRCP regarding the 644-page referral from CRCL.
D. 62 ¶ 24; D. 64 ¶ 24. “ICE released 56 pages in full, released 399 pages in part, withheld 18
pages in full, and found that 171 pages were duplicative/non-responsive.” Id. “On September
21, 2022, ICE re-released a nearly duplicative production of the September 14, 2022 production
but the September 21 production contained more redactions and some different documents.” Id.
On September 22, 2022, DHS Privacy responded to HIRCP regarding the 8-page referral from
CRCL and withheld “all 8 pages based on Exemption 5.” D. 50 ¶ 40; D. 58 ¶ 40; see D. 49-11 at
2. “On November 21, 2022, DHS Privacy issued a supplemental response letter to [HIRCP]

regarding the 8-page referral from CRCL, releasing 4 pages in full that it had previously
withheld.” D. 50 ¶ 40; D. 58 ¶ 40; D. 49-12 at 2. “DHS Privacy maintained its withholding of
the other 4 pages.” D. 50 ¶ 40; D. 58 ¶ 40; see D. 49-13 ¶ 5. HIRCP still disputes the application
of Exemption 5 as to this production. D. 60 at 23.
IV. Procedural History

HIRCP commenced this action on December 13, 2021. D. 1. As summarized above,
the Agencies produced some responsive documents after the initiation of this lawsuit. Although
there were some attempts to reach mutually agreeable terms about the searches that HIRCP
challenges, the parties were not able to reach an agreement. D. 62 ¶¶ 26–27; D. 64 ¶¶ 26–27; see
D. 61-9. The Agencies have also produced Vaughn indexes as to the documents they have
withheld. D. 49-16 (DHS); D. 49-18 (ICE). The Court heard the parties on the cross motions for
summary judgment and took these matters under advisement. D. 71, 72.
V. Discussion

A. Adequacy of Searches

1. Legal Standard

In FOIA cases, an agency must 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 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 crucial
issue is not whether relevant documents might exist, but whether the agency’s search was
‘reasonably calculated to discover the requested documents.’” Maynard v. C.I.A., 986 F.2d 547,
559 (1st Cir. 1993) (quoting Safecard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir.
1991)). 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.” Oleskey, 658 F. Supp. 2d at
298. A “failure to turn up [a requested] document does not alone render the [agency’s] search
inadequate; there is no requirement that an agency produce all responsive documents.” Nation
Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 892 n.7 (D.C. Cir. 1995)
(emphasis in original). The focus of the adequacy inquiry is thus not on the results, but rather on
the search itself. Oleskey, 658 F. Supp. 2d at 298.
To demonstrate that an agency conducted an adequate search, the agency “may rely upon
affidavits provided they are relatively detailed and nonconclusory, and are submitted by
responsible agency officials in good faith.” Maynard, 986 F.2d at 559. Such affidavits may

include “the search terms and the type of search performed, and averring that all files likely to
contain responsive materials (if such records exist) were searched.” Oglesby, 920 F.2d at 68.
Additional search details may include “the structure of the agency’s file system, the scope of the
search performed, and the method by which it was conducted.” Sephton v. F.B.I., 365 F. Supp.
2d 91, 97 (D. Mass. 2005), aff’d, 442 F.3d 27 (1st Cir. 2006)).
Once an agency has produced such a showing, a court must afford the government a
presumption of good faith, and “the burden shifts to the requester to ‘provide countervailing
evidence as to the adequacy of the agency’s search.’” Oleskey, 658 F. Supp. 2d at 294–95
(quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 313–14 (D.C. Cir. 2003)). If the
requester introduces evidence that “raises substantial doubt, particularly in view of well defined
requests and positive indications of overlooked materials, summary judgment is inappropriate.”
Iturralde, 315 F.3d at 314 (citation and internal quotation marks omitted).
2. Adequacy of OIG Search

As a preliminary matter, the parties dispute whether the adequacy of OIG’s search is
properly before this Court. D. 65 at 4–5; D. 66 at 9. On December 10, 2018, OIG released one
page in full, withheld twenty-nine pages in part and three pages in full, and referred 221 pages to
ICE for processing. D. 50 ¶ 8; D. 58 ¶ 8. On April 1, 2019, HIRCP filed an administrative
appeal with OIG regarding this request, arguing that “OIG has failed to meet its statutory
obligations under FOIA by failing to respond to the request well past the applicable statutory
deadlines.” D. 50 ¶ 9; D. 58 ¶ 9. On April 1, 2020, OIG’s Information Law and Disclosure
Division denied HIRCP’s appeal, explaining, among other things, that OIG had provided a
response to HIRCP’s FOIA request on December 10, 2018. Id. The Agencies argue that HIRCP
“waived any challenge to the adequacy of OIG’s search” because, following OIG’s denial of

