National Press Club Journalism Institute v. U.S. Immigration and Customs Enforcement

• Court: District Court, District of Columbia
• Decided: December 28, 2023
• Docket: Civil Action No. 2018-2932
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL PRESS CLUB JOURNALISM : INSTITUTE, et al., : : Plaintiffs, : Civil Action No.: 18-2932 (RC) : v. : Re Document Nos.: 52, 53 : UNITED STATES IMMIGRATION AND : CUSTOMS ENFORCEMENT, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiffs National Press Club Journalism Institute and Kathy Kiely (collectively,

“Plaintiffs”) bring this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,

against Defendants United States Immigration and Customs Enforcement (“ICE”) and the United

States Department of Homeland Security (collectively, “Defendants”). Plaintiffs seek to compel

disclosure of records pertaining to two individuals—Emilio and Oscar Gutierrez-Soto—as well

as mechanisms used to block or limit calls from detainees at ICE facilities in El Paso, Texas.

Defendants’ motion for summary judgment and Plaintiffs’ cross-motion for partial summary

judgment are now ripe for review. For the reasons stated below, the Court grants in part and

denies in part Defendants’ motion, and grants in part and denies in part Plaintiffs’ cross-motion. II. BACKGROUND

In 2008, Emilio and Oscar Gutierrez-Soto sought asylum in the United States. See Pls.’

Mem. Opp’n Defs.’ Mot. Summ. J. & Supp. Pls.’ Cross-Mot. Partial Summ. J. (“Pls.’ Opp’n”),

ECF No. 53-1, at 1. Emilio had been a journalist in Mexico, where he “reported on corruption

and abuses by the Mexican military.” Id. at 4. “[A]fter receiving a tip that the military wanted

him dead,” Emilio fled the country with his son, Oscar. Id. Following their flight from Mexico,

the Gutierrez-Sotos lived in New Mexico for the better part of nine years. Id. Then, in July

2017, an immigration judge denied their asylum claims. Id. In December of that same year, ICE

arrested the pair and “attempted to deport them.” Id. Although the Board of Immigration

Appeals granted an emergency stay of removal, ICE detained the Gutierrez-Sotos for the next

several months at a facility in El Paso. Id. at 4–5. The Gutierrez-Sotos eventually filed habeas

petitions, see Gutierrez-Soto v. Sessions, 317 F. Supp. 3d 917 (W.D. Tex. 2018), and were

released from detention on July 26, 2018 before their claims were fully adjudicated. Pls.’ Opp’n

at 5–6.

On May 18, 2018—while the Gutierrez-Sotos were still in ICE custody—Plaintiffs filed a

FOIA request seeking two categories of records. Compl., Ex. A, Freedom of Information Act

Request (“FOIA Request”), ECF No. 1-1, at 1. The first category included “[a]ll records,

including but not limited to emails, memos, text messages, and other communications, since

January 1, 2017, that mention Emilio Gutierrez-Soto (aka Emilio Gutierrez Soto) or his son,

Oscar Gutierrez-Soto (aka Oscar Gutierrez Soto).” Id. The second category included “[a]ll

records of ICE facilities and/or personnel in El Paso, Texas, including but not limited to

communications (e.g., emails, memos, text messages) and any mechanisms used to limit or block

phone calls from detainees at ICE’s El Paso facilities, since March 1, 2018, that mention or

2 contain” the name of the Gutierrez-Sotos’ attorney, his law firm, or two specific phone numbers.

Id.

ICE acknowledged receipt of Plaintiffs’ FOIA request on June 14, and it also referred a

portion of the request to United States Immigration and Citizenship Services (“USCIS”). Pls.’

Statement Material Facts & Response Defs.’ Statement Material Facts (“Pls.’ SMF”), ECF No.

53-2, at ¶¶ 15, 16. On July 17, Plaintiffs filed an administrative appeal, id. ¶ 18, which USCIS

denied, id. ¶ 20, and to which ICE responded by remanding Plaintiffs’ FOIA request for further

processing, id. ¶ 19. On December 13, Plaintiffs filed this lawsuit, asking the Court to order

Defendants to conduct a reasonable search for responsive records and to disclose all non-exempt,

responsive records to Plaintiffs. See Compl., ECF No. 1, at 13.

Following the initiation of Plaintiffs’ lawsuit, Defendants began processing records

responsive to Plaintiffs’ FOIA request. See Joint Status Report, ECF No. 9, at 2 (stating that

productions began on December 17, 2018). Over the course of the next three and a half years,

Defendants continued to produce responsive records. See Joint Status Report, ECF No. 41, at 1

(reporting that last production was made on July 21, 2022). The parties also negotiated over the

scope of Plaintiffs’ request. As relevant here, one topic of negotiation centered on Plaintiffs’

request for records relating to mechanisms used to limit or block phone calls from detainees at

ICE’s El Paso facilities. See Joint Status Report, ECF No. 25, at 2 (“The parties are still

conferring on the issue raised by Plaintiffs with respect to ICE’s search for records responsive to

the second prong of their request.”). They were not, however, able to make significant progress

on that front. See Joint Status Report, ECF No. 33, at 3 (“As to the other issues about which the

parties had been conferring . . . , the parties have not been able to reach resolution of those

issues.”).

3 Ultimately, ICE processed approximately 12,000 pages of responsive records, of which

“174 pages of ICE records were withheld in full and approximately 3,000 pages . . . were

withheld in part.” Defs.’ Statement Material Facts (“Defs.’ SMF”), ECF No. 52-1, at ¶ 9.

USCIS produced approximately 3,000 pages of records, of which 16 pages were withheld in full

and 121 were withheld in part. Id. ¶ 10.

Defendants moved for summary judgment that they had conducted reasonable searches

and properly withheld information under FOIA exemptions 5, 6, 7(C), and 7(E). See generally

Defs.’ Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 52. Plaintiffs opposed and cross-moved for

partial summary judgment that Defendants did not conduct reasonable searches and that ICE did

not properly withhold certain records and information. See generally Pls.’ Opp’n. The motions

are fully briefed. See Defs.’ Reply Supp. Mot. Summ. J. & Opp’n Pls.’ Cross-Mot. Partial

Summ. J. (“Defs.’ Reply”), ECF No. 55; Pls.’ Reply Supp. Cross-Mot. Partial Summ. J. (“Pls.’

Reply”), ECF No. 57.

III. LEGAL STANDARD

Congress enacted FOIA to permit citizens to discover “what their government is up to.”

U.S. Dep’t of Just. v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)

(quoting EPA v. Mink, 410 U.S. 73, 105 (1973) (Douglas, J. dissenting)). FOIA operates via

several steps. First, upon an agency’s receipt of a request that “reasonably describes” the records

being sought, 5 U.S.C. § 552(a)(3)(A), the agency must “conduct[] a search reasonably

calculated to uncover all relevant documents.” Weisberg v. U.S. Dep’t of Just., 705 F.2d 1344,

1351 (D.C. Cir. 1983). Then, FOIA requires the agency to disclose responsive records revealed

by the search, unless material in the records falls within one of FOIA’s nine statutory

exemptions. 5 U.S.C. § 552(b); see also Jud. Watch, Inc. v. U.S. Dep’t of Def., 847 F.3d 735,

4 738 (D.C. Cir. 2017) (“The Act requires government agencies to make information available

upon request, unless the information is protected by one of nine statutory exemptions.” (internal

quotation marks omitted)).

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Pinson v. Dep’t of Just., 236 F. Supp. 3d 338, 352 (D.D.C. 2017) (quoting Defs. of Wildlife v.

U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). A court addressing a motion for

summary judgment in a FOIA suit is to review the matter de novo. See 5 U.S.C. § 552(a)(4)(B);

Life Extension Found., Inc. v. IRS, 915 F. Supp. 2d 174, 179 (D.D.C. 2013). In general,

summary judgment is appropriate when “the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A “material” fact is one capable of affecting the substantive outcome of the litigation.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is

enough evidence for a reasonable factfinder to return a verdict for the non-movant. See Scott v.

Harris, 550 U.S. 372, 380 (2007). In a FOIA case, “summary judgment is appropriate if there

are no material facts genuinely in dispute and the agency demonstrates ‘that its search for

responsive records was adequate, that any exemptions claimed actually apply, and that any

reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt

information.’” Prop. of the People, Inc. v. Office of Mgmt. and Budget, 330 F. Supp. 3d 373, 380

(D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 181 (D.D.C.

2017)).

The reviewing court may grant summary judgment based on the record and agency

declarations if “the agency’s supporting declarations and exhibits describe the requested

documents and ‘the justifications for nondisclosure with reasonably specific detail, demonstrate

5 that the information withheld logically falls within the claimed exemption, and are not

controverted by either contrary evidence in the record nor by evidence of agency bad faith.’”

Pronin v. Fed. Bureau of Prisons, No. 17-cv-1807, 2019 WL 1003598, at *3 (D.D.C. Mar. 1,

2019) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal citation

omitted)). An agency’s “[c]onclusory and generalized allegations of exemptions” are not

sufficient justification. Morley v. CIA, 508 F.3d 1108, 1114–15 (D.C. Cir. 2007) (internal

citations omitted); see also Pinson v. Dep't of Just., 313 F. Supp. 3d 88, 106 (D.D.C. 2018).

“Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears

‘logical’ or ‘plausible.’” Scudder v. CIA, 254 F. Supp. 3d 135, 140 (D.D.C. 2017) (quoting Jud.

Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (internal citations

omitted)). A reviewing court should respect an agency’s expertise and not “overstep the proper

limits of the judicial role in FOIA review.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608

F.2d 1381, 1388 (D.C. Cir. 1979).

IV. ANALYSIS

Defendants first move for summary judgment on the ground that they conducted an

adequate search for records responsive to Plaintiffs’ FOIA request. Plaintiffs no longer contest

the adequacy of Defendants’ search for records responsive to their request for records

mentioning the Gutierrez-Sotos. They do, however, object to the adequacy of Defendant ICE’s

search for records regarding mechanisms used to limit or block calls in the agency’s El Paso

facilities. For the reasons set forth below, the Court concludes that ICE has not conducted an

adequate search for such records.

