Gonzalez v. USCIS, No. 19-2911, 2020 WL 4343872 (S.D.N.Y. July 29, 2020) (Koeltl, J.)

Gonzalez v. USCIS, No. 19-2911, 2020 WL 4343872 (S.D.N.Y. July 29, 2020) (Koeltl, J.)

Re:  Request for records concerning plaintiff

Disposition:  Denying plaintiff's motion to strike defendants' ex parte and in camera declarations; granting defendants' motion for summary judgment

• Litigation Considerations, In Camera Inspection:  The court holds that "[t]he plaintiff's request to strike the in camera and ex parte submissions is . . . denied."  The court finds that "[t]here is a sound basis in this case for the Government's submission of supplemental declarations and a Vaughn index ex parte and in camera based on the nature of the documents withheld and the nature of the FOIA Exemptions asserted."  "In this case, it would not be possible to hold the Government to its FOIA obligations without recourse to the ex parte affidavits submitted for in camera review."  "It is therefore necessary to review additional materials in camera and ex parte in this case in addition[] to the public submissions."  The court explains that "the subject matter of the plaintiff's FOIA requests concerns highly sensitive information collected for law enforcement purposes, and the use of in camera and ex parte affidavits is appropriate in order to avoid 'revealing precisely the information that the agency seeks to withhold.'"
  
  Additionally, the court holds that "[i]t is unnecessary for the Court to conduct an in camera review of the 81 pages themselves."  The court explains that "the Government's public declarations and Vaughn index as well as the declarations and Vaughn index submitted in camera and ex parte are sufficient to hold the Government to its FOIA obligations."
   
• Litigation Considerations, Adequacy of Search:  The court holds that "[t]he Government has demonstrated that the searches in response to the plaintiff's FOIA requests were adequate and that the Government used reasonable efforts to respond to the plaintiff's requests."  The court relates that "[defendant ICE's] Declarations adequately describe the . . . databases used by [defendant] to conduct the search . . . ."  "The Declarations further describe why these databases were, based on the plaintiff's request and the subject matter expertise of the various [agency employees carrying out the search for records], reasonable databases in which to conduct the searches in this case to respond to the plaintiff's request for documents relating to his interactions with ICE."  "The searches in these databases, using a broad range of search terms – the plaintiff's name, dates of birth, country of birth, and alien number – were reasonably calculated to produce records responsive to the plaintiff's request which was specific to the plaintiff himself."  Additionally, the court holds that "[defendant's] Declaration describes a search for paper files in the . . . New York Field Office that was carried out by multiple Special Agents, one during the initial paper search and one during the paper search in the context of the litigation review, each with detailed knowledge of the manner in which the office maintains its files."  "This paper-records search, which proceeded in multiple stages as the Government gained new insights into the types of records that were most responsive to the plaintiff's FOIA request, was plainly adequate."
   
• Exemption 7, Threshold:  The court holds that "[i]n this case, the Government has met its threshold burden necessary to invoke both Exemption 7(E) and Exemption 7(F) that the 81 pages were 'compiled for law enforcement purposes.'"  The court explains that "ICE acts pursuant to the Immigration and Nationality Act to administer and enforce the immigration laws and naturalization of aliens."  "Moreover, the Government has established that the 81 pages in question have a rational nexus with the agencies' law enforcement activities because they contain sensitive information and personally identifiable information [PII] of ICE employees and third parties engaged in law enforcement activities."
   
• Exemption 7(E):  The court holds that "[t]he Government has established that it properly applied FOIA Exemption 7(E) to the 81 pages of paper records."  The court relates that "[t]he public Vaughn index states that information from the 81 pages was withheld pursuant to Exemption 7(E) because the 'pages consist of law enforcement sensitive information and PII of ICE employees and other third parties.'"  "The Vaughn index states that the exemption was 'applied to law enforcement sensitive information, the release of which could reveal techniques and/or procedures for law enforcement investigations or prosecutions, or disclose guidelines for law enforcement investigations or prosecutions which could reasonably be expected to risk circumvention of the law.'"  "'The redacted portions of the handbook reveal law enforcement sensitive techniques, procedures, and guidelines that are not well known.'"  "'Disclosure of this information could reasonably be expected to jeopardize ongoing ICE investigations and operations and assist those seeking to violate or circumvent the law.'"  "The manner by which the law enforcement agencies in this case label cases, access databases, and maintain information regarding cases in general falls within FOIA Exemption 7(E) for 'law enforcement technique and procedures.'"
   
• Exemption 7(F):  The court holds that "[t]he Government also properly applied FOIA Exemption 7(F) to the 81 pages."  The court relates that "[t]he public Vaughn index states that the 81 pages 'consist of law enforcement sensitive information and PII of ICE employees and other third parties.'"  "The Vaughn index states that Exemption 7(F) was applied 'to law enforcement sensitive information throughout these pages, the disclosure of which could reasonably be expected to endanger the life or physical safety of numerous individuals.'"  The court holds that "[t]he Government's assessment that disclosure of the 81 pages would result in danger to ICE employees and third parties is entitled to deference in this matter."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[t]he defendants have demonstrated sufficiently that they made reasonable efforts to segregate exempt information from non-exempt information and that the result of these efforts was that the 81 pages have been redacted in full except for certain dates contained in the 81 pages."  The court relates that "[i]n this case, [defendant's] Declaration states that ICE originally conducted a line-by-line review to identify any portions of documents that could be segregated from exempt portions and disclosed and non-exempt portions."  "In addition, ICE conducted a subsequent review of the 81 pages for segregability and concluded that certain dates in the 81 pages that were originally deemed non-segregable could be segregated and produced to the plaintiff."  Also, "the Government has demonstrated sufficiently in its declarations that such information is either inextricably intertwined with the exempt information or are the kinds of 'nuggets' to which the plaintiff is not entitled."