HIRCP’s April 2019 administrative appeal, HIRCP failed to “challenge that denial or ever file an
administrative appeal challenging the adequacy of OIG’s search.” D. 65 at 4–5 (emphasis
removed). HIRCP argues that it did not further challenge that denial because it was still waiting
on the production of the 221 pages referred to ICE. D. 60 at 14 n.3. In HIRCP’s view, “DHS
was no longer managing those documents, and HIRCP had never seen them, so no appeal could
be made regarding their sufficiency.” Id.
The Court agrees with HIRCP that it did not waive its challenge to the adequacy of the
OIG production. Contrary to the Agencies’ assertions, the complaint does not reasonably
suggest that HIRCP conceded the adequacy of the OIG production, especially where, as here, it
is undisputed that not all pages of the production were released to HIRCP until after the
complaint was filed. D. 50 ¶ 14; D. 58 ¶ 14; see D. 1 at 3 (alleging that “DHS has produced only
incomplete documentation with regard to the OIG Request”); id. ¶ 118 (seeking an injunction
“ordering ICE to process the 221 pages responsive to the OIG Request”).
Given that the burden remains with OIG to “demonstrate beyond material doubt that its

search was reasonably calculated to uncover all relevant documents,” Am. C.L. Union of
Massachusetts v. Immigr. & Customs Enf’t, No. 21-CV-10761-AK, 2022 WL 1912882, at *4 (D.
Mass. June 3, 2022) (citation and internal quotation marks omitted), and OIG has not submitted
an affidavit describing the search terms and methods it used during its search, see D. 60 at 14 n.
3; D. 66 at 9, 1, the Court grants HIRCP’s motion for summary judgment as to the adequacy of
OIG’s search and denies the Agencies’ motion as to same. The Court orders counsel for the
parties to meet and confer to agree on search terms and locations to be searched by OIG and a
proposed time frame for such search. Such joint proposal should be filed by September 1, 2023.
3. Adequacy of ICE Search

ICE relies upon the affidavit of Fernando Pineiro, D. 49-17, FOIA Director of the ICE
FOIA Office and the “ICE official immediately responsible for supervising ICE responses to
requests for records under” FOIA. Id. ¶ 1. Pineiro states that “ICE employees maintain records
in several ways,” including “electronic records on their individual computer hard drives, their
program office’s shared drive” and “DVDs, CDs, and/or USB storage devices.” Id. ¶ 25.
Additionally, Pineiro states that “ICE employees use various methods to store their Microsoft
Outlook e-mail files.” Id. ¶ 26. According to Pineiro, the ICE FOIA Office determined that
OPR, ERO, the Office of Acquisition Management (“OAQ”) and ODCR “were the program
offices likely to have responsive records” based on the subject matter of HIRCP requests. Id. ¶
30. In all, Pineiro’s affidavit describes seven distinct searches performed at the direction of ICE.
Id. ¶¶ 33–49.
a) The PREA Search

A Management and Program Analyst within ICE’s Office of Professional Responsibility
(“OPR”) tasked the Office of Detention Oversight (“ODO”) and Prison Rape Elimination Act
(“PREA”) to conduct a search, without a date range cutoff, using the terms “detainees,”
“segregated” and “housing.” Id. ¶ 34. “The PREA Office stated that they had no responsive
records.” Id.
b) The ODO Search

ODO’s Unit Chief “conducted a search of the ICE FOIA Library” using the terms “ODO
Report” and “ODO Final Report” without a date range cutoff, which also produced no
responsive records. Id. ¶¶ 35–36.
c) The First ERO Search

A Management and Program Analyst within ERO searched an “Audit” folder on
Microsoft Outlook entitled “OIG-17-119 Segregation of Detainees with Mental Health Needs.”
Id. ¶ 40. Additionally, the Detention and Deportation Office “searched the ERO Policy Library,”
without a date range cutoff, using the search terms “Detainee segregation,” “Transgender,” and
“LGBTI.” Id. Potentially responsive records were found and forwarded to the ICE FOIA Office
for review and processing. Id.
d) The Second ERO Search

“A Unit Chief with the ERO Field Operations Domestic Operations Division . . .
searched their archived emails, by using the find/search function in their outlook accounts as
well as the office’s shared drive computer system using terms including ‘LGBTI detainees,’
‘segregated housing,’ ‘suicidal detainee,’ ‘segregation,’ ‘special housing,’ and ‘protective
custody’ and “determined that the information requested would be with the Custody
Management Division.” Id. ¶ 42.
e) The Third ERO Search

The Segregation Coordinator within the ERO’s Custody Management Division searched
the SRMS using the terms “BOS AOR” and “MA” with no date range cutoff. Id. ¶ 43.
“Potentially responsive records were found and forwarded to the ICE FOIA Office for review
and processing.” Id.
f) The Fourth ERO Search

