Stevens v. United States Health and Human Services et al

Filing 102

MEMORANDUM OPINION AND ORDER Signed by the Honorable Matthew F. Kennelly on 8/30/2024: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants CBP's motion for summary judgment 67 with respect to the Hoang re quests and part one of the Underwood request but denies CPB's motion with respect to parts two and three of the Underwood request. The Court denies Stevens's cross-motion for summary judgment 77 without prejudice. The Court directs CBP to promptly conduct a good-faith and reasonable search for records responsive to part two of the Underwood request. The Court also directs CBP to promptly conduct additional searches responsive to part three of the Underwood request, including but not limited to the e-mail inbox of the previously identified Procurement Office employee. CBP is to file a status report in this regard on September 27, 2024. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JACQUELINE STEVENS,
Plaintiff,
vs.
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,
Defendants.

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Case No. 22 C 5072

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Jacqueline Stevens has filed suit against the Department of Health and Human
Services (HHS), the Department of Homeland Security (DHS), Customs and Border
Protection (CBP), Immigration and Customs Enforcement (ICE), the United States
Citizenship and Immigration Services (USCIS), the Department of Justice (DOJ), and
the Executive Office for Immigration Review (EOIR), which is part of DOJ. Stevens's
claims arise under the Freedom of Information Act (FOIA). CBP has moved for
summary judgment on the ground that it has completed Stevens's FOIA requests.
Stevens has filed a cross-motion for summary judgment. For the reasons below, the
Court grants both motions in part and denies both in part.
Background
The following facts are undisputed unless otherwise noted. Stevens is a political
science professor at Northwestern University. Since 2011, she has conducted research
and published articles regarding "the U.S. government's unlawful detention and

deportation of U.S. citizens." Compl. ¶ 7. In 2012, Stevens founded Northwestern
University's Deportation Research Clinic, which was launched with the "purpose of
studying government misconduct in deportation proceedings." Id. ¶ 9.
A.

FOIA Requests
This case concerns FOIA requests that Stevens filed with CBP in 2019 and 2022.
1.

Underwood requests

In the first request, filed on November 22, 2019, Stevens sought various records
regarding Congresswoman Lauren Underwood and the potential development of an
Electronic Health Record (EHR) system at DHS. Specifically, the request sought:
1. All communications and related materials created, received, or
maintained by the Department of Homeland Security to which Rep. Lauren
Underwood (D-IL) or any member of her staff were a party. This includes
but is not limited to all e-mail, text messages, notes, reports,
memorandums, proposed bill texts, and bill evaluations. Please note that in
a floor speech of 9/26/2019 Rep. Underwood stated she received
information from the "Department of Homeland Security" indicating a
request for an integrated Electronic Health Records System she referenced
as "EHR." She refers to this in her remarks on HR 3525 as a "direct ask
from medical officers at the Department of Homeland Security." Here is a
link to the bill text in question: https://www.congress.gov/bill/116thcongress/house-bill/3525/text (It is possible that she actually had in mind
Immigration and Customs Enforcement but failed to make this explicit. In
the event, I am requesting all communications associated with this "direct
ask.")
2. DHS communications and related materials created by or received from
other components of DHS or the Department of Health and Human Services
Office of Refugee Resettlement about the use of Electronic Health Records
systems already in place as well as the establishment of an EHR for the use
by offices of CBP.
3. Information on meetings and communications with private individuals,
including but not limited to lobbyists or company officials related to past,
current, or potential "enterprise" or other information technologies for
collecting, coordinating, or maintaining health records data for those
encountered or detained by DHS or any component of DHS. I have in mind
technical reports, e-mail, text messages, or other communications with the
2

