National Immigrant Justice Center v. United States Department of Homeland Security et al

Filing 95

For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants plaintiff's motion for summary judgment [dkt. nos. 60 & 66] and denies defendants' motion for summary judgment [dkt. nos. 59 & 76]. Counsel are directed to confer and prepare a draft form of judgment consistent with this decision and are to submit it to the Court by no later than February 6, 2015. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NATIONAL IMMIGRANT JUSTICE
CENTER,
Plaintiff,
vs.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, and
UNITED STATES IMMIGRATION AND
CUSTOMS ENFORCEMENT,
Defendants.

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No. 12 C 5358

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
The National Immigrant Justice Center (NIJC) is a non-profit organization whose
stated mission is to obtain access to justice and human rights protections for
immigrants, refugees, and asylum seekers. In April 2011, NIJC submitted a request
under the Freedom of Information Act (FOIA) to the United States Department of
Homeland Security (DHS) and United States Immigration and Customs Enforcement
(ICE). It asked these agencies to produce documents relating to immigrant detention
facilities. When no documents were produced, NIJC filed suit, in July 2012. Nearly two
years later, DHS and ICE still had not produced the requested documents, even though
NIJC narrowed its request significantly after it filed this lawsuit.
The NIJC has moved for summary judgment,1 and DHS and ICE have cross-

1

In its opening brief, NIJC also requested attorney's fees. Pl.'s Opening Br. at 21-28.
On April 15, 2014, the Court deferred consideration of this request. Dkt. No. 72.

moved for summary judgment, arguing that they have conducted a reasonable search
for responsive documents. In their cross-motion, the agencies ask the Court to permit
them to continue producing documents on a rolling basis, once a month, until production
is complete. They offer no anticipated completion date, however. The Court also notes
that although it has had the present motions under advisement for an inordinately long
time—for which it apologizes to the parties—the agencies have not come back to advise
that they have completed production or even that they have made significant progress
toward conclusion of the production process. Nor is it apparent that the agencies have
even identified all responsive records.
For the reasons stated below, the Court denies the agencies' motion for
summary judgment. The Court also finds that the agencies have not conducted a
search reasonably calculated to identify and produce documents responsive to NIJC's
FOIA request and therefore grants NIJC's motion. The Court also sets a final deadline
for production of all remaining responsive documents.
Background
DHS and ICE house immigrant detainees at a variety of detention facilities, both
governmental and private, pursuant to contracts and intergovernmental agreements.
The agencies also periodically evaluate and audit these detention facilities. The NIJC
contends that "[i]t is crucial to [its] mandate to obtain information regarding the
government's detention of non-citizens . . . ." Pl.'s Opening Br. at 3.
On April 27, 2011, NIJC filed with DHS and ICE a FOIA request seeking
documents relating to immigrant detention facilities. Specifically, NIJC requested the
following:

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1.
Please provide copies of all intergovernmental service agreements
(“IGSAs”) executed at any point after 2002 between ICE or DHS and any
state, municipal or county entity;
2.
Please provide copies of all IGSAs executed at any point after 2002
between federal agencies other than ICE and DHS, including the U.S.
Marshals, the Office of the Federal Detention Trustee, and the former
Immigration and Nationality Service, with any state, municipal or county
entity, which are in possession of ICE or DHS;
3.
As to any IGSA contract extensions executed after 2002 between ICE,
DHS, or other federal agencies, please provide the contract extension as
well as the original contract, if not provided pursuant to paragraph 1 or 2
of this request;
4.
Please provide copies of all contract detention facility agreements
(“CDFs”) currently in effect to house immigrant detainees at any
privately-owned facility, including those executed by ICE or DHS, and
those executed by other federal agencies which are in possession of ICE or
DHS;
5.
Please provide copies of all current agreements or Memorandums of
Understanding (“MOUs”) with any other federal entity to house
immigrant detainees;
6.
Please provide copies of all records related to reviews, audits, and
inspections conducted by DHS/ICE/ERO [DHS’s branch for Enforcement
and Removal Operation] or any other governmental entity; or by any
private entity contracted by ICE/ERO, such as the Nakamoto Group; or in
facilities that house immigrant detainees for fiscal years 2007, 2008, 2009,
2010, and 2011;
7.
Please provide copies of any ratings assigned by ICE, DHS, or ERO to
any IGSA, CDF, or federal facility employed to house immigrant
detainees, from 2007 to the present. Please also provide worksheets,
evaluations and/or criteria requirements for any review, audit, or
inspection conducted by DHS/ICE/ERO or by any other governmental
entity; or by any private entity contracted by ICE/ERO, such as the
Nakamoto Group; and
8.
Please provide any evaluations performed by any nongovernmental entity,
such as the American Bar Association (ABA), for fiscal years 2007, 2008,
2009, 2010 and 2011, through the present.
Id. at 3-4.