A Regional Field Medical Coordinator within ERO’s ICE Health Services Corps
(“IHSC”) Division “conducted a search of her emails, by using the find/search function in her
outlook accounts, including sent, deleted, incoming, outgoing and archived folders, as well as the
office’s shared drive computer system” using the terms “mental health” and “segregation” with
no date range cutoff. Id. ¶ 44.
g) ODCR’s Search

An Equal Employment Opportunity Specialist at ODCR “searched the ICE Civil
Liberties and ODCR Sharepoint system” using the terms “segregation,” “mental health” and
“segregation and mental health.” Id. ¶ 49. “She also searched individual folders on her desktop
and hard drive” and “individual folders in her outlook account and archived emails, by using the
find/search function, as well as the office’s shared drive computer system” using the same search
terms with no date range cutoff. Id. This search produced thirty-one pages of potentially
responsive records, twenty-four of which were sent to HIRCP. Id. ¶ 50.
Pineiro’s affidavit describes the manner in which ICE employees generally maintain
records, specifies the ICE offices that were deemed the most likely to possess responsive records,
the folders and email accounts that were searched and the search terms that were used.
Accordingly, the Court concludes that the Pineiro affidavit provides sufficient, nonconclusory
detail about the searches, which were reasonably calculated to locate responsive documents, and

therefore applies a presumption of good faith to ICE’s search. See Oleskey, 658 F. Supp. 2d at
294–95.
The Court is persuaded, however, that HIRCP has introduced sufficient evidence to rebut
this presumption of good faith. Iturralde, 315 F.3d at 314. Specifically, HIRCP argues, and the
Court agrees, that ICE’s search was “inadequate for three reasons: it did not uncover specifically
identifiable responsive documents; it employed unreasonably narrow terms; and it explored
unreasonably cabined locations.” D. 60 at 10.
h) Specifically Identifiable Responsive Documents

HIRCP first argues that ICE’s search was inadequate because it failed to produce
documents that “indisputably exist and were specifically requested by HIRCP.” D. 60 at 11.
The demonstrated existence of several unproduced but responsive documents does not require,
but can give rise to an inference that an agency’s search was inadequate. See Founding Church
of Scientology of Washington, D. C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir.
1979) (concluding that NSA had “not yet eliminated an unavoidable inference that its [search]
technique may have left something to be desired” where discovery in a separate FOIA
proceeding against CIA revealed that NSA was in possession of sixteen unproduced but
responsive documents).
Here, it is undisputed that ERO field offices and ICE headquarters use the SRMS to
document, track, and facilitate review of all segregation cases and that ERO’s FODs must use
SRMS to report segregation placement data that falls under the ICE directive’s reporting
requirements. D. 62 ¶ 7; D. 64 ¶ 7. Although the record suggests that ICE produced these
reports weekly, see D. 61-10 at 2, HIRCP maintains that ICE has produced none of these reports

in direct response to the Consolidated ICE FOIA Requests and only “a small number” of these
reports in total. D. 60 at 11. Moreover, the record also suggests that ICE failed to produce
specifically identifiable records related to OIG’s site visits. The OIG FOIA request sought all
records related to “[p]rior ICE inspection reports on detention facilities used by ICE” during the
pertinent time period. D. 1-3 at 4. It is undisputed that during the pertinent time period, OIG
selected seven facilities “to visit and review judgmental samples of instances in which detainees
with mental health conditions were held in segregation and to assess the confinement
conditions.” D. 62 ¶ 8; D. 64 ¶ 8; D. 61-2 at 18. ICE produced only one site visit report, D. 1-3
at 45–64, even though the record suggests that OIG generated such reports for the other six sites

it visited as part of its review.
Accordingly, the Court is persuaded that ICE’s failure to produce SRMS reports for the
pertinent period or to produce six of the seven OIG site visits reports “raises substantial doubt”
that ICE’s search was adequate. Iturralde, 315 F.3d at 314 (citation and internal quotation marks
omitted).
i) Search Terms

HIRCP also argues that ICE’s search was inadequate because it “used unreasonably
narrow search terms.” D. 60 at 13. “ICE need not establish that its chosen search terms were
perfectly tailored to produce each and every document potentially responsive” to HIRCP’s
request. Am. C.L. Union of Massachusetts, 2022 WL 1912882, at *5. “A failure to use certain
search terms, including those emphasized by [a plaintiff], is not automatically unreasonable, so
long as the agency provided an explanation as to why the search term was not used.” Knight
First Amend. Inst. at Columbia Univ. v. Centers for Disease Control & Prevention, 560 F. Supp.
3d 810, 823 (S.D.N.Y. 2021) (citation and internal quotation marks omitted); see Brennan Ctr.