private sector tied to past, current, or potential contracts tied to EHR
systems.
Pl.'s Resp. to Def.'s Mot. for Summ. J., Ex. E.
On December 2, 2019, DHS transferred the request to CBP. CBP has a FOIA
division tasked with "determin[ing] which CBP systems, databases, and offices are likely
to contain records responsive to a particular FOIA request." Def.'s L.R. 56.1 Stmt. ¶ 5.
Stevens filed the present suit on September 16, 2022. On June 8, 2023, she
moved for summary judgment against multiple defendants, including CBP. On October
2, 2023, this Court granted Stevens's motion in part and denied it in part. Stevens v.
U.S. Dep't of Health & Hum. Servs., No. 22 C 5072, 2023 WL 6392407 (N.D. Ill. Oct. 2,
2023) (Kennelly, J.). With respect to CBP, this Court concluded that Stevens was not
entitled to summary judgment on the March 2022 Hoang request and directed CBP to
search for records responsive to Stevens’s Underwood request. Id. at *7-8.
To fulfill part one of Stevens's request relating to Representative Underwood,
CBP conducted a search within the e-mail inboxes of the directors of the CBP Office of
Congressional Affairs (OCA). OCA directors were instructed to search their e-mail
inboxes for communications with Representative Underwood and/or her staff about
EHR systems. The directors used the search terms "Underwood," "Lauren
Underwood," "EHR," "Health Record," and "Electronic health record." Howard Decl. ¶
29. CBP determined that part two of the Underwood request sought only DHS records,
and thus it did not conduct a search of CBP records to fulfill this part of Stevens's
request. For part three, CBP FOIA staff determined that CBP's Procurement Office,
which is "responsible for contract oversight and administration," was the only office
reasonably likely to have any potential responsive records. Id. ¶ 26. The Procurement
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Office identified an employee who "serves as the point of contact for electronic medical
records within the Procurement Directorate." Id. ¶ 28. This employee advised that per
her "clear recollection," she has never had any verbal or written correspondence with
any private individuals related to "collecting, coordinating or maintaining health record
data for people encountered by DHS or any DHS component such as CBP." Def.'s L.R.
56.1 Stmt. ¶ 32. On July 14, 2023, CBP issued its first response to Stevens, stating that
it had not located any information responsive to her FOIA request.
Following this initial search, OCA informed CBP FOIA division staff that
responsive records potentially could be found in the OCA's "OCATaskings" e-mail
inbox. A search of the OCATaskings inbox using the same search terms produced
twenty-three pages of records that "discussed medical issues related to Representative
Underwood and to the Agency." Howard Decl. ¶ 31. On October 31, 2023, CBP sent
Stevens a final response to her FOIA request relating to Representative Underwood.
The response stated that CBP had reviewed twenty-three pages of records and
determined that three pages were non-responsive, thirteen pages should be withheld,
and seven pages were available for production with redactions. CBP contends that
these redactions were proper withholdings under three FOIA statutory exemptions for
private information. CBP also prepared a Vaughn index explaining the basis for its
withholdings and redactions.
2.

Hoang requests

In her first FOIA request relating to Hoang, filed in spring 2022, 1 Stevens

The parties dispute whether this request was filed on March 10, 2022 or May 18,
2022. See Def.'s Resp. to Pl.'s L.R. 56.1 Stmt. ¶ 1.

1

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submitted a FOIA request directly to CBP. Stevens believes that Hoang is a United
States citizen against whom ICE mistakenly issued a deportation order. The request
sought "[a]ll system records and other items maintained, produced, or distributed by
CBP pertaining to Toan Hoang." Compl. ¶ 25. The request listed various examples of
information that could be responsive to the request, including "all memoranda, notes,
reports, e-mail messages, and all other system records or communications" pertaining
to Hoang and "screen shots of all databases likely to have responsive records." Id. The
request also included Hoang's "alien number," or A-file number.
CBP's FOIA staff determined that there were two CBP systems reasonably likely
to contain responsive information: the e3 portal (E3) and an information sharing platform
called TECS. E3 is used "to collect and transmit biographic, encounter, and biometric
data for identification and verification of individuals encountered at the border and
checkpoints in pursuit of CBP's law enforcement and immigration mission." Def.'s L.R.
56.1 Stmt. ¶ 13. CBP contends that "[i]f a person crosses between official ports of entry
and is encountered by the U.S. Border Patrol, E3 will likely have a record of it." Id.
TECS is an information-sharing platform that collects and transmits data between CBP
and various federal agencies to advance CBP's anti-terrorism and law enforcement
mission. TECS is "the principal system used by officers at the border to assist with
screening and determining travelers' admissibility, and it is reasonably likely to contain
records of travelers who are encountered at the United States' ports of entry." Id. ¶ 15.
CBP FOIA staff queried the E3 and TECS system for responsive records using Hoang's
name, birthdate, and A-file number.
On May 18, 2022, Stevens filed an additional FOIA request for records pertaining

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to Hoang. CBP determined that Stevens did not provide a signed third-party
authorization form from Hoang along with this request. On May 20, 2022, CBP sent
Stevens a letter information her that it was closing the request due to the absence of a
signed authorization form. Stevens contends that this letter was sent in error and
asserts that her May 18, 2022 request included the necessary authorization form. Pl.'s
L.R. 56.1 Stmt. ¶ 2. On October 26, 2022, CBP sent Stevens a letter informing her that
it was unable to locate or identify any records responsive to her Hoang request. This
Court previously ruled that Stevens was not entitled to summary judgment regarding the
adequacy of CBP's response to her Hoang request. Stevens, 2023 WL 6392407 at *7.
CBP filed the instant motion for summary judgment on January 19, 2024.
Stevens subsequently filed a cross-motion for summary judgment.
Discussion
Summary judgment is appropriate if there is no genuine dispute of material fact
and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a);
Martinsville Corral, Inc. v. Soc'y Ins., 910 F.3d 996, 998 (7th Cir. 2018). "A genuine
dispute is present if a reasonable jury could return a verdict for the nonmoving party,
and a fact is material if it might bear on the outcome of the case." Wayland v. OSF
Healthcare Sys., 94 F.4th 654, 657 (7th Cir. 2024). When considering cross-motions for
summary judgment, the Court "view[s] all facts and inferences in the light most
favorable to the nonmoving party on each motion." Lalowski v. City of Des Plaines, 789
F.3d 784, 787 (7th Cir. 2015) (internal quotation marks omitted). "[C]onclusory
statements, not grounded in specific facts, are not sufficient to avoid summary
judgment." Lucas v. Chi. Transit Auth., 367 F.3d 714, 726 (7th Cir. 2004).

