# New Orleans Workers' Center for Racial Justice v. United States Immigration and Customs Enforcement

> District Court, District of Columbia · March 4, 2019

URL: https://www.frixlaw.com/law-library/cases/4373290

## Case

- **Court:** District Court, District of Columbia
- **Decided:** March 4, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Reggie B. Walton
- **Nature of suit:** Civil
- **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/4373290

## How later opinions describe it (automated extraction)

- rejecting as insufficient the agency’s claim that the “effectiveness [of techniques and procedures] could be reduced by disclosure”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
NEW ORLEANS WORKERS’ CENTER )
FOR RACIAL JUSTICE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 15-431 (RBW)
)
UNITED STATES IMMIGRATION & )
CUSTOMS ENFORCEMENT, )
)
Defendant. )
__________________________________________)

MEMORANDUM OPINION

The New Orleans Workers’ Center for Racial Justice and eleven individual plaintiffs

bring this civil action against the defendant, the United States Immigration & Customs

Enforcement (“ICE”), under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012),

seeking, inter alia, records related to ICE’s Criminal Alien Removal Initiative (“CARI”). See

Complaint (“Compl.”) ¶ 1. Currently pending before the Court are the parties’ cross-motions for

summary judgment. See generally Defendant’s Motion for Summary Judgment (“Def.’s Mot.”);

Plaintiffs’ Cross-Motion for Summary Judgment (“Pls.’ Cross-Mot.”). Upon careful

consideration of the parties’ submissions, 1 the Court concludes that it must deny the defendant’s

motion and grant in part and deny in part the plaintiffs’ cross-motion.

1
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Defendant’s Statement of Undisputed Material Facts (“Def.’s Facts”); (2) the Memorandum of Law
in Support of Defendant’s Motion for Summary Judgment (“Def.’s Mem.”); (3) the Declaration of Fernando Pineiro
in Support of the United States Immigration and Customs Enforcement Agency’s Motion for Summary Judgment
(“Pineiro Decl.”); (4) the Declaration of Paula Harrington in Support of the United States Immigration and
Enforcement Agency’s Motion for Summary Judgment (“Harrington Decl.”); (5) the Plaintiffs’ Memorandum in
Opposition to Defendant’s Motion for Summary Judgment and in Support of Plaintiffs’ Cross-Motion for Summary
Judgment (“Pls.’ Opp’n”); (6) the Plaintiffs’ Statement of Issues and Response to Defendant’s Statement of Material
(continued . . . )
I. BACKGROUND

The following facts are undisputed by the parties, unless otherwise indicated. “On

November 13, 2013, [the p]laintiffs submitted to [the d]efendant . . . [the] FOIA request” that is

the subject of this civil action (the “Request”). Def.’s Facts ¶ 1; see Pls.’ Facts ¶ 1. “The

[stated] purpose of the [R]equest [wa]s to obtain information for the public about . . . []CARI[]

and other ICE programs related to community enforcement[,] . . . includ[ing] information on

mobile fingerprint units and other technological tools at ICE’s disposal, and the collaboration

between ICE and local law enforcement in the planning and carrying out of immigration

enforcement actions.” Pineiro Decl., Ex. 1 (FOIA Request Re[:] CARI and New Orleans

Community Raids and Request for Expedited Review (“Request”)) at 1. 2 Specifically, the

Request sought records related to the following seven categories: (1) “the policies, procedures[,]

or objectives of CARI,” id., Ex. 1 (Request) at 8; (2) the “[s]cope of CARI,” id., Ex. 1 (Request)

at 9; (3) “[i]nformation on CARI [a]rrests,” id., Ex. 1 (Request) at 10; (4) “CARI’s [c]ost and

[f]iscal [i]mpact,” id., Ex. 1 (Request) at 12; (5) “communications related to CARI by, to, or

between” various government officials, id., Ex. 1 (Request) at 12; (6) “[a]ssessments of CARI,”

id., Ex. 1 (Request) at 13; and (7) “requests for prosecutorial discretion file[d] by individuals

arrested by CARI officers,” id., Ex. 1 (Request) at 13. Each of these seven categories sought

( . . . continued)
Facts (“Pls.’ Facts”); (7) the Defendant’s Reply in Support of Its Motion for Summary Judgment and Opposition to
Plaintiffs’ Cross-Motion for Summary Judgment (“Def.’s Reply”); (8) the Defendant’s Response to Plaintiffs’
Statement of Material Facts (“Def.’s Reply Facts”); (9) the Supplemental Declaration of Fernando Pineiro in
Support of the United States Immigration and Customs Enforcement Agency’s Motion for Summary Judgment
(“Supp. Pineiro Decl.”); (10) the Plaintiffs’ Reply Memorandum in Further Support of Plaintiffs’ Cross-Motion for
Summary Judgment (“Pls.’ Reply”); and (11) the Defendant’s Surreply to Plaintiffs’ Reply Memorandum (“Def.’s
Surreply”).
2
According to the plaintiffs, “CARI appear[ed] to be a new or expanded ICE enforcement program operated with
new mobile fingerprint technology and formal collaboration with local law enforcement officials,” Pineiro Decl.,
Ex. 1 (Request) at 6, which was “created . . . to increase the number of ICE . . . arrests,” Pls.’ Facts ¶ 20.

2
several subcategories of records. For example, under the third category regarding “[i]nformation

on CARI [a]rrests,” the Request sought, inter alia, “[a]ny and all records pertaining to the factual

basis for the initial stop, interrogation[,] and/or arrest of the” individual plaintiffs in this case,

“[a]ny and all records containing information related to any stops, interrogations, fingerprinting,

and/or arrests by ICE agents who work in whole or in part o[n] CARI teams,” and “[a]ll records

containing information related to [certain] arrest data for the past two years,” including the

“[t]otal number of ICE arrests per week in [ ] designated jurisdiction[s]” in New Orleans, the

“[t]otal number of ICE arrests per week related to CARI,” and the “[t]otal number of individuals

fingerprinted using ICE’s mobile fingerprinting units and/or other technological tools per week.”

Id., Ex. 1 (Request) at 10–11.

On November 26, 2013, the defendant sent a letter to the plaintiffs acknowledging receipt

of the plaintiffs’ Request. See id., Ex. 2 (Letter from Catrina M. Pavlik-Keenan, FOIA Officer,

to Jennifer Rosenbaum, New Orleans Workers’ Center for Racial Justice (Nov. 26, 2013)) at 1;

see also Pls.’ Facts ¶ 26; Def.’s Reply Facts ¶ 26. 3 According to the defendant, “upon receipt

and review of the Request, [it] determined that . . . there were two [ ] offices likely to have

records responsive to [the R]equest: [(1)] the [defendant’s] Office of Enforcement and Removal

Operations (‘ERO’)[] and [(2)] the [defendant’s] Office of the Principal Legal Advisor

(‘OPLA’).” Pineiro Decl. ¶ 25. Accordingly, the defendant “instructed those specific offices to

conduct a [ ] search for [responsive] records.” Id. In response, the ERO conducted searches of

its headquarters, its Secure Communities and Enforcement office, its Field Operations office, and

3
The plaintiffs sought expedited processing of their Request, see Pineiro Decl., Ex. 1 (Request) at 5, which the
defendant initially denied, see id., Ex. 2 (Letter from Catrina M. Pavlik-Keenan, FOIA Officer, to Jennifer
Rosenbaum, New Orleans Workers’ Center for Racial Justice (Nov. 26, 2013)) at 1. However, “on December 13,
2013, upon [the plaintiffs’] appeal, [the defendant] granted expedited processing of the [R]equest.” Pls.’ Facts ¶ 26;
Def.’s Reply Facts ¶ 26.

3
its New Orleans Field Office, see Harrington Decl. ¶ 8, which is one of its “[twenty-four] Field

Offices,” id. ¶ 6. However, “the Chief of [OPLA’s] Executive Communications Unit . . .

indicat[ed] that OPLA did not possess any [responsive] records, as OPLA did not have any

involvement in . . . []CARI[] matters.” Pineiro Decl. ¶ 30.

Approximately “[sixteen] months after [the p]laintiffs [ ] [filed their] Request . . . , [the

defendant] had not produced a[ny] . . . responsive document[s].” Pls.’ Facts ¶ 28; see Def.’s

Reply Facts ¶ 28. “As a result, on March 25, 2015, [the p]laintiffs filed their Complaint” in this

case. Pls.’ Facts ¶ 28; see Def.’s Reply Facts ¶ 28. According to the defendant, “[i]n response to

the filing of the [C]omplaint . . . , and upon [the defendant’s] litigation review, [the] ERO . . .

tasked [its twenty-three] remaining [ ] Field Offices to search for responsive document[s],”

Harrington Decl. ¶ 9, and the defendant also tasked its Office of Public Affairs, see Pineiro Decl.

¶ 31.

On May 7, 2015, the defendant “released its first production set to [the p]laintiffs.” Pls.’

Facts ¶ 30; see Def.’s Reply Facts ¶ 30. Thereafter, in June 2015, the plaintiffs sent a letter to

the defendant, see Pls.’ Facts ¶ 31; Def.’s Reply Facts ¶ 31, to which they attached various

appendices identifying, inter alia, “[d]atabases, [o]ffices[,] and [i]ndividuals’ [f]iles [that the

defendant should] [s]earch[],” Pls.’ Cross-Mot., Ex. 23 (Appendices to Counsel for Plaintiffs’

Correspondence with Counsel for ICE, June 22, 2015 (“June 2015 Appendices”)) at 6, as well as

“[s]earch [t]erms” that the defendant should use, id., Ex. 23 (June 2015 Appendices) at 8. In

September 2015, the plaintiffs “sent a similar letter to [the defendant] . . . , [again identifying]

search terms, offices and records custodians, and specific data sources” that they believed the

defendant should search. Pls.’ Facts ¶ 32; see Def.’s Reply Facts ¶ 32 (not disputing that the

“[p]laintiffs sent correspondence to ICE in September 2015” and stating that the correspondence

4
“speaks for itself”); Pls.’ Cross-Mot., Ex. 24 (Appendices to Counsel for Plaintiffs’

Correspondence with Counsel for ICE, September 2, 2015 (“September 2015 Appendices”)) at 2,

4.

“On June 18, 2015, the [defendant] made its second production of responsive material,”

Def.’s Facts ¶ 13; Pls.’ Facts ¶ 13, followed by five additional productions on July 16, August

18, September 17, October 15, and November 18, 2015, see Def.’s Facts ¶¶ 14–17; Pls.’ Facts

¶¶ 14–17. “In total, between May 7, 2015[,] and November 18, 2015, [the defendant] produced

3,680 pages of documents, as well as certain spreadsheets of data.” Pls.’ Facts ¶ 35; Def.’s

Reply Facts ¶ 35. Then, “[i]n February [ ] 2016, [the defendant] re[-]released 167 pages of

documents with several portions of the documents that were previously redacted now

unredacted,” and “[o]n March 10, 2016[,] it re[-]released four additional pages with fewer

redactions.” Pls.’ Facts ¶ 36; Def.’s Reply Facts ¶ 36. Following the defendant’s final

production, the parties filed their cross-motions for summary judgment, see Def.’s Mot. at 1;

Pls.’ Cross-Mot. at 1, which are the subject of this Memorandum Opinion.

II. STANDARD OF REVIEW

The Court must grant a motion for summary judgment “if 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). When ruling on a motion for summary judgment, the Court must

view the evidence in the light most favorable to the non-moving party. See Holcomb v. Powell,

433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,

150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving

party’s favor and accept the non-moving party’s evidence as true. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on “mere

5
allegations or denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson,

477 U.S. at 248). Thus, “[c]onclusory allegations unsupported by factual data will not create a

triable issue of fact.” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908 (D.C. Cir.

1999) (Garland, J., concurring) (alteration in original) (quoting Exxon Corp. v. FTC, 663 F.2d

120, 126–27 (D.C. Cir. 1980)). If the Court concludes that “the nonmoving party has failed to

make a sufficient showing on an essential element of [its] case with respect to which [it] has the

burden of proof,” then the moving party is entitled to summary judgment. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Thus, when “ruling on cross-motions for summary judgment,

the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to

judgment as a matter of law upon material facts that are not genuinely disputed.” Shays v. FEC,

424 F. Supp. 2d 100, 109 (D.D.C. 2006).

“FOIA cases typically are resolved on a motion for summary judgment.” Ortiz v. U.S.

Dep’t of Justice, 67 F. Supp. 3d 109, 116 (D.D.C. 2014). “FOIA requires federal agencies to

disclose, upon request, broad classes of agency records unless the records are covered by the

statute’s exemptions.” Students Against Genocide v. U.S. Dep’t of State, 257 F.3d 828, 833

(D.C. Cir. 2001). In a FOIA action, the defendant agency has “[the] burden of demonstrating

that the withheld documents are exempt from disclosure.” Boyd v. U.S. Dep’t of Justice, 475

F.3d 381, 385 (D.C. Cir. 2007) (citation omitted). The Court will grant summary judgment to

the government in a FOIA case only if the agency can prove “that it has fully discharged its

obligations under [ ] FOIA, after the underlying facts and the inferences to be drawn from them

are construed in the light most favorable to the FOIA requester.” Friends of Blackwater v. U.S.

Dep’t of Interior, 391 F. Supp. 2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep’t of

Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998)). Thus, in a lawsuit brought to compel the

6
production of documents under FOIA, “an agency is entitled to summary judgment if no material

facts are in dispute and if it demonstrates ‘that each document that falls within the class

requested either has been produced . . . or is wholly[, or partially,] exempt [from disclosure].’”

Students Against Genocide, 257 F.3d at 833 (omission in original) (quoting Goland v. CIA, 607

F.2d 339, 352 (D.C. Cir. 1978)). However, “[t]he burden upon the requester is merely ‘to

establish the absence of material factual issues before a summary disposition of the case could

permissibly occur.’” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C.