3

The agencies received NIJC's FOIA request on May 3, 2011. On June 21, 2011,
they notified NIJC in writing that the "'ICE FOIA Library'" section of the ICE website
contained information addressing requests one through three and five through eight.
Pl.'s Compl., Ex. B at 2. The agencies stated that request four was "still out for
processing" and that they had "queried the appropriate offices within ICE for responsive
records." Id.
On August 26, 2011, NIJC informed the agencies in writing that many of the
documents it sought were unavailable on the ICE website and that the agencies'
response to requests one through three and five through eight was therefore
incomplete. On October 22, 2011, the agencies sent NIJC a letter that indicated they
had treated NIJC's August 26 correspondence as an appeal of the adequacy of the
search. They "remanded" the matter to the ICE FOIA office for "processing and retasking to the appropriate agency/office(s) to obtain any responsive documents." Pl.'s
Compl., Ex. D at 1.
On March 20, 2012—about eleven months after submitting the FOIA request—
NIJC filed an internal appeal because it still had not received even a single document
responsive to its FOIA request. Compl., Ex. E at 1. NIJC stated that "pursuant to 5
U.S.C. § 552(a)(6)(A)(ii), we expect you will make a determination with respect to our
appeal within twenty days . . . after the receipt of our appeal. " Id. at 4. On April 18,
2012, the defendants acknowledged the appeal and noted that "[w]hile we will make
every effort to process your appeal on a timely basis, there may be some delay"
because "[a] high number of FOIA/PA requests have been received by the Department."
Pl.'s Compl., Ex. F at 2. On June 1, 2012, the agencies again "remanded" the matter to

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the ICE FOIA office "so that they may complete their processing of these records and
provide a direct response to [the NIJC]." Pl.'s Compl., Ex. G at 2. The defendants
stated that "[d]ue to the voluminous nature of your request, the ICE FOIA Office
anticipates that an interim release of responsive records will be complete by June 29,
2012." Id. June 2012 came and went, however, with no interim release of records.
By the end of June 2012, fourteen months had passed from the filing of NIJC's
FOIA request, and it still had received not a single document. On July 9, 2012, NIJC
filed the present lawsuit, seeking a declaratory judgment that defendants' search for
records was inadequate and an order directing them to produce all responsive
documents by a date certain.
On September 17, 2012, the Court held an initial scheduling conference / status
hearing in the case. The Court held the conference in chambers per its usual practice.
The Assistant United States Attorney representing the agencies told the Court and
counsel for NIJC that the agencies had initially estimated that it would take them eightyeight weeks to complete production of the requested records but that he had been able
to get them down to forty weeks. The Court notes that forty weeks from September 17,
2012 would have been approximately the end of June 2013. (Eighty-eight weeks would
have been approximately the end of May 2014.)
From November 1, 2012 to March 27, 2013, the agencies released about 11,000
pages of documents, with some document production occurring approximately every
two weeks. This, however, did not get the agencies anywhere close to full compliance,
even though by the end of March 2013 twenty-seven weeks had passed since the initial
scheduling conference. In March 2013, NIJC offered to narrow the scope of its request

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from documents relating to 250 detention facilities to documents relating to the "top 100"
based on the number of detainees. Pl.'s Opening Br. at 7. NIJC says that it narrowed
its request because the documents it had received at that point were "largely
unresponsive," and it wished to "expedite production and help lessen the burden on the
Federal Defendants . . . ." Id.
From April 12, 2013 to May 2013, the agencies produced about 800 pages of
documents. Around June 2013, they asked NIJC to further narrow its request by
accepting summary review reports of the facilities in lieu of quality control checklists.
NIJC agreed, but it reserved the right to review the reports and request the checklists if
it still needed them.
By the end of July 2013—after the full compliance date that the agencies'
attorney had set at the initial scheduling conference–the agencies were still nowhere
near full compliance with NIJC's requests, despite the fact that NIJC had twice narrowed
them significantly. From August 1 to September 24, 2013, the agencies released
approximately 3,000 pages of documents. Despite this, however, they were still just
scratching the surface.
On November 7, 2013, the Court held another status hearing. At this point, the
Court allowed discovery to proceed, largely to enable NIJC to obtain evidence regarding
the nature and location of responsive records that had not been produced. The Court
set a discovery deadline of February 10, 2014 and hoped that this would spur the
agencies to do a better job complying with the FOIA request. (NIJC contends that the
agencies agreed at this hearing to complete production of records by February 7, 2014,
but the transcript does not support this assertion. See Defs.' Ex. F.)