for Just. at New York Univ. Sch. of L. v. U.S. Dep’t of Just., 377 F. Supp. 3d 428, 434 (S.D.N.Y.
2019) (citation omitted) (explaining that “an agency’s choice of search terms is not conclusive”
and “[w]here challenged, agencies have to explain why certain search terms, clearly relevant,
were not used”).
Upon learning the specific terms that ICE used in its searches, HIRCP proposed that ICE
use additional search terms, including “segregate*” to capture variations of the term
“segregation,” as well as “solitary” or “SRMS” or “protective custody” or “isolation” or “mental
illness” among other terms. D. 61-9. The Court is persuaded that at least some of these
proposed synonyms and variations are likely to be used in responsive documents and that ICE

has not reasonably justified why it did not use them. As HIRCP argues, the Pineiro affidavit
does not explain why the PREA search did not include common variations of the term
“detainees” and “segregated” such as “detainee” and “segregate*” or synonyms such as “ad
seg”1 or “solitary” or “protective custody” or “isolation.” D. 60 at 15. The affidavit does not
explain why “ODO Report” and “ODO Final Report” were sufficient to uncover responsive
documents through the ODO search. Id. The affidavit similarly does not explain, as to the
second and third ERO searches, why “detainee segregation” and “LGBTI detainees” were
searched as opposed to “segregation” or “LGBTI” as stand-alone terms along with their common

1 HIRCP claims, and the Agencies do not dispute, that “ad seg” is a common abbreviation
for “administrative segregation.” See D. 60 at 15 n.4.
variations and synonyms. Id. The affidavit does not explain why limiting the third ERO search
of the SRMS using the geographic terms “BOS AOR” and “MA” would reasonably uncover all
responsive records. D. 60 at 15. Finally, as to the fourth ERO search and the ODCR search, the
affidavit does not reasonably justify why variations and synonyms for the terms “segregation”
and “mental health” were not used. Id.

Accordingly, the Court also concludes that ICE’s failure to reasonably justify its search
methodology “raises substantial doubt” that ICE’s search was adequate. Iturralde, 315 F.3d at
314 (citations and internal quotation marks omitted).
j) Locations

Finally, HIRCP argues that “ICE searched an excessively narrow set of locations,
rendering the searches inadequate.” D. 60 at 16. The Court agrees. “[A] request for an agency
to search a particular record system—without more—does not invariably constitute a lead that an
agency must pursue. Instead, [a] lead must be both clear and certain and so apparent that the
[agency] cannot in good faith fail to pursue it. Additionally, [a]lthough an agency may not
ignore a request to search specific record systems when a request reaches the agency before it
has completed its search, . . . a search is generally adequate where the agency has sufficiently
explained its search process and why the specified record systems are not reasonably likely to
contain responsive records.” Stalcup v. Dep’t of Def., No. 13-cv-11967-LTS, 2022 WL
1714250, at *3 (D. Mass. Mar. 23, 2022) (alterations in original) (internal quotation marks
omitted) (quoting Mobley v. CIA, 806 F.3d 568, 582 (D.C. Cir. 2015)).
The record shows that through the Consolidated ICE FOIA Request, HIRCP specifically
requested records from Detention Service Managers (“DSMs”), ERO LGBTI Field Liaisons, the
EID Arrest Graphical User Interface for Law Enforcement (“EAGLE”), ENFORCE Alien
Module (“EARM”) and Risk Classification Assessment (“RCA”) data sources, the Segregation
Review Coordinator and the Detention Monitoring Council. D. 1-3 at 82, 101–02. HIRCP
asserts that it was unreasonable for ICE not to search these specific locations and instead only
search the SRMS system using the terms “BOS AOR” and “MA,” IHSC’s drives, the ERO Field
Operation’s Unit Chief computer files and the Boston’s Assistant Field Office Director’s email.

D. 60 at 17; see D. 49-17 ¶¶ 40–45. The Agencies, relying on the good faith presumption, argue
that HIRCP’s assertions are insufficient “to cast substantial doubt on the agency’s assertions.”
D. 65 at 10–11. The Court is persuaded, however, that the specific locations referenced by
HIRCP as to the Consolidated ICE FOIA Request should have been searched if, as HIRCP
asserts and the Agencies do not dispute, these entities “are most directly responsible for
overseeing the management of segregation and detention of vulnerable populations.” D. 60 at
18. ICE’s failure to search the data sources directly managed by these entities, again, “raises
substantial doubt” that its search was adequate. Iturralde, 315 F.3d at 314 (citations and internal
quotation marks omitted).