Cir. 1999) (quoting Nat’l Ass’n of Gov’t Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir.

1978)).

III. ANALYSIS

The plaintiffs challenge the defendant’s response to their Request for two main reasons.

First, they argue that the defendant’s searches for responsive records were inadequate because

the defendant failed to (1) “search its headquarters and at least five essential component[]

[offices],” Pls.’ Opp’n at 9; (2) “search critical types of record storage systems where responsive

information is stored,” id. at 5; (3) “generate reasonable and obvious search terms related to [the

p]laintiffs’ Request,” id.; and (4) “search adequately for several categories of clearly responsive

records,” id. Second, the plaintiffs argue that the defendant “improperly applied exemptions

under 5 U.S.C. § 552(b)(5), (6), 7(C), and 7(E)” as the basis for withholding responsive records.

Id. at 24. The Court will address each of the plaintiffs’ challenges in turn.

A. The Adequacy of the Defendant’s Searches

“The adequacy of an agency’s search is measured by a standard of reasonableness[] and

is dependent upon the circumstances of the case.” Truitt v. U.S. Dep’t of State, 897 F.2d 540,

542 (D.C. Cir. 1990) (internal quotation marks omitted). To satisfy its burden to show that no

7
genuine issue of material fact exists as to the adequacy of its search, the agency must show that

each agency component “has conducted a search reasonably calculated to uncover all relevant

documents.” Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (quoting

Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). “[T]he agency may

meet its burden by providing ‘a reasonably detailed affidavit, setting forth the search terms and

the type of search performed, and averring that all files likely to contain responsive materials . . .

were searched.’” Iturralde v. Comptroller of Currency, 315 F.3d 311, 313–14 (D.C. Cir. 2003).

“The plaintiff may then provide ‘countervailing evidence’ as to the adequacy of the agency’s

search.” Id. at 314 (quoting Founding Church of Scientology of Wash., D.C., Inc. v. Nat’l Sec.

Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)). The question a court must answer in considering

the adequacy of an agency’s search is “not whether other responsive documents may exist, but

whether the search itself was adequate.” Moore v. Bush, 601 F. Supp. 2d 6, 13 (D.D.C. 2009)

(citing Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)). However, “if the

‘record leaves substantial doubt as to the sufficiency of the search, summary judgment for the

agency is not proper.’” Beltranena v. Clinton, 770 F. Supp. 2d 175, 183 (D.D.C. 2011) (quoting

Truitt, 897 F.2d at 542).

The Court must first address the defendant’s argument that its searches were adequate as

a general matter because the “[p]laintiffs’ [R]equest failed to ‘reasonably describe’ the records

sought.” Def.’s Mem. at 6. Specifically, the defendant argues that the Request was “overly

broad” and could be construed to seek “an extremely voluminous set of records, virtually none of

which would have any connection to CARI,” id. at 6–7, and, “[i]n the context of such a broad

request, it is within an agency’s discretion to structure a search that is likely to uncover

responsive documents without resulting in an unduly burdensome search,” Def.’s Reply at 4.

8
Accordingly, the defendant argues that it “properly undertook searches based on its own

reasonable interpretation of the scope of the . . . [R]equest.” Def.’s Mem. at 7. The plaintiffs

respond that the defendant’s “failure to adhere to its own regulation requiring collaboration with

[the p]laintiffs to remedy any issues with the Request forecloses th[e defendant’s] argument,”

and, in any event, the “[p]laintiffs’ Request reasonably described the records sought.” Pls.’

Opp’n at 20.

As an initial matter, the defendant is correct that a FOIA request must “reasonably

describe[]” the records sought by a requester, 5 U.S.C. § 552(a)(3)(A), and the Court agrees with

the defendant that the plaintiffs’ Request, at least in some respects, falls short of this standard.

“The linchpin inquiry” when evaluating whether a request reasonably describes the records

sought is “whether the agency is able to determine precisely what records (are) being requested.”

Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982) (internal quotation marks omitted). Here, as

the defendant notes, see Def.’s Mem. at 7, the Request broadly defines the term “CARI,” a term

used throughout its Request, to include not only its Criminal Alien Removal Initiative, but also

“ICE programs related to community enforcement which use[] mobile fingerprint units and other

technological tools, and/or the collaboration between ICE and local law enforcement in the

planning and carrying out of the enforcement actions,” Pineiro Decl., Ex. 1 (Request) at 7.

However, the Request fails to identify the non-CARI-specific “ICE programs” that it targets or

define key terms such as “community enforcement,” “technological tools,” or “the enforcement

actions,” see generally id., Ex. 1 (Request), thus “leaving unanswered how broadly [the plaintiffs

thought] an objective agency professional should construe th[ose] terms,” Freedom Watch, Inc.

v. U.S. Dep’t of State, 925 F. Supp. 2d 55, 62 (D.D.C. 2013). 4 Moreover, numerous

4
Although another portion of the Request suggests that “community enforcement” encompasses “homes, driveways,
(continued . . . )

9
subcategories of requested records seek “[a]ny and all” records “related to” or “pertaining to”

broad subjects, including “the policies, procedures[,] or objectives of CARI,” “CARI teams,” and

CARI “enforcement actions,” Pineiro Decl, Ex. 1 (Request) at 8, 10–11; see, e.g., id., Ex. 1

(Request) at 8 (seeking “[a]ny and all Records, received, maintained, or created by any

government agency or subdivision, related to the policies, procedures[,] or objectives of CARI”

(emphases added)), which is a formulation that other members of this Court have consistently

found to be “insufficiently precise,” Freedom Watch, Inc., 925 F. Supp. 2d at 61 (observing that

requests seeking “all” documents “related to” a particular topic are “subject to criticism as

overbroad since life, like law, is ‘a seamless web,’ and all documents ‘relate’ to all others in

some remote fashion” (citation omitted)); see Sack v. CIA, 53 F. Supp. 3d 154, 164 (D.D.C.

2014) (observing that requests seeking all documents “pertaining to” a particular topic “lack [ ]

clarity [and] leave[] the agency to guess at the plaintiff’s intent” because “a record may pertain to

something without specifically mentioning it”).

However, the Court cannot conclude for several reasons that the Request’s shortcomings

justify the scope of the search conducted by the defendant in this case. First, as the plaintiffs

correctly note, see Pls.’ Opp’n at 20, the defendant failed to timely notify them of any perceived

deficiencies in their Request in violation of the defendant’s own FOIA regulations in effect at the

time. Those regulations required the defendant, upon

determin[ing] that [a] request does not reasonably describe records, . . . [to] tell [the
requester] either what additional information is needed or why [the] request is
otherwise insufficient[, and] . . . also [ ] give [the requester] an opportunity to
discuss [the] request so that [the requester] may modify it to meet [such]
requirements.

( . . . continued)
supermarkets, laundromats, and other spaces of day-to-day life,” Pineiro Decl., Ex. 1 (Request) at 2, this list of
locations is not exhaustive and it is not clear “how broadly [the plaintiffs thought] an objective agency professional
should construe the term[]” “other spaces of day-to-day life,” Freedom Watch, Inc., 925 F. Supp. 2d at 62.

10
6 C.F.R. § 5.3(b) (2015). 5 Here, it is undisputed that the defendant did not notify the plaintiffs at

any point prior to the filing of this action that it believed the Request failed to reasonably

describe the records sought or give the plaintiffs an opportunity to address such perceived

failures, see Pls.’ Facts ¶ 27 (“Between the filing of . . . [the] Request and their Complaint, . . .

ICE did not assert that the [ ] Request was overly broad, burdensome, or otherwise deficient.”);

Def.’s Reply Facts ¶ 27, 6 and the Court has been unable to locate any evidence in the record

demonstrating that the defendant provided such notice and opportunity at any point prior to filing

its motion for summary judgment. Thus, given the defendant’s failure to follow its own

administrative process, the Court cannot conclude that any failure by the plaintiffs to reasonably

describe the records sought supports the defendant’s position that it is entitled to summary

judgment as to the adequacy of its search. See Ruotolo v. U.S. Dep’t of Justice, Tax Div., 53

F.3d 4, 10–11 (2d Cir. 1995) (denying summary judgment to an agency on the basis that the

plaintiffs’ request failed to “reasonably describe” the records sought in part because the agency’s

5
The Court notes that 6 C.F.R. § 5.3(b) has since been amended to state that if the defendant “determines that [a
request] does not reasonably describe the records sought, . . . [it] should inform the requester what additional
information is needed or why the request is otherwise insufficient.” 6 C.F.R. § 5.3(b) (2017) (emphasis added).
However, even if the amended version of the regulation applied here, it appears that the defendant failed to comply
with it as well, as the amended regulation only permits the defendant, upon determining that “a request does not
adequately describe the records sought,” to “administratively close the request or seek additional information from
the requester,” id. § 5.3(c), but does not authorize the defendant to proceed based on its own interpretation of a
request as it did here.
6
The defendant represents that it “attempted to work with [the p]laintiffs to narrow and better articulate the FOIA
request, but such attempts were unavailing.” Def.’s Mem. at 7 n.2 (citing Harrington Decl. ¶ 13–32). However, the
portions of its affidavit that it cites for this proposition only refer to the plaintiffs’ post-litigation correspondence to
the defendant regarding locations it believed should be searched and search terms it believed should be used, see
Harrington Decl. ¶ 13–32, which appears to have gone unanswered by the defendant, see id. (responding to the
claims raised in the plaintiffs’ correspondence, but not asserting that it ever previously answered the plaintiffs’
correspondence). The defendant also notes that “[o]n November 26, 2013, [it] notified [the p]laintiffs that their
request ‘seeks numerous documents that will necessitate a thorough and wide-ranging search,’ and asked them to
please contact ICE if they ‘care to narrow the scope of [their] request.’” Def.’s Reply Facts ¶ 27. However, as the
defendant appears to concede, see id., this boilerplate language does not amount to “inform[ing] the requester what
additional information is needed or why the request is otherwise insufficient,” 6 C.F.R. § 5.3(b) (2015). Thus, the
defendant has failed to demonstrate that it complied with its obligations under § 5.3(b).

11
FOIA regulations imposed on the agency a “duty . . . to assist the [requesters] in reformulating

their request if it [ ] thought that the request needed to be narrowed,” but it “made no effort” to

do so).

Even assuming that it was proper for the defendant to structure its search based on its

“own reasonable interpretation of the . . . [R]equest,” Def.’s Mem. at 7, rather than notifying the

plaintiffs of the Request’s deficiencies and giving the plaintiffs an opportunity to modify it, the

Court cannot conclude that the defendant’s interpretation of the Request was reasonable. As this

Circuit has instructed, even when a request is “not a model of clarity,” an agency must “‘construe

[the] request liberally,’” particularly when a “request is reasonably susceptible to a broader

reading.” LaCedra v. Exec. Office for U.S. Att’ys, 317 F.3d 345, 348 (D.C. Cir. 2003) (quoting

Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). The defendant

appears to have ignored this instruction, as it has narrowly interpreted the Request as seeking

only records related to CARI, see Harrington Decl. ¶ 13 (asserting that the search terms “‘CARI’

and ‘Criminal Alien Removal Initiative’ were reasonably likely to uncover all relevant records

responsive to a reasonable interpretation of [the p]laintiffs’ . . . [R]equest[] . . . because every

topic [in the Request] is connected to CARI”), even though various subcategories of requested

records plainly seek records that reach beyond the objectives of CARI, see, e.g., Pineiro Decl.,

Ex. 1 (Request) at 11 (requesting the “[t]otal number of ICE arrests per week in [ ] designated

jurisdiction[s]” in New Orleans, the “[t]otal number of individuals fingerprinted using ICE’s

mobile fingerprinting units and/or other technological tools per week,” and the “[r]ace or

ethnicity of each individual arrested and/or fingerprinted” in those categories); id., Ex. 1

(Request) at 8 (seeking “records . . . related to training, briefing, guidance, procedures, rules, or

other informational materials developed for local [law enforcement agencies] or other state or

12
local entities”). Thus, the defendant’s interpretation of the Request as excluding the non-CARI-

specific information requested is plainly inconsistent with its obligation to “construe a FOIA

request liberally.” LaCedra, 317 F.3d at 348 (quoting Nation Magazine, 71 F.3d at 890); see

Leopold v. U.S. Dep’t of Justice, 130 F. Supp. 3d 32, 43–44 (D.D.C. 2015) (rejecting an

agency’s “limited” interpretation of a term used in the plaintiff’s Request because “[t]he natural

meaning of the term . . . encompasse[d] more”). And, in any event, for the reasons explained in

Part III.A.1–5 of this Memorandum Opinion, infra, the defendant failed to conduct an adequate

search based on even its narrow interpretation of the Request.

Moreover, the defendant appears to have resolved any issues presented by the specific

deficiencies it identifies in the plaintiffs’ Request. For example, despite the defendant’s position

that the Request’s definition of the term “CARI” could be construed to seek “voluminous . . .

records, virtually none of which would have any connection to CARI,” Def.’s Mem. at 7, the

defendant appears to have determined that the term “CARI” should be interpreted to only refer to

the Criminal Alien Removal Initiative itself, and not any other programs or topics, see, e.g.,

Def.’s Mem. at 13 (arguing that the search terms “‘CARI’ and ‘Criminal Alien Removal

Initiative[’] were reasonably likely to uncover all relevant records responsive to a reasonable

interpretation of . . . [the R]equest”), which is an interpretation that the plaintiffs do not appear to

dispute, see Pls.’ Opp’n at 22 (arguing that the defendant’s “criticism of th[e R]equest as ‘far too

broad’ is unfounded[] [because the p]laintffs’ language sufficiently specified and described

records of a particular program” (emphasis added)); see also id. at 23 (arguing that the “Request

adequately described records sought and obviously focused on a particular enforcement

initiative” (emphasis added)). Additionally, although the defendant argues that the plaintiffs’

request for “[a]ny and all Records . . . related to the . . . objectives of CARI,” Pineiro Decl., Ex. 1

13
(Request) at 8, could be construed to “seek[] . . . every record maintained at ICE that is ‘related

to’ the enforcement of federal immigration laws,” Def.’s Mem. at 7 (emphasis omitted), the

defendant appears to have wisely concluded that the Request does not sweep so broadly, as it

does not represent that it searched for “every record . . . ‘related to’ the enforcement of federal

immigration laws,” see id. (emphasis omitted).