6

During a January 21, 2014 status hearing, the Court asked the Assistant United
States Attorney representing the agencies whether they had "produced in 45 weeks all
of the documents that [the attorney] had originally told [the Court] . . . [they] were going
to produce in 40 weeks . . . ." Defs.' Ex. G at 3. Counsel replied, "Yes." Then,
however, he proceeded to back-track. He said that the agencies had initially assumed
"that all of the summary review reports and all of the contracts were within [the] original
accumulation of documents. That's what proved not to be correct. . . . The assumption
was that those documents were within the group that was still being produced and
gathered in the original search." Id. at 4, 9 (internal quotation marks omitted). The
bottom line was that defense counsel conceded that the agencies had not met their
earlier commitment, though counsel attributed this to a mistake on their part.
At the same January 2014 status hearing, defendants' attorney seemed to
suggest that NIJC had actually increased the agencies' production burden by modifying
its original FOIA request: "Since the completion of the production of the documents in
the original search, NIJC requested the government detention contracts and inspection
reports relating to the 100 specified institutions that were not included in the original
disclosure." Id. at 9 (internal quotation marks omitted). The suggestion was incorrect;
the production burden had been narrowed by NIJC, not increased, and there is not a
speck of evidence that would support a contention that anything NIJC did put the
agencies to an increased burden. That aside, however, defendants' attorney stated that
he was "confident that we're almost there at the point where we know where all the
documents are and we'll have them pulled. They're actually pulled onto disks. Those
are not redacted at this point . . . ." Id. at 11.

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Despite this, NIJC contends that as of February 10, 2014, the defendants had not
satisfied more than fifteen percent of its narrowed FOIA request. The Court notes that
this was seventy-three weeks after the initial scheduling conference, when the agencies'
counsel represented that they would reach full compliance in forty weeks.
According to NIJC, the defendants had produced the following as of April 4,
2014, when NIJC filed its motion for summary judgment:


22 of 100 IGSAs, including 5 incomplete records;



9 of 100 Review and Audit Reports for the Year 2007;



16 of 100 Review and Audit Reports for the Year 2008, including 2
incomplete records;



31 of 100 Review and Audit Reports for the Year 2009, including 10
incomplete records;



38 of 100 Review and Audit Reports for the Year 2010, including 13
incomplete records;



45 of 100 Review and Audit Reports for the Year 2011, including 10
incomplete records;



0 of 100 Audit Reports for the Year 2012; and



0 of 100 Audit Reports for the Year 2013.

Valenzuela Decl. ¶ 11. NIJC states in its opening brief that "the Federal Defendants
have failed to produce a single complete set of documents for any facility (i.e. facility
contract and detention inspection reports for all years), much less the complete set of
requested documents." Pl.'s Opening Br. at 12.
Defendants argue in their response and cross-motion that they have released
"the contractual documents that the federal defendants maintain on the detention
facilities enumerated by the plaintiff." Defs.' Opening Br. at 2. They further say that
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"ICE FOIA plans to process and release the remaining responsive documents on a
rolling basis, with a production made by the seventh of each month until all of the
responsive documents have been produced." Id.
As indicated earlier, both sides have moved for summary judgment. As of the
date of NIJC's summary judgment motion—early April 2014—eighty weeks had passed
since the agencies' attorney represented, on September 17, 2012, that they would take
just forty weeks to comply in full with NIJC's requests. In other words, the agencies had
by this time already taken twice as long as they told their lawyer, and he told the Court,
that it would take them to complete production. And yet they were still nowhere near
completion.
With their summary judgment papers, defendants have provided a series of
affidavits from agency personnel regarding the search for records responsive to NIJC's
request. The affidavit of Catrina Pavlik-Keenan, the chief FOIA officer at ICE, describes
what was done initially to dole out responsibility for searching for responsive
documents. Ms. Pavlik-Keenan also lists in mind-numbing detail how many pages of
records were produced on particular dates. She also identifies the occasions on which
NIJC agreed to narrow its requests. But she does not explain, or even hint at, what has
taken the agency so long. More disturbingly, Ms. Pavlik-Keenan's affidavit appears to
indicate that it was not until October-November 2013—a full two and one-half years
after the agency's receipt of NIJC's FOIA request—that ICE specifically tasked
personnel to search for inspection reports for the facilities in question. See PavlikKeenan Affid. ¶¶ 52-55. She offers no explanation for why it took so long to do this or
why no such records were produced in the preceding thirty months.