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A.

CBP's motion for summary judgment
FOIA "requires federal agencies to make Government records available to the

public, subject to nine exemptions for specific categories of material." Milner v. Dep't of
Navy, 562 U.S. 562, 564 (2011); 5 U.S.C. § 552(a)(3). "The policy goal behind FOIA is
the 'broad disclosure' of documents that illuminate for the public the workings of
government." Jackson v. U.S. Dep't of Just., 596 F. Supp. 3d 1119, 1124 (N.D. Ill.
2022) (quoting Lakin L. Firm, P.C. v. FTC, 352 F.3d 1122, 1123 (7th Cir. 2003)).
To prevail on summary judgment against a FOIA challenge, the agency must
demonstrate that "there is no genuine issue of material fact about the adequacy of its
records search." Rubman v. U.S. Citizenship & Immigr. Servs., 800 F.3d 381, 387 (7th
Cir. 2015). To be considered adequate, an agency search must be the result of a "good
faith effort" and also must be "reasonable in light of the request." Id. An agency may
support the adequacy of its search through a "reasonably detailed nonconclusory
affidavit." Id. (citation omitted). "Good faith [on the party of the agency] is presumed,
and it can be reinforced by evidence of the agency's attempts to satisfy the [FOIA}
request." Henson v. Dep't of Health & Hum. Servs., 892 F.3d 868, 875 (7th Cir. 2018).
"In response to an agency affidavit, the FOIA requester can present 'countervailing
evidence' as to the adequacy of the agency's search." Rubman, 800 F.3d at 387
(quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 314 (D.C. Cir. 2003)). At
the summary judgment stage, the relevant question is not "whether the agency might
have additional, unidentified responsive documents in its possession" but "whether the
search itself was performed reasonably and in good faith." Rubman, 800 F.3d at 387.
Before turning to the adequacy of CBP's searches, this Court addresses

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Stevens's objections to various declarations CBP provided. CBP submitted a
declaration prepared by Patrick Howard, a Branch Chief within CBP's FOIA Division.
Stevens argues that Howard's declaration contains insufficient detail to support a grant
of summary judgment in CBP's favor because it fails to describe "DHS and CBP's
respective general file systems," "the reason for refusing to search databases and
locations obviously likely to contain responsive records," and "reasonable details about
the scope and methods of the searches performed in response to the FOIA requests."
Pl.'s Resp. & Cross-Mot. for Summ. J. at 5.
Stevens cites no binding legal authority in support of her argument that details
about an agency's general record-keeping systems or specific justifications for the
failure to search a particular database are necessary to assess the adequacy of the
agency's search. Furthermore, Howard's descriptions of CBP's identification of the
locations likely to contain responsive materials, the "type[s] of search[es] performed,"
and "the search terms" used, are consistent with the categories of information that have
been found sufficient to allow a court to analyze the adequacy of the agency's search.
Rubman, 800 F.3d at 387 (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.
Cir. 1990)); Turner v. U.S. Forest Serv., No. 316CV00635, 2018 WL 4051840, at *7
(S.D. Ill. Aug. 24, 2018) (finding identification of relevant search terms, individuals who
contributed to the search and the records the agency discovered constituted sufficient
detail for agency's supporting declaration). Howard's declaration also attests that "all
files likely to contain responsive documents were searched." See Howard Decl. ¶¶ 7,
22, 34. This information is sufficient to support an agency's motion for summary
judgment on a FOIA challenge. Henson, 892 F.3d at 875.

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Stevens also argues that CBP improperly filed a supplemental declaration by
Howard that includes new factual assertions. First, some of the information that
Stevens identifies is not "new." For example, Stevens objects to the inclusion of a
statement that CBP does not have complete records of Border Patrol apprehensions
prior to 2000. See Pl.'s Reply at 2. But Stevens admits that the letter that CBP issued
in response to her first Hoang request informed her that apprehension records from
before 2000 may be maintained by USCIS, not CBP. Pl.'s Resp. to Def.'s L.R. 56.1
Stmt., ¶ 17.
Second, in each of the cases that Stevens cites in support of her argument, a
party submitted a supplemental affidavit or declaration along with its reply brief, which
effectively denied the opposing party the opportunity to respond to those materials. See
Ctr. Dev. Venture v. Kinney Shoe Corp., 757 F. Supp. 34, 36 (E.D. Wis. 1991) (refusing
to consider affidavit introducing new factual assertions in reply brief); Griffin Indus., Inc.
v. Couch, No. 1:05-CV-0684-WSD, 2006 WL 783354, at *2 n. 1 (N.D. Ga. Mar. 23,
2006) (same). But Stevens ignores that CBP's reply brief also served as a response to
her cross-motion for summary judgment. A party is entitled to file supplemental material
in support of its response to a cross-motion for summary judgment. Astellas US
Holding, Inc. v. Starr Indem. & Liab. Co., 566 F. Supp. 3d 879, 892 (N.D. Ill. 2021).
Furthermore, courts in this district have allowed parties seeking summary judgment on a
FOIA request to file supplemental materials that "merely respond[] to the search-related
issues raised" in the plaintiff's response brief. Wilson v. U.S. Dep't of Treasury, No. 15
C 9364, 2016 WL 8504990, at *3 (N.D. Ill. Oct. 12, 2016) (Finnegan, J.); Stevens v.
Broad. Bd. of Governors, No. 18 C 5391, 2021 WL 1192675, at *9 (N.D. Ill. Mar. 30,

9

2021) (Rowland, J.) (citing information in defendant's supplemental declaration showing
that the locations the plaintiff identified had already been searched). The Court agrees
with these decisions.
This Court finds that Howard's original declaration and supplemental declaration
describe the searches conducted by CBP in sufficient detail and therefore will not be
disregarded.
1.