Second, Defendants move for summary judgment regarding their application of certain

FOIA exemptions. Plaintiffs do not challenge USCIS’s application of various exemptions, but

6 they do challenge many of ICE’s withholdings. Specifically, Plaintiffs argue that ICE

improperly invoked the deliberative process and attorney-client privileges of Exemption 5, as

well as Exemptions 6 and 7(C). As explained below, the Court finds that ICE has not

sufficiently justified its application of the Exemptions at issue.

Finally, the Court finds that ICE may continue to assert that certain documents it

inadvertently disclosed to Plaintiffs are exempt from disclosure. Accordingly, the Court grants

in part and denies in part Defendants’ motion for summary judgment and grants in part and

denies in part Plaintiffs’ cross-motion for summary judgment.

A. The Adequacy of Defendants’ Searches

Defendants seek summary judgment on the ground that their search for responsive

records was reasonable and adequate with respect to both of Plaintiffs’ FOIA requests. An

agency responding to a FOIA request must conduct an adequate search; that is, a search

“reasonably calculated to uncover all relevant documents.” Hodge v. FBI, 703 F.3d 575, 579

(D.C. Cir. 2013) (quoting Morley, 508 F.3d at 1114). The adequacy of a search is generally

“determined not by the fruits of the search, but [rather] by the appropriateness of [the search’s]

methods.” Id. (quoting Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir.

2003)); see also Ryan v. FBI, 174 F. Supp. 3d 486, 490–91 (D.D.C. 2016) (“‘There is no

requirement that an agency seek every record system,’ rather a search may be reasonable if it

includes all systems ‘that are likely to turn up the information requested.’” (quoting Oglesby v.

U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990))). In other words, at summary

judgment, the pertinent question is not “whether there might exist any other documents possibly

responsive to the request,” but rather “whether ‘the search for [the requested] documents was

7 adequate.’” In re Clinton, 973 F.3d 106, 116 (D.C. Cir. 2020) (quoting Weisberg v. U.S. Dep’t

of Just., 745 F.2d 1476, 1485 (D.C. Cir. 1984)).

The adequacy of an agency’s search for documents requested under FOIA “is judged by a

standard of reasonableness and depends, not surprisingly, upon the facts of each case.”

Weisberg, 745 F.2d at 1485. To demonstrate the adequacy of its search, “the agency may rely

upon reasonably detailed, nonconclusory affidavits [or declarations] submitted in good faith.”

Id. The affidavits or declarations should “explain the scope and method of [the agency’s] search

‘in reasonable detail.’” Leopold v. CIA, 177 F. Supp. 3d 479, 486 (D.D.C. 2016) (quoting Perry

v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)). What is more, they should “set[] forth the search

terms and the type of search performed, and aver[] that all files likely to contain responsive

materials (if such records exist) were searched.” Oglesby, 920 F.2d at 68. Unless there is

evidence to the contrary, “such affidavits or declarations are sufficient to show that an agency

complied with FOIA.” Leopold, 177 F. Supp. 3d at 486. On the other hand, if “the record leaves

substantial doubt as to the sufficiency of the search, summary judgment for the agency is not

proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990); see Leopold v. Dep’t of

Just., 130 F. Supp. 3d 32, 40 (D.D.C. 2015) (“Summary judgment based on affidavits is not

warranted, however, if the affidavits are ‘controverted by either contrary evidence in the record

[or] by evidence of agency bad faith.’” (quoting Military Audit Project v. Casey, 656 F.2d 724,

738 (D.C. Cir. 1981))).

1. Plaintiffs’ Request for Records Mentioning Mr. Gutierrez-Soto or His Son

Defendants first move for summary judgment on the ground that they conducted an

adequate search for documents responsive to Plaintiffs’ request for “[a]ll records, including but

not limited to emails, memos, text messages, and other communications, since January 1, 2017,

8 that mention Emilio Gutierrez-Soto (aka Emilio Gutierrez Soto) or his son, Oscar Gutierrez-Soto

(aka Oscar Gutierrez Soto).” FOIA Request at 1; see Defs.’ Mot. at 2–8. Plaintiffs initially

challenged one aspect of Defendants’ motion, claiming that ICE had failed to conduct an

adequate search for text messages responsive to their request. See Pls.’ Opp’n at 9–14. More

specifically, Plaintiffs contended that ICE had failed to show that it conducted any search for

responsive text messages and, even if it had, that ICE had failed to explain its methodology for

conducting such a search. Id.

In response, ICE submitted a declaration setting forth additional details regarding its

search for text messages. See Suppl. Decl. of Fernando Pineiro (“Suppl. Pineiro Decl.”), ECF

No. 55-2, at 2–4. The supplemental declaration provided further information as to the specific

methods used to search for texts and confirmed that individuals tasked with conducting the

search had in fact complied. See id. In light of this additional information, Plaintiffs no longer

“contest the sufficiency of Defendants’ search for text messages.” Pls.’ Reply at 5.

The Court has reviewed the affidavits and declarations submitted by Defendants. Having

done so, the Court concludes that both ICE and USCIS conducted an adequate search for

documents responsive to Plaintiffs’ request for records that mention Mr. Gutierrez-Soto and his

son. See Tokar v. U.S. Dep’t of Just., 304 F. Supp. 3d 81, 93 (D.D.C. 2018) (explaining that,

even where adequacy of agency’s search is uncontested, “courts have an independent duty to

determine whether the agency’s search for responsive records was adequate”). Accordingly, the

Court will grant Defendants summary judgment as to the adequacy of their search for records

responsive to this aspect of Plaintiffs’ FOIA request.

9 2. Plaintiffs’ Request for Records of Mechanisms to Limit or Block Phone Calls

a. Vagueness

Whereas the parties agree that Defendants conducted an adequate search for records

responsive to Plaintiffs’ first request for documents, they hotly contest the adequacy of

Defendants’ search for documents responsive to Plaintiffs’ request for “[a]ll records of ICE

facilities and/or personnel in El Paso, Texas, including but not limited to communications (e.g.,

emails, memos, text messages) and any mechanisms used to limit or block phone calls from

detainees at ICE’s El Paso facilities, since March 1, 2018, that mention or contain” the name of

the Gutierrez-Sotos’ attorney, his law firm, or two specific phone numbers. FOIA Request at 1.

The locus of the parties’ dispute centers on the phrase “any mechanisms used to limit or block

phone calls.” ICE contends that this phrase is irreconcilably vague. See Defs.’ Reply at 8–10.

As a result, ICE avers that it was “unable to reasonably ascertain the records” that the Plaintiffs

are seeking and, that being so, was not obligated to conduct a search for such documents. Defs.’

Mot. at 6.

ICE’s argument for summary judgment is premised on the rule that an agency is only

obligated to search for and release records “if it receives a request that ‘reasonably describes

such records.’” Evans v. Fed. Bureau of Prisons, 951 F.3d 578, 583 (D.C. Cir. 2020) (emphasis

added) (quoting 5 U.S.C. § 552(a)(3)(A)). The D.C. Circuit has explained that a request

reasonably describes records if it enables “the agency . . . to determine precisely what records are

being requested.” Id. (quoting Kowalczyk v. Dep’t of Just., 73 F.3d 386, 388 (D.C. Cir. 1996));

see also Am. Ctr. for L. & Just. v. U.S. Dep’t of Homeland Sec., 573 F. Supp. 3d 78, 81 (D.D.C.

2021) (“[A] request ‘reasonably describes’ agency records when it ‘would be sufficient [to

enable] a professional employee of the agency who was familiar with the subject area of the

10 request to locate the record with a reasonable amount of effort.’” (quoting Truitt, 897 F.2d at 545

n.36)). Because FOIA requires a reasonable description of the records being sought, “[a] request

that vaguely describes the requested documents does not suffice” to trigger the agency’s duty to

search for records. Ctr. for Immigr. Stud. v. U.S. Citizenship & Immigr. Servs., 628 F. Supp. 3d

266, 271 (D.D.C. 2022).

FOIA places the initial burden of drafting a reasonably descriptive request on the

plaintiff. See Corley v. Dep’t of Just., 998 F.3d 981, 989 (D.C. Cir. 2021). That said, FOIA does

not require that plaintiffs state their requests for records with “technical precision.” Inst. for Just.

v. Internal Revenue Serv., 941 F.3d 567, 572 (D.C. Cir. 2019). To the contrary, this Circuit’s

case law makes clear that agencies must construe FOIA requests “liberally.” Id. (quoting Nation

Mag., Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)). This is in

keeping with longstanding precedent explaining that “federal agencies may not use the

‘reasonably describes’ requirement to deny the public access to responsive records.” Pub. Emps.

for Env’t Resp. v. U.S. EPA, 314 F. Supp. 3d 68, 74 (D.D.C. 2018). That being so, the mere fact

that a request is “poorly defined” will not absolve an agency of its duty to search for responsive

records. Leopold, 130 F. Supp. 3d at 43; see LaCedra v. Exec. Off. for U.S. Att’ys, 317 F.3d 345,

348 (D.C. Cir. 2003). In a similar vein, “a [FOIA] request certainly should not fail where the

agency knew or should have known what the requester was seeking all along.” Inst. for Just.,

941 F.3d at 572; Truitt, 897 F.2d at 544 (explaining that once an “agency becomes reasonably

clear as to the materials desired, FOIA’s text and legislative history make plain the agency’s

obligation to bring them forth”).

When, as here, an agency challenges a FOIA request on vagueness grounds, the court

must “focus[] on the language of the . . . request” itself. Leopold v. U.S. Immigr. & Customs

11 Enf’t, 560 F. Supp. 3d 189, 201 (D.D.C. 2021). In doing so, the court must assess “whether the

description [of the records sought] is so broad that it would stymie a reasonable agency official

attempting to identify responsive records.” Id. This involves “a highly context-specific inquiry.”