9

Defendants have also provided two affidavits from Jerald Neveleff, the deputy
assistant director of the ICE office that is responsible for the agency's contracts. Mr.
Neveleff says that in November 2013, he was forwarded an e-mail request checking on
the status of NIJC's FOIA request and referencing the litigation. Mr. Neveleff says that
when he received the e-mail, he noted that it bore a date in late October 2013, and he
inquired to ask the reason for the delay in getting it to him. Neveleff 1st Affid. ¶ 7. (One
might regard it as rather ironic that an agency that had made so little progress in thirty
months was concerned about a delay of a matter of a couple of weeks.) But neither Mr.
Neveleff nor any other affiant offers an explanation for why no one had, prior to
October-November 2013, taken responsibility for marshaling resources to respond to
NIJC's request despite this Court's persistent prodding and, presumably, the prodding of
government counsel.
That aside, Mr. Neveleff says that the e-mail he received in November 2013
identified fifty-eight facilities for which no contracts had been produced. (It is noteworthy
that the agencies have provided no information regarding the process that led to this
determination.) He says that he was able to ascertain that twenty-two of these had their
contracts not with ICE but rather had "Department of Justice (DOJ) / US Marshals (and
Office of the Federal Detention Trustee (OFDT)) contracts and agreements." Id. ¶ 9.
More on that shortly. This left, Mr. Neveleff says, thirty-six facilities2 as to which, as of
November 2013, no contract had been produced. Id. This is a rather damning
admission, and again, no effort is made to explain why this was the case. Mr. Neveleff
says, however, that he saw to it that contracts for these facilities were obtained and
2

It turns out that the number of contracts, according to Mr. Neveleff, is actually thirtyfive, because two facilities were operated under the same contract. Id. ¶ 9.
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burned to disk and were forwarded to the ICE FOIA office. Id. ¶ 14.
Back, then, to the other twenty-two facilities. The government takes the position
that DHS and ICE have no obligation to produce the contracts for those facilities,
because the contracting agency is within the Department of Justice, not DHS or ICE.
These facilities, however, house ICE detainees, and Mr. Neveleff's affidavit indicates,
rather unsurprisingly, that ICE has copies of the facility agreements and amendments
that modify their terms and conditions. Id. ¶ 11. Yet despite having these documents,
defendants have declined to produce them.
LaTonya Nowlin, an analyst with the ICE unit that processes and responds to
FOIA requests, also provided an affidavit. Her affidavit likewise largely concerns events
that took place in 2013 (most of it in November-December of that year); she gives no
explanation for what happened or did not happen before that.
Jeremy Thompson, the acting chief of information disclosure with ICE's Office of
Enforcement and Removal Operations (ERO), describes in his affidavit a "re-tasking" of
NIJC's FOIA request that led to processing of 20,000 pages of documents between
December 2013 and March 2014. He does not identify when the re-tasking was
initiated or why. And he provides only scant information about what happened between
ICE's receipt of NIJC's request in April 2011 and late 2013.
Fernando Piniero, the deputy FOIA officer of ICE's FOIA office, provides
information only on production of documents in April-May 2014. Reginald Sakamoto,
the chief of the detention monitoring unit at ERO's custody management division,
provides no information about the search(es) at issue in this case. Rather, he merely
attempts to explain his deposition testimony that compliance with NIJC's FOIA request