Finally, to the extent that the defendant asserts that supplementing its search as requested

by the plaintiffs would be “unduly burdensome,” Def.’s Reply at 4, it has failed to adequately

support such a claim. Although the defendant is correct that “an agency need not honor a FOIA

request that requires it to conduct an unduly burdensome search,” id. at 5 (internal quotation

marks and citation omitted), “the burden falls on the agency to ‘provide sufficient explanation as

to why [ ] a search would be unreasonably burdensome,’” Hainey v. U.S. Dep’t of the Interior,

925 F. Supp. 2d 34, 45 (D.D.C. 2013) (quoting Nation Magazine, 71 F.3d at 892), and “[c]ourts

typically demand ‘a detailed explanation by the agency regarding the time and expense of a

proposed search in order to assess its reasonableness,’” Shapiro v. CIA, 170 F. Supp. 3d 147, 156

(D.D.C. 2016) (citation omitted). Here, the defendant’s generic claims that the plaintiffs’

Request is “overly broad,” Def.’s Mem. at 6, and “vague,” id. at 13, are plainly insufficient to

satisfy this burden, see Hall v. CIA, 881 F. Supp. 2d 38, 53 (D.D.C. 2012) (“This Court will not

find a search unduly burdensome on conclusory statements alone.”). And, although the

defendant has provided more detail regarding the alleged burden of searching for the CARI-

related arrest data requested by the plaintiffs, see Harrington Decl. ¶ 32 (asserting that “[i]n order

to determine the universe of arrests related to CARI, . . . ICE would have to manually review

14
over 230,000 A-files, for FY2013 alone”), for the reasons explained in Part III.A.2.a of this

Memorandum Opinion, infra, those claims fail to satisfy its burden, as well. 7

Thus, the Court concludes that summary judgment for the defendant is not warranted due

to the deficiencies in the plaintiffs’ Request. Having rejected the defendant’s arguments on this

issue, the Court next turns to the plaintiffs’ specific challenges to the adequacy of the defendant’s

search.

1. Offices Searched

The plaintiffs argue that the defendant “[u]nreasonably [l]imited its [s]earch to [t]wo

[c]omponent [o]ffices.” Pls.’ Opp’n at 8. Specifically, they argue that the defendant should have

“search[ed] its headquarters and . . . essential [agency] components whose involvement in CARI

has been confirmed by records [the defendant] produced and whose missions are closely related

to the clear themes in [the] Request,” id. at 9, namely, the offices of the defendant’s Director,

Deputy Director, Chief of Staff and Executive Secretariat, Assistant Deputy Director, and

Management and Administration (the “headquarters offices”), the OPLA, the Homeland Security

Investigations (“HSI”) department, the Office of Firearms and Tactical Programs/National

Firearms and Tactical Training Unit, the Office of Congressional Relations (the “OCR”), the

Office of the Chief Financial Officer (the “OCFO”), id. at 9–10, and the Office of State, Local,

7
The defendant implies in a footnote that the plaintiffs’ “failure to reasonably describe the records sought [i]s a
failure to exhaust administrative remedies.” Def.’s Mem. at 4 n.1. However, assuming for the sake of argument that
the defendant is correct, the Court declines to find that any failure to exhaust administrative remedies in this regard
would bar judicial review of the plaintiffs’ claims. As this Circuit has held, “[b]ecause a FOIA requester’s failure to
exhaust administrative remedies ‘is not [a] jurisdictional’ bar to review, it is within [a court’s] discretion to entertain
[a requester’s] arguments[] . . . [where,] in the specific circumstances of [a] case, the purposes of the exhaustion
doctrine would not be served by declining to hear [the requester’s] claim.” Nat’l Sec. Counselors v. U.S. Dep’t of
Justice, 848 F.3d 467, 470 (D.C. Cir. 2017) (quoting Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003)). Here,
given that the defendant processed the plaintiffs’ Request based on its own interpretation of the Request, and at no
time objected to the Request as inadequate, the Court finds that “the purposes of the exhaustion doctrine would not
be served by declining to hear [the plaintiffs’] claim[s].” Id.; see id. at 470–71 (identifying the purposes of
administrative exhaustion as “enabling the agency to ‘function efficiently’ and to ‘have an opportunity to correct its
own errors,’ ‘afford[ing] the parties and the courts the benefit of its experience and expertise,’ and ‘compil[ing] a
record which is adequate for judicial review’” (quoting Weinberger v. Salfi, 422 U.S. 749, 765 (1975)).

15
and Tribal Coordination, id. at 18. The defendant responds that it was not “obligated to search”

these offices because they “had nothing to do with CARI, so [they] would be unlikely to have

responsive records.” Def.’s Mem. at 10; see Def.’s Reply at 10–11 (“[T]he offices listed by [the

p]laintiffs did not implement [CARI] or have any association with it[.]”).

Although there is “no requirement that an agency search every division or field office . . .

in response to a FOIA Request,” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.

1990) (citing Marks v. U.S. Dep’t of Justice, 578 F.2d 261, 263 (9th Cir. 1978)), “[i]t is well-

settled that if an agency has reason to know that certain places may contain responsive

documents, it is obligated under FOIA to search [those places] barring an undue burden,”

Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 327 (D.C. Cir. 1999). And, even if an

agency “start[s] with [a] reasonable assumption that only . . . [certain search locations] would be

necessary,” “it must revise its assessment of what is ‘reasonable’ in a particular case to account

for leads that emerge during its inquiry.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28

(D.C. Cir. 1998).

Here, the Court cannot conclude that the offices searched by the defendant were adequate

for at least two reasons. First, the defendant has failed to “aver[] that all locations likely to

contain responsive records were searched.” Powell v. IRS, 280 F. Supp. 3d 155, 162 (D.D.C.

2017); see Iturralde, 315 F.3d at 313–14. Rather, the defendant asserts only that it identified

“[three] offices likely to have [responsive] records” and “instructed those [ ] offices to conduct a

comprehensive search for [responsive] records.” Pineiro Decl. ¶ 25; see id. ¶ 26. However,

these statements “fail[] to invoke ‘the magic words’ concerning the adequacy of the search—

namely, the assertion that [the agency] searched all locations likely to contain responsive

16
documents,” Huntington v. U.S. Dep’t of Commerce, 234 F. Supp. 3d 94, 103 (D.D.C. 2017),

and, thus, preclude summary judgment for the defendant, see id. at 104.

Additionally, the plaintiffs have identified countervailing evidence undermining the

defendant’s claim that the offices it chose not to search were “not likely to have responsive

records,” Harrington Decl. ¶ 28, because “these offices had nothing to with CARI,” Def.’s Reply

Facts ¶ 44. Specifically, the plaintiffs have identified evidence demonstrating that the defendant

“ha[d] reason to know” that at least six other offices may possess responsive documents.

Valencia-Lucena, 180 F.3d at 327. As to OPLA, the defendant itself initially identified OPLA as

one of “two [ ] offices likely to have records responsive to [the p]laintiffs’ Request.” Pineiro

Decl. ¶ 25. Although it later determined that a “search [of OPLA] would not be reasonably

calculated to uncover any relevant documents” because “the Chief of [OPLA’s] Executive

Communications Unit [ ] . . . indicat[ed] that OPLA did not possess any [responsive] records, as

OPLA did not have any involvement in . . . []CARI[] matters,” id. ¶ 30, the Chief’s “bare

assertion that . . . [OPLA] had no responsive documents is inadequate because it does not

indicate that he performed any search at all,” Defs. of Wildlife v. U.S. Dep’t of Agric., 311 F.

Supp. 2d 44, 55 (D.D.C. 2004) (concluding that “the Deputy Under Secretary’s conclusory

denial that he did not possess any responsive documents d[id] not ‘demonstrate beyond material

doubt that [the agency’s] search was reasonably calculated to uncover all relevant documents’”

(quoting Nation Magazine, 71 F.3d at 890)); see Valencia-Lucena, 180 F.3d at 327 (the agency’s

“failure to search [a location] where the requested documents might be located clearly raises a

genuine issue of material fact as to the adequacy of the search”). Moreover, documents

produced by the defendant contradict the Chief’s representation that “OPLA did not have any

involvement in . . . []CARI[] matters.” Pineiro Decl. ¶ 30; see, e.g., Pls.’ Cross-Mot., Ex. 13

17
(Examples of Records Indicating ICE’s Office of the Principal Legal Advisor’s Involvement in

CARI) at Bates No. 3138 (email stating that “[c]oordination with OPLA [wa]s essential” to an

operation requiring “[f]ield [o]ffices . . . to identify [fifty] targets for each Fugitive

Operation/CARI Team” (emphasis added)).

As to the defendant’s headquarters offices, records produced by the defendant

demonstrate that at least one headquarters component, then-Director John Morton’s office,

oversaw and managed the development of an operational plan for CARI. See Pls.’ Cross-Mot.,

Ex. 8 (Examples of Records ICE Produced Evidencing a Quota System and Close Attention to

Numbers of CARI Arrests (“Quota Documents”)) at Bates No. 2853 (email with subject line

referring to the “Criminal Removals Enforcement Initiative” and stating that “the criminal

enforcement operations plan [ ] was briefed to Director Morton,” who requested that the plan be

“updated to include [additional] information”). Moreover, given other evidence demonstrating

that CARI is a nationwide initiative involving the ERO’s twenty-four field offices, see, e.g.,

Harrington Decl. ¶ 6 (representing that the “ERO’s mission is carried out nationwide by [twenty-

four] ERO Field Offices”); Pls.’ Cross-Mot, Am. Ex. 17 (Exemption 5 Withholdings Challenged

by Plaintiffs (“Exemption 5 Withholdings”)) at Bates No. 2682 (email instructing Field Office

Directors to “complete [their] annex to the [CARI] Operational Plan”), the Court agrees with the

plaintiffs that “[i]t strains credulity for [the defendant] to assert that [the] ERO could

implement . . . [CARI] without any involvement whatsoever of any ICE [h]eadquarters office,”

Pls.’ Opp’n at 10; see Defs. of Wildlife v. U.S. Dep’t of Interior, 314 F. Supp. 2d 1, 13 (D.D.C.

2004) (concluding that “it would strain credulity to find that the [agency] did not know that [its]

Office of the Inspector General . . . would be [a] likely repositor[y] of responsive records” in

18
light of “the high-profile nature of the[] ethics concerns” targeted by the request and “the fact

that the [office’s] mission is to investigate such alleged ethics violations”).

The plaintiffs have also identified evidence demonstrating that responsive records are

likely to be possessed by the OCFO, 8 the HSI, 9 the Office of Firearms and Tactical

Programs/National Firearms and Tactical Training Unit, 10 and the OCR. 11 However, as to the

remaining office identified by the plaintiffs in their summary judgment briefing, the Office of

State, Local, and Tribal Coordination, the plaintiffs’ belief that this office is likely to possess

responsive records appears to be merely speculative. See Pls.’ Opp’n at 18 (relying only on that

office’s general mission statement to argue that the defendant should have searched that office

8
As to the OCFO, the plaintiffs have identified evidence demonstrating, for example, that the defendant’s FOIA
office believed in 2014 that the OCFO was likely to possess “financial records related in whole or in part to . . .
[]CARI,” Pls.’ Cross-Mot., Am. Ex. 19 (Withholdings Under Exemptions 6 and 7(C) Challenged by the Plaintiffs) at
Bates No. 3638 (email from the defendant’s FOIA office “task[ing]” the “CFO” to search for, inter alia, “financial
records related in whole or in part to . . . []CARI[]”), which are records likely to be responsive to the plaintiffs’
request for records related to “CARI’s [c]ost and [f]iscal [i]mpact,” including “[r]ecords related to actual, estimated,
or projected costs of the CARI program to the federal government,” Pineiro Decl., Ex. 1 (Request) at 12.
9
As to the HSI, the plaintiffs have identified evidence suggesting that CARI officers coordinated with HSI
personnel on CARI operations, see Pls.’ Cross-Mot., Ex. 14 (Examples of Records Indicating Homeland Security
Investigations’ Involvement in CARI) at Bates No. 2958 (email from the Deputy Field Office Director of the Boston
Field Office inquiring about “the topic of sharing leads with [the] HSI with regard to CARI” and stating that “HQ
would like us to share leads with HSI with the goal of arresting and removing more criminal aliens”), which
suggests that the HSI is likely to possess documents responsive to the plaintiffs’ request for, inter alia, “[r]ecords
containing information related to . . . arrests by ICE agents who work in whole or in part o[n] CARI teams,” Pineiro
Decl., Ex. 1 (Request) at 11.
10
As to the Office of Firearms and Tactical Programs/National Firearms and Tactical Training Unit, the plaintiffs
have identified documents demonstrating that this component provided training for CARI officers, see Pls.’ Cross-
Mot., Ex. 11 (Examples of Training Materials in ICE’s Possession but Not Produced) at Bates Nos. 58–59 (emails
reflecting plans for persons on the “CARI roster” to participate in training “taught by the National Firearms and
Tactical Training Unit”), which suggests that this office would likely possess documents responsive to the plaintiffs’
Request for “information related to training administered or received by ICE agents . . . related to CARI,” Pineiro
Decl., Ex. 1 (Request) at 10.
11
As to the OCR, the plaintiffs have identified documents demonstrating the OCR’s involvement in requests for
prosecutorial discretion submitted on behalf of detained individuals, see, e.g., Pls.’ Cross-Mot., Ex. 12 (Examples of
Records Indicating the Office of Congressional Relations’ Involvement in CARI) at Bates No. 99 (email from the
“ERO Liaison/Office of Congressional Relations” regarding the status of the defendant’s review of the denial of a
request for prosecutorial discretion for an individual detained in connection with the New Orleans Field Office),
which implicates the plaintiffs’ request for “information on ICE’s review and decision on requests for prosecutorial
discretion file[d] by individuals arrested by CARI officers participating in a CARI team enforcement action in a
designated CARI jurisdiction,” Pineiro Decl., Ex. 1 (Request) at 13.

