Haitian Bridge All. v. DHS, No. 22-8344, 2024 WL 476304 (S.D.N.Y. Feb. 7, 2024) (Ramos, J.)

Haitian Bridge All. v. DHS, No. 22-8344, 2024 WL 476304 (S.D.N.Y. Feb. 7, 2024) (Ramos, J.)

Re:  Requests for records concerning treatment of certain migrants

Disposition:  Granting defendants’ motion for partial summary judgment; denying plaintiff’s cross-motion for partial summary judgment

• Procedural Requirements, Proper FOIA Requests:  “The Court finds that the disputed portions of Request No. 6 do not identify precisely what records are being requested.”  “Due to this overbreadth, the Court finds that Request No. 6 would not allow agency employees familiar with the subject matter to locate the records with a reasonable amount of effort.”  The court relates that “[d]eclarations from the DHS Defendants’ FOIA Officers assert that Request No. 6 is overbroad and would require a vast review.”  The court finds that “[r]equest 6(a) asks for ‘[r]ecords reflecting’ ‘any request’ for food, water, housing or shelter, and other necessities.”  “Request 6(b) asks for ‘[r]ecords reflecting’ ‘how much’ and ‘how many times’ DHS employees provided these necessities.”  “The Court agrees with the FOIA Officers’ declarations, and also finds that by their plain text, Request 6(a) and 6(b) would necessitate a search and review of all employee communications that may mention individual migrants’ requests for these items.”  “Request 6(c) seeks ‘[r]ecords reflecting’ ‘how the [DHS Defendants] tracked and addressed’ migrant deaths, drownings, pregnancies, labor and deliveries, and hospitalizations.”  “The Court again agrees with the FOIA Officers’ declarations and also finds, by their plain text, that Request 6(a) and 6(b) would necessitate a search of virtually all migrant health records to discern which of those records ‘reflected’ the requested categories of information.”  “Request 6(e), which seeks ‘[r]ecords reflecting’ ‘the types of documents’ created, collected from, returned to, given to, and created by the agencies when ‘processing’ migrants in Del Rio, . . . lacks limiting language or a definition of processing.”  “The Court is persuaded that completing this search would require review of virtually all operational communications between migrants and agency employees, based on the request’s plain text and the FOIA Officers’ declarations.”  “Request 6(f) seeks ‘[r]ecords sufficient to show how the Agency tracked’ ‘the age, immigration history (if any), expressed fear of return (if applicable), medical condition, and familial relationships of Migrants in Del Rio.’”  “Request 6(g) seeks similar information, in the form of ‘records reflecting’ the ‘race, country of origin or domicile, age, immigration history (if any), expressed fear of return (if applicable), medical condition, and familial relationships’ for migrants with a baby born in Del Rio who were ‘expelled, removed, or deported.’”  “The Court agrees with the FOIA Officers’ declarations, and also finds that the plain text of Request 6(f) and 6(g) would necessitate searches of ICE and CBP’s records, law enforcement databases, and Alien files of every migrant that was present in Del Rio.”
  
  The court relates that “Request No. 7 seeks ‘[r]ecords reflecting’ an additional seven categories of information from the Del Rio during the time period between September 1, 2021 and September 25, 2021 ‘to the extent not captured in the preceding [Request No. 6] . . . .’”  “These categories include:  ‘if, when, and how the amount or speed of water flowing through the Rio Grande River within the Del Rio Sector changed,’ Request 7(a); ‘if, when, and how horse patrols, use of force techniques,’ and other techniques were used against migrants, Request 7(b); ‘if, when, and how’ migrants were ‘threatened, had violence used against them, were intimidated, were harassed, were discriminated against, or were deterred from arriving in Del Rio,’ Request 7(c); how the DHS Defendants ‘determined and under what legal authority’ migrants in Del Rio ‘should be arrested, removed, detained, deported, or expelled,’ Request 7(d); how they ‘determined to which country deported or expelled’ migrants would be sent to, Request 7(e); how they determined whether migrants in Del Rio ‘should be detained, paroled, or released on their own recognizance pending removal[’], Request 7(f); and how they processed migrants, including what ‘documentation or other written records were created (or should have been created),[’] Request 7(g).”  “The DHS Defendants argue that this request would also require the agencies to review virtually all migrant efforts from the relevant time period.”  “Declarations from the DHS Defendants’ FOIA Officers assert that Request No. 7 ‘does not reasonably describe the records sought’ because the clause ‘[r]ecords reflecting the following information, to the extent not captured [by the preceding Request No. 6]’ creates ‘the same problems of vagueness and overbreadth’ as the initial disputed portions of the October 2021 Request, which did not permit the agency to ‘determine precisely which records Plaintiffs are seeking[.]’”  “The Court agrees with the FOIA Officers’ declarations that Request No. 7 requires the DHS Defendants to review a vast amount of materials.”
   
• Litigation Consideration, Adequacy of Search:  The court relates that, regarding one request, “the parties have agreed to search the emails of certain custodians, . . . but have been unable to reach agreement regarding the search terms to be applied.”  “Plaintiffs advocate for their proposed search terms and argue that the DHS Defendants do not show why Plaintiffs’ terms are unreasonable.”  “The DHS Defendants contend it is within their discretion to craft search terms.”  The court finds that “‘[f]ederal agencies have discretion to create search terms that they believe are reasonably tailored to uncover documents responsive to a FOIA request’ and ‘FOIA petitioners cannot dictate the search terms to be used.’”  “However, an agency’s choice of search terms is not final.”  “Where challenged, agencies have to explain why clearly relevant search terms were not used.”  “Here, the DHS Defendants have not yet finished their search and production of the requested records.”  “The parties have not briefed whether the DHS Defendant[]s’ search ignored clearly relevant search terms, nor have the DHS Defendants provided declarations regarding the sufficiency of their search.”  “Plaintiffs’ argument on the sufficiency of the DHS Defendants’ search is premature, and should be brought, if at all, after the DHS Defendants’ complete their search and production of documents.”
   
• Litigation Considerations:  The court relates that “Plaintiffs also request that the Court impose a record production schedule of 1,500 pages per month for each agency, on the basis that the DHS Defendants have allegedly ‘missed [their] FOIA-imposed deadline.’”  The court finds that, “[a]s explained by the agency declarants, CBP, ICE, and DHS can commit to work in good faith to process 500 pages, 750 pages, and 400 pages per month, respectively, which is the same commitment each agency routinely makes in litigation cases.”  “The agencies’ declarations are accorded a presumption of good faith.”  “The Court therefore finds that the DHS Defendants have met their obligations pursuant to the FOIA statute to process Plaintiff’s requests promptly.”  “Accordingly, the Court will not order Plaintiffs’ proposed monthly production schedule of 1,500 pages for each agency.”