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has taken longer than any other FOIA request to ICE of which he was aware. In his
affidavit, Mr. Sakamoto does not retract or qualify this statement; rather, he attempts to
explain that this was also the largest FOIA request to ICE of which he was aware.
Sakamoto Affid. ¶ 7. His explanation, however, falls short of suggesting a massive or
backbreaking burden. Rather, he states that for any given year, the inspection reports
for a particular facility may be over 100 pages, and NIJC requested reports on 100
facilities for multiple years. Ten thousand pages per year for seven years hardly
suggests an undue search or production burden, let alone one that should have taken
defendants over three years thus far.
Finally, a second affidavit from Jerald Neveleff provides information regarding
additional facility contracts that, evidently, still had not been produced or even gathered
as of the date of the affidavit, June 30, 2014. Mr. Neveleff refers to the fifty-eight
facilities identified in his earlier affidavit. As discussed above, Mr. Neveleff's first
affidavit said that "there were approximately fifty-eight (58) facilities that were not
addressed through the FOIA office." Neveleff 1st Affid. ¶ 9. In his second affidavit, Mr.
Neveleff replies to a comment about this in NIJC's response/reply brief. He says the
following:
In plaintiff's Opposition/Reply, they state that federal defendants
failed to explain why they only needed to produce "58" facilities. See pg. 6
of plaintiff's Opposition/Reply. ICE did not provide documents related to
government-owned, contractor-operated service processing centers. ICE
does not use IGSAs to house detainees at its government-owned,
contractor-operated processing centers. Any contracts that ICE enters
into at these facilities are for contracted services only. [The affidavit then
lists 5 "service processing centers."]
For those Privately Owned Facilities listed in the final column of
Federal Defendants' Exhibit M, instead of an IGSA, ICE uses a contract
based under the Federal Acquisition Regulations (FAR) which has been
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set by Congress and establishes guidelines on how the Government
procures materials, products, and services. The facilities listed in
Plaintiff's Opposition/Reply Exhibit A and cited in the final column of
Federal Defendants' Exhibit M have not been produced by ICE-FOIA
because it is my understanding that they require facility ownership review
before they are released (See 6 C.F.R. § 5.8). [The affidavit then lists 6
facilities.]
Neveleff 2d Affid. ¶¶ 3-4.
Discussion
Each side has moved for summary judgment. To be entitled to summary
judgment, the moving party must show that "'there is no genuine issue as to any
material fact and that [it] is entitled to judgment as a matter of law.'" Diaz v. Prudential
Ins. Co. of Am., 499 F.3d 640, 643 (7th Cir. 2007) (quoting Fed. R. Civ. P. 56(c)). On
cross motions for summary judgment, the court assesses whether each movant has
satisfied the requirements of Rule 56. See Cont'l Cas. Co. v. Nw. Nat'l Ins. Co., 427
F.3d 1038, 1041 (7th Cir. 2005). "As with any summary judgment motion, we review
cross-motions for summary judgment construing all facts, and drawing all reasonable
inferences from those facts, in favor of the non-moving party." Laskin v. Siegel, 728
F.3d 731, 734 (7th Cir. 2013) (internal quotation marks omitted).
A.

Adequacy of search
The FOIA is intended to "pierce the veil of administrative secrecy and to open

agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352,
361 (1976) (internal quotation marks omitted). A party that submits a FOIA request
faces an "asymmetrical distribution of knowledge" because "the agency alone
possesses, reviews, discloses, and withholds the subject matter of the request."
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006). For this reason, the

13

statute imposes upon the agency the burden of sustaining its action. Id. (citing 5 U.S.C.
§ 552(a)(4)(B)).
To prevail on summary judgment in a FOIA action, "the defending agency must
show beyond material doubt [ ] that it has conducted a search reasonably calculated to
uncover all relevant documents." Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007)
(internal quotation marks omitted); see also, e.g., Lee v. U.S. Attorney for S. Dist. of
Fla., 289 F. App'x 377, 380 (11th Cir. 2008). The agency must show that it has made a
good faith effort to conduct a search for the requested records, using methods that can
be reasonably expected to produce the information requested. Nation Magazine v.
U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995) (internal quotation marks
omitted). Conclusory statements that the agency has reviewed relevant files are
insufficient—for example, an affidavit that the agency has reviewed files that would
contain responsive information but that does not describe its approach to the search or
identify the files searched. Id. The adequacy of an agency's search is measured by the
reasonableness of the effort in light of the specific request. Patterson v. IRS, 56 F.3d
832, 841 (7th Cir. 1995).
If the agency meets its burden to show that it conducted a reasonable search,
the burden shifts to the requester "to rebut the agency's evidence by showing that the
search was not reasonable or was not conducted in good faith." Lee, 289 F. App'x at
380. See also, e.g., Moffat v. U.S. Dep't of Justice, 716 F.3d 244, 254 (1st Cir. 2013). It
does not appear, however, that evidence of "bad faith" as such is necessary. Rather, if
there is substantial doubt about the adequacy of the search, summary judgment in the
agency's favor is inappropriate. See, e.g., Iturralde v. Comptroller of Currency, 315

