Gahagan v. United States Department of Justice et al

Filing 38

ORDER granting in part and denying in part 32 Motion for Summary Judgment; granting in part and denying in part 33 Motion for Summary Judgment. Signed by Judge Kurt D. Engelhardt. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL GAHAGAN

CIVIL ACTION

VERSUS

NO: 13-5526

UNITED STATES DEPARTMENT OF JUSTICE, ET AL.

SECTION: “N” (3)

ORDER AND REASONS
Presently before the Court are two motions for summary judgment (Rec. Docs. 32 and 33)
filed by Plaintiff Michael Gahagan. With his motions, Plaintiff seeks relief regarding certain requests
for information he submitted, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,
et seq., to Defendants United States Department of Justice (“DOJ”), United States Department of
Homeland Security (“DHS”), United States Immigration and Customs Enforcement (“ICE”), and
the Department of Justice’s Executive Office for Immigration Review (“EOIR”). Having considered
the parties’ submissions1 and applicable law, IT IS ORDERED, on the showing made, that the
motions are GRANTED IN PART and DENIED IN PART as stated herein.
LAW AND ANALYSIS
Plaintiff’s instant motions are essentially a follow up to the Court’s prior Order and Reasons
(Rec. Doc. 31), regarding Plaintiff's first motion for summary judgment, and Defendants’ submission
in response thereto.2 The gist of Plaintiff’s current motions concern (1) Defendants’ obligation to
1

See Rec. Doc. 32, 33, 34 and 37.

2

See Rec. Doc. 34-1. Following the issuance of the Court’s prior Order and Reasons,
Defendants ICE and EOIR supplemented their prior production with two additional
declarations and copies of additional redacted documents. Redacted versions of the
1

produce a Vaughn Index with their FOIA responses; (2) Defendant ICE’s obligation to provide
unredacted documents to the Court for in camera inspection; and (3) the adequacy of Defendants’
searches for responsive documents. Contending Plaintiff’s motions lack merit, Defendants ICE and
EOIR (“Defendants”) point to and rely upon their submissions made to both the Court and Plaintiff,
their submission of unredacted documents to the Court for in camera review, and correspondence
to and from Plaintiff regarding a second set of redacted documents that were provided to Plaintiff
following Defendant ICE’s second search.3 The submissions that Defendants have made to both the
Court and Plaintiff, since the issuance of the Court's prior Order and Reasons are: (1) the sworn
declaration of Fernando Pineiro, on behalf of ICE,4 (2) the second sworn declaration of Crystal
Souza, on behalf of EOIR,5 and (3) a second set of redacted documents from ICE's files.6
I.

Summary Judgment Standard
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment shall be

granted “if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to summary judgment as a matter of law.” Fed. R. Civ. P. 56(a). FOIA places the burden
of proof on the government agency to sustain its action; namely, to demonstrate the adequacy of its
search and to justify any nondisclosures. 5 U.S.C. § 552(a)(4)(B); United States Dept. of Justice v.

additional documents were provided to both Plaintiff and the Court. Unredacted
versions of the documents, however, were only submitted to the Court for in camera
inspection.
3

Rec. Doc. 34-1, Pages 17-22 of 22.

4

See June 16, 2014 Declaration of Fernando Pineiro (Rec. Doc. 34-1, Pages 3-11 of
22). Mr. Pineiro is the Deputy FOIA Officer of the FOIA Office at ICE.

5

See June 16, 2014 Second Declaration of Crystal Souza (Rec. Doc. 34-1, Pages 1516 of 22). Ms. Souza is the Supervising Government Information Specialist with the
DOJ, EOIR, OGC and FOIA Service Center.

6

Rec. Doc. 34-1, Pages 13-14 of 22.
2

Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). The agency can meet its
burden by demonstrating a “good faith effort to conduct a search for the requested records, using
methods which can be reasonably expected to produce the information requested,” and by providing
clear, specific, and reasonably detailed affidavits identifying each redacted or nondisclosed
document and explaining why it falls under a claimed exemption. Batton v. Evers, 598 F.3d 169, 177
(5th Cir. 2010); Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998).
II. Plaintiff’s Contentions
A.