Underwood request
a.

Part one

Part one of Stevens's Underwood request seeks, in part, materials "to which
Rep. Lauren Underwood (D-IL) or any member of her staff were a party." Pl.'s Resp. to
Def.'s Mot. for Summ. J., Ex. E. CBP's FOIA division determined that its Office of
Congressional Affairs, which is responsible for handling all official communication with
members of Congress, was the CBP component most likely to have responsive records.
Howard's declaration explains that directors within OCA sought responsive records by
searching their e-mail inboxes using the search terms "Underwood," "Lauren
Underwood," "EHR," "Health Record," and "Electronic health record." Howard Decl. ¶
29. After an initial search where no responsive information was found, CBP conducted
another search within the "OCATaskings" e-mail box, which produced twenty-three
pages of potentially responsive documents. After screening for non-responsive records
and applying redactions, CBP ultimately provided Stevens with seven pages of
responsive documents. CBP also produced a Vaughn index describing each redacted
or withheld document along with the exemption that CBP asserts is applicable to each
such document.

10

Stevens asserts that her request was for all CBP records "tied to Rep.
Underwood’s so-called Electronic Health Records ("EHR") bill (HR 3525)." Pl.'s Resp. &
Cross-Mot. for Summ. J. at 10. This assertion incorrectly characterizes Stevens's
original request, which references H.R. 3525 only to "note" that Representative
Underwood "gave a floor speech" about the bill in 2019. See Pl.'s Resp. to Def.'s Mot.
for Summ. J., Ex. E. In short, this reference does not serve to modify Stevens's request
so that it includes any and all information CBP possesses about H.R. 3525.
Furthermore, Stevens originally requested communications and related materials to
which Representative Underwood and/or members of her staff "were a party." Pl.'s
Resp. to Def.'s Mot. for Summ. J., Ex. E. Representative Underwood and her staff are
not employed by CBP, and therefore can only be "a party" to CBP communications or
documents that were shared with or received by CBP employees. Thus Stevens's
assertion that part one of her request sought "internal or interagency" materials that
were "about the [sic] Underwood and HR3525," regardless of whether Representative
Underwood or her staff were a party to these materials, would significantly expand the
scope of her original request. Pl.'s Resp. & Cross-Mot. for Summ. J. at 11. But "a FOIA
plaintiff may not expand the scope of [her] request once [her] original request is made."
Coss v. U.S. Dep't of Just., 98 F. Supp. 3d 28, 34 (D.D.C. 2015). Because the
adequacy of an agency's search depends on the "reasonableness of the effort in light of
the specific request," this Court will only assess the adequacy of CBP's search in
response to Stevens's actual, original request. Turner, 2018 WL 4051840, at *8
(quoting Larson v. U.S. Dept. of State, 565 F.3d 857, 869 (D.C. Cir. 2009)).
Stevens argues that CBP improperly limited its search to the OCA. But given

11

that Stevens asked for "communications and related materials" regarding a member of
Congress, it was not unreasonable for CBP to limit its search to the office that oversees
all of CBP's communications with members of Congress. See Howard Decl. ¶ 27. And
Stevens provides no evidence to support any suggestion that CBP employees may
have violated CBP's official policy by communicating with Representative Underwood or
her staff without OCA authorization. See Daniels v. Raimondi, No. 22 C 4027, 2024 WL
3566637, at *3 (N.D. Ill. July 29, 2024) ("[M]ere speculation that as yet uncovered
documents might exist[] does not undermine the determination that the agency
conducted an adequate search for the requested records.").
Stevens further argues that it was unreasonable for CBP to search only the email inboxes of OCA directors and not other forms of communication involving lowerlevel OCA employees. An agency's burden is not to show that it performed every
search that could have potentially yielded responsive records. Instead, it is the
agency's burden "to show that its search efforts were reasonable and logically
organized to uncover relevant documents." DiBacco v. U.S. Army, 795 F.3d 178, 191
(D.C. Cir. 2015). Because Stevens requested "communications and related materials,"
it was not unreasonable for CBP to search the e-mail records of employees in the office
likely to have been involved in communications responsive to the request. Regarding
CBP's decision to search only the inboxes of directors, "the agency is in the best
position to determine custodians most likely to have relevant records." Am. Oversight v.
U.S. Dep't of Just., 401 F. Supp. 3d 16, 30 (D.D.C. 2019). And Stevens has not
adduced any evidence that any OCA employees in non-director positions
communicated with Representative Underwood or her staff or that communications