14

F.3d 311, 314 (D.C. Cir. 2003).
The Court notes that nearly all of the cases cited in the parties' briefs consider
only an agency's motion for summary judgment. The exception is Prison Legal News v.
Lappin, 603 F. Supp. 2d 124 (D.D.C. 2009), in which a prison legal journal and the
Federal Bureau of Prisons filed cross-motions for summary judgment regarding the
adequacy of the Bureau's search for records responsive to the journal's FOIA request.
Upon finding that it did "not have a sufficient affidavit before it from which it can
conclude that the Bureau produced all responsive records in its possession and
control," the court concluded that it "must grant the plaintiff's motion regarding the
adequacy of the search." Id. at 128. The court ruled that the:
Bureau must either conduct a new search . . . or it must provide the Court
with an affidavit (or affidavits) from which the Court can find that the affiant
has personal knowledge that the Bureau's search procedures and the
searches actually conducted were reasonably designed to locate
documents responsive to the plaintiff's request.
Id.
It is abundantly clear that the defendants are not entitled to summary judgment;
they have not come close to showing that they conducted searches reasonably
calculated to uncover all relevant documents. First, although a flurry of activity
(comparatively speaking) seems to have begun in the late fall of 2013, the agencies
have provided only sketchy details of what they did in the two-and-one-half years
preceding that to search for relevant records. The only reasonable conclusion that may
be drawn is that they did not conduct a reasonable search. The gaping holes in the
agencies' production of documents during that extraordinarily long delay are virtually
impossible to justify. It appears to be the case that, as NIJC points out, that the relevant

15

documents "are physically kept in central locations, and most of the records are
redundantly kept on a searchable shared drive . . . . [T]he Federal Defendants could
have literally walked over to these locations, or . . . performed a basic computer search
and pulled the relevant files." Pl.'s Reply at 4.
The agencies attempt to explain the delay by characterizing "the original FOIA
request" as "extremely broad" because it "did not identify any particular file systems or
specific documents." Defs.' Opening Br. at 9-10. This argument does not hold water.
As NIJC argues, it "provided eight separate, narrowly tailored requests, each of which
described the documents with as much particularity as NIJC could without having seen
a responsive document." Pl.'s Reply at 8. The request was certainly narrower than
some of the FOIA requests that courts have found to be overly broad. See, e.g.,
Missouri Coal. for Env't Found. v. U.S. Army Corps of Eng'rs, 542 F.3d 1204, 1208 (8th
Cir. 2008) ("The FOIA request solicited three broad categories of documents: 1. Each
and every document that evidences a communication to or from a member of the Flow
Frequency Study Technical Advisory Group . . . ."); Stolt-Nielsen Transp. Group Ltd. v.
United States, 534 F.3d 728, 731 (D.C. Cir. 2008) ("Stolt–Nielsen made a series of
FOIA requests for a broad range of information . . . including . . . requests for 'all
amnesty agreements entered into by the Antitrust Division from August 1993 to the
present.'"). In contrast, NIJC cabined its request by referring to specific categories of
records and to the specific offices and parties involved.
Second, as indicated earlier, defendants' attorney has suggested that NIJC
increased the defendants' production burden, and hence the production timeline, by
modifying its original request. As the Court has already stated, that is simply not the

16

case. NIJC narrowed its request; it did not expand the request's scope. Specifically, it
limited its request for 250 facilities to 100, and it limited its request for quality control
checklists to summary review reports. There is no viable basis for the agencies to
contend that this made it harder for them to comply (the Court also notes that it was the
agencies themselves that requested the second modification).
Finally, defendants say that the request covers a very large amount of
documents. Perhaps so, but as the Court has indicated, the agencies have offered no
evidence supporting the proposition that this was the sort of back-breaking demand that
they seem to suggest. And they have offered only the barest of explanations for what, if
anything, they did in the first two and one-half years after receiving NIJC's request to
conduct a reasonable search and meet their FOIA obligations.
In sum, the record includes no evidence from which a determination may be
made that there was even an attempt at a good faith search for records during this
extended period.
Second, even after the agencies' apparent "re-tasking" of their response to
NIJC's request near the end of 2013, identification and production of records took place
at what fairly can be called a snail's pace. By April 2014, nearly three years after NIJC
submitted its FOIA request, only a modest fraction of responsive documents had been
identified and produced. The agencies cannot wipe from the slate their two-plus years
of noncompliance by an apparent flurry of activity at the eleventh hour when they were
under pressure as a result of pending litigation.
Third, the absence of a reasonable search conducted in good faith is shown by
the agencies' broken commitments to the Court. The Court refers here to the large

