Grey v. Cuccinelli, No. 18-01764, 2020 WL 3104744 (D.S.C. June 11, 2020) (Norton, J.)

Grey v. Cuccinelli, No. 18-01764, 2020 WL 3104744 (D.S.C. June 11, 2020) (Norton, J.)

Re:  Request for certain records concerning plaintiff, as well as certain agency policies

Disposition:  Denying defendants' motion for summary judgment

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  Responding to defendants' mootness argument, the court finds that "[plaintiff's] counsel explained that there appeared to be a discrepancy in e-mails produced during discovery and a lack of e-mails sent in response to his FOIA request, suggesting that defendants' FOIA search for e-mails was inadequate and that there could be more responsive e-mails that have not yet been produced."  "As such, the court is not convinced of the mootness of [plaintiff's] FOIA claim."
   
• Litigation Considerations, Adequacy of Search:  The court relates that "[a]t the hearing on the motion, there was disagreement over the interpretation of [plaintiff's] FOIA request and what e-mails should have been included in that search."  "As such, the court instructs defendants to reaffirm in an affidavit the search that was conducted for e-mails and whether all emails were produced in [plaintiff's] A-file."
   
• Exemption 7(E):  "[T]he court instructs defendants to produce a Vaughn index by July 6, 2020 detailing USCIS's justification for withholding training materials, including those listing statistics, on the basis of Exemption 7(E)."  First, "as a general matter, the court is convinced that USCIS is a law enforcement agency for purposes of invoking Exemption 7(E)."  "However, the question of whether the specific redacted documents serve a law enforcement purpose still remains."  The court finds that "statistics are within the marriage fraud training materials that [plaintiff] requested."  "At the hearing on the motions, counsel for defendants argued that generally statistics could serve a law enforcement purpose but did not explain how the specific redacted statistics at issue serve a law enforcement purpose."  The court holds that "[t]his conclusory argument is insufficient for the court to determine whether the statistics within the training materials serve a law enforcement purpose."  "With regard to the rest of the training materials, [defendant's] Affidavit does not explain why those documents are exempt under Exemption 7(E) but instead simply state that documents were withheld under that exemption."  The court relates that "Defendants contend that they cannot meaningfully respond about whether the materials are for law enforcement purposes because [plaintiff] does not refer to particular records, and his vague claim is insufficient to counter defendants’ affidavit."  "However, [the court holds that] the problem with this argument is that [defendant's] Affidavit does not explain why documents were withheld under certain FOIA exemptions; instead, it just states the exemptions that USCIS invoked."