Vaughn Index Requirement

Plaintiff first argues that Defendant failed to submit a “legally mandated” Vaughn Index
justifying its withholdings and redactions. In Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973),
the D.C. Circuit concluded that having a detailed explanation from the FOIA respondent of each
redaction made, including identification of the applicable FOIA exemption(s), would facilitate a
court's review of the sufficiency of the production made in response to a plaintiff's FOIA request.
The Vaughn Court suggested organizing these documents using an indexing system that is now often
referred to as a “Vaughn Index.” Id. There is no set formula, or particular required format, for a
Vaughn Index; rather, the appropriate organization and format of each index will depend on the
nature of the documents and exemptions at issue. Jones v. FBI, 41 F.3d 238, 242 (6th Cir. 1998).
Further, the agency need not produce a separate document specifically labeled “Vaughn Index,” so
long as it otherwise provides the Court with a clear explanation for each redaction and nondisclosure in some format. See, e.g., Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993). In short,
the Court’s focus is on the “substance, rather than the form, of the information supplied by the
government to justify its withholding of requested information.” Vaughn v. United States, 936 F.2d
862, 867 (6th Cir. 1991).
3

Here, Defendant ICE did not provide the Court or Plaintiff with a separate document labeled
“Vaughn Index.” Rather, the redacted documents produced by ICE were accompanied by a sworn
declaration from Fernando Pineiro, on behalf of ICE, 7 that includes a section addressing each FOIA
exemption that ICE contends justifies its redactions.8 More specifically, that section references each
redacted document by Bates page number and identifies the corresponding exemption(s) applied to
each page’s redactions. It also includes an explanation for each exemption, describes the contents
of the redacted document, and sets forth the titles of the employees who participated in the
preparation of the written communication. In addition, the redacted documents accompanying the
Pineiro declaration also have the citation of the asserted FOIA exemption placed directly over the
redacted (“covered”) text.9
The Court is persuaded that the additional information and documents provided10 in response
to the Court’s previous Order and Reasons satisfy ICE’s obligation relative to a Vaughn Index. The
Court is able to derive from the Pineiro declaration an explanation as to why ICE contends that each
redacted portion is exempt from disclosure. Additionally, any allegedly inadequate explanations
provided by ICE are sufficiently supplemented by the unredacted documents supplied to the Court
for in camera inspection. See Lion Raisins, Inc. v. USDA, 354 F.3d 1072, 1082 (9th Cir. 2004); see
also Simon v. U.S. Dep’t of Justice, 980 F.2d 782, 784 (D.C. Cir. 1992). Therefore, to the extent

7

See Rec. Doc. 34-1, Pages 1-14 of 22. ICE provided redacted responsive documents
to Plaintiff and the Court. To facilitate the Court's consideration of the exemptions
purportedly justifying its redactions, ICE also provided unredacted versions of the
documents to the Court for in camera review.

8

See Rec. Doc. 34-1 at 8.

9

See Rec. Doc. 34-1 at 13-14, 18-22.

10

See Rec. Doc. 34-1, June 17, 2014 letter to Court, and Pineiro Declaration.
4

Plaintiff’s motion requests additional explanation from ICE in the form of a Vaughn Index, IT IS
ORDERED that the motion is DENIED.11
B.

In camera Document Inspection

Plaintiff’s second contention is that the Court should order ICE to produce withheld agency
records for in camera inspection. ICE did so on June 17, 2014. Accordingly, the Court finds that
submission to have fulfilled ICE’s document production obligation.
C.

Adequacy of Search for Responsive Documents
1.