Nat’l Sec. Couns. v. CIA, 898 F. Supp. 2d 233, 278 (D.D.C. 2012).

With these principles in mind, the Court turns back to the issue at hand. ICE contends

that the phrase “mechanisms used to limit or block phone calls” is vague because the word

“mechanisms,” when read in context, is “susceptible to too many interpretations and meanings.”

See Defs.’ Reply at 8–10. In ICE’s view, the term “mechanisms” could be read to encompass

“anything.” Id. at 9. It could, for example, include technological methods of blocking or

limiting calls—such as software or hardware that would allow users to limit or restrict calls from

specific numbers or individuals. See id. And it could also include written policies, such as a

policy “limiting phone calls to fifteen minutes,” or a policy requiring detainees to eat their meals

within set windows of time (on the theory that detainees could not make phone calls during those

windows). See id.

ICE’s attempt to manufacture ambiguity in this way is unconvincing. Agencies must

interpret FOIA requests reasonably, and they may not rely on “unreasonable reading[s] of a

FOIA request” to argue that a “request is deficient.” See Gun Owners of Am., Inc. v. FBI, 594 F.

Supp. 3d 37, 44 (D.D.C. 2022) (“An agency’s claim that it is hopelessly torn between a

reasonable and an unreasonable reading of a FOIA request will not support a conclusion that the

request is deficient.”). Reasonably construed and read in context, it is clear that Plaintiffs’

request for records relating to “mechanisms used to limit or block phone calls” does not sweep as

broadly as ICE suggests it could. To the contrary, the term “mechanisms”—when read in this

context—has a technical connotation, suggesting that the Plaintiffs seek records relating to the

12 physical and technological means that ICE utilizes to restrict calls to or from detainees in its El

Paso detention facilities. See Mechanism, Oxford English Online Dictionary,

https://www.oed.com/dictionary/mechanism_n (last visited Dec. 28, 2023) (defining

“mechanism” as “[t]he structure or operation of a machine or other complex system”).

This is made plain through the examples that Plaintiffs provided to ICE in the course of

the parties’ negotiations over the scope of Plaintiffs’ request. For example, Plaintiffs cited a U.S.

Government Accountability Office (“GAO”) report in which GAO investigators reported that

their telephone “number was blocked or otherwise restricted” when they tried calling twelve

different ICE facilities. See Pls.’ Opp’n, Ex. 19, ECF No. 53-4, at 99. The report explained that

“[t]ypical problems” encountered by the investigators included “voice prompt[s] stating”

variously that their number was restricted, that they were calling from an “invalid” number, or

that “calls to [the specific ICE facility’s telephone] number ha[d] been blocked by the telephone

service provider.” Id. Viewed from a slightly higher level of generality, any tools or devices

employed by ICE’s El Paso facilities (or the third-party telephone service providers with which

they contract) that enable those facilities to identify and block a specific subset of calls would

fall within Plaintiffs’ request.

In addition to the GAO report, Plaintiffs pointed ICE to articles from news organizations

that discussed the fact that ICE “strictly prohibit[s]” “three-way calling and call forwarding”

from ICE facilities, and that ICE blocks calls from detainees to 1-800 numbers. Id. Finally,

Plaintiffs cited ICE’s own Performance-Based National Detention Standards which, among other

things, suggest that ICE has the ability to “limit the duration of [detainee] calls by rule or

automatic cut-off.” See Pls.’ Opp’n, Ex. 22, ECF No. 53-4, at 182. These examples further

13 illustrate that Plaintiffs seek records relating to any of the physical or technological means by

which the ICE facilities in El Paso may limit or block detainee calls.

There is evidence in the record that suggests that ICE officials shared this basic

understanding of the types of records Plaintiffs were seeking. At one point, a “Deputy Field

Office Director” within the El Paso field office stated that he was not “aware of a telephone

service operation manual that could be reviewed to verify whether detainee’s [sic] calls can be

limited or blocked.” Suppl. Pineiro Decl. ¶ 19 (emphasis added). Despite the official’s lack of

awareness as to whether such a manual existed, the fact that he referenced a potential “telephone

service operation manual” indicates his understanding of the type of information sought by

Plaintiffs: that is, information relating to the technical operation of the phone systems in use

within the El Paso facilities. See Inst. for Just., 941 F.3d at 572 (“[A] [FOIA] request certainly

should not fail where the agency knew or should have known what the requester was seeking all

along.”).

To the extent there is any ambiguity in the Plaintiffs’ request, it would seem to stem from

the fact that the Plaintiffs have not identified specific mechanisms by which ICE may restrict

telephone calls. See Pls.’ Opp’n, Ex. 18, ECF No. 53-4, at 96 (email to Plaintiffs stating “If there

is some specific mechanism that you believe exists, and you can provide a name or description of

it, please let me know and ICE can then try to formulate a supplemental search using that

information”). But just as courts do not require plaintiffs to possess knowledge of the specific

ways in which federal agencies store information, see Inst. for Just., 941 F.3d at 572, Plaintiffs

here were not required to have special knowledge regarding the mechanisms that ICE may

employ to block or limit detainee phone calls. It is ICE—not Plaintiffs—that has a better

understanding of the phone systems in place and how those systems may or may not be modified

14 so as to restrict communications. Likewise, it is ICE—not Plaintiffs—that has a better sense of

the sources in which information regarding the agency’s ability to restrict detainees’ calls may be

located.

Finally, it is important to note that Plaintiffs do not seek records relating to “mechanisms

used to limit or block phone calls” generally, but rather records fitting that description that also

“mention or contain” the name of the Gutierrez-Sotos’ attorney, his law firm, or two specific

phone numbers. FOIA Request at 1. This added context and specificity illustrates the

unreasonableness of at least some of ICE’s purported examples of ambiguity. For instance, ICE

argues that Plaintiffs’ request is ambiguous because it could encapsulate policies regarding

detainees’ mealtimes. See Defs.’ Reply at 9. But ICE does not even begin to explain how a

policy regarding when detainees consume breakfast, lunch, or dinner would fit within the context

of a request for records relating to specific names and phone numbers.

For all of the above reasons, the Court finds that “the description [of the records sought

by Plaintiffs] is [not] so broad that it would stymie a reasonable [ICE] official attempting to

identify responsive records.” Leopold, 560 F. Supp. 3d at 201 (emphasis deleted). In other

words, Plaintiffs’ request was sufficiently clear to trigger ICE’s duty to search for responsive

records.

b. Good Faith Search

In the alternative, ICE cursorily asserts that, despite the alleged vagueness of Plaintiffs’

request, it “performed a good faith search for responsive records” and determined that there were

no records responsive to Plaintiffs’ request. Defs.’ Reply at 12. The Court disagrees.

When an agency concludes that there are no responsive records to a plaintiff’s request for

information, it may still “prevail[] on summary judgment if it shows that it made ‘a good faith

15 effort to conduct a search for the requested records, using methods which can be reasonably

expected to produce the information requested.’” Isiwele v. U.S. Dep’t of Health, 209 F. Supp.

3d 352, 355 (D.D.C. 2016) (quoting Oglesby, 920 F.2d at 68).

Here, the evidence and affidavits show that ICE officials did “ma[k]e inquiries within the

El Paso field office” in an effort to unearth information “concerning any mechanisms used by

that office to limit or block phone calls of detainees.” See Pls.’ Opp’n, Ex. 18, ECF No. 53-4, at

96. However, according to the agency’s declarant, those “inquiries” were limited to a “brief

conversation” in which an official in the El Paso field office “explained [that] the telephone

service [in that office] is provided by a third-party contractor and he wasn’t aware of a telephone

service operation manual that could be reviewed to verify whether detainee’s [sic] calls can be

limited or blocked.” Suppl. Pineiro Decl. ¶ 19. ICE does not cite—and the Court has not

found—case law to suggest that a “brief conversation” with one official is sufficient to discharge

the agency’s duty to conduct a good faith search for responsive records.

Consequently, the Court finds that ICE has failed to demonstrate that it conducted a good

faith search for records responsive to Plaintiffs’ request. ICE’s motion for summary judgment

regarding the adequacy of its search for this component of Plaintiffs’ request is, therefore,

denied.

B. The FOIA Exemptions Applied by Defendants

Defendants applied a number of FOIA exemptions to withhold all or parts of responsive

records. Plaintiffs do not object to USCIS’s invocation of those exemptions. See Pls.’ Opp’n at

3 n.7. Nor do they contest ICE’s decision to withhold records pursuant to the attorney work

product privilege of Exemption 5, see 5 U.S.C. § 552(b)(5), or Exemption 7(E), see id. §

16 552(b)(7)(E). See Pls.’ Opp’n at 3 n.7. 1 Plaintiffs do, however, oppose ICE’s withholding of

documents based on the deliberative process and attorney-client privileges of Exemption 5, as

well as ICE’s decision to withhold certain information pursuant to Exemptions 6 and 7(C). The

Court concludes that ICE’s Vaughn index, 2 see Decl. of Fernando Pineiro, Ex. A., ICE Vaughn

Index (“ICE Vaughn Index”), ECF No. 52-4, and declarations are insufficient to justify its use of

the contested exemptions, and therefore denies ICE summary judgment on those grounds.

When a plaintiff challenges an agency’s decision to withhold responsive records, the

burden falls to the agency to demonstrate “that any responsive records that were not provided

were properly withheld pursuant to one of nine express statutory exemptions.” Tokar, 304 F.