On the other hand, the Court is not persuaded that HIRCP has rebutted the good faith
presumption as to the locations searched as to the CRCL portion of the OIG and CRCL FOIA
Request. HIRCP asserts that it “inquired about a specific, contained set of documents: the
subset of public complaints against ICE that ICE had previously provided to CRCL about mental
health, and CRCL’s responses to those investigative records.” D. 60 at 18. HIRCP posits that “a
reasonable search structure would have involved identifying the digital or physical files where
such complaints are stored, then performing a search within those records” and that
“[u]ncovering responsive documents should have been quite straightforward, as ICE presumably
continues to regularly produce the documents for the DHS Inspector General.” Id. at 19. Unlike
its claims as to the Consolidated ICE FOIA Request, however, these claims about the
discoverability of such complaints are largely speculative. HIRCP has not identified with
sufficient specificity how the design of ICE’s search was not reasonably calculated to produce
these documents. Rather, HIRCP merely speculates that ICE’s search as to these documents
should have been “straightforward,” id., which is insufficient to rebut the good faith

presumption. See Maynard, 986 F.2d at 560 (noting that the presumption of good faith cannot be
rebutted by “purely speculative claims about the existence and discoverability of other
documents” (citation and internal quotation marks omitted)).
Accordingly, the Agencies’ motion for summary judgment on the issue of the adequacy
of the searches is allowed in part only as to the locations searched as to the CRCL portion of the
OIG and CRCL FOIA Request and otherwise is denied. HIRCP’s motion for summary judgment
is correspondingly denied as to the locations searched as to the CRLCL portion of the OIG and
CRCL FOIA Request, but is otherwise allowed. The Court orders counsel for the parties to meet
and confer to agree on search terms for all searches involving ICE and locations to be searched

(locations only as to non-CRCL portion of the OIG and CRCL FOIA Request) and a proposed
time frame for such search to be completed. Such proposal should be filed by September 1,
2023.
B. FOIA Exemptions
“‘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.’” Am. C.L. Union of Massachusetts, Inc., 448 F. Supp. 3d at 36
(quoting Carpenter v. U.S. Dep’t of Just., 470 F.3d 434, 438 (1st Cir. 2006) and Moffat v. U.S.
Dep’t of Just., 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.” Id. (quoting Carpenter, 470
F.3d at 438).
Here, the Agencies cited FOIA Exemptions 5, 6, 7(C), and 7(E) and have moved for
summary judgment. HIRCP appears only to challenge the Agencies’ invocation of Exemptions 5
and 7(E). See D. 60 at 23–28; D. 66 at 16–18, so the Court denies the Agencies’ motion for

summary judgment as moot as to Exemptions 6 and 7(C). Accordingly, the Court turns only to
whether the Agencies properly applied Exemptions 5 and 7(E). To support these exemptions, the
Agencies rely upon affidavits and Vaughn indexes by ICE and DHS submitted to the Court in
connection with their motion for summary judgment. D. 49-13; D. 49-15; D. 49-16; D. 49-18.
1. Exemption 5

FOIA’s Exemption 5 aims to “facilitate[ ] 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 & Hum. Servs., 778 F.3d 43, 52 (1st Cir. 2015). The exemption thus
protects from disclosure “inter-agency or intra-agency memorandums [sic] or letters which
would not be available by law to a party other than an agency in litigation with the agency,” and
“incorporates doctrines that would limit the scope of discovery, including the attorney-client
privilege, the work-product protection, and the deliberative-process privilege.” Stalcup v. C.I.A.,
No. 11-cv-11250-FDS, 2013 WL 4784249, at *4 (D. Mass. Sept. 5, 2013), aff’d, 768 F.3d 65
(1st Cir. 2014) (alteration in original) (quotations and citation omitted). Although the Agencies
invoke Exemption 5 on these three bases, HIRCP only challenges their invocation of the
deliberative process privilege. D. 60 at 23.
To invoke the deliberative process privilege, an agency “must demonstrate that the
communications were both ‘predecisional’ and ‘deliberative.’” New Hampshire Right to Life,
778 F.3d at 52 (quoting Providence J. Co. v. U.S. Dep’t of Army, 981 F.2d 552, 557 (1st Cir.
1992)). “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 was
not the final decisionmaker], and (3) verify that the document precedes, in temporal sequence,
the decision to which it relates.’” Id. (quoting Providence J. Co., 981 F.2d at 557). Conclusory
assertions that merely parrot the legal test do not suffice and an agency’s description of
documents must at least specify the relevant final decision. See Senate of the Com. of Puerto
Rico v. U.S. Dep’t of Just., 823 F.2d 574, 585 (D.C. Cir. 1987); Sensor Sys. Support, Inc. v.
F.A.A., 851 F. Supp. 2d 321, 331 (D.N.H. 2012) (concluding that agency cannot invoke
deliberative process privilege without “at the very least identify[ing] the decision
contemplated”). “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 J. Co., 981 F.2d at 559 (citations
and internal quotation marks omitted). “[T]he agency must present to the court the function and
significance of the document(s) in the agency’s decisionmaking process, the nature of the
decisionmaking authority vested in the office or person issuing the disputed document(s), and the
positions in the chain of command of the parties to the documents.” Arthur Andersen & Co. v. I.
R. S., 679 F.2d 254, 258 (D.C. Cir. 1982) (internal citations and quotation marks omitted).
a) DHS and ICE Have Not Shown that Certain Redacted Emails and
Internal Memoranda are Predecisional

