American Civil Liberties Union of Arizona et al v. United States Department of Homeland Security Office for Civil Rights and Civil Liberties et al

Filing 94

ORDER: To the extent Defendants have not already submitted to Plaintiffs revised or supplemented Declarations pursuant to the Court's Order (Doc. 76 at 8-15), or revised Vaughn Indices pursuant to the same Order (Doc. 76 at 19-20, 22, 25- 26), Defendants shall submit to Plaintiffs the required revisions and/or supplements by June 4, 2018, and Defendants shall file with the Court a Notice of Compliance the same day. IT IS FURTHER ORDERED that, as discussed in more detail in this Ord er, the parties shall each file a brief not to exceed five pages by June 4, 2018, addressing the requirements for filing on the public docket the information provided pursuant to a FOIA request. No responses or replies are permitted. Signed by Judge John J Tuchi on 5/23/2018. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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American Civil Liberties Union of Arizona,
et al.,

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Plaintiffs,

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No. CV-15-00247-PHX-JJT
ORDER

v.
United States Department of Homeland
Security Office for Civil Rights and Civil
Liberties, et al.,
Defendants.

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At issue is the parties’ Joint Status Report (Doc. 93, Report). In the Report,

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Plaintiffs state that Defendants have failed to comply with certain terms of the Court’s

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August 14, 2017 Order (Doc. 76, Order) resolving the parties’ summary judgment

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motions. Specifically, Plaintiffs contend that “Defendants have not filed sworn

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supplemental declarations detailing the use of adequate search terms, manual searches,

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and the qualifications of officials who conducted the searches” and “have not filed

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revised Vaughn indices further justifying certain exemptions, providing accurate cross-

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references, and improving certain descriptions.” (Report at 2-3.) Plaintiffs maintain

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without citation that “[t]he public filing of these materials is necessary to discharge

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Defendants’ legal obligations under the FOIA and ensure a clear public accounting of

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Defendants’ compliance with the Court’s Order—both of which are essential for

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Plaintiffs and the public to have any confidence that FOIA’s objectives have been

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fulfilled here.” (Report at 3.)

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For their part, Defendants state that they have produced to Plaintiffs all of the

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supplemental information and records required by the Court’s Order, including revised

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Vaughn Indices. (Report at 4-5.) Defendants further contend that the Court did not

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require them to file revised Declarations and Vaughn Indices on the public docket.

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(Report at 5.)

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It is not clear from either party’s position statement whether Defendants revised or

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supplemented their Declarations and provided those revisions or supplements to

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Plaintiffs, even in the absence of any filings on the docket. In its Order, the Court found

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among other things that certain of Defendants’ Declarations were inadequate by failing to

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identify the subject matter of searches, search terms, descriptions of searches, and

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qualifications of those who conducted the searches, and by failing to include searches of

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certain specific terms. (Order at 8-15.) Thus, the Court ordered that Defendants revise or

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supplement their Declarations to account for all of the additional search information

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identified as missing or inadequate by the Court. (Order at 8-15; e.g., Order at 9 (stating

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“any declaration that simply relies on a subject matter expert and manual searches or

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merely identifies the locations searched, but does not discuss subject matter, search

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terms, or other criteria, must be supplemented”).) To the extent Defendants did not revise

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or supplement their inadequate Declarations and provide them to Plaintiffs, they must do

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so now.

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With regard to the Vaughn Indices, it appears from the parties’ position statements

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that Defendants did complete the revisions required by the Court’s Order, even in the

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absence of any filings on the docket. (Order at 18-20.) To the extent they did not, they

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must do so now.

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Whether Defendants must file with the Court the revisions to their Declarations

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and Vaughn Indices is a different matter. To date, Defendants’ Declarations associated

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with Plaintiffs’ FOIA requests in this case have made their way to the public docket

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through the parties’ summary judgment briefing, not by regular or periodic filing on the

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docket by Defendants. As noted above, Plaintiffs argue without citation that Defendants

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must now file revisions and supplements to their Declarations and Vaughn Indices on the

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docket “to discharge Defendants’ legal obligations under the FOIA and ensure a clear

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public accounting of Defendants’ compliance with the Court’s Order.” (Report at 3.) The

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Court cannot so conclude without authority.

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Accordingly, the Court will require the parties to supplement their position

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statements to address what the requirements are under FOIA and in this particular case

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for the filing on the public docket of the information disclosed by Defendants pursuant to

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Plaintiffs’ FOIA requests; specifically, who must file the information, what must be filed,

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and when it must be filed. The Court will resolve the filing requirements after reviewing

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the parties’ supplemental briefs, at which time the Court will also address Defendants’

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request to set another summary judgment briefing schedule.

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In their position statements, the parties also disagree about whether the

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supplemental information Defendants provided was properly identified (with Bates

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numbers or otherwise) and cross-referenced with previously provided information. It

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should go without the Court having to say that information provided pursuant to a FOIA

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request must be identified. The Court trusts the parties can work together to properly

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identify the information provided and presumes that revisions or supplements to

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Defendants’ Declarations will resolve any discrepancies, considering that those

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Declarations must be reasonably detailed and non-conclusory, Hamdan v. DOJ, 797 F.3d

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759, 772 (9th Cir. 2015), and must describe “what records were searched, by whom, and

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through what process,” Lawyers’ Comm. for Civil Rights v. U.S. Dep’t of Treasury, 534

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F. Supp. 2d 1126, 1131 (N.D. Cal. 2008) (citation omitted).

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IT IS THEREFORE ORDERED that, to the extent Defendants have not already

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submitted to Plaintiffs revised or supplemented Declarations pursuant to the Court’s

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Order (Doc. 76 at 8-15), or revised Vaughn Indices pursuant to the same Order (Doc. 76

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at 19-20, 22, 25-26), Defendants shall submit to Plaintiffs the required revisions and/or

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supplements by June 4, 2018, and Defendants shall file with the Court a Notice of

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Compliance the same day.

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IT IS FURTHER ORDERED that, as discussed in more detail in this Order, the

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parties shall each file a brief not to exceed five pages by June 4, 2018, addressing the

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requirements for filing on the public docket the information provided pursuant to a FOIA

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request. No responses or replies are permitted.

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Dated this 23rd day of May, 2018.

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Honorable John J. Tuchi
United States District Judge

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