Supp. 3d at 89; see Citizens for Resp. & Ethics in Washington v. U.S. Dep’t of Just., 746 F.3d

1082, 1088 (D.C. Cir. 2014). The agency may carry that burden by submitting affidavits that

“describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the

information withheld logically falls within the claimed exemption, and are not controverted by

either contrary evidence in the record nor by evidence of agency bad faith.” Larson, 565 F.3d at

862 (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). At the summary judgment

stage, the agency must offer more than “vague, conclusory affidavits, or those that merely

paraphrase the words of a statute.” Tokar, 304 F. Supp. 3d at 89 (quoting Church of Scientology

of Cal., Inc. v. Turner, 662 F.2d 784, 787 (D.C. Cir. 1980)). Instead, when an agency invokes an

1 The Court has independently examined the declaration and Vaughn index filed to justify USCIS’s exemptions, see Decl. of Cynthia Munita, ECF No. 52-17; USCIS Vaughn Index, ECF No. 52-30, as well as ICE’s submissions in support of its attorney work product privilege and Exemption 7(E) withholdings. Having done so, the Court is satisfied that USCIS and ICE properly applied the respective exemptions, and it will grant summary judgment to Defendants as to those withholdings. 2 A Vaughn index, named after the case Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), is an itemized list that correlates each document subject to withholdings with the applied exemptions and the justification for non-disclosure.

17 exemption, “it must submit affidavits that provide ‘the kind of detailed, scrupulous description

[of the withheld documents] that enables a District Court judge to perform a de novo review.’”

Brown v. FBI, 873 F.Supp.2d 388, 401 (D.D.C. 2012) (quoting Church of Scientology, 662 F.2d

at 786).

1. Exemption 5

ICE has withheld a significant number of records pursuant to FOIA Exemption 5.

Exemption 5 permits the withholding of “inter-agency or intra-agency memorandums or letters

that would not be available by law to a party other than an agency in litigation with the agency.”

5 U.S.C. § 552(b)(5). This exemption protects documents “normally privileged in the civil

discovery context,” Jud. Watch, Inc. v. U.S. Dep’t of Just., 365 F.3d 1108, 1113 (D.C. Cir.

2004), such as materials shielded by the attorney-client privilege, the attorney work product

privilege and “what is sometimes called the ‘deliberative process’ privilege,” U.S. Dep’t of the

Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). In other words,

Exemption 5 covers “those documents, and only those documents, normally privileged in the

civil discovery context.” Loving v. U.S. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)). The two Exemption 5 privileges at

issue in this case are the deliberative process privilege and the attorney-client privilege.

a. Threshold Issue

As a threshold issue, Exemption 5 only covers records that are “inter-agency or intra-

agency memorandums or letters.” 5 U.S.C. § 552(b)(5). The Supreme Court has explained that,

for Exemption 5 to apply to a document, the “source [of the withheld document] must be a

Government agency.” Klamath Water Users, 532 U.S. at 8. Plaintiffs have identified one

record—2019-ICLI-00014 4931—that they argue is not covered by Exemption 5 because it is an

18 email that was sent from the office of a former congressman. See Pls.’ Opp’n at 23; see also

Pls.’ Opp’n, Ex. 34, ECF No. 53-6, at 247. In its reply brief, ICE makes no mention of this

document. The Court finds that ICE has not shown that the document’s “source [was] a

Government agency,” Klamath Water Users, 532 U.S. at 8, and, therefore, the document was

improperly withheld to the extent it was withheld pursuant to Exemption 5.

Besides this specific document, Plaintiffs have not asserted that any other specific

documents fail to pass over the Exemption 5 threshold. The Court can therefore turn to the

question of whether ICE properly withheld materials under the deliberative process and attorney-

client privileges incorporated by Exemption 5.

b. Deliberative Process Privilege

ICE relies on the deliberative process privilege to justify many of its withholdings.

Plaintiffs make several arguments challenging that reliance. Because the Court finds that ICE’s

Vaughn index is inadequate, it cannot reach the question of whether the material has been

properly withheld under the deliberative process privilege. Instead, the Court directs ICE to

revise its Vaughn index, taking into account the issues addressed here.

The deliberative process privilege “covers ‘documents reflecting advisory opinions,

recommendations, and deliberations comprising part of a process by which governmental

decisions and policies are formulated.’” Klamath Water Users, 532 U.S. at 8 (quoting Sears,

Roebuck & Co., 421 U.S. at 150). The privilege is intended “to enhance the quality of agency

decisions by protecting open and frank discussion among those who make them within the

Government.” Id. at 9 (internal citation and quotation marks omitted). The privilege “rests on

the obvious realization that officials will not communicate candidly among themselves if each

19 remark is a potential item of discovery and front page news.” Id. at 8–9; see also Dow Jones &

Co. v. U.S. Dep’t of Just., 917 F.2d 571, 573–74 (D.C. Cir. 1990).

For the deliberative process privilege to apply, a court must first determine whether the

exempt document is both predecisional and deliberative. Access Reports v. U.S. Dep’t of Just.,

926 F.2d 1192, 1194 (D.C. Cir. 1991). “A document is predecisional if it was ‘generated before

the adoption of an agency policy.’” Jud. Watch, Inc. v. U.S. Dep’t of Just., 20 F.4th 49, 54 (D.C.

Cir. 2021) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir.

1980)). “[A] document is deliberative if it ‘reflects the give-and-take of the consultative

process,’” Access Reports, 926 F.2d at 1195 (quoting Coastal States, 617 F.2d at 866), “by

which the decision itself is made,” Jowett, Inc. v. U.S. Dep’t of the Navy, 729 F. Supp. 871, 875

(D.D.C. 1989) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)). Put another

way, a document is “deliberative” if it “is intended to facilitate or assist development of the

agency’s final position on the relevant issue.” Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463

(D.C. Cir. 2014). The “key question” in determining whether the material is deliberative in

nature “is whether disclosure of the information would ‘discourage candid discussion within the

agency.’” Access Reports, 926 F.2d at 1195 (quoting Dudman Commc’ns Corp. v. U.S. Dep’t of

Air Force, 815 F.2d 1565, 1567–68 (D.C. Cir. 1987)).

“The need to describe each withheld document when Exemption 5 is at issue is

particularly acute because ‘the deliberative process privilege is so dependent upon the individual

document and the role it plays in the administrative process.’” New Orleans Workers’ Ctr. for

Racial Just. v. U.S. Immigr. & Customs Enf’t, 373 F. Supp. 3d 16, 50 (D.D.C. 2019) (quoting

Pub. Emps. for Env’t Resp. v. EPA, 213 F. Supp. 3d 1, 11 (D.D.C. 2016)). Under the

deliberative process privilege, “unlike other exemptions where the agency declaration and

20 Vaughn index may be read in conjunction to provide an adequate justification for application of

an exemption to a class or category of records, to sustain its burden of showing that records were

properly withheld under Exemption 5, an agency must provide in its declaration and Vaughn

index precisely tailored explanations for each withheld record at issue.” Protect Democracy

Project, Inc. v. U.S. Dep’t of Health & Hum. Servs., 370 F. Supp. 3d 159, 169 (D.D.C. 2019)

(quoting Nat’l Sec. Couns. v. CIA, 960 F. Supp. 2d 101, 188 (D.D.C. 2013)). At the very least,

the agency invoking the deliberative process privilege must provide information regarding “(1)

the nature of the specific deliberative process involved, (2) the function and significance of the

document in that process, and (3) the nature of the decisionmaking authority vested in the

document’s author and recipient.” Hunton & Williams LLP v. U.S. EPA, 248 F. Supp. 3d 220,

241 (D.D.C. 2017) (quoting Nat’l Sec. Couns., 960 F. Supp. 2d at 189); see also Senate of P.R. v.

U.S. Dep’t of Just., 823 F.2d 574, 585–86 (D.C. Cir. 1987) (explaining that agency “must

establish ‘what deliberative process is involved, and the role played by the documents in issue in

the course of that process’” (quoting Coastal States, 617 F.2d at 868)); Am. Immigr. Council v.

U.S. Customs & Border Patrol, 590 F. Supp. 3d 306, 324 (D.D.C. 2022) (explaining that agency

should also explain “the ‘nature of the decisionmaking authority vested in the officer or person

issuing the disputed document,’” and the “relative positions in the agency’s chain of command

occupied by the document’s author and recipient” (quoting Jud. Watch, Inc., 20 F.4th at 54)).

Here, at least in many instances, ICE’s Vaughn index and declarations lack detail sufficient to

satisfy this burden.

First, for many of the documents described in ICE’s Vaughn index, ICE has failed to

adequately describe “the nature of the specific deliberative process involved.” Nat’l Sec. Couns.,

960 F. Supp. 2d at 189. Instead, ICE provides only vague descriptions of the documents’ content

21 and repeats boilerplate and conclusory statements regarding the content’s deliberative nature.

For example, ICE describes one document as containing “[e]mail communications . . . regarding

the status of Emilio Gutierrez-Soto’s immigration case and coordination of potential

[Enforcement and Removal Operations (“ERO”)] actions.” ICE Vaughn Index, at 91. ICE then

asserts that the document “is pre-decisional and deliberative” because it “proposes ERO take

certain action.” Id. Similarly scant explanations may be found elsewhere in ICE’s Vaughn

index. See, e.g., id. at 89 (withholding an email “propos[ing] that ERO take certain action”); id.

at 93 (withholding email communications in which ICE officials are “pre-coordinating potential

ERO action” and explaining that the redacted information “proposes ERO take certain action”).

Elsewhere in its Vaughn index, ICE describes emails relating to a “pending decision from

immigration court and ERO’s response to th[at] court decision.” Id. at 73. To justify its

withholding of information under Exemption 5, ICE explains that the redacted information

“requests notice of potential agency action.” Id.

Put simply, these types of “broad and opaque description[s] of the deliberative

process[es] involved do[] not provide the Court with enough detail about whether these

documents are deliberative and predecisional.” Trea Senior Citizens League v. U.S. Dep’t of

State, 923 F. Supp. 2d 55, 68 (D.D.C. 2013). Far from “establish[ing] ‘what deliberative process

is involved,” Senate of P.R., 823 F.2d at 585 (quoting Coastal States, 617 F.2d at 868), these

meager descriptions give this Court no means by which to assess whether the privilege applies.

