Vidal-Martinez v. DHS, Nos. 22-2445, 23-1900, 2023 WL 6985694 (7th Cir. Oct. 24, 2023) (Brennan, J.)

Vidal-Martinez v. DHS, Nos. 22-2445, 23-1900, 2023 WL 6985694 (7th Cir. Oct. 24, 2023) (Brennan, J.)

Re:  Request for records concerning requester’s immigration proceedings

Disposition:  Affirming district court’s grant of government’s motion for summary judgment

• Litigation Considerations:  The Court of Appeals for the Seventh Circuit holds that “[t]he district court had an adequate factual basis to evaluate ICE’s withholdings.”  “To start, ICE provided that court with a detailed affidavit from its FOIA officer and a Vaughn index.”  “But the district court did not rely on either in considering whether the withheld information was protected from disclosure.”  “Instead, at [the requester’s] request, the court reviewed all 51 documents in camera, which provided it with more than an adequate factual basis.”

• Exemption 5, Attorney-Client Privilege:  The Court of Appeals for the Seventh Circuit relates that “[o]n appeal, [the requester] does not contest the district court’s conclusion that these exemptions apply to the withheld information.”  “Rather, he argues the district court clearly erred in concluding that the crime-fraud exception to attorney-client privilege did not apply.”  “The district court found ‘no evidence that ICE deliberately misled the [habeas] court when it argued that [the requester’s] habeas case should be dismissed [in the requester’s underlying case]. . . .”  “The district court did not clearly err in its decision.”  “[The court] too find[s] no factual foundation in the record for misconduct, let alone criminal conduct, by ICE.”

• Attorney Fees, Eligibility:  The Court of Appeals for the Seventh circuit holds that “[the requester] has not shown that his complaint prompted ICE to voluntarily change its position.”  “Because [the requester] did not substantially prevail, he is not entitled to attorney’s fees.”  “[The requester] contends his FOIA lawsuit prompted ICE to voluntarily change its position by responding to his FOIA requests.”  “But ICE maintained the same position – that it would respond to his requests and provide him with all non-exempt responsive records – before and after [the requester] sued.”  “ICE informed the district court that it responds to FOIA requests in the order received and that it faced administrative delays in processing those requests due to a COVID-era backlog.”  “Regardless of those delays, ICE consistently stated its intent to respond, and nothing in the record suggests ICE took a position to the contrary.”  “ICE’s production of documents resulted from the normal processing of FOIA requests.”  “[The requester] also asserts that because ICE produced documents with redactions, he prevailed.”  “Yet this does not represent a ‘change in position’ by the agency.”  “The parties disagreed with what was exempt under FOIA; hence, the records when produced were redacted.”  “This was part of the back-and-forth process of an agency handling a FOIA request.”  “Even more, the district court resolved the remaining redaction issues in ICE’s favor at summary judgment.”