19
for responsive records). Thus, the Court cannot conclude that the defendant’s failure to search

this office was unreasonable. See Nolen v. U.S. Dep’t of Justice, 146 F. Supp. 3d 89, 98–99

(D.D.C. 2015) (rejecting the plaintiffs’ argument that the FBI should have searched its field

offices because the “[p]laintiff [ ] offered no evidence, only speculation, that the . . . field offices

would possess [responsive] records”). 12

In sum, the plaintiffs have identified evidence demonstrating that the defendant failed to

search at least six of its offices likely to possess responsive records. The defendant makes no

meaningful response to the plaintiffs’ evidence, other than inexplicably asserting that the

evidence is “not relevant to the question of whether [it] . . . conduct[ed] adequate searches.” See,

e.g., Def.’s Reply Facts ¶ 49. Moreover, “the record[] [ ] contains no evidence that [the

defendant] limited its search [to exclude these offices] based on ascertained facts about” the

offices’ involvement in CARI. Leopold, 130 F. Supp. 3d at 44; see Def.’s Reply Facts ¶¶ 43–44

(asserting only that “ICE FOIA tasked” offices with searches based on its “knowledge of ICE

operations”); id. ¶ 53 (suggesting that it did not search the HSI because “CARI was [not] created

and implemented within” it). Thus, the Court must conclude based on the record before it that

the defendant’s exclusion of these six offices from its search was unreasonable. See Valencia-

Lucena, 180 F.3d at 327 (concluding that “summary judgment for the [agency] was

inappropriate” because the agency “provid[ed] no explanation for why it did not search . . . [a]

facility” likely to possess responsive records).

12
The Court also cannot conclude that genuine issues of material fact exist regarding the defendant’s failure to
search the additional offices and custodians identified in the plaintiffs’ June and September 2015 correspondence to
the defendant, see, e.g., Pls.’ Cross-Mot., Ex. 24 (September 2015 Appendices) at 6–7, as the plaintiffs have not
identified any evidence to demonstrate that these offices and custodians are likely to possess responsive records, see
generally Pls.’ Facts (identifying evidence only for the offices already addressed); Pls.’ Opp’n (same); see Nolen,
146 F. Supp. 3d at 98–99.

20
2. Record Storage Systems Searched

The plaintiffs argue that the defendant’s search of its record storage systems was

inadequate because (1) it “failed to search databases that the record confirms exist and are

searchable for CARI-related records,” (2) its “searches of most other types of record[] storage

systems, including [email accounts], hard drives and servers, paper files, USBs, and DVDs were

either inadequate or nonexistent,” and (3) it “omitt[ed] attachments to many emails from its

production to [the p]laintiffs.” Pls.’ Opp’n at 11. The Court will address each of the plaintiffs’

arguments in turn.

a. Databases

The plaintiffs argue that the defendant failed to search a number of “databases likely to

contain [requested data], namely, EARM, EADM, ATD, GEMS, and IDENT,” Pls.’ Facts ¶ 31,

and that it notified the defendant of this fact in its June and September correspondence, id.

¶¶ 31–32. The plaintiffs further argue that the defendant “has produced records showing . . .

[that these] databases contain[] information on CARI arrests[] . . . [and] that a search of the

database[s for that information] was possible,” Pls.’ Opp’n at 12 (internal citations omitted);

however, “[o]ut of the 160 ICE custodians tasked with [a] search, only four ICE custodians

searched any databases at all,” Pls.’ Facts ¶ 60, and those four “searched only the EARM

database and no other databases,” id. ¶ 61. The defendant responds that it instructed “specific

individuals and component offices to conduct searches of their file systems, . . . which in their

judgment, based on their knowledge of the manner in which they routinely keep records, would

be reasonably likely to have responsive records.” Def.’s Reply at 11. With respect to data on

CARI arrests, it asserts that it “did not track electronically whether an arrest related to the CARI

program, but if noted at all, it would have been a manual note in [a] physical file or a note in [an]

21
electronic file in a comments or notes section (which is not searchable for reporting purposes),”

and thus, “[i]n order to determine the universe of arrests related to CARI, every individual arrest

record would need to be manually reviewed to determine if that arrest was part of the CARI

program.” Harrington Decl. ¶ 32. It further responds that “[a]ny statistics regarding CARI

arrests that the agency kept and produced were aggregate numbers kept and reported

contemporaneously with the CARI program only and not linked to any individual cases

electronically for historical purposes.” Id. ¶ 30.

Notably, the defendant does not dispute that its databases or electronic systems contain

responsive data on CARI arrests, but instead argues that it would be unreasonably burdensome to

search them for such data. Specifically, it argues that it “did not track electronically whether an

arrest related to the CARI program,” and, thus, “[i]n order to determine the universe of arrests

related to CARI, . . . [it] would have to manually review over 230,000 A-files, for FY2013

alone.” Harrington Decl. ¶ 32. However, these assertions fail to satisfy the defendant’s burden

to “provide sufficient explanation as to why [ ] a search would be unreasonably burdensome,”

Hainey, 925 F. Supp. 2d at 45 (quoting Nation Magazine, 71 F.3d at 892), which typically

requires “a detailed explanation by the agency regarding the time and expense of a proposed

search,” Wolf v. CIA, 569 F. Supp. 2d 1, 9 (D.D.C. 2008). First, the defendant has failed to

identify the specific electronic files or systems to which it is referring or describe in any detail

what information they contain and how that information is stored and retrieved. Thus, the Court

lacks sufficient information to assess the defendant’s claim that a search for these records would

require an unreasonably burdensome manual search. See Church of Scientology of Calif. v. IRS,

792 F.2d 146, 151 (D.C. Cir. 1986) (instructing that agencies must provide “an affidavit reciting

facts which enable the [ ] Court to satisfy itself that all appropriate files have been searched, i.e.,

22
that further searches would be unreasonably burdensome[,] [and s]uch an affidavit would

presumably identify the searched files and describe at least generally the structure of the

agency’s file system which makes further search difficult”). Additionally, the defendant has

failed to provide the Court with an estimate of the time or cost required for a manual search or

the total number of files that would need to be searched. See Harrington Decl. ¶ 32 (providing

only the number of files that would need to be reviewed for “FY2013”); see also Pinson v. U.S.

Dep’t of Justice, 80 F. Supp. 3d 211, 217 (D.D.C. 2015) (Pinson I) (rejecting as insufficient the

agency’s “state[ment] that all Civil Division files would need to be searched” without any

“estimate of the time required to conduct [the] requested search, the cost of such a search, or the

number of files that would have to be manually searched”). Such omissions by the defendant fail

to demonstrate that the search would be unduly burdensome. See Shapiro, 170 F. Supp. 3d at

156 (“Courts typically demand ‘a detailed explanation by the agency regarding the time and

expense of a proposed search in order to assess its reasonableness.’” (quoting Wolf, 569 F. Supp.

2d at 9)).

On the other hand, the plaintiffs have identified countervailing evidence undermining the

defendant’s blanket claim that it “did not track electronically whether an arrest related to the

CARI program.” Harrington Decl. ¶ 32. For example, emails produced by the defendant

demonstrate that at least two of the defendant’s electronic systems contained “CARI drop

downs” used to track certain CARI activities, which would be utilized by certain teams. See

Pls.’ Cross-Mot., Ex. 10 (CARI Tracking Documents) at Bates No. 1601 (“There have been drop

downs added in ENFORCE and FCMS to accommodate CARI activity[,] . . . [which] will [ ] be

utilized when a detailed CARI officer assists in the lead cultivation and arrest of a detainee.”);

id., Ex. 10 (CARI Tracking Documents) at Bates No. 590 (explaining that certain “teams” would

23
track CARI arrests using a “drop down for CARI in FCMS”). Additionally, other emails

produced by the defendant suggest that other codes, not necessarily specific to CARI, could be

used to identify CARI-related data. See id., Ex. 10 (CARI Tracking Documents) at Bates No.

813 (June 26, 2012 email stating that “[a]nything and everything Fugitive Operations . . . is

doing right now is considered CARI”); id., Ex. 10 (CARI Tracking Documents) at Bates No. 590

(providing “fields” specific to “Fugitive Operations” used in “EABM”). And, at least one

document demonstrates that the defendant kept “[a] spreadsheet . . . on CARI” that permitted it

to calculate “total . . . [CARI] arrests.” Id., Ex. 10 (CARI Tracking Documents) at Bates No.

3236. Finally, other documents suggest that the defendant was able to generate CARI-related

reports using databases or other electronic systems. See, e.g., id., Ex. 10 (CARI Tracking

Documents) at Bates No. 590 (“During the Criminal Alien Removal Initiative (May 14, 2012

thru September 28, 2012), HQ will be tracking our work through various reports generated from

information within EABM.”); id., Ex. 10 (CARI Tracking Documents) at Bates No. 813 (stating

“that reporting for CARI is being pulled from Enforce”); id., Ex. 10 (CARI Tracking

Documents) at Bates Nos. 763–70 (copy of a “GENERATED” “ACTIVITY REPORT”

containing data associated with a “CARI team 2” data field); id., Ex. 10 (CARI Tracking

Documents) at Bates No. 2643 (purporting to attach “two worksheets with graphs, one for [a]ll

[a]rrests and one for CARI [a]rrests only”). Notably, the defendant does not specifically respond

to this evidence that it did in fact track electronically whether an arrest related to CARI. See,

e.g., Def.’s Reply Facts ¶ 66 (asserting only that it “does not track individuals subjected to stops,

interrogations, fingerprints, and/or arrests as it relates specifically to the CARI program”).

Thus, “[a]lthough the [defendant’s] claim of infeasibility as to [CARI-specific data] may

well be correct, the Court cannot credit this bare assertion” in light of the plaintiffs’ specific

24
countervailing evidence and the lack of detail provided by the defendant. Int’l Counsel Bureau

v. U.S. Dep’t of Def., 657 F. Supp. 2d 33, 41 (D.D.C. 2009); see Pinson I, 80 F. Supp. 3d at 217

(“Because the DOJ has not met its burden to ‘provide a sufficient explanation as to why [the

requester’s] search would be unreasonably burdensome,’ a grant of summary judgment would be

inappropriate.” (quoting Nation Magazine, 71 F.3d at 892)); cf. Nation Magazine, 71 F.3d at 893

(reversing the district court’s determination that searching for a “1981 [ ] memo would be too

laborious, given that the [relevant] files [we]re indexed chronologically”). Accordingly, the

defendant “must either search [for] these records or demonstrate why it would be impractical to

do so.” Int’l Counsel Bureau, 657 F. Supp. 2d at 41.

b. Other Record Systems

The plaintiffs further argue that the defendant’s “searches of . . . [custodians’ email

accounts,] hard drives and servers, paper files, USBs, and DVDs were either inadequate or

nonexistent.” Pls.’ Opp’n at 11. Specifically, the plaintiffs argue that the defendant’s

declarations “reveal inadequate efforts to search custodians’ email accounts” because “[t]hey fail

to describe with any detail [the defendant’s] methodologies for searching with the limited terms

it devised,” “do not state which, if any, custodians searched their email archives, and show no

systematic effort to ensure that archived emails were searched.” Id. at 13. Additionally, the

plaintiffs argue that the defendant’s declarations “did not describe whether custodians who

searched computer hard drives and shared servers did so using keywords, search methods

designed to search the full text of documents, or other safeguards to ensure that all files were

searched.” Pls.’ Facts ¶ 73. They further argue that the defendant “should have searched paper

files for responsive documents, but it refused to search most paper records because they were

allegedly ‘too voluminous.’” Pls.’ Opp’n at 14. And finally, they object to the fact that

25
“[n]ineteen [ ] custodians who conducted searches did not search their hard drives or shared

servers,” Pls.’ Facts ¶ 73, “[o]nly thirteen ICE custodians searched paper files,” “[o]nly a single

[ ] custodian searched a thumb drive,” and “[n]o other [ ] custodians searched USB/thumb

drive[s], CD[s], or DVDs,” id. ¶ 75.

As to the defendant’s searches of custodians’ email accounts, hard drives, and shared

servers, the Court agrees with the plaintiffs that the defendant’s declarations fail to demonstrate

that these searches were adequate. To satisfy its burden, the defendant must “describe in detail

how [it] conducted its search[es].” Aguirre v. SEC, 551 F. Supp. 2d 33, 61 (D.D.C. 2008); see

Oglesby, 920 F.2d at 68 (“A reasonably detailed affidavit, setting forth the search terms and the

type of search performed, and averring that all files likely to contain responsive materials . . .

were searched, is necessary . . . to allow the district court to determine if the search was adequate

in order to grant summary judgment.” (emphasis added)). Here, the defendant asserts that, under

its standard search procedures, its “determination of . . . how to conduct any necessary searches[]

[of hard drives or shared drives] is necessarily based on the manner in which the employee

maintains his/her files,” Pineiro Decl. ¶ 21, and that “[i]ndividual archives of emails are searched

by the individual employees where those employees have identified individual archives

containing potentially responsive documents,” id. ¶ 23. The defendant further represents that, in

this case, various employees “searched their government computer[s], including their hard

drives, shared network drives, and their Microsoft Outlook e[]mail account, using [specific]

search terms.” See, e.g., Harrington Decl. ¶ 10a. Such assertions fail to provide the Court with

any detail regarding how the defendant’s employees conducted these searches, and, thus, they are

insufficient. See Aguirre, 551 F. Supp. 2d at 61 (rejecting as insufficient the agency’s assertions

that it “sent memoranda to FOIA liaisons in the . . . Offices . . . who could have responsive

26
documents[, t]hose liaisons contacted the relevant staff and instructed them to review their work

files . . . to determine if they had responsive documents[, and that] [t]he FOIA Office staff

followed standard [search] procedures”); see also Oglesby, 920 F.2d at 68 (concluding that the

agency’s “affidavit did not adequately describe [its] search” where it “merely state[d] that ‘ . . .

consistent with customary practice and established procedure, a search was initiated of the . . .

