Stevens v. HHS, No. 22-5072, 2023 WL 6392407 (N.D. Ill. Oct. 2, 2023) (Kennelly, J.)

Stevens v. HHS, No. 22-5072, 2023 WL 6392407 (N.D. Ill. Oct. 2, 2023) (Kennelly, J.)

Re:  Requests for records concerning third parties

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

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  “The Court first addresses five FOIA requests that [plaintiff] sent to EOIR.”  “EOIR states in its brief in support of its motion for summary judgment that EOIR fully responded to [one] request the same month that it was received.”  “The agency has also provided an affidavit from one of its FOIA officers and a copy of a letter addressed to [plaintiff] stating as much.”  “[Plaintiff] has not responded to this argument in her response/cross-motion or reply brief.”  “She has therefore forfeited any argument in opposition to EOIR’s motion for summary judgment regarding this FOIA request.”  “EOIR is entitled to summary judgment with respect to this request.”

• Procedural Requirements, Proper FOIA Requests:  The court relates that “[t]he parties do not dispute that EOIR responded to [plaintiff’s] remaining four requests . . . .”  “The question before the Court is whether EOIR’s response was proper or whether it improperly withheld information.”  “For each request, [plaintiff] provided the agency with the individual’s name, birth date, and alien number, and she specified a time frame for the records sought (e.g., 1996 to present).”  “The requests were worded slightly differently but generally asked for ‘all system records and other items maintained, produced, or distributed by EOIR’ regarding the individual.”  “In addition to this general description, each request included a more specific description of the types of records sought.”  “All four requests made clear that the records [plaintiff] sought included, but were not limited to, the ‘record of proceedings’ of the individual’s immigration hearing(s).”  “EOIR did not attempt to respond to [plaintiff’s] requests as written.”  “Instead, it responded by searching for and producing only the record of proceedings associated with each individual.”  “EOIR argues that it was justified in ‘interpret[ing]’ each request as a request for the record of proceedings because [plaintiff’s] requests were overly broad and therefore did not ‘reasonably describe[ ]’ the records sought as required by FOIA.”  “[Plaintiff] counters that she is entitled to summary judgment because EOIR did not reasonably respond to her request by sending only the record of proceedings.” 
  
  “The Court is not convinced that [plaintiff’s] requests were so broad that it was reasonable for EOIR to largely ignore them altogether.”  “True, the requests included a broad demand for all records ‘maintained, produced, or distributed by EOIR’ regarding each individual.”  “But the requests all included a more detailed specification of the types of records sought.”  “[Three of the] requests asked for ‘all memoranda, notes, reports, [and] email messages’ regarding the individual’s case, in addition to the record of proceedings.”  “[One other] request, although vaguer, also specifically asked for ‘the record of proceeding(s) for hearing(s), the case management interface outputs, as well as . . . any email or other communications about his case.’”  “In addition, [one of the above three discussed] request[s] sought ‘ALL calendar and case note records maintained by any EOIR digital systems, including screen shots of databases from which information on [the subject] is stored.’”  “Each request also defined a time frame for the records sought (e.g., ‘1/1/1996 to present’).”  “[Plaintiff] therefore identified the form, subject matter, and time frame of the records she requested.”  “EOIR’s interpretation is at odds with the agency’s duty to liberally construe FOIA requests.”  “The fact that [plaintiff’s] requests included sweeping language requesting ‘all’ records regarding certain individuals does not mean that the agency was permitted to ignore her more specific demands for records such as memoranda, emails, case notes, and calendar notes.”  “Second, the Court disagrees with EOIR’s view that the ease with which an agency could conduct the search at issue is irrelevant to determining whether the request ‘reasonably describes’ the records.”  “A plaintiff reasonably describes the records sought if the ‘description of records is one that would allow an agency employee to locate the records “with a reasonable amount of effort.”’”  “There is no freestanding overbreadth exception that excuses agencies from responding to requests regardless of their ready ability to do so.”  “Rather, the relevant question is whether the agency can locate the records at issue with a reasonable amount of effort.”  “Federal agencies vary greatly in their size, mission, the type and amount of information they collect and generate, and their record-keeping practices.”  “A request may be unreasonably burdensome for one agency but easy to satisfy for another.”  “The Court therefore finds that EOIR did not make ‘a good faith effort’ that was ‘reasonable in light of the request’ when it searched for only the record of proceedings in response to the [four] requests.”
  