They “tell[] the court little” if anything, “about the deliberative nature of the information

contained in the document[s] in question.” Jud. Watch, Inc. v. Food & Drug Admin., 449 F.3d

141, 152 (D.C. Cir. 2006). They are, therefore, insufficient.

22 Second, for many of the documents withheld by ICE, its Vaughn index fails to

sufficiently describe the “function and significance of the document[s]” in the agency’s

decisionmaking process. New Orleans Workers’ Ctr., 373 F. Supp. 3d at 51–52 (quoting Hunton

& Williams LLP, 248 F. Supp. 3d at 241). Such context aids the Court in determining whether

specific material is predecisional, because “if documents are not a part of a clear ‘process’

leading to a final decision on the issue, . . . they are less likely to be properly characterized as

predecisional.” Coastal States, 617 F.2d at 868. Rather than provide the Court with this type of

context, many of ICE’s Vaughn index entries provide only vague information regarding the

withheld documents’ function and significance. For example and as discussed above, ICE

withheld components of “[e]mail communications . . . regarding the status of Emilio Gutierrez-

Soto’s immigration case and coordination of potential ERO actions.” ICE Vaughn Index, at 91.

The relevant entry goes on to state that the emails contain “opinions, conclusions, and

recommendations involving a draft document which contains non-final agency decisions” and

that, in the emails, “agency contractors, officers and/or employees are making editorial

comments, recommendations, or judgments, such as decisions to insert or delete material.” Id.

This is the closest the entry comes to explaining the function and significance of the document.

Not only is that language overly vague, it also appears to be repeated across nearly every entry in

which ICE invokes Exemption 5. As other courts have explained, “general statement[s] of this

sort [are] not sufficient to carry the agency’s burden to explain the function and significance of a

document in the agency’s decisionmaking process.” Pub. Emps. for Env’t Resp., 213 F. Supp. 3d

at 15; see New Orleans Workers’ Ctr., 373 F. Supp. 3d at 52 (rejecting as insufficient the

agency’s assertion that withheld documents contained “internal discussion between agency

officers and/or employees[] involving a draft agency document, . . . non-final agency decisions,

23 options being considered, and recommendations”—an assertion that was repeated for “nearly

every other document the defendant has withheld under Exemption 5”).

Finally, for at least some of the documents that ICE has chosen to withhold, its Vaughn

index and supporting declarations, even when viewed together, do not adequately describe the

“nature of the decisionmaking authority vested in the office or person issuing the disputed

document(s), and the positions in the chain of command of the parties to the documents.” Arthur

Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982) (internal quotation marks and

citation omitted). The D.C. Circuit has explained that “[t]he identity of the parties to the

memorandum is important” because “a document from a subordinate to a superior official is

more likely to be predecisional, while a document moving in the opposite direction is more likely

to contain instructions to staff explaining the reasons for a decision already made.” Coastal

States, 617 F.2d at 868. Here, Plaintiffs cite entries in ICE’s Vaughn index in which ICE simply

states that emails contain communications “between ICE employees.” ICE Vaughn Index, at

162; see also id. at 165 (describing emails “between ICE officials”). Entries of that sort are

insufficiently specific, as they tell the Court nothing about those employees’ decisionmaking

authority or their position in the chain of command. Protect Democracy Project, Inc., 370 F.

Supp. 3d at 171; New Orleans Workers’ Ctr., 373 F. Supp. 3d at 53. It is true—as ICE

contends—that many other entries provide more detail, such as information regarding the titles

of individuals involved in the communications at issue. See, e.g., ICE Vaughn Index, at 83

(describing communications “between ERO Assistant Field Office Directors . . . , Officers in

Charge, Deportation Officers, ICE Public Affairs Officers and an OPLA attorney”). While the

inclusion of these officials’ and employees’ titles constitutes a step in the right direction, titles

alone do not provide the Court with sufficient information regarding the decisionmaking

24 authority (or lack thereof) that these individuals possess, see New Orleans Workers’ Ctr., 373 F.

Supp. 3d at 53, or the “role they played in the relevant discussions” such that the Court can

“discern whether these communications ‘reflect the give and take of the deliberative process,’”

Protect Democracy Project, Inc., 370 F. Supp. 3d at 171 (quoting Nat’l Sec. Couns., 960 F.

Supp. 2d at 191).

Based on these three overarching deficiencies in the declarations and Vaughn index

submitted by ICE, the Court concludes “‘not that the documents are not exempt as a matter of

law, but that the agency has failed to supply’ in its Vaughn submissions ‘the minimal information

necessary to make a determination’ concerning applicability of the deliberative process

privilege.” Elec. Frontier Found. v. U.S. Dep’t of Just., 826 F. Supp. 2d 157, 173 (D.D.C. 2011)

(quoting Coastal States, 617 F.2d at 861). Therefore, the Court will deny summary judgment to

ICE regarding its Exemption 5 deliberative process privilege determinations. ICE shall

supplement its declarations and Vaughn index to provide more information regarding “(1) the

nature of the specific deliberative process[es] involved, (2) the function and significance of the

document[s] in th[ose] process[es], and (3) the nature of the decisionmaking authority vested in

the [documents’] author and recipient.” Pub. Emps. for Env’t Resp., 213 F. Supp. 3d at 18

(quoting Nat’l Sec. Couns., 960 F. Supp. 2d at 189). 3 At this time, the Court will also deny

3 Because the Court finds that ICE has thus far failed to demonstrate that the materials “are covered by the deliberative process privilege,” it need not and will not consider whether ICE has adequately demonstrated (as it must) that “it is reasonably foreseeable that release of those materials would cause harm to an interest protected by that privilege.” Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 361 (D.C. Cir. 2021). As the D.C. Circuit has explained, “the foreseeable harm requirement ‘impose[s] an independent and meaningful burden on agencies’” seeking to invoke the deliberative process privilege to shield responsive records from production. Id. (quoting Center for Investigative Reporting v. U.S. Customs & Border Prot., 436 F. Supp. 3d 90, 106 (D.D.C. 2019)). Although the Court will not address whether ICE’s current submissions satisfy that requirement, the Court cautions that, to the extent ICE continues to invoke Exemption 5, it must “must concretely explain how disclosure ‘would’—not

25 without prejudice Plaintiffs’ cross-motion for summary judgment regarding ICE’s deliberative

process privilege withholdings in relation to document 2019-ICLI-00014B 514 A. See Pls.’

Opp’n at 26.

c. Attorney-Client Privilege

ICE has also withheld records, in part or in full, pursuant to the attorney-client privilege.

Plaintiffs challenge these withholdings on two grounds. First, Plaintiffs allege that ICE has

failed to demonstrate that it has maintained the confidentiality of the purportedly privileged

information. See Pls.’ Opp’n at 30. Second, Plaintiffs argue that ICE has not shown that

securing legal advice was a primary purpose of withheld communications. See id. at 30–31.

Exemption 5 extends to documents protected by the attorney-client privilege, meaning

agencies are not required to disclose privileged material. “The attorney-client privilege protects

confidential communications from clients to their attorneys made for the purpose of securing

legal advice or services,” as well as “communications from attorneys to their clients if the

communications rest on confidential information obtained from the client.” Tax Analysts v. IRS,

117 F.3d 607, 618 (D.C. Cir. 1997) (quotation marks and citations omitted). “In the

governmental context, the ‘client’ may be the agency and the attorney may be an agency

lawyer.” Id. Where an agency lawyer serves in a mixed capacity that involves responsibilities

both within and “outside the lawyer’s sphere,” the agency employee’s communications will only

be protected to the extent that they involve his or her professional, legal capacity. See In re

Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984). The government bears the burden of proving,

through “detailed and specific information,” that the withheld information falls within the

‘could’—adversely impair internal deliberations” and it may not simply rely on “boilerplate and generic assertions that release of any deliberative material would necessarily chill internal discussions.” Id. at 369–70.

26 attorney-client privilege. See Campbell v. U.S. Dep’t of Just., 164 F.3d 20, 30 (D.C. Cir. 1998).

For the government to succeed on a motion for summary judgment, it must marshal its

supporting documentation to prove:

(1) [T]he holder of the privilege is, or sought to be, a client; (2) the person to whom the communication is made is a member of the bar or his subordinate and, in connection with the communication at issue, is acting in his or her capacity as a lawyer; (3) the communication relates to a fact of which the attorney was informed by his client, outside the presence of strangers, for the purpose of securing legal advice; and (4) the privilege has been claimed by the client.

Jud. Watch, Inc. v. U.S. Dep’t of Homeland Sec., 841 F.Supp.2d 142, 153–54 (D.D.C. 2012)

(citing In re Sealed Case, 737 F.2d at 98–99). Moreover, a “fundamental prerequisite to the

assertion of the privilege” is “confidentiality both at the time of the communication and

maintained since.” Coastal States, 617 F.2d at 863.

Plaintiffs first challenge ICE’s withholdings on the ground that ICE has not adequately

demonstrated that it kept the withheld information confidential. See Pls.’ Opp’n at 30. In

response, ICE points to two paragraphs in the declaration of Fernando Pineiro in support of its

position that the withheld “communications were confidential.” See Defs.’ Reply at 26–27. The

first of those paragraphs states, in relevant part, that:

ICE applied (b)(5) withholdings to protect from disclosure information e-mail communications that are protected by the attorney-client privilege. These are confidential communications (1) between ICE attorneys and client ICE ERO deportation officers and (2) between AUSAs and client ICE employees. These communications routinely concern Emilio and Oscar Gutierrez-Soto’s administrative removal proceeding and the pending habeas case, and during which the ICE OPLA attorney or the AUSA provide confidential advice to the client concerning recommended actions, legal decisions, and draft court filings.