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disparity between the amount of time the agencies, via their counsel, initially
represented full production of responsive records would take and the much greater
amount of time it has taken them to comply only partially with NIJC's narrowed request.
As indicated earlier, in mid-September 2012, the agencies' attorney represented that it
would take forty weeks for full compliance, that is, until the end of June 2013.

The

nature and tenor of counsel's representation to the Court (that through discussions, he
had gotten the agencies to lower its estimate from eighty-eight weeks to forty) compels
an inference that this was not a figure picked out of the air but rather one that resulted
from discussion and consideration. Yet the agencies came nowhere near meeting the
estimate—indeed they did not even meet the original, much longer estimate even
though the requests were narrowed after that. This, together with the evidence
previously discussed, strongly suggests that there was an extended period of handsitting, and that as indicated earlier this changed only when, during the course of the
litigation, the agencies perceived themselves, rightly, to be under the gun.
For these reasons, defendants are not entitled to summary judgment. They have
not shown that they conducted, in good faith, a search reasonably calculated to uncover
all relevant documents. See Morley, 508 F.3d at 1114; Nation Magazine, 71 F.3d at
890. And based on the Court's review of the record, NIJC has shown that it is entitled to
summary judgment. The record establishes the opposite of a reasonable search
conducted in good faith, at least until very late in the day. As the Court has indicated,
the agencies offer nothing to explain the extraordinary amount of time it took to produce
even a modest quantity of documents. Both Neveleff's and Thompson's affidavits
involve searches and production that appear to have begun a full two and one-half

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years after the defendants received NIJC's FOIA request. They do not explain what
happened before. Given that all of the evidence regarding the nature of the searches
that were done is in the agencies' hands, the only reasonable inference that can be
drawn is that the agencies effectively sat on their hands or ran around in circles for this
extended period. There is no evidence that they even attempted to conduct a
reasonable search until, perhaps, they were under the gun as a result of this lawsuit.
And even then, their production of documents has proceeded at a pace that, if
accepted, would defeat the purpose of the FOIA.
B.

Injunctive relief
1.

Timing of production

NIJC contends that the agencies "should be required to expeditiously disclose
the remaining documents that they have unjustifiably withheld" and cites cases in which
courts have set production deadlines in cases involving unusually long delays. Pl.'s
Opening Br. at 19. The agencies ask the Court to permit them to continue producing
documents on a rolling basis, with some documents produced on the seventh of every
month until production is complete. But that is the course that the agencies have
followed to date, and the Court has concluded that it was and is not reasonable,
particularly given the extraordinarily long time the still-incomplete production has taken
to date.
The Court acknowledges defendants' contention that redacting and otherwise
processing the substantial number of documents involved in this production has
contributed to the three-plus-year delay. At the same time, courts have declined to
allow general claims of backlogs and limited resources to justify a delay to the extent

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involved here. In Donham v. U.S. Dep't of Energy, 192 F. Supp. 2d 877 (S.D. Ill. 2002),
cited by NIJC, the plaintiff filed suit to compel an expedited response to its FOIA request
approximately two years after having made it. The Department of Energy invoked 5
U.S.C. § 552(a)(6)(C), which authorizes courts to give agencies more than the twenty
days stipulated in the FOIA to decide whether to comply with the request and (if
applicable) promptly release the documents to the requester. The court recognized
that the agency had "limited resources" and a "backlog of requests," but it declined to
recognize either of these as an "'exceptional circumstance'" warranting a stay of the
proceedings. Id. at 882 (quoting section 552(a)(6)(C)). The court noted that "Plaintiffs
have already waited two years. Such delay is clearly inconsistent with the purpose of
FOIA. FOIA is intended to ensure the prompt disclosure of information, not its
suppression . . . ." Id.
In Hamlin v. Kelley, 433 F. Supp. 180 (N.D. Ill. 1977), also cited by NIJC, the
defendant agencies filed a motion to stay under section 552(a)(6)(C) citing inadequate
staff, insufficient funding, and a large number of requests. In denying the request, the
court noted that "Congress deliberately removed from the agencies the authority to
delay FOIA requests for the reasons now raised by defendants because the agencies
could not be trusted to keep their affairs regular with respect to these requests." Id. at
182. Unlike the agencies in Donham and Hamlin, the defendants have not rested their
request for rolling production on section 552(a)(6)(C). The cases are nonetheless
instructive. Allowing even more time for an already extraordinarily protracted production
of records based on problems faced by many, if not all, government agencies would
undermine the purpose behind the FOIA.