12

would have been through a means other than e-mail. See Shteynlyuger v. Ctrs. for
Medicare & Medicaid Servs., 698 F. Supp. 3d 82, 109 (D.D.C. 2023) ("Agencies can be
required to search text messages when it is 'reasonably likely' that an employee
conducted agency business on a pertinent topic via text."); cf. U.S. Immigr. & Customs
Enf't, No. 21-CV-2519, 2024 WL 2053123, at *6 (N.D. Ill. May 8, 2024) (concluding
agency's search of one employee's e-mails inadequate given evidence in the record
suggesting that other employees' e-mail accounts contained responsive records).
Stevens also asserts that "[d]ocuments obtained from another FOIA case"
indicate that CBP possesses additional responsive records. Pl.'s Resp. & Cross-Mot.
for Summ. J. at 10. Specifically, she notes that in response to a different FOIA request,
ICE "produced records revealing the existence of a DHS EHR working group." Id. But
according to Stevens's own description of that case, the documents were produced in
response to a request sent to ICE, not CBP. Even if the Court were to agree with
Stevens's contention that the documents she identified are responsive to her CBP
request, the potential existence of additional responsive records is insufficient to
demonstrate that CBP's search in response to the specific request at issue was
inadequate. See Stevens v. Broad. Bd. of Governors, No. 18-CV-5391, 2023 WL
2428839, at *8 (N.D. Ill. Mar. 9, 2023) ("[A] search need not be perfect, only
adequate."); Daniels, 2024 WL 3566637, at *3 ("The fact that not all of the records
[plaintiff] believes should exist were produced is insufficient to give rise to a genuine
dispute of material fact.").
Stevens asserts in her declaration that CBP utilized inadequate search terms and
suggests that CBP should have used additional terms such as "3525," the bill number

13

that she referenced in her request. First, legal arguments included in a declaration are
generally disregarded. Greene v. Westfield Ins. Co., 963 F.3d 619, 627 (7th Cir. 2020)
("[A]ffidavits are for stating facts, not legal conclusions."). Second, as noted above,
despite Stevens's assertions to the contrary, H.R. 3525 was not the subject of part one
her original Underwood request. Third, "agencies retain discretion in crafting a list of
search terms they believe to be reasonably tailored to uncover responsive documents."
Organized Cmtys. Against Deportations, Immigrant Def. Project v. U.S. Immigr. &
Customs Enf't, No. 21-CV-2519, 2024 WL 2053123, at *7 (N.D. Ill. May 8, 2024). Here,
no reasonable trier of fact could find that CBP's search terms were not reasonably
calculated to yield responsive materials. CBP searched the full name and last name of
the Congresswoman that Stevens sought information about as well as multiple terms
designed to locate information about the relevant subject matter, electronic health
records. Because CBP's search terms were reasonable, the Court "will not second
guess the agency regarding whether other search terms might have been superior."
Liberation Newspaper v. U.S. Dep't of State, 80 F. Supp. 3d 137, 146–47 (D.D.C. 2015).
Stevens also questions the circumstances underlying CBP's discovery of
additional responsive records after its original search. But multiple courts have held that
the discovery of additional responsive information in a subsequent search does not,
without more, render the original search inadequate. Nat'l Inst. of Mil. Just. v. U.S.
Dep't of Def., 404 F. Supp. 2d 325, 333 (D.D.C. 2005), aff'd, 512 F.3d 677 (D.C. Cir.
2008) ("[S]ubsequent disclosure of documents initially withheld does not alone establish
bad faith."); Stevens v. U.S. Dep't of Homeland Sec., No. 13 C 03382, 2014 WL
5796429, at *5 (N.D. Ill. Nov. 4, 2014) ("[C]ourts have repeatedly held that an agency's

14

remedial efforts to find responsive documents is evidence of good faith, and does not
prove a search was inadequate."). The undisputed facts show that CBP's search in
response to part one of Stevens's Underwood request was adequate.
The Court next turns to whether CBP properly withheld or redacted responsive
documents. Under FOIA, "federal agencies must produce each and every responsive
record unless it fits within a statutory exemption." Vidal-Martinez v. U.S. Dep't of
Homeland Sec., 84 F.4th 743, 747 (7th Cir. 2023) (citation omitted). Courts construe
FOIA exemptions narrowly. Henson, 892 F.3d at 876.
Stevens does not dispute any of the descriptions of the documents provided in
the Vaughn index or challenge the application of any exemptions in her cross-motion for
summary judgment or response brief. CBP argues that Stevens waived any objection
to CBP's reliance on these exemptions by failing to address them. See Henson, 892
F.3d at 876 ("If the plaintiff wishes to claim that the government has claimed
inapplicable exemptions to disclosure, the plaintiff should identify specifically which
ones are disputed."). Because the agency claiming the exemption bears the burden of
establishing that the exemption applies, the Court will address whether CBP met that
burden. Erwin v. U.S. Dep't of State, No. 11 C 6513, 2013 WL 842601, at *6 (N.D. Ill.
Mar. 6, 2013) (concluding that despite the plaintiff's failure to properly challenge FOIA
exemption, "there is no forfeiture because the [defendant] has the burden of proving that
it is entitled to the exemption.").
CBP contends that it redacted various documents responsive to part one of
Stevens's Underwood-related request under three statutory exemptions. The first is the
exemption provided by subsection (b)(5), which protects documents that would be