Decl. of Fernando Pineiro (“Pineiro Decl.”), ECF No. 52-2, at ¶ 68 (emphases added). The

second states that:

ICE also applied Exemption (b)(5) to protection from disclosure documentation subject to the attorney-client privilege because it contains confidential communications between an attorney and his or her client(s) related to a legal

27 matter for which the client sought professional legal advice. In the case at hand, clients are ERO officers PA officers conferring with ICE attorneys who provide legal advice relating to custody of Emilio and Oscar Gutierrez and the current status of their immigration proceedings and habeas litigation. The privilege applies to the facts that are divulged to the attorney and encompass the opinions given by the attorney based upon, and thus reflecting on those facts.

Id. ¶ 75 (emphasis added). In addition, ICE cites its Vaughn index, and argues that it is plain that

the withheld communications were confidential because “there were no third parties present [on

the communications] to break the privilege.” Defs.’ Reply at 26–27.

ICE misapprehends the fundamental thrust of Plaintiffs’ argument. Plaintiffs do not

assert that the information ICE seeks to withhold was never confidential. Rather, Plaintiffs

contend that, even if the information in the communications was initially confidential, ICE has

not demonstrated that it remained so. As mentioned above, a party invoking the attorney-client

privilege must demonstrate a communication’s “confidentiality both at the time of the

communication” and that such confidentiality has been “maintained since.” Coastal States, 617

F.2d at 863 (emphasis added); see Am. Immigr. Council v. U.S. Dep’t of Homeland Sec., 950 F.

Supp. 2d 221, 244 (D.D.C. 2013) (faulting agency for “not attempt[ing] to prove that the

underlying information in each document was initially kept secret and remains so”). An agency

may satisfy this burden by “‘demonstrat[ing] that confidentiality was expected in the handling of

the[] communications [at issue], and that it was reasonably careful to keep this confidential

information protected from general disclosure,’ not just within the agency, but also among any

other individuals outside the agency who needed access to the information.” Cuban v. S.E.C.,

744 F. Supp. 2d 60, 79 (D.D.C. 2010) (quoting Coastal States, 617 F.2d at 863).

Here, ICE’s declaration and Vaughn entries say nothing about the steps that the agency

took to protect the withheld information from general disclosure. Nor has ICE attempted to

show that “information contained within the records, was relayed to anyone outside the sphere of

28 those who needed to know the information within the organization.” Id. at 80. Without this type

of information, the Court may not conclude that the attorney-client privilege applies. See Am.

Oversight v. U.S. Gen. Servs. Admin., 311 F. Supp. 3d 327, 342 (D.D.C. 2018) (rejecting

agency’s invocation of the attorney-client privilege where agency did “not assert or

‘demonstrate’ that the communications were, and remain, confidential” (quoting Coastal States,

617 F.2d at 863)); Jud. Watch, Inc., 841 F. Supp. 2d at 154 (rejecting agency’s invocation of the

privilege where agency’s “submissions fail[ed] to provide any basis for th[e] Court to find that

the confidentiality of the communications at issue has been maintained”); see also Am. Immigr.

Council, 950 F. Supp. 2d at 244 (explaining that “[t]he confidentiality of a communication is not

something this Court is at liberty to assume”). Accordingly, to the extent ICE seeks to continue

to shield records from production based on an assertion of the attorney-client privilege, it must

provide additional detail regarding the steps it took to reasonably ensure that the information

contained within the documents remained confidential at all times.

Because the Court finds that ICE has not provided sufficient information to assess

whether the attorney-client privilege protects these records from disclosure, the Court need not

reach Plaintiffs’ argument that ICE has also failed to show—as it must—that “securing legal

advice was a ‘primary purpose’ of any of the withheld communications.” Pls.’ Opp’n at 30. As

Plaintiffs correctly note, to be privileged, a communication must be “for the purpose of securing

primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal

proceeding.” In re Grand Jury, 475 F.3d 1299, 1304 (D.C. Cir. 2007) (quoting In re Sealed

Case, 737 F.2d at 98–99). To invoke the privilege, an agency thus must—at the very least—

“describe with some reasonable level of detail the nature of the legal issue or issues for which

advice was being sought and whether the withheld [communications] seek legal advice, convey

29 legal advice, or both.” Muttitt v. Dep’t of State, 926 F. Supp. 2d 284, 309 (D.D.C. 2013). With

these principles in mind, the Court observes that, for at least some of the documents ICE seeks to

withhold, ICE’s declarations and Vaughn entries do not make it immediately apparent that the

withheld communications relate to the provision of, or request for, legal advice. See, e.g., ICE

Vaughn Index, at 53–54 (withholding communications where “ERO edited draft responses to

questions posed by [a] reporter”); id. at 96–97 (withholding communications in which an “ICE

Public Affairs Officer is seeking guidance on how to respond to a media inquiry”). To the extent

that ICE intends to continue to invoke the attorney-client privilege as a basis for withholding

records from production, it should ensure that its submissions provide the Court with sufficient

detail to determine whether “securing legal advice was a ‘primary purpose’ of the” withheld

communications. Cause of Action Inst. v. U.S. Dep’t of Just., 330 F. Supp. 3d 336, 347 (D.D.C.

2018) (citing In re Kellogg Brown & Root, Inc., 756 F.3d 754, 759–60 (D.C. Cir. 2014)).

2. Exemptions 6 and 7(C)

ICE argues that it properly invoked Exemptions 6 and 7(C) to withhold “names, initials,

signatures, phone numbers, email addresses, and suite numbers of federal law enforcement

officers and other government employees that are found in the documents.” Defs.’ Mot., at 16

(quoting Pineiro Decl. ¶ 87). It further argues that it properly invoked the same exemptions to

withhold the “[n]ames, phone numbers, and email addresses of non-ICE individuals, such as

DOJ attorneys.” Id. (quoting Pineiro Decl. ¶ 90). Plaintiffs do not contest ICE’s withholding of

phone numbers or signatures under these exemptions. 4 See Pls.’ Opp’n at 3 n.7. They do,

however, lodge a number of objections to the remainder of ICE’s withholdings. Specifically,

4 The Court will grant ICE summary judgment regarding its redactions of phone numbers and signatures.

30 Plaintiffs argue (1) that ICE has not shown that the documents at issue were compiled for a law

enforcement purpose, as is necessary to invoke Exemption 7(C), (2) that ICE has not adequately

identified the privacy interests at stake that justify its withholdings, and (3) that the public has a

high degree of interest in the withheld information.

Exemption 6 protects “personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. §

552(b)(6). Exemption 7(C) excludes “records or information compiled for law enforcement

purposes . . . to the extent that the production of such law enforcement records or information . . .

could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id. §

552(b)(7)(C). Both exemptions require agencies and reviewing courts to “balance the privacy

interests that would be compromised by disclosure against the public interest in the release of the

requested information.” Beck v. Dep’t of Just., 997 F.2d 1489, 1491 (D.C. Cir. 1993) (quoting

Davis v. Dep’t of Just., 968 F.2d 1276, 1281 (D.C. Cir. 1992)).

Although the balancing test is applied to both Exemption 6 and 7(C), “‘Exemption 7(C)

is more protective of privacy than Exemption 6’ and thus establishes a lower bar for withholding

material.” Prison Legal News v. Samuels, 787 F.3d 1142, 1146 n.5 (D.C. Cir. 2015) (quoting

ACLU v. U.S. Dep’t of Just., 655 F.3d 1, 6 (D.C. Cir. 2011)); see also U.S. Dep’t of Def. v. Fed.

Labor Relations Auth., 510 U.S. 487, 496 n.6 (1994) (“Exemptions 7(C) and 6 differ in the

magnitude of the public interest that is required to override the respective privacy interests

protected by the exemptions.”). Specifically, “the balance tilts more strongly toward

nondisclosure in the context of Exemption 7(C) because ‘Exemption 7(C)’s privacy language is

broader than the comparable language in Exemption 6 in two respects.’” Braga v. FBI, 910

F.Supp.2d 258, 267 (D.D.C. 2012) (quoting Reporters Comm., 489 U.S. at 756). First,

31 Exemption 6 “encompasses ‘clearly unwarranted’ invasions of privacy, while Exemption 7(C)

omits the adverb ‘clearly.’” Id. Second, Exemption 7(C) lowers the risk of harm standard from

“would” to “could reasonably be expected to” constitute an invasion. Id. The differences in the

language between the two exemptions reflect Congress’s decision to provide the government

with “greater flexibility in responding to FOIA requests for law enforcement records or

information” than in responding to requests for personnel, medical, and other similar files. See

Reporters Comm., 489 U.S. at 777 n.22.

Accordingly, if the documents withheld and information redacted were “compiled for law

enforcement purposes,” the Court need engage only in an analysis of whether the defendant

properly redacted information and withheld documents pursuant to Exemption 7(C). See People

for the Ethical Treatment of Animals v. Nat’l Insts. of Health, 745 F.3d 535, 541 (D.C. Cir. 2014)

(confining its FOIA analysis to Exemption 7(C) because its “privacy language is broader than the

comparable language in Exemption 6” (quoting Reporters Comm., 489 U.S. at 756)); Roth v.

U.S. Dep’t of Just., 642 F.3d 1161, 1173 (D.C. Cir. 2011) (finding “no need to consider

Exemption 6 separately [where] all information that would fall within the scope of Exemption 6

would also be immune from disclosure under Exemption 7(C)”); Rodriguez v. U.S. Dep't of the

Army, 31 F.Supp.3d 218, 231 (D.D.C. 2014). Therefore, as an initial matter, the Court must

determine whether Exemption 7 applies to the withholdings in this case.

a. Exemption 7 Threshold Question

In order to withhold documents under Exemption 7, an agency must, as a preliminary

matter, make a threshold showing demonstrating that the “records or information [were]

compiled for [a] law enforcement purpose.” 5 U.S.C. § 552(b)(7); see Shapiro v. U.S. Dep’t of

Just., 239 F. Supp. 3d 100, 113 (D.D.C. 2017). Agencies classified as law enforcement agencies,

32 like ICE in this case, see Roseberry-Andrews v. Dep’t of Homeland Sec., 299 F. Supp. 3d 9, 31

(D.D.C. 2018); see also Pineiro Decl. ¶¶ 80–83, generally receive a degree of deference when

claiming that “their records are eligible for Exemption 7[] protection,” Bartko v. U.S. Dep’t of

Just., 898 F.3d 51, 64 (D.C. Cir. 2018); see Pratt v. Webster, 673 F.2d 408, 418 (D.C. Cir. 1982).