Defendants’ First Search

Plaintiff’s third argument is that Defendants did not conduct a legally adequate search as
mandated by FOIA. Specifically, Plaintiff contends that the first set of declarations provided to
Plaintiff and the Court by ICE and EOIR “lack the detail ‘necessary to afford a FOIA requester an
opportunity to challenge the adequacy of the search and to allow the district court to determine if
the search was adequate in order to grant summary judgment [for the agency].’”12
To demonstrate the reasonableness of its document search, an agency may submit
nonconclusory affidavits that explain in reasonable detail the scope and method of the search. Brown
v. FBI, 873 F. Supp. 2d 388, 389 (D.D.C. 2012) (citing Steinberg v. Dep’t of Justice, 23 F.3d 548,
551(D.C. Cir. 1994)). The required level of detail is satisfied if the agency affidavit “set[s] forth the
search terms and the type of search performed, and aver[s] that all files likely to contain responsive

11

Defendant EOIR provided Plaintiff with two pages of unredacted material; therefore,
the Vaughn Index requirement does not apply to its search.

12

See Rec. Doc. 33-2 at 9 (citing Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir.
2007)). Prior to the issuance of the Court's previous Order and Reasons, Defendants
submitted the sworn declaration of Ryan Law, on behalf of ICE, and the first sworn
declaration of Crystal Souza, on behalf of EOIR. See Rec. Doc. 26-1 at 1-5 and 26-2
at 1-4.
5

materials (if such records exist) were searched. . . .” Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C.
Cir. 1990). Agencies are not required to search every record system; rather, they must search all
sources that are likely to contain requested information. Id.; Rosenberg v. U.S. Dep’t of Immigration
and Customs Enforcement, 959 F. Supp. 2d 61, 70-71 (D.D.C. 2013).
As stated in its prior Order and Reasons, the Court previously found Defendants’ first
declarations insufficient; that is, they did not enable the Court to determine whether acceptable
searches were conducted.13 As such, the Court instructed Defendants to submit supplemental
declarations.14 The shortcomings identified by the Court were: (1) Ryan Law’s declaration did not
explain the nature of the search conducted, including whether both electronic and paper files were
searched by ICE personnel, and who conducted the searches; (2) Law’s declaration did not address
whether other ICE offices likely have responsive documents; (3) Law’s declaration did not explain
why certain ICE components were selected (and not others) as “most likely” to have responsive
documents; (4) Crystal Souza’s declaration did not explain the nature of the search conducted by
EOIR and who conducted the search; and (5) Souza’s declaration failed to address whether EOIR
or DOJ components “likely” (as opposed to “most likely”) have additional responsive documents.15
To address those shortcomings, Defendants supplemented their previous submissions with
a declaration from Fernando Pineiro of ICE and a second declaration from Crystal Souza of EOIR.16
Pineiro’s declaration explains why certain components of ICE were tasked to complete the search
and others were not, and sets forth the titles of each person performing the search, the databases

13

See Rec. Doc. 31 at 9.

14

Id. at 10.

15

Rec. Doc. 31 at 10-11.

16

Rec. Doc. 34-1.
6

searched, and the search terms utilized.17 Souza’s second declaration also addresses why certain
EOIR components were tasked to complete the search and others were not, and why certain
employees were selected to perform a record search and others were not (including the employees’
names).18 It also indicates that manual and electronic files were searched and that Plaintiff’s name
was used as the search term.19
Having carefully reviewed the supplemental information provided by the Defendants, the
Court finds it helpful, but still not entirely sufficient. Specifically, Pineiro’s declaration states that
no paper or hard-copy filing systems were searched because ICE employees “determined, based on
their knowledge of how records were maintained in their office, that such search would not be likely
to locate any responsive records.”20 This explanation is overly conclusory, and fails to provide the
Court with sufficient information to evaluate the adequacy of ICE’s search. Therefore, IT IS
ORDERED that, on or before Tuesday, July 7, 2015, Defendant ICE must provide supplemental
specific information explaining its decision to not search paper or hard-copy filing systems,
including, but not limited to, an explanation of “how records were maintained in their office” at the
relevant time(s).

17

Id. at 4-8.

18

Id. at 15-16.

19

Id. at 16.