15

unavailable by law to a party in litigation with the agency. See 5 U.S.C. § 552(b)(5).
This exemption encompasses documents protected by the attorney-client privilege,
attorney work-product privilege, and deliberative process privilege. U.S. Fish & Wildlife
Serv. v. Sierra Club, Inc., 592 U.S. 261, 263 (2021). The second is the exemption
provided in subsection (b)(6), which protects documents whose disclosure would result
in an unwarranted invasion of personal privacy. See 5 U.S.C. § 552(b)(6). The third is
the exemption provide by subsection (b)(7)(C), which protects private information
included in records developed for law enforcement purposes. See id. § 552(b)(7)(C).
The primary focus of the "deliberative process privilege" protected under FOIA
exemption five involves documents that "reflect the agency's group thinking in the
process of working out its policy and determining what its law shall be." Nat'l Immigrant
Just. Ctr. v. U.S. Dep't of Just., 953 F.3d 503, 508 (7th Cir. 2020). CBP invoked the
deliberative process privilege to support the withholding of multiple draft briefing memos
developed to prepare the DHS Secretary for Congressional meetings and hearings.
Howard Decl., Ex. 1 at 2-4. Pre-decisional briefing materials developed as part of the
agency's legislative or policy-making process are generally protected by the deliberative
process privilege. Gellman v. Dep't of Homeland Sec., 525 F. Supp. 3d 1, 12 (D.D.C.
2021). And CBP has asserted that all of the documents contain "initial opinions and
recommendations before agency decisions were made." Howard Decl. ¶ 37. See Jud.
Watch, Inc. v. Consumer Fin. Prot. Bureau, 60 F. Supp. 3d 1, 11 (D.D.C. 2014)
("[I]nternal communications as part of an Executive Branch decision-making process
regarding Congressional hearings are protected under the deliberative process
privilege."). Stevens has not requested an in camera review of the documents or

16

demonstrated a "particularized need [for disclosure] to outweigh the reasons for
confidentiality." SEC v. SBB Rsch. Grp., LLC, No. 19 C 6473, 2022 WL 2982424, at *8
(N.D. Ill. July 28, 2022) (quoting United States v. Farley, 11 F.3d 1385, 1389 (7th Cir.
1993)). Based on the descriptions provided in the Vaughn index, this Court finds that
CBP has met its burden of establishing the proper application of FOIA exemption five to
these documents. 2
FOIA exemptions six and seven both allow for the withholding of information that
would result in "an unwarranted invasion of personal privacy." 5 U.S.C. §§ 552(b)(6),
(b)(7)(C). On a number of documents, CBP redacted the names of CBP employees
and third-party individuals who did not consent to the release of their personal
information. Howard Decl., Ex. 1 at 1-4. "[P]ersonal identifying information is regularly
exempt from [FOIA] disclosure." Lakin L. Firm, P.C., 352 F.3d at 1124; Bogan v. FBI,
No. 04-C-532-C, 2005 WL 1367214, at *7 (W.D. Wis. June 7, 2005) (noting that the
(b)(6) exemption is generally used to protect government employees' personal
information). And Stevens has not demonstrated a "public interest" in the disclosure of
these names that outweighs potential privacy concerns. Becker v. IRS, 34 F.3d 398,
404 (7th Cir. 1994) (concluding that the plaintiffs had failed to advance any public
interest in disclosure of IRS employee names); see Wilson, 2016 WL 8504990, at *8
(noting the plaintiff's failure to assert a public interest in obtaining individuals' private
identifying information). The Court finds that CBP has met its burden of establishing the

CBP also invokes the attorney-client privilege to justify withholding a document that
includes "edits and comments with guidance made by CBP attorneys." Howard Decl.,
Ex. 1. Because this Court has concluded that this document is subject to the
deliberative process exemption, it need not address whether additional exemptions
apply.

2

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proper application of FOIA exemptions six and seven.
The only dispute that Stevens asserts regarding CBP's withholding of information
is that Howard's declaration "fails to justify withholding CBP Directive No. 2130-012A."
Pl.'s Resp. & Cross-Mot. for Summ. J. at 5. But CBP's Vaughn index states that the
document "does not contain any reference to Rep. Underwood or her staff." Id. This
explanation is sufficient to demonstrate that this document was not a communication or
related document to which Representative Underwood or her staff were a party and
thus that it was not responsive to part one of Stevens's request.
The Court concludes that CBP is entitled to summary judgment on part one of
Stevens's Underwood request.
b.