“This deferential standard of review, however, is not a ‘vacuous’ one, and it does not authorize a

wholesale departure from all evidentiary requirements.” Am. Immigr. Council, 950 F. Supp. 2d

at 245 (quoting Campbell, 164 F.3d at 32).

As past decisions make clear, not every document compiled by a law enforcement agency

is compiled for a law enforcement purpose. See, e.g., id. at 245–46; Benavides v. Bureau of

Prisons, 774 F. Supp. 2d 141, 146–47 (D.D.C. 2011). That is why, “[t]o determine ‘whether

records are compiled for law enforcement purposes, this circuit has long emphasized that the

focus is on how and under what circumstances the requested files were compiled and whether the

files sought relate to anything that can fairly be characterized as an enforcement proceeding.”

Clemente v. FBI, 867 F.3d 111, 119 (D.C. Cir. 2017) (quoting Jefferson v. Dep’t of Just., Off. of

Pro. Resp., 284 F.3d 172, 176–77 (D.C. Cir. 2002)). An agency bears its burden of showing that

records meet Exemption 7’s threshold by demonstrating “(1) ‘a rational nexus between the

investigation and one of the agency’s law enforcement duties;’ and (2) ‘a connection between an

individual or incident and a possible security risk or violation of federal law.’” Ctr. for Nat’l

Sec. Studies v. U.S. Dep’t of Just., 331 F.3d 918, 926 (D.C. Cir. 2003) (quoting Campbell, 164

F.3d at 32).

Here, ICE has not sufficiently established that the records and information it seeks to

withhold pursuant to Exemption 7 were compiled for a law enforcement purpose. For one thing,

the declaration it submits is fatally generic. ICE’s declarant states that:

33 The ICE information at issue in this case was compiled by ICE because it relates to ICE’s obligation to enforce the immigration laws of the United States by investigating non U.S. individuals who may be illegally present in the United States, including records of interviews, arrest, booking, detention, removal, and other related investigations. Therefore, all of the ICE emails responsive to Plaintiffs’ FOIA request, which pertain to the detention and removal of Mr. Vidal- Martinez [sic], were compiled for law enforcement purposes and meet the threshold requirement of FOIA Exemption (b)(7).

Pineiro Decl. ¶ 83 (emphasis added). As other courts have held, this type of bald assertion “fails

to provide the Court with a “clear understanding of ‘how and under what circumstances the

requested files were compiled.’” New Orleans Workers’ Ctr., 373 F. Supp. 3d at 56 (rejecting

materially similar declaration) (quoting Am. Immigr. Council, 950 F. Supp. 2d at 245). To be

sure, Mr. Pineiro’s declaration is not completely generic; he does “identify a particular

individual” and the purported “connection between that individual . . . and a possible security

risk or violation of federal law.” Id. (quoting Pratt, 673 F.2d at 420). The problem, however, is

that the individual he identifies—“Mr. Vidal-Martinez”—is not an individual to whom the

documents in this case pertain.

ICE’s overly generic declaration regarding the purported law enforcement purpose of the

documents at issue is not saved by its Vaughn index. To the contrary, many of ICE’s Vaughn

entries do not adequately demonstrate whether the withheld records or information were

compiled for law enforcement purposes. For example, Plaintiffs note that ICE withheld a

number of records relating to inquiries from the press. See, e.g., ICE Vaughn Index, at 19–20

(withholding portions of emails “discussing whether [and how] to respond . . . to a media outlet

executive who accused ICE employees of trying to suppress freedom of the press during an

interview with Emilio Gutierrez-Soto”); id. at 79–80 (redacting information in communications

relating “to inquiries from the National Press Club Journalism Institute and Wall Street Journal

about Emilio Gutierrez-Soto’s detention and immigration case”); id. at 83–84 (similar); id. at 96–

34 97 (withholding information in emails “concerning whether ICE has a comment about an article

concerning Emilio Gutierrez-Soto”). Because these documents were created primarily to

respond to media inquiries, it is not immediately apparent that they were “compiled” for law

enforcement purposes as is required for the agency to invoke Exemption 7, see Pub. Emps. for

Env’t Resp. v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 203

(D.C. Cir. 2014) (“[T]he term ‘compiled’ in Exemption 7 requires that a document be created,

gathered, or used by an agency for law enforcement purposes at some time before the agency

invokes the exemption.”), and ICE’s Vaughn entries do not explain the law enforcement purpose

underlying the compilation of these records.

Given these defects in ICE’s current submissions, the Court will not examine each of the

withheld documents to “attempt to discern for itself whether the documents satisfy Exemption

7’s threshold requirement.” New Orleans Workers’ Ctr., 373 F. Supp. 3d at 57. Instead, to the

extent ICE seeks to continue to withhold information pursuant to Exemption 7(C), it must

supplement its declarations and Vaughn index to provide the Court with a clearer picture of

whether the records satisfy the exemption’s threshold requirements.

b. Exemption 6

Because the Court cannot conclude that ICE has properly withheld the contested

information pursuant to Exemption 7(C), the Court will instead consider whether the agency has

properly withheld the same information under Exemption 6.

As noted above, Exemption 6 protects “personnel and medical files and similar files the

disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5

35 U.S.C. § 552(b)(6). 5 To determine whether a withholding under Exemption 6 is proper, courts

“balance the private interest involved (namely, the individual’s right of privacy) against the

public interest (namely . . . to open agency action to the light of public scrutiny).” Horowitz v.

Peace Corps, 428 F.3d 271, 278 (D.C. Cir. 2005) (internal quotation marks omitted). A court

must begin by determining “whether disclosure would compromise a substantial, as opposed to a

de minimis, privacy interest.” Prison Legal News, 787 F.3d at 1147 (internal quotation marks

omitted). If there is a substantial privacy interest at stake, the court then balances the privacy

right against the public’s interest in disclosure. Id.

The D.C. Circuit has explained that “[t]he scope of a privacy interest under Exemption 6

will always be dependent on the context in which it has been asserted.” Id. (quoting Armstrong

v. Exec. Off. of the President, 97 F.3d 575, 581 (D.C. Cir. 1996)); see Am. Immigr. Laws. Ass’n

v. Exec. Off. for Immigr. Rev., 830 F.3d 667, 675 (D.C. Cir. 2016) (“Exemption 6 . . . “does not

categorically exempt individuals’ identities . . . because the ‘privacy interest at stake may vary

depending on the context in which it is asserted.’” (quoting Jud. Watch, Inc., 449 F.3d at 153)).

The fact that the applicability of Exemption 6 depends heavily on context does not prevent

agencies from taking a “categorical approach” to their withholdings. WP Co. LLC v. U.S. Dep’t

of Def., 626 F. Supp. 3d 69, 78 (D.D.C. 2022). If, however, an agency chooses to go the

categorical route, it must ensure that the “the categories are sufficiently well-defined and

distinct.” Am. Immigr. Laws. Ass’n, 830 F.3d at 675. In delineating different categories, the

agency must consider and account for the “differentiated” privacy interests at stake.

5 Plaintiffs do not dispute that the information at issue constitutes “personnel and medical files and similar files” as that phrase has been construed by the D.C. Circuit. See Jud. Watch, Inc., 449 F.3d at 152–53 (explaining that the phrase encompasses “bits of personal information, such as names and addresses, the release of which would ‘create[] a palpable threat to privacy’” (quoting Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987))).

36 100Reporters LLC v. U.S. Dep’t of Just., 248 F. Supp. 3d 115, 164 (D.D.C. 2017). These steps

help to ensure that, “regardless of any variation among the . . . persons [ultimately] falling

within” a specific category, the privacy interests at stake amongst those people will be

sufficiently similar such that—when the court proceeds to balance the private and public

interests—the balancing analysis will “yield a uniform answer across the entire proffered

category.” Am. Immigr. Laws. Ass’n, 830 F.3d at 675.

ICE has taken a categorical approach to its Exemption 6 withholdings in this case. The

Court finds, however, that ICE has not defined its categories with sufficient precision, nor has it

adequately distinguished the various privacy interests at play. ICE’s declaration explains that it

redacted personal information for two categories of individuals. The first category includes

“federal employees”—a broad grouping that includes “federal law enforcement officers and

other government employees.” Pineiro Decl. ¶¶ 87, 88. ICE asserts that these employees “have

privacy interests in not becoming targets of harassment by individuals who may begrudge them

and in remaining free of interference in the performance of their duties by persons who are

currently of interest to law enforcement or who oppose the ICE mission.” Id. ¶ 88. ICE further

claims that “[p]ublic identification of these employees could also result in them being subjected

to personal requests for access to law enforcement information or requests for information about

ongoing or closed investigations.” Id. ¶ 89.

The second category includes “third-part[ies],” which, somewhat confusingly, includes

“non-ICE individuals, such as DOJ attorneys.” 6 Id. ¶ 90. For these individuals, ICE simply

asserts that the disclosure of their personal “information could constitute an unwarranted

6 It is not clear why Department of Justice attorneys would not also fall into the “federal employees” category.

37 invasion of personal privacy and similarly subject these individuals to harassment, and undue

public attention.” Id.