[agency’s] Central Records’”). Additionally, the defendant’s failure to indicate whether any of

its custodians searched their archived emails also precludes the Court from assessing whether the

custodians’ searches of their email accounts were reasonable. See Ancient Coin Collectors Guild

v. U.S. Dep’t of State, 641 F.3d 504, 514–15 (D.C. Cir. 2011) (concluding that the agency

“failed to show the adequacy of its search[] because it didn’t address its employees’ archived

emails and backup tapes,” which was “raised . . . before the district court”). Absent additional

information regarding the manner in which the defendant conducted these searches, the Court

cannot determine whether these searches were adequate.

As to custodians’ apparent failures to search their hard drives, shared servers, paper files,

USB/thumb drives, CDs, or DVDs, the Court also lacks sufficient information to determine

whether these failures render the defendant’s search inadequate. “While an agency need not

search every one of its record systems, a ‘reasonably detailed affidavit . . . averring that all files

likely to contain responsive materials . . . were searched, is necessary to . . . allow the district

court to determine if the search was adequate in order to grant summary judgment.’” Am.

Immigration Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 231 (D.D.C. 2013)

(emphasis added) (quoting Oglesby, 920 F.2d at 68). However, the defendant has failed to assert

that it searched all files likely to contain responsive records. And, its assertion that its standard

procedure is to direct “individuals and component offices . . . to conduct searches of their file

27
systems (including both paper files and electronic files) which in their judgment, based on their

knowledge of the manner in which they routinely keep records, would be reasonably likely to

have responsive records,” Harrington Decl. ¶ 7, is inadequate, see Am. Immigration Council, 950

F. Supp. 2d at 231 (rejecting as insufficient ICE’s assertion that it searched filing systems that

“were determined by the person familiar with the records within [an ICE department] to be

relevant to the request and reasonably calculated to uncover relevant documents”); see also

Huntington, 234 F. Supp. 3d at 104 (denying summary judgment to the defendant because the

agency’s assertion that it “conducted a search of the offices reasonably likely to have the records

sought” “ultimately d[id] not pass muster”).

Without the additional information described above, the Court cannot determine whether

the defendant’s searches of, or apparent failures to search, these record systems were

unreasonable. Thus, the Court concludes that issues of material fact exist regarding this issue,

and thus, summary judgment is inappropriate. See Am. Immigration Council, 950 F. Supp. 2d at

233 (“Without a more detailed description of the systems that the agency searched, a question of

material fact exists as to whether the search was adequate.”).

c. Email Attachments

Finally, the plaintiffs argue that the defendant’s searches of its email records “were

inadequately conducted,” Pls.’ Opp’n at 13, because the defendant “produced nearly 200 email

records that indicated that they included an attachment, but without explanation, [ ] did not

produce the attachments,” Pls.’ Facts ¶ 74. The defendant responds that “FOIA does not require

production of an email and attachment if the attachment is not responsive.” Def.’s Reply Facts

¶ 74. However, as other members of this Court have explained, “attachments should reasonably

be considered part and parcel of the email by which they were sent” if “the emails . . . make

28
explicit reference to, or include discussion of, the [ ] attachments.” Coffey v. Bureau of Land

Mgmt., 277 F. Supp. 3d 1, 8 (D.D.C. 2017) (Coffey II); see Parker v. U.S. Dep’t of Justice, 278

F. Supp. 3d 446, 451–52 (D.D.C. 2017) (treating a letter and its attachment as a single record

because the letter “itself touche[d] on the subject matter of the attachment and refer[red] the

recipient to examine its contents”). Here, the plaintiffs identify numerous emails provided to

them by the defendant that do not contain attachments, even though the emails “make explicit

reference to . . . missing attachments.” Coffey II, 277 F. Supp. 3d at 8; see, e.g., Pls.’ Cross-

Mot., Am. Ex. 21 (Records of Emails Whose Attachments Were Not Included in ICE’s

Production (“Emails Missing Attachments”)) at Bates No. 53 (“Please see attached.”); id., Am.

Ex. 21 (Emails Missing Attachments) at Bates No. 179 (“Please note attached NGO report[.]”);

id., Am. Ex. 21 (Emails Missing Attachments) at Bates No. 66 (“Attached you will find our

request for prosecutorial discretion[.]”). Thus, the Court concludes that such missing

attachments are “part and parcel of the email by which they were sent,” Coffey II, 277 F. Supp.

3d at 8, and the defendant “must search for [these] attachments to emails already deemed

responsive and either produce them or explain why they are exempt from disclosure,” id. at 9–

10.

3. Search Terms Used

The plaintiffs argue that the defendant “failed to generate reasonable and obvious search

terms related to [their] Request.” Pls.’ Opp’n at 5. Specifically, they argue that the defendant

improperly “relied on a narrow range of search terms extracted verbatim from section headings

in the [ ] Request,” and ultimately, “searched for little more than the term ‘CARI,’” which is

insufficient in light of documents produced demonstrating that “ICE officials understood CARI

to be an expansive initiative that subsumed the entirety of ICE’s National Fugitive Operations

29
Program,” id. at 6, and because “not all records about the initiative contain its name,” Pls.’ Reply

at 7. Additionally, the plaintiffs argue that the defendant’s “poorly constructed and unreasonably

limited set of search terms was exacerbated by [the defendant’s] haphazard use of search terms,”

including its “fail[ure] to issue search memoranda” to its custodians and “improperly allow[ing]

its custodians to apply different search terms without coordination.” Id. As a remedy for these

alleged FOIA violations, the plaintiffs “ask the Court to . . . order[] [the defendant] to search

using, at [a] minimum, the terms listed in Appendix B of [the p]laintiffs’ September 2, 2015

letter, along with any other terms [that the defendant] identifies [as] . . . necessary to capture the

records described in [the] Request.” Id. at 8.

The defendant responds that “[t]he various ERO program offices and field offices

searched with and used the search terms that they determined, based on their experience and

knowledge of their office’s practices and activities, would be reasonably likely to locate

responsive records.” Def.’s Facts ¶ 7. Additionally, the defendant argues that it “used over

eighty terms,” Def.’s Mem. at 7, and that “[t]hese search terms, in particular ‘CARI’ and

‘Criminal Alien Removal Initiative,’ were reasonably likely to uncover all relevant records

responsive to a reasonable interpretation of [the p]laintiffs’ vague [ ] [R]equest,” id. at 13,

“because every topic [of requested records] is connected to CARI,” Harrington Decl. ¶ 14. It

further argues that the plaintiffs’ arguments regarding the variations in search terms used by each

custodian are unavailing because “FOIA does not require an agency to search for responsive

documents in a centralized fashion using consistent search terms and techniques across various

departments.” Def.’s Reply at 7.

“Agencies enjoy discretion in crafting search terms designed to identify responsive

records, but that discretion ‘is not boundless.’” Am. Ctr. for Equitable Treatment, Inc. v. Office

30
of Mgmt. & Budget, 281 F. Supp. 3d 144, 151 (D.D.C. 2017) (quoting Coffey v. Bureau of Land

Mgmt., 249 F. Supp. 3d 488, 498 (D.D.C. 2017) (Coffey I)). The search terms selected must be

“reasonably tailored to uncover documents responsive to the FOIA request.” Bigwood v. U.S.

Dep’t of Def., 132 F. Supp. 3d 124, 140 (D.D.C. 2015). However, “[w]here the agency’s search

terms are reasonable, the Court will not second guess the agency regarding whether other search

terms might have been superior.” Liberation Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d

137, 146–47 (D.D.C. 2015).

Here, the Court lacks sufficient information to determine whether the search terms used

by the defendant were adequate. As an initial matter, although the defendant asserts that it “used

over eighty terms,” Def.’s Mem. at 7, the defendant’s declarations reflect that approximately

two-thirds of the defendant’s custodians searched using only the terms “CARI” or “Criminal

Alien Removal Initiative,” Pls.’ Cross-Mot., Ex. 15 (Chart of ICE’s Searches by Custodian,

Storage System, and Search Terms Summarizing Declarations of Paula Harrington and Fernando

Pineiro (“Custodian Chart”)) (demonstrating that, of the 153 custodians who searched for

responsive records, 59 searched using only “CARI” and an additional 43 searched using only

“CARI” and “Criminal Alien Removal Initiative”). Additionally, many of the remaining

custodians effectively searched using only these terms, as they used terms containing, and thus,

duplicative of, the term “CARI,” see Harrington Decl. ¶ 13 (representing that thirty-eight of the

eighty search terms used contained the term “CARI”), or terms that quoted language in the

Request verbatim and, thus, were likely too narrow to yield any meaningful results, see

Harrington Decl. ¶ 13 (representing that the custodians’ search terms included the following:

“Total number of individuals fingerprinted using ICE’s mobile fingerprinting units,” “What the

federal government is saying about CARI,” “What ICE is saying re: CARI,” and “Race or

31
ethnicity of each individual arrested and/or fingerprinted”); see Coffey I, 249 F. Supp. 3d at 499

(rejecting as unreasonable search terms “tailor[ed] . . . to the request in [a] literal manner” absent

explanation as to “why the [ ] format [ ] used would be likely to turn up responsive records”).

However, the defendant fails to adequately explain why these two terms alone were

adequate to uncover all responsive documents. Its assertion that these terms are sufficient

because “every topic [of requested records] is connected to CARI,” Harrington Decl. ¶ 14, falls

short for several reasons. First, the plaintiffs’ Request seeks records not necessarily linked to

CARI, see, e.g., Pineiro Decl., Ex. 1 (Request) at 11 (seeking “[t]otal number of ICE arrests per

week in [ ] designated jurisdiction[s]” in New Orleans, the “[t]otal number of individuals

fingerprinted using ICE’s mobile fingerprinting units and/or other technological tools per week,”

and the “[r]ace or ethnicity of each individual arrested and/or fingerprinted” in those categories),

and, thus, the Court finds it difficult to conclude that such terms are reasonably tailored to

uncover such records. Additionally, evidence in the record suggests that the terms “CARI” and

“Criminal Alien Removal Initiative” may not be sufficient to uncover responsive records specific

to CARI either. For example, documents produced by the defendant suggest that CARI activities

may be referred to using other terms, such as “Fugitive Operations,” Pls.’ Cross-Mot., Ex. 10

(CARI Tracking Documents) at Bates No. 813 (email stating that “[a]nything and everything

Fugitive Operations . . . is doing right now is considered CARI”), or “Criminal Removals

Enforcement Initiative,” id., Ex. 8 (Quota Documents) at Bates No. 2853, and that subjects of

CARI investigations may be referred to as simply “criminal alien[s]” or “criminal fugitive[s],”

see, e.g., id., Ex. 12 (Examples of Records Indicating the Office of Congressional Relations’

Involvement in CARI) at Bates Nos. 308–09 (in a responsive document, referring to a detained

individual seeking prosecutorial discretion as a “criminal alien” and a “criminal fugitive”).

32
Indeed, a handful of custodians, including the Executive Associate Director of the ERO’s

headquarters, found it necessary to search using variations on the terms “CARI” or “Criminal

Alien Removal Initiative,” by using for example the terms “criminal alien,” “removal,”

“initiative,” or “removal initiative,” see Pls.’ Cross-Mot., Ex. 15 (Custodian Chart) at 1, 2, 4, 10–

11, 13, 18, 22, 24, or terms related to “Fugitive Operations,” see id., Ex. 15 (Custodian Chart) at

3 (“Fugitive Op Report”); id., Ex. 15 (Custodian Chart) at 23 (“Fugitive Operations”).

Although the majority of custodians “very well may have made a reasonable decision not

to use the[se additional] terms[,] . . . that reason is not at all apparent from [the defendant’s]

declarations.” Am. Ctr. for Equitable Treatment, Inc., 281 F. Supp. 3d at 152. Thus, absent

further explanation from the defendant as to why the terms “CARI” and “Criminal Alien

Removal Initiative” are sufficient to locate all responsive records, the Court cannot conclude that

the use of these terms alone is adequate. See id. (where the defendant “elected not to use” terms

that the agency “appear[ed] to commonly use,” rejecting as insufficient the agency’s “entirely

conclusory” statements regarding the reasonableness of its search, which “fail[ed] . . . to

[adequately] explain its [search term] choices”); see also Bagwell v. U.S. Dep’t of Justice, 311 F.

Supp. 3d 223, 230 (D.D.C. 2018) (“Because it is likely that emails concerning the investigation

would use “PSU” or “Penn State” rather than the full name of the University, the Department’s

search was not reasonably calculated to find all responsive emails.”).