Part two

CBP did not conduct a search in response to part two of Stevens's Underwood
request because "CBP FOIA staff determined that this part of the request did not seek
CBP records." Howard Decl. ¶ 26. It provides no explanation demonstrating how or
why its FOIA staff reached this conclusion. See Def.'s L.R. 56.1 Stmt. ¶ 30. And it is
unclear from the language of the request why CBP interpreted the request as only
seeking DHS records. Part two of Stevens's Underwood request asks, in part, for "DHS
communications and related materials created by or received from other components of
DHS." Pl.'s Resp. to Def.'s Mot. for Summ. J., Ex. E. At first glance, it may appear that
this request merely seeks "DHS communications." But agencies have a duty to
construe FOIA requests liberally. Rubman, 800 F.3d at 389. Given that CBP is a
"component[] of DHS", this request also encompasses materials that are created by
CBP and sent to DHS, as well as materials that are developed by DHS and sent to

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CBP. CBP does not provide any factual or logical support for its determination that a
request for materials exchanged between CBP and DHS could only be fulfilled through
a search of DHS records.
CBP's determination is especially unreasonable given that the language of this
request is not meaningfully different from the language of part one or part three of
Stevens's Underwood request. Part one of the request seeks "all communications and
related materials created, received, or maintained by the Department of Homeland
Security," and part three seeks information regarding "collecting, coordinating, or
maintaining health records data for those encountered or detained by DHS or any
component of DHS." Pl.'s Resp. to Def.'s Mot. for Summ. J., Ex. E. It is unclear why
CBP would determine that requests for records created, maintained or received by DHS
and a request for information related to individuals detained by any component of DHS
sought CBP records but that a request for information created or received by a DHS
component sought only DHS records.
CBP's interpretation of Stevens's request raises a genuine dispute regarding
whether CBP responded "reasonably" and "in good faith" to Stevens's request.
Consequently, the Court finds that CBP is not entitled to summary judgment on part two
of Stevens's Underwood request.
c.

Part three

To respond to part three of Stevens's Underwood request, CBP focused its
search within its Procurement Office, which is "responsible for contract oversight and
administration." Howard Decl. ¶ 26. The Procurement Office "identified the employee
who serves as the point of contact for electronic medical records," and this employee

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allegedly stated that according to her "clear recollection," she had never corresponded
with any private individuals about the subject matter of the request. Id. ¶ 28.
CBP's decision to limit its search to the recollection of a single employee may not
have rendered the search inadequate. But to prevail on a summary judgment motion,
an agency is required to, at a minimum, "explain why it believes such limits are
reasonable." White v. Exec. Off. of U.S. Att'ys, 444 F. Supp. 3d 930, 937 (S.D. Ill.
2020); Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990) ("At the very
least, [defendant] was required to explain in its affidavit that no other record system was
likely to produce responsive documents."). CBP asserts that this employee was the
"the best possible source of information." Def.'s Reply at 5. But neither Howard's
declaration nor CBP's briefs establish that this employee's memory was the only
location within CBP likely to identify responsive records. See Howard Decl. ¶¶ 31-32.
And CBP has provided no information about the employee, such as the duration of her
tenure within the Procurement Office, that would allow this Court to assess the
reasonableness of CBP's decision to rely solely on this employee's recollection. CBP's
failure to explain its reasoning for the limits it applied to its search raises "substantial
doubt" about the adequacy of that search. Rubman, 800 F.3d at 387. CBP is therefore
not entitled to summary judgment on part three of her Underwood request.
2.

Hoang request

Upon reviewing Stevens's Hoang request, CBP's FOIA division determined that
the databases most likely to have responsive documents were its E3 portal and TECS.
E3 contains information about individuals encountered by the U.S. Border Patrol and
TECS contains records for travelers encountered at United States ports of entry.

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Howard Decl. ¶¶ 13, 15. After entering Hoang's name, birthdate and A-file number into
E3 and TECS, CBP FOIA staff did not discover any responsive records.
Stevens argues that CBP did not adequately explain why it limited its search to
E3 and TECS records. Not so. Howard explains in his declaration that E3 and TECS
are two systems that are reasonably likely to have a record of individuals that arrive at
ports of entry and encounter United States Border Patrol. Howard Decl. ¶ 13, 15.
Because Stevens submitted a broad request for "all records" pertaining to Hoang,
Howard's explanation is sufficient to show that CBP focused its search on the two
databases that were likely to indicate whether any records on Hoang existed in CBP's
systems.
Stevens contends that there are other sources of information that CBP did not
search that are likely to contain responsive records. According to a Federal Register
notice that Stevens cites, DHS is mandated by statute to create an "automated entry
and exit system that records the arrival and departure" of "certain" non-citizens. Pl.'s
Resp. & Cross-Mot. for Summ J., Ex. 1 at 2. Biometric data obtained from these noncitizens is stored in DHS's Automated Biometric Identification System (IDENT). Stevens
questions why CBP did not search IDENT. But as Stevens acknowledges, the evidence
she provides simply shows that CBP contributes to the "creation of agency records and
data" that are "housed within IDENT." Pl.'s Resp. & Cross-Mot. for Summ. J. at 6.
There is no evidence in the record that CBP, which is a component of DHS, maintains
control over or is able to access all of the records contained within over a DHS
identification system such as IDENT. An agency's FOIA obligations generally do not
"extend to documents that are not in the agency's immediate custody or control."