20

Id. at 8.
7

Crystal Souza’s second declaration likewise is inadequate because it states that EOIR’s
search was limited to the employee determined to be the “most likely source” of responsive
records.21 A reasonable search should account for sources that are “likely” to have responsive
documents.22 Therefore, IT IS ORDERED that, on or before Wednesday, July 20, 2015, Defendant
EOIR must search all components “likely” to have responsive documents and report back to the
Court and Plaintiff regarding the fruits, if any, of the search(es).
On the other hand, the Court rejects Plaintiff’s contention that Defendants are required to
disclose to him the full names of the employees who performed the FOIA searches. There is no
uniform standard or set of requirements for sufficiently detailed affidavits. People for the Am. Way
Found. v. Nat’l Park Serv., 503 F.Supp.2d 284, 292 (D.D.C. 2007). Considering the identifying
information (employee titles) already provided to Plaintiff and the Court by ICE,23 the Court, on the
showing made, is not convinced that Defendants’ declarations are insufficient. Accordingly, to the
extent Plaintiff’s motion seeks disclosure of the full names of the ICE employees performing the
FOIA searches, IT IS ORDERED that the motion is DENIED.
2.

Defendant ICE’s Second Search

Plaintiff also contends that ICE failed to provide information related to the second search
performed by it on June 3, 2014. Plaintiff maintains that ICE has improperly represented that the
issue regarding the adequacy of the second search was “already before the court.”
The parties’ submissions reflect that ICE submitted the Pineiro declaration after performing
21

Rec. Doc. 34-1 at 16.

22

Rec. Doc. 31 at 11.

23

Defendant EOIR disclosed the name of its employee who performed the search
referenced in the second Souza declaration. Rec. Doc. 34-1 at 15-16. Defendant ICE
supplied the titles of all its employees who participated in the search described in the
Pineiro declaration. Rec. Doc. 34 at 1-11.
8

its second search. In addition to discussing the first search, Pineiro’s declaration provides details
regarding the second search.24 Therefore, Plaintiff’s claim that ICE has not explained the scope and
manner of the second search is incorrect. However, as set forth above, Defendant ICE is ordered to
provide supplemental information to the Court and Plaintiff further explaining why paper and hardcopy filing systems were not searched during the second search.
III.

Redaction of Documents Produced
The Court previously found that Defendant ICE had not provided sufficient information

regarding its application of FOIA Exemption (b)(5) for the Court to be able to make a determination
regarding the exemption’s applicability.25 The Court thus instructed ICE to provide supplemental
information further explaining the exemption to both Plaintiff and the Court, and to submit an
unredacted copy of the document in question to the Court.26 ICE submitted the Pineiro declaration,
which addresses the applicability of Exemption (b)(5), in response to the Court’s instruction.27 The
declaration describes the nature of the redacted document (i.e. an email message), as well as
document’s content, and provides the titles of the employees participating in the written exchange.28
In addition, ICE provided the Court with copies of the unredacted document for in camera
24

Rec. Doc. 34-1 at 17 (“As described in the declaration of ICE FOIA Officer
Fernando Pineiro . . . this supplemental search produced five (5) responsive
records….”); Id. at 7-8.

25

“[Plaintiff’s] complaints focus on Defendant’s failure to correlate each claimed
exemption with particular redacted information. The Court agrees with Plaintiff
regarding the redactions….” Rec. Doc. 31 at 12.

26

“[R]egarding these redactions, Defendants must advise Plaintiff and the Court … of
the particular exemption(s) claimed.” See Rec. Doc. 31 at 12.

27

See Rec. Doc. 34-1 at 8-9.

28

Id.
9

inspection. Considering the additional information provided, the Court agrees with Defendant ICE
that Exemption (b)(5) applies because the redacted information is protected by the deliberative
process privilege.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff's

motions are

GRANTED IN PART and DENIED IN PART. As more extensively stated above, the motions
are granted to the extent that Defendant ICE must provide supplemental information regarding the
search conducted by it and Defendant EOIR must expand its search for responsive documents.
Otherwise, Plaintiff's motions are denied.
New Orleans, Louisiana, this 24th day of June 2015.

KURT D. ENGELHARDT
United States District Judge

10