Moreover, the defendant’s declarations are also insufficient because the defendant failed

to explain the wide variance in the search terms used by custodians and offices with “seemingly

similar law enforcement responsibilities.” Tushnet v. United States Immigration & Customs

Enf’t, 246 F. Supp. 3d 422, 435 (D.D.C. 2017); see, e.g., Pls.’ Cross-Mot., Ex. 15 (Custodian

Chart) at 1 (reflecting that the Executive Associate Director searched using “Removal” and

33
“Initiative”); id., Ex. 15 (Custodian Chart) at 3 (in the New Orleans Field Office, two custodians

searched only “CARI,” one searched “CARI” and “Fugitive Op Report,” and one searched seven

terms, including “Org CHART” and “Prosecutorial Discretion,” as well as the A-numbers

provided by the requester); id., Ex. 15 (Custodian Chart) at 19–20 (two custodians in the San

Francisco field office searched using “mobile” and “fingerprints”); id., Ex. 15 (Custodian Chart)

at 23–24 (one custodian in the Seattle field office searched using “Fugitive Operations” and

another searched using “Initiative,” “Criminal,” “Alien,” and “New Orleans”). The defendant

fails to offer any explanation for these inconsistencies, aside from asserting that “differences

in . . . the specific terms used to search are a result of various factors such as staffing allocations,

subject matter expertise, resource allocation, geographic priorities, and how involved/active with

[CARI] an ERO Field Office may or may not have been,” Harrington Decl. ¶ 11, “as well as . . .

the manner in which the employee maintains his/her files,” id. ¶ 12. However, such vague and

conclusory statements are insufficient to demonstrate that its search was adequate. See SafeCard

Serv., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (instructing that an agency’s affidavits

in support of the adequacy of its search must be “relatively detailed and non-conclusory”).

“While FOIA might not require complete uniformity, it does require reasonable explanations for

the scope of agency-wide searches[, and t]he . . . unexplained variances in the [defendant’s]

search [terms] fall short of this standard.” Tushnet, 246 F. Supp. 3d at 435; see Roseberry-

Andrews v. U.S. Dep’t of Homeland Sec., 299 F. Supp. 3d 9, 24–25 (D.D.C. 2018) (concluding

that it could not find the “[d]efendant’s search . . . sufficient to warrant summary judgment” in

part because the defendant failed to “explain why different program offices used varying search

terms”).

34
In sum, “the failure of the [defendant] to explain its [search term] choices prevents the

[C]ourt from evaluating the reasonableness of the [defendant’s] search method.” Am. Ctr. for

Equitable Treatment, Inc., 281 F. Supp. 3d at 152. Ultimately, the defendant “must either run

[additional] search terms or explain to the [C]ourt why its search terms ‘are reasonably

calculated to uncover all relevant documents.’” Id. (quoting Oglesby, 920 F.2d at 68). 13

4. Documents Allegedly Omitted

The plaintiffs also argue that the record contains “positive indications of serious

oversights in [the defendant’s] searches.” Pls.’ Reply at 13. Specifically, they argue that the

defendant’s production of “very few” or “no” records in “several [ ] categories of clearly

responsive records” demonstrates that the defendant “failed to search adequately” for responsive

records within these categories. Id. at 6–7; Pls.’ Facts ¶ 59 (“ICE has produced very few records

related to CARI’s fiscal impact.”); id. ¶ 71 (“ICE has produced no records showing assessments

of CARI or an organizational chart.”); id. ¶ 76 (“ICE produced very few records relating to ICE’s

involvement of local or state law enforcement officials in their field operations.”); id. ¶ 77 (“ICE

produced no racial profiling training or policy records.”). They further argue that records

produced by the defendant demonstrate that the defendant “omitted clearly responsive

documents from its production,” Pls.’ Reply at 6; see, e.g., id. at 13–14 (asserting that, although

records produced by the defendant demonstrate that “every ERO field office was tasked with

13
The Court declines to order the defendant to search the specific terms identified in the plaintiffs’ September 2015
correspondence at this time. See Pls.’ Opp’n at 8. “In general, a FOIA petitioner cannot dictate the search terms for
his or her FOIA request,” Bigwood, 132 F. Supp. 3d at 140, and this Court must not “micro manage” how agencies
conduct searches in response to a FOIA request, Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C.
Cir. 2002). Moreover, in their September 2015 correspondence, the plaintiffs represented that they “would agree to
limit the searches for some of the [proposed] terms . . . to only certain databases, offices, and files,” Pls.’ Cross-
Mot., Ex. 24 (September 2015 Appendices) at 8, and, given the apparent breadth of some of these terms, see, e.g.,
id., Ex. 24 (September 2015 Appendices) at 8 (proposing that the defendant search “[m]obile and IDENT”);
Harrington Decl. ¶ 20 (representing that the defendant has used “[m]obile fingerprinting devices . . . for at least ten
years”), the Court is not prepared to say that such limitations are inappropriate.

35
implementing its own CARI Plan version, ICE has produced CARI plans for at most eight of the

24 ERO field offices, without explanation for the sixteen omissions” (internal citations omitted)).

The defendant disputes the plaintiffs’ position on several different grounds, including that the

missing records identified by the plaintiffs are “irrelevant to the question of whether [it] has . . .

conduct[ed] adequate searches,” Def.’s Reply Facts ¶ 78, and that its “search need not produce

every document in existence,” id. ¶ 47.

An agency may not ignore “positive indications of overlooked materials.” Valencia-

Lucena, 180 F.3d at 326. Specifically, discovery of a document that “clearly indicates the

existence of [other] relevant documents” creates an “obligation” for an agency to conduct a

further search for those additional documents. Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of

Justice, 215 F. Supp. 2d 94, 110 (D.D.C. 2002), aff’d in part, rev’d in part & remanded on other

grounds, 331 F.3d 918 (D.C. Cir. 2003); see Kowalczyk v. U.S. Dep’t of Justice, 73 F.3d 386,

389 (D.C. Cir. 1996) (instructing that an agency must pursue “clear and certain” leads regarding

potentially responsive records); Carter, Fullerton & Hayes, LLC v. Fed. Trade Comm’n, 637 F.

Supp. 2d 1, 7 (D.D.C. 2009) (additional searches are required when an agency is apprised of

“additional potentially responsive materials”). However, “the fact that a particular document

was not found does not demonstrate the inadequacy of a search.” Boyd, 475 F.3d 381, 291 (D.C.

Cir. 2007). And, “[m]ere speculation that as yet uncovered documents may exist does not

undermine the finding that the agency conducted a reasonable search for them.” SafeCard

Servs., Inc., 926 F.2d at 1201.

First, the Court cannot agree with the plaintiffs’ position that the defendant’s production

of only few or no documents in certain categories of records demonstrates that the defendant’s

searches for those records were inadequate. “[T]he adequacy of a FOIA search is generally

36
determined not by the fruits of the search, but by the appropriateness of the methods used to

carry out the search.” Iturralde, 315 F.3d at 315 (citations omitted). The fact “[t]hat [the

defendant’s] search turned up only a few [documents in these categories] . . . is not enough to

render its search inadequate, even supposing that any reasonable observer would find this result

unexpected.” Ancient Coin, 641 F.3d at 514; see Huntington, 234 F. Supp. 3d at 106 (“In

general, identifying a handful of documents that an agency fails to uncover does not, in itself,

demonstrate that a search was inadequate.”).

Additionally, the Court generally cannot conclude that a defendant’s failure to produce

the specific documents identified by the plaintiffs demonstrates that the defendant’s search was

inadequate either. For example, as to the sixteen CARI plans that the plaintiffs assert were

improperly omitted from the defendant’s production, although the plaintiffs have identified

evidence that the ERO’s field offices were instructed to create them, Pls.’ Cross-Mot., Am. Ex.

17 (Exemption 5 Withholdings) at Bates No. 2682 (email from the Assistant Director for Field

Operations to Field Office Directors and Deputy Field Office Directors instructing them to

“complete and submit your annex to the [CARI] Operational Plan to Unit Chiefs . . . by . . . May

10, 2012”), the plaintiffs have not identified any evidence establishing that they were in fact

created, see, e.g., Pls.’ Facts ¶ 78. And, in any event, the absence of specific documents from the

defendant’s production does not necessarily establish that the defendant’s search was inadequate

because “particular documents may have been accidentally lost or destroyed, or a reasonable and

thorough search may have missed them.” Itturalde, 315 F.3d at 315.

The Court notes that the defendant’s failure to produce certain documents or categories of

documents very well may be due to deficiencies in its search that the Court has already

addressed, such as its failure to search certain offices, databases, or other locations. However,

37
the Court simply cannot conclude that the absence of such records alone renders the defendant’s

search inadequate.

For all the foregoing reasons, the Court finds that the defendant has in many respects

failed to “demonstrate beyond material doubt that its search[es] w[ere] ‘reasonably calculated to

uncover all relevant documents.’” Ancient Coin, 641 F.3d at 514 (quoting Valencia-Lucena, 180

F.3d at 325). Specifically, the Court finds that the defendant’s search was inadequate because

the defendant failed to search six offices identified by the plaintiffs, failed to search its databases

for CARI-related data, and failed to produce responsive email attachments. However, the Court

finds that it lacks sufficient information to evaluate the reasonableness of the defendant’s search

of its non-database record systems and the adequacy of the terms used to conduct the search.

Accordingly, the Court must deny the defendant’s motion for summary judgment and grant in

part and deny in part the plaintiffs’ cross-motion for summary judgment with respect to the

adequacy of the defendant’s search. Additionally, the Court will order the defendant to “conduct

an adequate search of its records” that addresses the deficiencies identified in this Memorandum

Opinion, or, where appropriate, “submit a supplemental affidavit demonstrating that its initial

search was adequate.” Aguirre, 551 F. Supp. 2d at 62.

B. The FOIA Exemptions Applied by the Defendant

The plaintiffs argue that the defendant “has improperly applied exemptions under 5

U.S.C. § 552(b)(5), (6), (7)(C), and (7)(E)” to “withh[o]ld copious information without adequate

justification.” Pls.’ Opp’n at 24. The defendant responds that its “[w]ithholdings [w]ere

[a]ppropriate” and that it “has provided adequate descriptions of the information withheld and

the reasons why they were justified in doing so.” Def.’s Reply at 11. The Court will address

each claimed exemption in turn.

38
1. Exemption 5

The plaintiffs challenge the defendant’s withholding of documents, or portions of

documents, under the deliberative process privilege of Exemption 5. See Pls.’ Opp’n at 24–30;

Pls.’ Cross-Mot., Am. Ex. 17 (Exemption 5 Withholdings) at 1–8. The documents withheld

include documents described by the defendant as an “NGO Meeting Memorandum,” Pineiro

Decl., Ex. 7 (Vaughn Index) at 17 (entry for Bates Nos. 370–71); “draft” operational plans, see,

e.g., id., Ex. 7 (Vaughn Index) at 70–71 (entry for Bates Nos. 840–53); emails regarding media

inquiries, see, e.g., Pineiro Decl., Ex. 7 (Vaughn Index) at 225 (entry for Bates No. 3492), a

“draft . . . talking point memo about the fugitive operations program,” id., Ex. 7 (Vaughn Index)

at 199–200 (entry for Bates Nos. 3226–27), and documents containing “draft [ ] statistics,” see,

e.g., id., Ex. 7 (Vaughn Index) at 3 (entry for Bates No. 61). Upon consideration of the

defendant’s descriptions of these documents, the Court agrees with the plaintiffs that the

defendant has failed to satisfy its burden to demonstrate that the withheld material is protected by

the deliberative process privilege.

The deliberative process privilege protects “documents ‘reflecting advisory opinions,

recommendations and deliberations comprising part of a process by which governmental

decisions and policies are formulated.’” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150

(1975) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss Jena, 40 F.R.D. 318, 324 (D.D.C.

1966)). “To be exempt from disclosure under the deliberative process privilege, the agency must

show that the information is both (1) ‘predecisional’ and (2) ‘deliberative.’” Cleveland v. U.S.

Dep’t of State, 128 F. Supp. 3d 284, 298 (D.D.C. 2015) (Walton, J.) (quoting Nat’l Ass’n of

Home Builders v. Norton, 309 F.3d 26, 39 (D.C. Cir. 2002)). “A document is predecisional if it

was ‘prepared in order to assist an agency decisionmaker in arriving at his decision,’ rather than

39
to support a decision already made.” Petrol. Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429,

1434 (D.C. Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S.

168, 184 (1975)); see Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir.

1987) (“A document is ‘predecisional’ if it precedes, in temporal sequence, the ‘decision’ to

which it relates.”). “And a document is deliberative if it is ‘a part of the agency give-and-take—

of the deliberative process—by which the decision itself is made.” Abtew v. U.S. Dep’t of

Homeland Sec., 808 F.3d 895, 899 (D.C. Cir. 2015) (quoting Vaughn v. Rosen, 523 F.2d 1136,

1144 (D.C. Cir. 1975)). “The ‘key question’ in determining whether the material is deliberative

in nature ‘is whether disclosure of the information would discourage candid discussion within

the agency.’” Pub. Emps. for Envtl. Responsibility v. EPA, 213 F. Supp. 3d 1, 11 (D.D.C.

2016) (quoting Access Reports v. U.S. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991)).

“To justify its application of the deliberative process privilege, an agency must address

the following areas: ‘(1) the nature of the specific deliberative process involved, (2) the function

and significance of the document in that process, and (3) the nature of the decisionmaking

authority vested in the document’s author and recipient.’” Hunton & Williams LLP v. EPA, 248

F. Supp. 3d 220, 241 (D.D.C. 2017) (quoting Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101,

189 (D.D.C. 2013)); see Senate of P.R., 823 F.2d at 585–86 (“The agency must establish ‘what

deliberative process is involved, and the role played by the documents in issue in the course of

that process.’” (quoting Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 868

(D.C. Cir. 1980)); Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982)

(explaining that an agency must describe “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” (internal quotation marks and citation omitted)). “The need to

40
describe each withheld document when Exemption 5 is at issue is particularly acute because ‘the

deliberative process privilege is so dependent upon the individual document and the role it plays

in the administrative process.’” Pub. Emps. for Envtl. Responsibility, 213 F. Supp. 3d at 11

(quoting Animal Legal Def. Fund, Inc. v. U.S. Dep’t of Air Force, 44 F. Supp. 2d 295, 299

(D.D.C. 1999)). Accordingly, “to sustain its burden of showing that records were properly

withheld under Exemption 5, an agency must provide in its declaration . . . precisely tailored

explanations for each withheld record at issue.” Nat’l Sec. Counselors, 960 F. Supp. 2d at 188.