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Gawker Media, LLC v. U.S. Dep't of State, 266 F. Supp. 3d 152, 159 (D.D.C. 2017).
Stevens also identifies another Federal Register notice indicating that CBP
maintains a system called CBP-007 Border Crossing Information (BCI) that contains
various records from people crossing the U.S. border. In his supplemental declaration,
Howard clarifies that BCI records reside on the TECS platform and thus that BCI
records were already searched during CBP's initial response to Stevens's request.
Howard Suppl. Decl. ¶ 6. Furthermore, a "[plaintiff]'s speculation that responsive
records may be found in other locations is not enough to undermine the adequacy of the
[agency]'s search." Stevens v. United States Dep't of State, No. 17 C 2494, 2020 WL
1330653, at *4 (N.D. Ill. Mar. 23, 2020), aff'd, 20 F.4th 337 (7th Cir. 2021).
Stevens also asserts that Howard's declaration fails to explain whether CBP
determined whether a "legacy INS A-File" exists for Hoang. Stevens points to evidence
that DHS maintains records from its predecessor agency, Immigration and
Naturalization Services (INS), through A-files. CBP notes that A-files are maintained by
USCIS. Stevens suggests that CBP's argument is "frivolous" because CBP is a
component of DHS, and DHS replaced INS after the passage of the 2003 Department
of Homeland Security Act. Pl.'s Reply at 9. But the evidence that Stevens cites
supports CBP's argument, not hers. A 2017 DHS notice published in the Federal
Register cites states that A-files currently take three forms: (1) paper records; (2)
electronic records from the Enterprise Document Management System or USCIS
Electronic Immigration System; or (3) a combination of paper and electronic records.
Pl.'s Reply at 9. The notice also states that "USCIS is the custodian of the A-File and
the documents that are contained within it." Id. This notice does not support the

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proposition that CBP possesses all of the information that is included in an individual's
A-file. In fact, the notice states that A-files contain documents from systems belonging
to various DHS components, including USCIS and ICE. Moreover, Stevens did not
request Hoang's A-file in her original request. The fact that CBP's search did not
produce this specific file does not undermine the adequacy of its search. Bartko v.
United States Dep't of Just., 898 F.3d 51, 74 (D.C. Cir. 2018) (noting that "the failure of
a search to uncover a particular sought-after document" does not evidence the search's
inadequacy).
CBP contends that it did not respond to one of Stevens's Hoang requests
because Stevens did not submit a signed third-party authorization form. Stevens
disputes this contention and argues that she attached Hoang's authorization form to the
e-mail containing her request. In support of her argument, Stevens points to an e-mail
message that she sent to CBP's FOIA division on March 10, 2022 that contains an
attachment titled "Hoang_Waiver.pdf." Pl.'s L.R. 56.1 Stmt. Ex. A. But Stevens has not
produced the waiver form or any other admissible evidence to establish that this form
was signed. In the absence of evidence supporting Stevens's argument that CBP's
determination that her request did not include a signed authorization form was made in
error, Stevens has not shown that there is a genuine dispute over this fact. Siegel v.
Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) ("The nonmoving party must do more
than simply show that there is some metaphysical doubt as to the material facts.").
In fulfilling a FOIA request, an agency is not required to search all of its record
systems. Oglesby, 920 F.2d at 68. CBP has provided sufficient support for its
contention that it searched all locations likely to contain responsive records. CBP has

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also clearly explained the reasoning supporting its determination that no other record
system was likely to produce responsive materials. CBP is therefore entitled to
summary judgment on the Hoang requests.
3.

Statutory deadline

Stevens argues that she is entitled to summary judgment because CBP failed to
comply with FOIA's statutory deadline. But she raises this argument for the first time in
her reply brief, which is not the appropriate vehicle for new legal arguments. Tellabs
Operations, Inc. v. Fujitsu Ltd., 283 F.R.D. 374, 379 (N.D. Ill. 2012) ("Arguments and
evidence that could have been raised in the opening brief but are first raised in a reply
brief are waived."). Second, in a prior opinion in this case, this Court rejected Stevens's
argument that she is entitled to summary judgment based solely on an agency's failure
to adhere to FOIA's statutory deadlines. Stevens, 2023 WL 6392407, at *7. Third,
Stevens's argument is foreclosed by well-settled precedent. Elec. Priv. Info. Ctr. v.
Dep't of Just., 15 F. Supp. 3d 32, 40 (D.D.C. 2014) ("[N]othing in the FOIA statute
establishes that an agency's failure to comply with this 20–day deadline automatically
results in the agency's having to produce the requested documents without continued
processing.").
Conclusion
For the foregoing reasons, the Court grants CBP's motion for summary judgment
[67] with respect to the Hoang requests and part one of the Underwood request but
denies CPB's motion with respect to parts two and three of the Underwood request.
The Court denies Stevens's cross-motion for summary judgment [77] without prejudice.
The Court directs CBP to promptly conduct a good-faith and reasonable search for

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records responsive to part two of the Underwood request. The Court also directs CBP
to promptly conduct additional searches responsive to part three of the Underwood
request, including but not limited to the e-mail inbox of the previously identified
Procurement Office employee. CBP is to file a status report in this regard on
September 27, 2024.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: August 30, 2024

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