Despite ICE’s use of these two general categories in its supporting declaration, the

agency’s Vaughn index takes a slightly different approach. It broadly groups individuals into

“ICE employees” or “law enforcement . . . personnel” on the one hand, see, e.g., ICE Vaughn

Index, at 18–19, and “third-party individuals” on the other, see id. The former includes, among

others, “ICE deportation Officers, Supervisory Detention Deportation Officers, Assistant Field

Officers, ICE Attorneys, [ICE Health Services Corps] employees,” id. at 2, “ERO Assistant Field

Office Directors . . . , ICE Public Affairs Officers, . . . OPLA attorney[s],” id. at 21, “ICE Office

of Congressional Relations” staff, id. at 100, “ERO Field Office Director[s],” id. at 130, “ICE

Assistant Chief Counsel[s],” id. at 134, and the “ICE Chief Counsel,” id. at 138. For the vast

majority of Vaughn entries involving this category of individuals, ICE asserts the same, rote

privacy interests:

[T]he disclosure of the names and contact information of law enforcement (“LE”) personnel could reasonably be expected to constitute an unwarranted invasion of personal privacy by: (1) conceivably subjecting law enforcement personnel to harassment and annoyance in conducting their official duties and in their private lives; (2) potentially placing them in danger as targets of law enforcement investigations may begrudge personnel for an indefinite time period and seek revenge; and (3) possibly minimizing their ability to effectively conduct future investigations.

See, e.g., id. at 36.

As for the “third-party” category, that grouping includes “reporters,” “contractors,” id. at

2, “family members” of the Gutierrez-Sotos, id. at 11, “private bar attorneys,” “witnesses,” id. at

14, “immigration judge[s],” id. at 28, the “plaintiff’s attorney,” id. at 51, Assistant U.S.

Attorneys, id. at 86, and presumably others. For individuals in this group, ICE repeatedly asserts

that:

38 The disclosure of third-party PII could reasonably be expected to constitute an unwarranted invasion of individuals’ personal privacy interests in not being associated unwarrantedly with alleged criminal activity; being free from harassment, criticism, intimidation, legal consequences, economic reprisals, embarrassment, undue public attention, physical harm, and derogatory inferences and suspicion; and controlling how communications about them are communicated to others.

See, e.g., id. at 15.

Regardless of whether one considers the categories in ICE’s declaration or Vaughn index,

these categorical distinctions are far too generic to convince the Court that ICE has adequately

accounted for and “distinguish[ed] the [various] privacy interests at stake.” 100Reporters LLC,

248 F. Supp. 3d at 164. For one thing, within the “federal employees” or “ICE employees”

categories, ICE has not differentiated between the interests of line-level, lower-ranking

employees and individuals with significantly more authority and public exposure. As this Court

has observed previously, individuals in “public, high-level positions” will often have divergent

privacy interests from employees in less high-profile roles. Id. ICE’s Exemption 6 withholdings

do not currently account for those differences and, accordingly, are insufficient. See id.

(explaining that “DOJ ha[d] not differentiated the interests of regular Siemens employees and

Board Members,” the latter of whom “have different privacy interests based on their public,

high-level positions”); see also New Orleans Workers’ Ctr., 373 F. Supp. 3d at 60 (rejecting

“federal employees” as too broad a category to justify agency’s Exemption 6 withholdings).

ICE has also failed to differentiate the privacy interests at stake for the large variety of

individuals encompassed by the “third-party” category. As noted above, that category includes,

among others, reporters, immigrations judges, and Assistant U.S. Attorneys. Yet, ICE makes no

attempt to “distinguish the privacy interests at stake” for these individuals, instead asserting that

they all have the identical interest in “in not being associated unwarrantedly with alleged

criminal activity; being free from harassment, criticism, intimidation, legal consequences,

39 economic reprisals, embarrassment, undue public attention, physical harm, and derogatory

inferences and suspicion; and controlling how communications about them are communicated to

others.” See, e.g., ICE Vaughn Index, at 3. As other courts have held, that is not sufficient. See

New Orleans Workers’ Ctr., 373 F. Supp. 3d at 63; Am. Immigr. Laws. Ass’n, 830 F.3d at 675

(holding that agency could not categorically redact immigration judges’ names because, even

amongst immigration judges, “not every judge has the same privacy interests at stake”).

ICE’s failure to establish the different privacy interests at stake makes it impossible for

the Court to balance the private interests with the public’s interest in knowing “what their

government is up to.” Reporters Comm., 489 U.S. at 773. Therefore, the Court must deny

summary judgment with regard to ICE’s withholdings under Exemption 6. If ICE intends to

continue to rely on Exemption 6, it will have another opportunity to present further affidavits

justifying its withholdings. Although ICE is not necessarily prohibited from relying on

categorical arguments, it should, at the least, “make a more particularized showing for defined

subgroups.” See Am. Immigr. Laws. Ass’n, 830 F.3d at 676; see also Prison Legal News, 787

F.3d at 1151–52. At this time, Plaintiffs’ cross-motion for summary judgment will also be

denied without prejudice on this issue.

C. Inadvertently Disclosed Records

The last issue the Court must address concerns certain documents or portions of

documents that ICE inadvertently disclosed during the course of its productions. Despite the

inadvertent disclosure of that information, ICE now seeks to variously assert Exemptions 5, 6,

and 7(C) to withhold the information that has already been disclosed to Plaintiffs. See ICE

Vaughn Index, at 15–16 (invoking Exemption 5 to withhold information that “was inadvertently

disclosed in a production released in January 2023”); see id. at 23 (invoking Exemptions 6 and

40 7(C) to withhold information in three documents that “was inadvertently released during the

December 2020 production”).

For their part, Plaintiffs argue that ICE’s inadvertent disclosure of this information

mooted any dispute over these records, and they contend that ICE’s motion for summary

judgment should be denied as to these documents on that basis. See Pls.’ Opp’n at 42. Although

ICE concedes that an agency’s disclosure of records under FOIA generally moots any

controversy over the disclosed records, see Swick v. U.S. Dep’t of the Army, 596 F. Supp. 3d 66,

72 (D.D.C. 2022), ICE contends that the same is not true when an agency inadvertently discloses

the records in question. See Defs.’ Reply at 42.

Although ICE does not say so in so many words, the Court construes ICE’s position to be

that the inadvertent disclosure of a few documents does not prevent the agency from later

asserting that information contained in those documents is exempt from withholding under

FOIA. To the extent that that is ICE’s position, the Court agrees. As other courts in this district

have explained, “whether an agency has waived an exemption”—as Plaintiffs essentially contend

ICE has done here—depends upon “the nature and circumstances of disclosure.” Amiri v. Nat’l

Sci. Found., No. 20-cv-02006, 2021 WL 4438910, at *8 (D.D.C. Sept. 28, 2021). “Courts

generally find that, when an unintended error leads to disclosure, the agency has not waived a

FOIA exemption.” Id.; see Kay v. FCC, 867 F. Supp. 11, 23–24 (D.D.C. 1994) (defendant did

not waive Exemption 7(A) by inadvertently disclosing 6 unredacted documents in a 1,474-page

release).

Here, ICE has consistently maintained that it mistakenly produced the documents in

question. Moreover, once it realized its error, ICE reprocessed and reproduced redacted versions

of those same documents. See ICE Vaughn Index, at 15–16, 23. These facts support the

41 conclusion that ICE’s disclosure was, in fact, inadvertent. See Amiri, 2021 WL 4438910, at *8

(holding that agency’s disclosure of records was inadvertent where agency “consistently

label[ed]” its disclosure as such and where the agency “released redacted versions of the”

mistakenly disclosed documents in a later production). And Plaintiffs at no point contend

otherwise. All that being so, the Court concludes that ICE may assert that all or part of the

mistakenly disclosed documents are exempt from withholding under FOIA. 7

To be clear, the Court’s holding should not be read to suggest that these specific

documents (or portions thereof) were lawfully withheld. As explained above, ICE has not

adequately justified its Exemption 5, 6, or 7(C) withholdings, and the Court declines to analyze

whether specific documents were properly withheld until ICE has had a chance to provide more

fulsome justifications.

V. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment (ECF No. 52) is

GRANTED IN PART AND DENIED IN PART and Plaintiffs’ cross-motion for partial

summary judgment (ECF No. 53) is GRANTED IN PART AND DENIED IN PART.

Specifically, Defendants’ motion is GRANTED to the extent that it is unopposed, DENIED

regarding ICE’s search for documents responsive to Plaintiffs’ request for records pertaining to

7 ICE has not moved to limit Plaintiffs’ use of the inadvertently disclosed documents, nor has ICE sought to compel the return or destruction of those documents. It is not immediately clear whether the Court has the authority to take either of these steps. Compare Hum. Rts. Def. Ctr. v. U.S. Park Police, No. 19-cv-1502, 2023 WL 5561602, at *6 (D.D.C. Aug. 29, 2023) (ordering plaintiffs “not to disclose, disseminate, or make use of” mistakenly disclosed information), with 100Reporters v. U.S. Dep’t of State, 602 F. Supp. 3d 41, 84 (D.D.C. 2022) (noting the absence of “legal authority indicating [whether] the Court has the authority to order that a FOIA recipient return records that were inadvertently released without redactions”). In any event, because ICE has not moved for any relief whatsoever on this front, the Court will not, at this time, limit Plaintiffs’ use of the information that was inadvertently disclosed.

42 mechanisms used to limit or block phone calls in its El Paso facilities, and DENIED

WITHOUT PREJUDICE regarding its challenged Exemption 5, 6, and 7(C) withholdings.

Plaintiffs’ motion is GRANTED regarding document 2019-ICLI-00014 4931 and DENIED

WITHOUT PREJUDICE in all other respects. Defendant ICE is ORDERED to conduct a

search reasonably calculated to uncover all relevant documents regarding Plaintiffs’ remaining

FOIA request. Defendant ICE is also ORDERED to either supplement its declarations and

Vaughn index to justify its Exemption 5, 6, and 7(C) withholdings or release the documents. The

parties are ORDERED to submit a proposed schedule for further proceedings within two weeks

of the issuance of this opinion. An order consistent with this Memorandum Opinion is separately

and contemporaneously issued.

Dated: December 28, 2023 RUDOLPH CONTRERAS United States District Judge