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In summary, the defendants have taken three years to satisfy less than half of
the NIJC's twice-narrowed production request and have not suggested that they have
faced anything other than ordinary challenges in releasing the documents. The Court
orders the defendants to produce all of remaining responsive documents within fortyfive days of today's date, that is, by no later than March 21, 2015.
2.

Content of production

The parties disagree to some extent about what documents the defendants still
have to produce. NIJC argues that the defendants are obligated to release copies of
inter-governmental agreements executed by federal agencies other than the
defendants, including the U.S. Marshals Service and the Office of the Federal Detention
Trustee, which are part of the Department of Justice. Defendants have declined to
produce such records.
The answer to this is simple: defendants are required to produce the responsive
records in their possession, even if some other agency may have generated those
records. Under the FOIA, "[f]or requested materials to qualify as 'agency documents,'
two requirements must be satisfied. First, an 'agency must either create or obtain the
requested materials . . . . Second, 'the agency must be in control of the requested
materials at the time the FOIA request is made.'" Sikes v. United States, 987 F. Supp.
2d 1355, 1364, n. 6 (S.D. Ga. 2013) (quoting U.S. Dep't of Justice v. Tax Analysts, 492
U.S. 136, 144 (1989)). In Tax Analysts, the Supreme Court defined "control" in terms of
"an agency's possession of the requested materials, not on its power to alter the content
of the materials it receives." Tax Analysts, 492 U.S. at 147.
As the Court has discussed, it is apparent from Mr. Neveleff's affidavit that the

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agencies do, in fact, have copies of agreements executed by other agencies. They are
required to produce these documents even if they did not generate them in the first
place.
3.

Cut-off date for production

The parties also disagree about the cut-off date for production. NIJC argues that
the agencies should be required to produce inspection reports through fiscal year 2013.
The agencies state that they are willing to include reports through fiscal year 2012, even
though NIJC's request was submitted in May 2011. They invoke 6 C.F.R. § 5.4(a),
which states that an agency "ordinarily will include only records in its possession as of
the date the component begins its search for them." However, another date can be
used so long as the agency "inform[s] the requester of that date." Id. Defendants also
point to cases finding reasonable date-of-search cut-offs (i.e., covering documents that
an agency possessed when it began its search). McGehee v. CIA, 697 F.2d 1095,
1100, 1104 (D.C. Cir. 1983). In Edmonds Inst. v. U.S. Dep’t of Interior, 383 F. Supp. 2d
105 (D.D.C. 2005), for example, the court decided that a date-of-search cut-off was
more appropriate than a date-of-release cut-off (i.e., including documents that the
agency possessed before its release of documents to the requester). The court
reasoned that "[e]very postponement in the release of the documents would require the
agency to perform a new search to include all documents created before the new
release date, which in turn would postpone the date of release once again." Id. at 111.
The Court acknowledges that a date-of-search cut-off is not entirely satisfactory
in the present case, as it allows the defendants' delays to leave the NIJC with relatively
dated information. As in Edmonds, however, a date-of-release cut-off would be

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counterproductive to the overall goal of completing the production as quickly as possible
going forward. Further, NIJC is not without recourse, as it is free to file a separate FOIA
request for records dated 2013 and after. For these reasons, the Court directs the
defendants to produce responsive records through the end fiscal year 2012, the time
period to which they have already agreed.
Conclusion
For the foregoing reasons, the Court grants NIJC's motion for summary judgment
[dkt. nos. 60 & 66] and denies defendants' motion for summary judgment [dkt. nos. 59 &
76]. Counsel are directed to confer and prepare a draft form of judgment consistent
with this decision and are to submit it to the Court by no later than February 6, 2015.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: February 2, 2015

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