“If the agency does not provide ‘the minimal information necessary to make a determination

concerning applicability of the deliberative process privilege[,]’ then the court should deny the

agency summary judgment.” Hunton & Williams LLP, 248 F. Supp. 3d at 241 (quoting Elec.

Frontier Found. v. U.S. Dep’t of Justice, 826 F. Supp. 2d 157, 173 (D.D.C. 2011) (Walton, J.)).

First, for many of the documents at issue in this case, the defendant has failed to

adequately describe “the nature of the specific deliberative process involved,” Hunton &

Williams LLP, 248 F. Supp. 3d at 241, as it fails to “pinpoint an agency decision or policy . . . or

identify a decisionmaking process to which a document contributed,” Judicial Watch, Inc. v.

U.S. Postal Serv., 297 F. Supp. 2d 252, 259 (D.D.C. 2004) (internal citation and quotation marks

omitted). Instead, it provides only vague descriptions of the documents’ content and repeats

boilerplate and conclusory statements regarding the content’s predecisional and deliberative

nature. For example, the defendant describes two documents that it has withheld as “a meeting

recap of an ICE agency meeting with an NGO which discussed various individuals,” Pineiro

Decl., Ex. 7 (Vaughn Index) at 17 (entry for Bates No. 370), and “a draft memo about

correspondence to [the defendant] from a[n] NGO,” id., Ex. 7 (Vaughn Index) at 24 (entry for

Bates No. 404), and asserts that both documents “contain[] pre-decisional information regarding

41
a draft agency document,” as well as “internal discussion between agency officers and/or

employees,” “non-final agency decisions, options being considered, and recommendations,” id.,

Ex. 7 (Vaughn Index) at 17 (entry for Bates No. 370); id., Ex. 7 (Vaughn Index) at 24 (entry for

Bates No. 404) (asserting that the “draft memo about correspondence to ICE from a[n] NGO[] [ ]

includes agency plans, procedures, recommendations, and possible reactions or responses to the

correspondence”). As another example, the defendant describes a document that it has withheld

as a “DRAFT Weekly Enforcement Operations Report” and asserts that it “contain[s] draft

statistics including arrests and ICE threat levels,” as well as “internal discussion between agency

officers and/or employees, . . . non-final agency decisions, options being considered[,] and

recommendations.” Id., Ex. 7 (Vaughn Index) at 200 (entry for Bates Nos. 3230–34). However,

“[s]uch [ ] broad and opaque description[s] of the deliberative process involved do[] not provide

the Court with enough detail about whether these documents are deliberative and predecisional.”

Trea Sr. Citizens League v. U.S. Dep’t of State, 923 F. Supp. 2d 55, 68 (D.D.C. 2013); see

Judicial Watch v. U.S. Postal Serv., 297 F. Supp. 2d at 264 (rejecting as insufficient the agency’s

assertion that the deliberative process was “actions taken or proposed in response to the

discovery of anthrax in the mail”); Heartland All. for Human Needs & Human Rights v. U.S.

Dep’t of Homeland Sec., 291 F. Supp. 3d 69, 80–81 (D.D.C. 2018) (rejecting as insufficient the

agency’s description of withheld documents as “draft statistical reports that . . . ‘were part of a

continuing process of revisions generated in advance of the adoption of a final DHS policy’”

(emphasis removed)).

Second, even where the defendant arguably identifies a decisionmaking process to which

the withheld documents purportedly contributed, it fails to adequately describe the “function and

significance of the document[s] in that process.” Hunton & Williams LLP, 248 F. Supp. 3d at

42
241. For example, although the defendant asserts that certain “draft” operational plans relate to

the process of obtaining “comments, edits, approval[,] and signature” for CARI operational plans

at the national and field office levels, see, e.g., Pineiro Decl., Ex. 7 (Vaughn Index) at 146–47

(entry for Bates Nos. 2011–33), they “do[] not describe in any amount of detail how . . . [this

process] works and how the[] withheld pieces of information fit into that process.” Nat’l Sec.

Counselors, 960 F. Supp. 2d at 190; see SafeCard Serv., Inc., 926 F.2d at 1204 (“The [agency]

needs to explain such matters as how decisions like those in issue are reached; the role that staff

discussion and memoranda play in such decisions; the manner in which such decisions are

memorialized and explained; and whether such decisions are treated, in later agency

decisionmaking, as precedents.”). The defendant asserts only that these plans were “sent to

various ICE Officers for comments, edits, approval[,] and signature” and that some “contain

highlights on material to be changed or discussed further.” See, e.g., Pineiro Decl., Ex. 7

(Vaughn Index) at 146–47 (entry for Bates Nos. 2011–33). However, the defendant fails to

address the various “levels of review” required for the approval of CARI plans or “the number,

identities, and titles of the various persons . . . to whom the drafts were submitted for ‘approval’

and [any] alterations th[o]se persons made.” Arthur Andersen & Co., 679 F.2d at 259

(evaluating whether a draft IRS revenue ruling qualified for protection under Exemption 5 and

concluding that such information “barely” satisfied the defendant’s obligation to explain the

“function and significance” of the document). And, although the defendant also asserts that

these plans, like nearly every other document the defendant has withheld under Exemption 5,

contain “internal discussion between agency officers and/or employees[] involving a draft

agency document, . . . non-final agency decisions, options being considered, and

recommendations,” see, e.g., id., Ex. 7 (Vaughn Index) at 146–47 (entry for Bates Nos. 2011–

43
33), “[a] general statement of this sort is not sufficient to carry the agency’s burden to explain the

function and significance of a document in the agency’s decisionmaking process,” Pub. Emps.

for Envtl. Responsibility, 213 F. Supp. 3d at 15 (rejecting as insufficient the agency’s statement

that a withheld “record reflects analysis, recommendations, and opinions that were considered as

part of the Agency’s decision making process,” which was “repeated for every entry in the

Vaughn indices”).

Also insufficient to demonstrate the “function and significance” of the withheld

documents are the defendant’s assertions that the operational plans and other documents

withheld are “drafts” and “replete with edits, strike through[s] and other formatting changes,

marginal suggestions and comments, and/or embedded questions regarding content.” Pineiro

Decl. ¶ 47. “The fact that [ ] documents are drafts and contain edits does not, alone, qualify them

for protection under the deliberative process privilege[.]” Heartland All. for Human Needs &

Human Rights, 291 F. Supp. 3d at 80. “Even if a document is a ‘draft of what will become a

final document,’ the court must also ascertain ‘whether the document is deliberative in nature,’”

Arthur Andersen & Co., 679 F.2d at 257–58 (quoting Coastal States Gas Corp., 617 F.2d at 866),

and the defendant’s generic descriptions of the edits contained in these documents preclude the

Court from determining whether the documents are “part of an articulated decisionmaking

process,” Heartland All. for Human Needs & Human Rights, 291 F. Supp. 3d at 80; see Trea Sr.

Citizens League, 923 F. Supp. 2d at 68 (rejecting as insufficient the defendant’s description of

withheld documents as “annotated versions of . . . [a particular] agreement” that “contain [ ]

employees’ analyses of individual clauses of the agreement,” which did not “specify what sort of

‘analyses’ [were] contained in the documents”). And, in some instances, the defendant’s

descriptions of the information withheld undermine its assertions that the information is

44
deliberative. See Pineiro Decl. ¶ 47 (characterizing some edits as “formatting changes”); see

Dudman Commnc’ns Corp. v. U.S. Dep’t of Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)

(instructing that the deliberative process privilege protects against “the disclosure of editorial

judgments—for example, decisions to insert or delete material or to change a draft’s focus or

emphasis” (emphasis added)); Pub. Emps. for Envtl. Responsibility v. Bloch, 532 F. Supp. 2d 19,

21 (D.D.C. 2008) (explaining that the privilege protects “ideas or opinions expressed” that are

“actually . . . deliberative in the sense of contributing to the ‘give and take of the consultative

process’” (quoting Coastal States Gas Corp., 617 F.2d at 866)).

Finally, the defendant has wholly failed to explain “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., 679 F.2d at 258

(internal citation and quotation marks omitted). On this issue, the vast majority of the

defendant’s Vaughn entries assert only that withheld documents were sent to “various ICE

Officers” or contain internal discussions between “agency officers and/or employees,” see, e.g.,

Pineiro Decl., Ex. 7 (Vaughn Index) at 147 (entry for Bates Nos. 2011–33); however, it provides

no further information about these officers or employees and the nature of their decisionmaking

authority. Such generalized assertions fall far short of satisfying the defendant’s burden to

provide “explicit” information regarding the parties to these documents. Nat’l Sec. Counselors,

960 F. Supp. 2d at 190 (denying summary judgment to an agency in part because the agency

failed to specify, inter alia, “whether [certain identified] personnel had the authority to approve

[ ] decisions” bearing on the deliberative process at issue or “the positions in the chain of

command of . . . officers referred to in [ ] withheld documents” (internal quotation marks

omitted)). Moreover, although some entries provide the titles of certain individuals involved in

45
the alleged deliberative discussions, see, e.g., Pineiro Decl., Ex. 7 (Vaughn Index) at 225 (entry

for Bates No. 3490) (asserting that the redacted information relates to a discussion involving “the

Public Affairs Officer”), and one entry asserts that a withheld document was “sent from a

subordinate to superiors,” id., Ex. 7 (Vaughn Index) at 199 (entry for Bates Nos. 3226–27),

“the[se] descriptions do not disclose the decisionmaking authority vested in those individuals . . .

such that the Court can discern whether these communications ‘reflect the give and take of the

deliberative process,’” Nat’l Sec. Counselors, 960 F. Supp. 2d at 191 (quoting Pub. Citizen v.

OMB, 598 F.3d 865, 876 (D.C. Cir. 2010)) (rejecting as insufficient under Exemption 5 the

agency’s description of a document as a “memorandum from [an] Information Review Officer to

[an] IRO group regarding preliminary determinations in the processing of” a FOIA request).

On the other hand, although the plaintiffs argue with respect to many of these documents

that the defendant’s representations or the context of the withheld content “make[s] clear [that]

the [defendant’s] Vaughn descriptions are inaccurate and the [e]xemption is misapplied,” Pls.’

Opp’n at 27, the Court cannot agree. For example, the plaintiffs argue that certain “draft”

operational plans withheld are not predecisional because the defendant “has afforded . . . [them]

operational effect,” id., as demonstrated by the fact that they are “sent by a superior to

subordinates without request for comment and [ ] titled ‘final,’” id. at 28. While the plaintiffs are

correct that a document “can lose [its predecisional] status if it is adopted, formally or

informally, as the agency position on an issue or is used by the agency in its dealings with the

public,” Arthur Andersen & Co., 679 F.2d at 258, and that sending a document “from

[s]upervisors to [s]ubordinates” may suggest that an agency has informally adopted the

document as its position on an issue, Martin v. U.S. Equal Emp’t Opportunity Comm’n, 19 F.

Supp. 3d 291, 307 (D.D.C. 2014) (alterations in original) (quoting Taxation with Representation

46
Fund v. IRS, 646 F.2d 666, 678–81 (D.C. Cir. 1981)), the Court must also “consider ‘the

function and significance of the document in the agency’s decisionmaking process’[] [and] ‘the

nature of the decisionmaking authority vested in the office or person issuing the disputed

document,’” id., which, as already explained, the Court cannot do without further information

from the defendant. Additionally, to the extent that the plaintiffs seek a determination based on

assumptions drawn from the defendant’s representations regarding the content of the documents,

compare Pineiro Decl., Ex. 7 (Vaughn Index) at 24 (entry for Bates No. 404) (describing “a draft

memo about correspondence [to the defendant] from a[n] NGO”), with Pls.’ Opp’n at 25

(asserting that the withheld document relates to “correspondence . . . in which the NGOs are

advocating their own interests to [the defendant]”), such “speculation” is not a sufficient basis

for the Court to conclude that a document is not protected, see Vento v. IRS, 714 F. Supp. 2d

137, 154 (D.D.C. 2010) (concluding that because the “[p]laintiffs rest[ed] their objection to the

use of the [deliberative process] privilege to withhold documents on mere speculation,” the Court

could not determine that the invocation of the privilege was improper). Therefore, in the absence

of additional information from the defendant, the Court cannot conclude that the withheld

information is not exempt as a matter of law.

Thus, the Court concludes that the defendant has failed to provide “the minimal

information necessary to make a determination concerning application of the deliberative process

privilege.” 14 Hunton & Williams LLP, 248 F. Supp. 3d at 241 (quoting Elec. Frontier Found.,

14
The defendant’s failure to adequately describe the records withheld under the deliberative process privilege also
precludes the Court from determining whether the defendant has satisfied its obligation to release all reasonably
segregable material. See Pls.’ Opp’n at 30 (arguing that the defendant “improperly redacted segregable factual and
similar information related to the CARI program under the deliberative process privilege”). Although the Pineiro
Declaration attests that “all information not exempted from disclosure pursuant to the FOIA exemptions [claimed]
was correctly segregated and non-exempt portions were released,” Pineiro Decl. ¶¶ 64–65, “absent a sufficient
Vaughn index, an agency must provide other facts, beyond its good-faith assurances, . . . establish[ing] that it
released all reasonably segregable, non-exempt information[,] [s]uch [as] . . . a description of ‘what proportion of
(continued . . . )

47
826 F. Supp. 2d at 173). Accordingly, the Court must deny the defendant’s motion for summary

judgment as to these documents. See id.

2. Exemptions 6 and 7(C)

The plaintiffs next challenge the defendant’s withholding of “names or, in some cases,

email addresses or case histories” pursuant to Exemptions 6 and 7(C). Pls.’ Reply at 20 n.9.

Specifically, they argue that the defendant “improperly applied 7(C) exemptions to records not

compiled for law enforcement purposes” and “applied [both] exemptions where a de minimis

privacy interest was at stake and where that interest was heavily outweighed by the public

interest in disclosure of [the defendant’s] involvement [in] and planning of enforcement activities

that may have exceeded constitutional bounds.” Id. at 20 (emphasis omitted).