  “EOIR also argues that it was not required to respond to a portion of [one] request seeking ‘screen shots of databases from which information on [one subject] is stored.’”  “In its view, complying with this request would have involved ‘the creation of new records,’ which FOIA does not require.”  The court finds that “[plaintiff] is asking for the information that appears in EOIR’s databases after those databases have been queried for [the subject’s] identifying information.”  “This falls within FOIA’s definition of an agency record.”  “The remaining question is whether the database records are ‘readily reproducible’ as a screenshot.”  “EOIR has not argued that the records are not reproducible in that format.”  “To the contrary, it has said that ‘EOIR almost certainly “could” take screenshots as it browses its computer systems, whether by using a computer program that captures the image on a given computer’s screen or perhaps even by physically pointing a camera at a computer screen.’”  “The Court therefore concludes that the database information is readily reproducible in the form that [plaintiff] requested.”
   
• Litigation Considerations, Relief:  The court relates that “[i]n December 2019, [plaintiff] submitted a FOIA request to HHS seeking certain records pertaining to [a] Democratic Congressional Representative . . . .”  “[Plaintiff] asserts that ‘[o]ther than acknowledging the filing of the request [she] received no documents, determination, and no further communication from [HHS] about this properly submitted FOIA request.’”  “HHS, however, asserts that it complied with this request by sending [plaintiff] a series of seven letters producing a total of 239 documents.”  “The response letters appear to be addressed to [plaintiff] and indicate that they were sent via e-mail to [plaintiff’s email address].”  “[Plaintiff] does not explain why she is entitled to summary judgment given the dispute regarding whether she received the response.”  “[Plaintiff] appears to argue that she is entitled to summary judgment solely on the basis that HHS did not comply with FOIA’s statutory deadlines.”  “That argument fails.”  “As the Court has discussed, ‘FOIA’s citizen suit provision provides only injunctive relief and has no remedy for cases . . . in which an agency is late in producing the requested records.’”  “[Plaintiff] must show that there is no dispute that HHS is currently withholding records to which she is entitled.”  “Because there is a genuine dispute regarding whether HHS responded to [plaintiff’s] FOIA request, she is not entitled to summary judgment on this request.”
  
  Similarly, “[i]n March 2022, [plaintiff] submitted a FOIA request to CBP seeking information regarding [a third party].”  “[Plaintiff] asserts that she never received any further communication from CBP regarding this request.”  “CBP has, however, presented a copy of a letter addressed to [plaintiff] that it says it sent on October 26, 2022, informing her that it had ‘conducted a comprehensive search of files within the CBP databases for records that would be responsive’ to her request and that it was ‘unable to locate or identify any responsive records.’”  “[Plaintiff] does not explain why she is entitled to summary judgment given the dispute regarding whether she received the response.”  “The Court concludes that she is not entitled to summary judgment on this request.”
   
• Litigation Considerations, Exhaustion of Administrative Remedies:  “In November 2019, [plaintiff] submitted a FOIA request to DHS seeking records regarding [a] Representative . . . .”  “It is undisputed that, on December 2, 2019, DHS responded stating that DHS was ‘transferring this request to the FOIA Officers for . . . U.S. Customs and Border Protection (CBP), for processing under FOIA and direct response to you.”  “CBP, however, admits that it has never responded to this ‘properly submitted FOIA request.’”  “CBP provides no justification for this over three-year delay nor any reason why [plaintiff] is not entitled to summary judgment and a court order compelling production of the records she seeks.”  “The Court therefore grants summary judgment in favor of [plaintiff] on this request.”  “The Court orders CBP to conduct a good-faith and reasonable search in response to this request.”
   
• Litigation Considerations, Pleadings:  The court relates that “[i]n June 2021, [plaintiff] submitted a FOIA request to ICE seeking records regarding [a third-party subject].”  “In support of her motion for summary judgment, however, [plaintiff] asserts only that ICE did not respond ‘prior to the filing of the lawsuit.’”  “As discussed, the Court cannot grant [plaintiff] summary judgment based solely on an agency’s past violation of a FOIA statutory requirement.”  “[Plaintiff] fails to articulate whether and how ICE is currently withholding records from her in violation of FOIA.”  “Nor does her Rule 56.1 Statement assert any facts that would support such a finding with respect to this request.”  “She is therefore not entitled to summary judgment.”  The court finds similarly regarding another request to ICE.
  
  The court also relates that “[i]n August 2022, [plaintiff] submitted an expedited FOIA request to ICE seeking records regarding [a third party].”  “She then filed a motion for a preliminary injunction to compel ICE to speed up its response to her request.”  “The Court granted her motion and ordered ICE to produce the requested records at a rate of 1,500 pages per month.”  “Again, [plaintiff’s] Rule 56.1 Statement states only that ICE did not respond ‘prior to the filing of the lawsuit.’”  “She has not suggested in her motion for summary judgment or any other filing before this Court that ICE is not complying with the court-ordered production schedule.”  “Nor does she articulate any other grounds for finding that ICE is currently unlawfully withholding records from her.”  “[Plaintiff] is therefore not entitled to summary judgment on this request.”