As an initial matter, several entries in DHS’s Vaughn index and one entry in ICE’s
Vaughn index invoking Exemption 5 fail to specify the final agency decision being
contemplated. See D. 49-16 at 2 (describing “recommendations from CRCL to ICE” but not
specifying policy or decision), 6, 12, 14, 15, 18 (describing several emails involving an “internal
communication about the scope of the investigation and processing for conducting the
investigation” but not specifying the nature of the investigation or the agency decision being
contemplated), 9 (describing “internal communication about ICE’s Disciplinary Monitoring
Council” but not specifying agency decision being contemplated), 10 (describing “internal
communication related to ICE” but not specifying policy or decision), 16 (describing “internal
communication related to CRCL’s impressions regarding the creation of subcommittee to focus
on the segregation of detainees with mental health concerns” but not specifying final agency
decision being contemplated), 11–17, 21–22, 30–32, 45, 47–48 (describing several emails
involving “internal communication related to review of export report and CRCL’s impressions
regarding the process for the segregation of detainees” or “the process for charging detainees”
but not specifying final agency decision being contemplated), 45 (describing the draft version
and final versions of the “CRCL Agenda for the ICE DMC Subcommittee Meeting” and an
email that “includes internal reporting of detainees with sensitive information about their
identities and locations” but not specifying final agency decision being contemplated), 46

(describing “an internal discussion about the segregation of a detainee” but not specifying
agency decision being contemplated); D. 49-18 at 19 (describing email communications that
“relate to discussions on how data relating to FY 16 Mental Health was analyzed” but not
specifying agency decision being contemplated); see also Sensor Sys. Support, Inc., 851 F. Supp.
2d at 331 (noting that agency must identify the decision being deliberated); Bloche v. Dep’t of
Def., 370 F. Supp. 3d 40, 54 (D.D.C. 2019) (concluding that index descriptions were insufficient
because specific policies were “never identified or described”).
Where, as here, a court concludes that a Vaughn index or agency affidavit inadequately
describes records redacted or withheld under the deliberative process privilege, it may deny

summary judgment as to those records and may “direct the government to revise its submissions
with respect to [the] specific records.” Church of Scientology Int’l., 30 F.3d at 239; see Seife v.
U.S. Dep’t of State, 298 F. Supp. 3d 592, 630–31 (S.D.N.Y. 2018) (denying summary judgment
without prejudice as to documents withheld under Exemption 5 and requiring agency to submit
updated Vaughn index); Elec. Frontier Found., 826 F. Supp. 2d at 175 (denying summary
judgment without prejudice as to the documents insufficiently described in the index and
“directing the agency to revise their Vaughn submissions, taking into account the deficiencies
identified by the Court”); Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252, 270
(D.D.C. 2004) (denying summary judgment and requiring agency to review all previously

withheld and redacted documents, and after review, produce documents unredacted that it
determines do not fall under Exemption 5 and submit more detailed Vaughn index for those that
it still believes should be withheld).
Accordingly, because the Court concludes that the Vaughn index descriptions are
inadequate as to the records discussed above, DHS shall either submit a revised Vaughn index by
September 1, 2023, correcting the deficiencies outlined above as to those documents withheld or
redacted solely on the basis of Exemption 5, or produce those documents to HIRCP and inform
the Court of its decision, also by September 1, 2023.
b) DHS Has Not Shown that Factual Materials in Expert Reports Are
Inextricably Intertwined with Policy Making Recommendations

DHS invoked the deliberative process privilege to withhold in full a group of expert
reports prepared by CRCL-retained consultants who investigated civil rights complaints at ICE
detention facilities. See D. 49-16 at 19–29, 32–45. HIRCP specifically challenges the
withholding of the underlying factual material in the reports, arguing that those facts are “post-
decisional because they describe actions that ICE has already taken in its detention centers.” D.
60 at 26. The Agencies argue that the reports, including their findings of fact, were properly
withheld because they “reflect deliberations and recommendations about future decisions
regarding whether and how to address those complaints.” D. 65 at 15.
In the FOIA context, “solely factual matters severable from deliberative portions of
documents should be disclosed.” Reilly v. U.S. E.P.A., 429 F. Supp. 2d 335, 342 (D. Mass.
2006) (citing Env’t Prot. Agency v. Mink, 410 U.S. 73, 89 (1973)). On the other hand, “[f]actual
materials [which] are inextricably intertwined with policy making recommendations so that their
disclosure would compromise the confidentiality of deliberative information” are entitled to
protection under Exemption 5. Id. at 351 (second alteration in original and internal quotation
marks omitted) (quoting Lead Indus. Ass’n, Inc. v. Occupational Safety & Health Admin., 610
F.2d 70, 85 (2d Cir. 1979)).
In an affidavit supporting DHS’s Vaughn index, Rosemary Law, the FOIA Officer in the
Office for CRCL, stated that the reports “contain unverified observations of first impression,