Exemption 6 permits agencies to withhold “personnel and medical files and similar files

the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

5 U.S.C. § 552(b)(6). Exemption 7(C) protects “records or information compiled for law

enforcement purposes, . . . to the extent that the production of such law enforcement records or

information . . . could reasonably be expected to constitute an unwarranted invasion of personal

privacy.” Id. § 552(b)(7)(C). “Both exemptions require agencies and reviewing courts to

‘balance the privacy interests that would be compromised by disclosure against the public

interest in the release of the requested information.’” 100Reporters LLC v. U.S. Dep’t of Justice,

248 F. Supp. 3d 115, 158 (D.D.C. 2017) (quoting Beck v. U.S. Dep’t of Justice, 997 F.2d 1489,

( . . . continued)
the information in a document is non-exempt and how that material is dispersed throughout the document,’” Trea Sr.
Citizens League, 923 F. Supp. 2d at 70–71 (quoting Mead Data Ctr., Inc v. U.S. Dep’t of Air Force, 566 F.2d 242,
261 (D.C. Cir. 1977)), which the defendant has failed to do here, see, e.g., Pineiro Decl., Ex. 7 (Vaughn Index) at 3
(entry for Bates No. 61) (asserting only that “[t]he information being withheld contains pre-decisional, draft, and
deliberative information”). Thus, the Court also concludes that the defendant has failed to satisfy its burden to
demonstrate that it has released all reasonably segregable material, and it will therefore deny the defendant’s motion
for summary judgment as to this issue.

48
1491 (D.C. Cir. 1993)). However, there are two important differences between the exemptions.

First, “Exemption 7 in general applies only to information compiled for ‘law enforcement

purposes.’” Stonehill v. IRS, 534 F. Supp. 2d 1, 11 (D.D.C. 2008). Second, “Exemption

7(C) . . . establishes a lower bar for withholding material,” Prison Legal News v. Samuels, 787

F.3d 1142, 1146 n.5 (D.C. Cir. 2015) (quoting ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6

(D.C. Cir. 2011)), because, “while Exemption 6 requires a ‘clearly unwarranted invasion of

personal privacy’ to qualify for withholding, Exemption 7(C) requires only that disclosure ‘could

reasonably be expected to constitute an unwarranted invasion of personal privacy,’” Stonehill,

534 F. Supp. 2d at 11 (quoting 5 U.S.C. § 552(b)(6)–(b)(7)). Accordingly, the Court must first

address Exemption 7(C), because “if the records and information the [defendant] seeks to

withhold in this case were ‘compiled for law enforcement purposes,’ the Court need only address

whether the agency has properly withheld these documents under Exemption 7(C)[,] [and i]f so,

there is no need to consider the higher bar of Exemption 6.” Braga v. FBI, 910 F. Supp. 2d 258,

267 (D.D.C. 2012); see Espino v. U.S. Dep’t of Justice, 869 F. Supp. 2d 25, 29 (D.D.C. 2012)

(same).

a. Exemption 7(C)

“‘In order to withhold documents under Exemption 7, the agency must, as a preliminary

matter’ make a ‘threshold’ showing demonstrating ‘that the records were compiled for a law

enforcement purpose.’” 100Reporters LLC, 248 F. Supp. 3d at 159 (quoting Kay v. FCC, 976 F.

Supp. 23, 37 (D.D.C. 1997)). “In assessing whether records are compiled for law enforcement

purposes, this [C]ircuit has long emphasized that the focus is on how and under what

circumstances the requested files were compiled, and ‘whether the files sought relate to anything

that can fairly be characterized as an enforcement proceeding.’” Jefferson v. U.S. Dep’t of

Justice, Office of Prof’l Responsibility, 284 F.3d 172, 176–77 (D.C. Cir. 2002) (quoting Aspin v.
49
U.S. Dep’t of Defense, 491 F.2d 24, 27 (D.C. Cir. 1973)). Specifically, “[a] record is ‘compiled

for law enforcement purposes’ so long as there is (1) a rational ‘nexus’ between the record and

the agency’s law enforcement duties, and (2) a connection between the subject of the record and

a possible security risk or violation of federal law.” Levinthal v. FEC, 219 F. Supp. 3d 1, 6

(D.D.C. 2016) (first citing Campbell, 164 F.3d at 32; then citing Pratt v. Webster, 673 F.2d 408,

420 (D.C. Cir. 1982)). “Courts generally afford some deference to agencies ‘specializing in law

enforcement’ that claim their records are eligible for Exemption 7(C) protection,” Bartko v. U.S.

Dep’t of Justice, 898 F.3d 51, 64 (D.C. Cir. 2018); however, the Court’s review of such claims

“is not vacuous,” Pratt, 673 F.2d at 421.

It is undisputed that the defendant is a law enforcement agency, see Pineiro Supp. Decl.

¶¶ 15–16; Barnard v. Dep’t of Homeland Sec., 598 F. Supp. 2d 1, 15 (D.D.C. 2009) (concluding

that “there is no question that ICE . . . perform[s] law enforcement activities”), and, thus, its

determination that the withheld documents were compiled for law enforcement purposes may

warrant the Court’s deference, see Bartko, 898 F.3d at 61; however, the Court must nonetheless

conclude that the defendant has failed to satisfy its burden to demonstrate that the withheld

records satisfy Exemption 7’s threshold requirement. Notably, the defendant’s Vaughn entries

make no attempt to address the specific law enforcement purpose of the withheld documents.

See, e.g., Supp. Pineiro Decl., Ex. 1 (Supplemental Vaughn Index (“Supp. Vaughn Index”)) at 3–

4 (entry for Bates No. 79–80) (providing only the date and subject line of the email withheld,

general descriptions of the information redacted, e.g., “the names of agency officers,” and the

alleged privacy interests at stake). Rather, it makes only the general claim that

the [ ] information at issue in this case was compiled by ICE because it relates to
ICE’s obligation to enforce the immigration laws of the United States by
investigating non-U.S. individuals who may be illegally present in the United
States, including records of interviews, arrest, booking, detention, removal, other

50
related investigations, etc. Therefore, all the ICE records responsive to Plaintiffs’
FOIA request were compiled for law enforcement purposes and meet the threshold
requirement of FOIA Exemption (b)(7).

Supp. Pineiro Decl. ¶ 17.

The defendant’s blanket assertion that all the information withheld “relates to . . .

investigat[ions of] non-U.S. individuals who may be illegally present in the United States,

including records of interviews, arrest, booking, detention, removal, other related investigations,

etc.,” id., fails to provide the Court with a “clear understanding of ‘how and under what

circumstances the requested files were compiled,’” Am. Immigration Council, 950 F. Supp. 2d at

245 (quoting Jefferson, 284 F.3d at 176–77). For example, the assertion fails to “identify a

particular individual or a particular incident as the object of [these] investigation[s] and the

connection between that individual or incident and a possible security risk or violation of federal

law.” Pratt, 673 F.2d at 420. The defendant’s failure to address the individual circumstances of

these documents is particularly problematic given that the withheld information appears to relate

to a wide variety of subjects, see Campbell, 164 F.3d at 32–33 (rejecting an agency’s reliance on

one broad “statement to justify every withholding . . . on different topics in different contexts”),

some of which do not appear to “relate to anything that can fairly be characterized as an

enforcement proceeding,” Jefferson, 284 F.3d at 176, such as nominations for personnel awards,

see Pls.’ Cross-Mot, Am. Ex. 19 (Withholdings Under Exemptions 6 and 7(C) Challenged by the

Plaintiffs (“Exemptions 6 and 7(C) Withholdings”)) at Bates No. 53, and responses to media

inquiries, see, e.g., id., Am. Ex. 19 (Exemptions 6 and 7(C) Withholdings) at Bates No. 3492

(email regarding the defendant’s response to questions from the “National Journal . . . on

Alternatives to Detention and the Criminal Alien Removal Initiative in New Orleans”).

Moreover, the defendant’s broad and conclusory assertion that “all the [ ] records responsive to

[the p]laintiffs’ FOIA request were compiled for law enforcement purposes,” Supp. Pineiro Decl.
51
¶ 17, falls far short of satisfying its burden, see Am. Immigration Council, 950 F. Supp. 2d at

246 (rejecting the defendants’ “conclu[sion] that, because [the p]laintiff requested information

related to ‘activities that ICE performs in a law enforcement and national security context,’ this

Court can take it for granted that all of ICE’s withholdings under Exemption 7[] automatically

satisfy the ‘law enforcement purposes’ requirement”).

The Court acknowledges that the context for some of the withheld information appears to

support the defendant’s claim that the records were compiled for a law enforcement purpose.

See, e.g., Pls.’ Cross-Mot, Am. Ex. 19 (Exemptions 6 and 7(C) Withholdings) at Bates Nos.

2960–61 (record of a call received on the HSI Tip Line “report[ing] a previously deported

alien”). However, the Court declines to “physically examin[e] each [withheld] document” and

attempt to discern for itself whether the documents satisfy Exemption 7’s threshold requirement.

Arthur Andersen & Co., 679 F.2d at 258 (citation and internal quotation marks omitted). Such

“guesswork is not a proper foundation for [the Court’s] review.” Judicial Watch, Inc. v. FBI,

Civ. Action No. 04-1643 (RWR), 2006 WL 3334996, at *5 (D.D.C. Nov. 16, 2006) (declining to

rely on “contextual clues [that were] not uniformly available or telling”). Moreover, as this

Circuit has explained, “[t]he burden [to justify withholdings] has been placed specifically by

statute on the [g]overnment,” and requiring the Court to “make its own investigation[] [ ] is

clearly not what Congress had in mind.” Vaughn, 484 F.2d at 825–26. And, given the number

of records involved, see generally Pls.’ Cross-Mot., Am. Ex. 19 (Exemptions 6 and 7(C)

Withholdings) (challenging withholdings in nearly 200 pages of records), and the limited value

of the context available, or the absence of context altogether, see, e.g., id., Ex. 19 (Exemptions 6

and 7(C) Withholdings) at Bates Nos. 121–28 (fully withheld), “it is unreasonable to expect a

trial judge to do as thorough a job of illumination and characterization as would a party

52
interested in the case,” Arthur Andersen & Co., 679 F.2d at 258 (quoting Vaughn, 484 F.2d at

825)).

In sum, although a criminal law enforcement agency’s “decision to invoke [E]xemption 7

is entitled to deference,” Campbell, 164 F.3d at 32, the defendant has failed to provide the Court

with the information necessary for it to independently evaluate the defendant’s claim as to the

records withheld in this case. The defendant’s position amounts to little more than the plainly

insufficient claim that “because [it] is a law enforcement agency, all documents compiled by [it]

inherently meet the threshold requirement.” Pinson v. U.S. Dep’t of Justice, 202 F. Supp. 3d 86,

101 n.1 (D.D.C. 2016) (rejecting such a claim as “erroneous”); see 100Reporters LLC, 248 F.

Supp. 3d at 159 (“To be sure, not every document compiled by a law enforcement agency is

compiled for a law enforcement purpose.”). Thus, to the extent that the defendant seeks to

continue to withhold the redacted information contained in these records pursuant to Exemption

7(C), it must supplement its Vaughn Index to provide the information necessary for the Court to

determine whether these records satisfy that exemption’s requirements.

Having concluded that the defendant has failed to satisfy its burden to demonstrate that

the redacted information was “compiled for law enforcement purposes,” the Court cannot

conclude that the defendant properly withheld these records under Exemption 7(C). Thus, the

Court turns to whether the defendant has properly withheld these documents under Exemption 6.

b. Exemption 6

“The balancing analysis for FOIA Exemption 6 requires that [the Court] first determine

whether disclosure of the files ‘would compromise a substantial, as opposed to de minimis,

privacy interest,’ because ‘[i]f no significant privacy interest is implicated . . . FOIA demands

disclosure.” Multi Ag Media LLC v. Dep’t of Agriculture, 515 F.3d 1224, 1229 (D.C. Cir. 2008)

(second and third alterations in original) (quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner,
53
879 F.2d 873, 874 (D.C. Cir. 1989)). However, the “use of the word substantial in this context

means less than it might seem,” as “[a] substantial privacy interest is anything greater than a de

minimis privacy interest.” Id. at 1229–30. This Circuit has instructed that “[t]he scope of a

privacy interest under Exemption 6 will always be dependent on the context in which it has been

asserted.” Armstrong v. Exec. Office of the President, 97 F.3d 575, 581 (D.C. Cir. 1996).

Accordingly, in applying Exemption 6, the Circuit has rejected “categorical rule[s],” id., and,

specifically, it has “held that ‘the disclosure of names and addresses is not inherently and always

a significant threat to the privacy of those listed; whether it is a significant or a de minimis threat

depends upon the characteristic(s) revealed by virtue of being on the particular list, and the

consequences likely to ensue,” Gilman v. U.S. Dep’t of Homeland Sec., 32 F. Supp. 3d 1, 11

(D.D.C. 2014) (quoting Nat’l Ass’n of Required Fed. Emps., 879 F.2d at 877); see Armstrong,

97 F.3d at 581 (rejecting “a categorical rule forbidding disclosure of the names of [certain] FBI

agents in all activities [as] invalid”). 15

The defendant groups the individuals whose identifying information it seeks to protect

into three categories: (1) “federal employees,” Supp. Pineiro Decl. ¶ 22; (2) “immigration

officers,” id. ¶ 23; and (3) “third parties,” id. ¶ 24–25. As to the “federal employees” category,

15
The plaintiffs do not dispute that the information withheld under Exemption 6 constitutes “personnel and medical
files and similar files.” 5 U.S.C. § 552(b)(6). “The term[] ‘similar files’ is construed broadly,” Gov’t
Accountability Project v. U.S. Dep’t of State, 699 F. Supp. 2d 97, 105–06 (D.D.C. 2010), a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4373290. Public record. Not legal advice.