Am. Immigration Council v. ICE, No. 18-1614, 2020 WL 2748515 (D.D.C. May 27, 2020) (Jackson, J.)

Am. Immigration Council v. ICE, No. 18-1614, 2020 WL 2748515 (D.D.C. May 27, 2020) (Jackson, J.)

Re:  Request for data concerning immigration enforcement activities

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 7(C) & Procedural Requirements, "Reasonably Segregable" Obligation:  The court holds that "Defendants submit that they withheld birth dates from their productions to protect the privacy of third-parties."  "The Court finds that there is no genuine dispute that the government can adequately protect whatever minimal privacy interests the detainees have in their birthdates by redacting the date but not the month and year, because the agency has not identified any harm that would flow from a more limited disclosure, and the statute requires that reasonably segregable portions of records should be provided."  "Therefore, the Court finds that even if one assumes that the information is covered by Exemption 6 and 7(C), when one balances the public interest in the requested information against the minimal privacy interests that otherwise anonymous individuals would have in partial birth date information, judgment should be entered in plaintiff's favor in part, and the government will be ordered to supply that information at a minimum."
   
• Litigation Considerations, Adequacy of Search:  The court relates that while the parties' dispute centers on whether defendants are required to extract certain information from a database, "[t]he fact that person-centric unique identifiers do not exist in ICE's IIDS database is not disputed, and the legal principle that an agency is not required to create new records is well-settled."  "But that is not the question to be decided; the request for unique identifiers for certain categories of individuals was directed to the agency, and it was not limited to any particular database."  The court points to ICE's declaration and finds that "ICE's acknowledgement that the unique identifiers likely appear in another database creates a genuine dispute about whether the search for responsive records was adequate, and plaintiff has directed the Court to other cases in which the record reflects that ICE was apparently able to search and produce data from [the other database]."  "Because ICE has produced data from [the other database] in recent cases and its own declarant acknowledges that person-centric unique identifiers are reasonably likely to be found in [the other database], a genuine dispute of fact exists about whether ICE made a 'a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'"  "For that reason, defendants' motion for summary judgment is denied, and the issue is remanded to ICE for a further search in accordance with this opinion."
   
• Exemption 7(E):  First, the court holds that "the agency's showing falls short of the standard requiring a logical connection between the released information and a circumvention of the law."  "[Defendant] warns that . . . if an individual who possessed the unique identifier information were to hack illegally into CBP's databases, then the unique identifier information could be utilized to obtain sensitive law enforcement data."  "But the agency has not come forward with information to show that the mere possession of unique identifying information would facilitate one's ability to hack into CBP's system or that it would make a hacking more likely."  "In other words, the harm the exemption is designed to avert – the circumvention of the law – would not be caused or advanced by the disclosure of the data in question, and it depends upon the hypothetical commission of a crime [a breach of the system] that is independent of the disclosure of the data the defendant seeks to withhold."
  
  Second, the court relates that defendant "identif[ies] specific ways in which ["data detailing where individuals were apprehended or encountered"] could be used to circumvent law enforcement efforts and might increase the risk that a law will be violated."  "Therefore, the Court will grant summary judgment in favor of the defendants on the issue of whether it was appropriate to withhold specific location data under Exemption 7(E) and deny plaintiff's motion on that issue."  The court relates that "CPB's declarant explains that specific location data disclosed in a production of the size involved here 'will provide the public with information on staffing strengths and weaknesses of individual ports of entry.'"  "[Defendant's] declaration adds further clarification:  '[p]laintiff's request is not for an individual apprehension or arrest.'"  "'Plaintiff's request is for all apprehensions and arrests over a 34 month period across the United States.'"  "'The substantive effect of over 1 million points of location data would be the disclosure of law enforcement techniques and procedures.'"  "Defendants contend that this volume of information will enable criminals to utilize a technique called 'port shopping,' through which they use 'information [on] operations, arrests and apprehensions and staffing and specific ports of entry' to evade arrest or apprehension."
   
• Procedural Requirements & Litigation Considerations, Adequacy of Search:  The court relates that plaintiff argues that "CBP produced 'ten pages and other information defining or describing key definitions, fields, and variables as requested by the Council,' . . . but ICE has not produced a codebook or glossary of the terms and acronyms contained in its spreadsheets."  "ICE maintains that no such document exists."  The court finds that "Plaintiff has not come forward with evidence that casts doubt on the declaration by [defendant] that a glossary for the particular spreadsheets produced to the plaintiff does not exist."  "But [the court holds that] the issue does not rise or fall with the availability of a standalone codebook if the requested information can be located within the agency’s electronic database."  "And here, as the ICE declarant further explains, that search has not been conducted."  The court holds that "ICE must conduct a search to determine whether it has definitions for those terms within its electronic databases."  "If the definitions are found in separate locations or records, it is not incumbent upon ICE to collate the information into a new, single record or glossary that answers plaintiff's questions, but the information it locates must be timely produced."