expert analyses of facts and information gathered during the course of the expert’s investigation
of the facility, and the uninhibited opinions and recommendations of CRCL’s expert consultant
intended for evaluation and review by CRCL.” D. 49-15 ¶ 18. These justifications are reflected
in DHS’s Vaughn index, in which a similar rationale is repeated throughout. See generally D. 49-
16.
In a separate FOIA proceeding, a district court rejected a similar justification proffered by
DHS for withholding the factual findings in expert reports. See Project on Gov’t Oversight, Inc.
v. U.S. Dep’t of Homeland Sec., No. 18-cv-2051-RCL, 2023 WL 2139380, at *8 (D.D.C. Feb.

21, 2023). There, the court noted that, unlike “‘culling or organization of an existing set of facts
into a summary, not the initial finding of those facts,’” unverified observations of first impression
as a “category of deliberative information ‘finds no support in extant FOIA jurisprudence.’” Id.
(emphasis in original) (quoting Nat’l Pub. Radio, Inc. v. U.S. Dep’t of Homeland Sec., No. 20-
cv-2468-RCL, 2022 WL 4534730, at *6 (D.D.C. Sept. 28, 2022)). Accordingly, the court
concluded that “unverified observations of first impression are not deliberative in nature” and
that “the deliberative process privilege applies only to the withholdings in this case that represent
the experts’ analysis, opinions, or recommendations.” Id. The Court finds this reasoning
persuasive and applicable here.

The Court is further persuaded by the approach of courts that have drawn a distinction
between factual material analogous to a “complex decision in an adjudicatory proceeding,”
which properly can be withheld under Exemption 5, or analogous to “an investigative report
prepared only to inform,” which cannot. Adelante Alabama Worker Ctr. v. United States Dep’t
of Homeland Sec., 376 F. Supp. 3d 345, 363 (S.D.N.Y. 2019) (quoting Mapother v. Dep’t of
Justice, 3 F.3d 1533, 1539 (D.C. Cir. 1993)). This distinction is relevant here. The expert
reports, in general, evaluate the medical care available to detainees at certain facilities. See D.
49-16 at 19–29, 32–45. “That structure is more in keeping with an ‘investigative report’ into a
specific question, than it is a ‘complex decision in an adjudicatory proceeding.’” Adelante, 376
F. Supp. at 363. The Court cannot conclude, therefore, that any withholdings of purely factual
material in the expert reports were proper.
The Court is also concerned that DHS has improperly withheld purely factual and
severable material in each of the documents it has withheld in full under Exemption 5. D. 49-16
at 19–48. For example, DHS withheld in full an internal memorandum that involves “internal

communication related to the review of ICE’s segregation report and CRCL’s impressions
regarding the process for the segregation of detainees.” Id. at 21. Other than the conclusory
statement that “[t]he redacted information contains agency’s deliberations about CRCL’s review
process,” id. at 22, DHS does not provide a sufficient explanation for why it could not segregate
and release the underlying factual material contained in this memo.
Accordingly, the Court denies the Agencies’ motion for summary judgment as to
Exemption 5 and correspondingly allows HIRCP’s motion for summary judgment. The Court
orders DHS to produce the documents it has withheld or redacted solely under Exemption 5 or
review each document it has withheld under Exemption 5, including all expert reports, and to

release the severable factual material contained therein consistent with this opinion, including,
but not limited to, all “unverified observations of first impression” by September 1, 2023.
2. Exemption 7(E)

HIRCP also challenges the Agencies’ invocation of Exemption 7(E). D. 60 at 27–28.
“Under this exemption, an agency may withhold law enforcement records that disclose either:
(1) techniques and procedures for law enforcement investigations or prosecutions or (2)
guidelines for law enforcement investigations or prosecutions that could reasonably be expected
to risk circumvention of the law.” Am. C.L. Union Found. of Massachusetts v. Fed. Bureau of
Investigation, No. 14-cv-11759, 2016 WL 4411492, at *4 (D. Mass. Aug. 17, 2016) (citations
omitted). “In this context, the phrase ‘techniques and procedures’ has been defined as ‘how law
enforcement officials go about investigating a crime’ while ‘guidelines’ has been defined as ‘an
indication or outline of future policy or conduct.’” Id. (quoting Allard K. Lowenstein Int’l
Human Rights Project v. Dep’t of Homeland Sec., 626 F.3d 678, 682 (2d Cir. 2010)). To
withhold documents pursuant to Exemption 7(E), “the [agency] need only ‘establish a rational

nexus between the investigation and one of the agency’s law enforcement duties and a
connection between an individual or incident and a possible security risk or violation of federal
law.’” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (quoting Campbell v. Dep’t of
Justice, 164 F.3d 20, 32 (D.C. Cir. 1998)) (second citation omitted).
ICE invoked Exemption 7(E) to withhold: (1) “a user guide on how to use the IHSC
electronic medical record system to report on detainees with mental health diagnoses who are
placed into segregation,” (2) several reports detailing instances of sexual abuse and assault in
ICE detention, (3) emails, reports and correspondence regarding a mentally ill detainee and his
disciplinary appeal and (4) “internal emails between the American-Arab Anti-Discrimination

Committee and ICE employees pertaining to an issue with an inmate’s religious accommodation;
an Inmate/Resident Grievance Form; and an Informal Resolution Form.” D. 49-18 at 11, 29–35,
47, 53.
As to the medical record system user guide, ICE’s Vaughn index explains that it was
withheld under Exemption 7(E) because “[d]isclosure of the methods that ICE uses to assess
detainees and come to a decision on segregation and mental health status could enable an
individual to navigate, alter, and/or manipulate the database in their favor.” Id. at 11. The Court
is persuaded that there is a rational nexus between disclosure of nonpublic information related to
the database ICE uses to assess whether to segregate detainees and a possible security risk were
an individual to gain unauthorized access to that system. See Levinthal v. Fed. Election
Comm’n, 219 F. Supp. 3d 1, 8 (D.D.C. 2016) (noting that courts “repeatedly have held that
information connected to law enforcement databases qualifies for exemption under 7(E)”).
The Court is also persuaded that the reports relating to sexual abuse and assault were
properly redacted under Exemption 7(E). ICE’s Vaughn index indicates that these reports were

redacted because “disclosure of how ICE classifies abuse allegations is not publicly available
information and release of this information could permit people seeking to interfere with law
enforcement investigations and/or operations to take proactive steps to counter operational and
investigative actions taken by ICE during enforcement operations.” D. 49-18 at 31–32, 35.
There is a rational nexus between disclosure of ICE’s system of classifying abuse allegations and
an increased risk of interference with ICE’s ability to investigate these abuse allegations.
Accordingly, these reports were properly redacted under Exemption 7(E).
Finally, the Court concludes that the redaction of the case numbers in the documents
pertaining to a mentally ill detainee and his disciplinary appeal and a detainee’s religious

accommodation was proper under Exemption 7(E). Id. at 52, 55. According to ICE’s Vaughn
index, both sets of documents had case numbers redacted because their release “could reveal
techniques and/or procedures for law enforcement investigations or prosecutions which could
reasonably be expected to risk circumvention of the law.” Id. The Court is persuaded that there
is a rational nexus between the disclosure of such case numbers and an increased security risk.
See Am. C.L. Union of Maine Found. v. U.S. Dep’t of Homeland Sec., 470 F. Supp. 3d 40, 57
(D. Me. 2020) (concluding that “specific internal incident numbers” and “event codes” that
“could assist unauthorized users who gain improper access to law enforcement databases in
deciphering the meaning of the internal incident numbers and codes” were properly redacted
under Exemption 7(E)); see also Parker v. U.S. Immigration & Customs Enforcement, 238 F.
Supp. 3d 89, 100–01 (D.D.C. 2017) (concluding that ICE properly withheld case numbers,
among other sensitive information, under Exemption 7(E)).
Accordingly, the Court allows the Agencies’ motion for summary judgment as to
Exemption 7(E) and correspondingly denies HIRCP’s motion for summary judgment.

VI. Conclusion

For the foregoing reasons, as to the adequacy of searches, the Court ALLOWS the
Agencies’ motion for summary judgment only as to the locations searched as to the CRCL
portion of the OIG and CRCL FOIA Request and otherwise DENIES the motion. The Court
correspondingly DENIES HIRCP’s motion for summary judgment only as to the locations
searched as to the CRCL portion of the OIG and CRCL FOIA Request and otherwise ALLOWS
HIRCP’s motion for summary judgment as to the adequacy of OIG’s and ICE’s searches. As to
the exemptions, the Court DENIES the Agencies’ motion as to Exemptions 6 and 7(C) as moot,
but ALLOWS it as to Exemption 7(E) and DENIES it as to Exemption 5. The Court ALLOWS
HIRCP’s motion as to Exemption 5 and DENIES it as to Exemption 7€. The Court ORDERS
counsel for the parties to meet and confer to agree on search terms and locations (except as to the
locations searched as to the CRCL portion of the OIG and CRCL FOIA request) to be searched
as to both OIG’s search and ICE’s search with a proposed time frame for completion of this
search. Such joint proposal should be filed by September 1, 2023. The Court also ORDERS
DHS to review the document withheld or redacted solely on the basis of Exemption 5, including
all expert reports, and either submit a revised Vaughn index by September 1, 2023, correcting the
deficiencies outlined above, or produce the documents unredacted to HIRCP and inform the
Court of its decision, also by September 1, 2023.
So Ordered.

/s/ Denise J. Casper
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10201275. Public record. Not legal advice.