Gahagan v. United States Customs and Border Protection et al

Filing 46

ORDER REJECTING REPORT AND RECOMMENDATIONS 38 , GRANTING IN PART, DENYING IN PART AND MOOT IN PART 9 MOTION for Summary Judgment filed by Michael W. Gahagan, GRANTING IN PART, DENYING IN PART AND DEFERRING IN PART 24 Second MOTION for Summary Judgment filed by Michael W. Gahagan.. Signed by Judge Nannette Jolivette Brown on 6/16/15.(jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL GAHAGAN

CIVIL ACTION

VERSUS

NO. 14-2619

UNITED STATES CUSTOMS AND BORDER
PROTECTION, et al.

SECTION: “G”(2)

ORDER AND REASONS
Before the Court are Plaintiff Michael W. Gahagan’s objections1 to the April 27, 2015 Report
and Recommendation of the United States Magistrate Judge.2 Gahagan, an immigration lawyer, filed
the instant action seeking the production of documents from Defendants United States Customs and
Border Protection (“CBP”), United States Immigration and Customs Enforcement (“ICE”), and
United States Department of State (“State”) (collectively, “Defendants”) pursuant to the Freedom
of Information Act3 (“FOIA”) in order to defend his client in removal proceedings.4 Gahagan filed
two motions for summary judgment,5 and the Court referred both motions to the Magistrate Judge.6
The Magistrate Judge issued a “Findings and Recommendations” (“Report and Recommendation”)
on April 27, 2015, recommending that the Court deny Gahagan’s motions, subject to orders
requiring ICE and CBP to file supplemental declarations regarding the adequacy of their searches.7

1

Rec. Doc. 40.

2

Rec. Doc. 38.

3

5 U.S.C. § 522.

4

Rec. Doc. 1 at pp. 1–2.

5

Rec. Doc. 9; Rec. Doc. 24.

6

Rec. Doc. 33.

7

Rec. Doc. 38 at pp. 48–49.

Gahagan timely objected.8 Having reviewed the Magistrate Judge’s Report and Recommendation,
the objections, the opposition to those objections, the motions, the memoranda in support, the
memoranda in opposition, the record, and the applicable law, the Court will reject the Report and
Recommendation, grant Gahagan’s motions in part, deny Gahagan’s motions in part, and find
Gahagan’s motions moot in part. Finally, the Court will order the production of certain disputed
documents for in camera review before ruling in part.
I. Background
Gahagan, an immigration attorney, filed the instant action against CBP, ICE, and State in
order to obtain materials required to represent his client, Theodore Weegar, in removal proceedings.9
In his complaint, Gahagan alleges that he filed FOIA requests seeking these materials from
CBP, ICE, and State in July 2014.10
He further alleges that, as of November 15, 2014, when he filed the instant complaint, he
had received no response from CBP.11 ICE, on the other hand, allegedly notified Gahagan that it
“would . . . forward [his] request” to the United States Citizenship and Immigration Services
(“USCIS”), prompting Gahagan to appeal ICE’s “refusal to search its files for the requested agency
records” on August 18, 2014.12 Gahagan maintains that, as of November 15, 2014, he had received
56 “fully redacted and fully withheld agency records” from USCIS marked “Referred to
Immigrations and Customs Enforcement,” but that he had received no response from ICE regarding

8

Rec. Doc. 40.

9

Rec. Doc. 1.

10

Id. at pp. 4–5.

11

Id.

12

Id. at pp. 5–6.

2

his request or his appeal.13 Finally, Gahagan contends that State mailed him a letter on July 31, 2014
requesting additional information to process his request, an action Gahagan deemed to be a denial
of his request, prompting him to file a FOIA appeal.14 Gahagan avers that he supplied the requested
information to State, but had received “no substantive reply” at the time he filed the instant
complaint.15 Gahagan argues that Defendants have harmed him by failing to provide him with the
information he requested, and requests that the Court order Defendants to respond to his FOIA
request by conducting an adequate search, producing responsive agency records, providing a
“Vaughn index”16 of withheld responsive records, and preventing Defendants from withholding
responsive records.17 He also urges the Court to award him attorney’s fees pursuant to FOIA and the
Equal Access to Justice Act.18
Gahagan filed two motions for summary judgment in this matter.19 The first motion asserts
that he is entitled to judgment as a matter of law based upon ICE’s “routing” of his request to
USCIS20 and Defendants’ failure to produce responsive documents, conduct an adequate search, or

13

Id. at p. 6.

14

Id.

15

Id. at pp. 6–7.

16

A Vaughn index is “a routine device through which the defendant agency describes the responsive
documents withheld or redacted and indicates why the exemptions claimed apply to the withheld material,” Batton v.
Evers, 598 F.3d 169, 174 (5th Cir. 2010) (citing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); Jones v. F.B.I., 41
F.3d 238, 241 (6th Cir. 1994)). It consists of an “index and detailed justification” of claims of exemption.
Stephenson v. I.R.S., 629 F.2d 1140, 1145 (5th Cir. 1980).
17

Rec. Doc. 1 at p. 7.

18

Id.

19

Rec. Doc 9; Rec. Doc. 24.

20

Rec. Doc. 9-2 at pp. 7–20.

3

justify their withholding of responsive information.21 The second motion requests judgment as a
matter of law premised upon: (1) CBP’s failure to produce a Vaughn index;22 (2) ICE’s production
of seven pages of documents marked as “Non Responsive” and redacted in full;23 and (3) ICE’s
production of a one-page document marked as exempt and redacted in full.24
The Court referred both motions to the Magistrate Judge for a Report and Recommendation.
On April 27, 2015, the Magistrate Judge recommended that the Court deny Gahagan’s pending
motions “subject to the following orders:” (1) that CBP and ICE file supplemental declarations
regarding their search for documents;25 and (2) that CBP file a supplemental declaration that more
specifically describes the information it redacted pursuant to FOIA exemptions 6 and 7(C), and
provide a “meaningful, less conclusory description of the types of information withheld under
Exemption 7(E).”26
II. Standard of Review
A.

Standard Applied in Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.3, the Court referred this case to a Magistrate Judge to

provide a Report and Recommendation. A District Judge “may accept, reject, or modify the

21

Rec. Doc. 9-2 at pp. 20–21.

22

Rec. Doc. 24-2 at p. 8. See Vaughn, 484 F.2d at 826–28.

23

Id. at pp. 10–19.

24

Id. at pp. 19–21. Although Gahagan requests attorney’s fees in his complaint pursuant to FOIA and the
Equal Access to Justice Act, neither of his two motions request that the Court award attorney’s fees. See Rec. Doc. 1
at p. 9 (citing 5 U.S.C. § 552(a)(4)(E); 28 U.S.C. § 2412, et seq.).Thus, these claims are not at issue here.
25

Specifically, the Magistrate Judge recommends that the Court order CBP and ICE “to file supplemental
declarations that address whether any other locations are likely to contain responsive records and, if so, the search
that was made in those locations, and/or how defendant determined, if it did, that no other record systems are likely
to contain responsive material.” Rec Doc. 38 at p. 49.
26

Id.

4

recommended disposition” of a Magistrate Judge on a dispositive matter.27 The District Judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.”28 As to parts of the report to which no proper objection has been made, the District Court’s
review is limited to plain error.29
B.

Standard Applicable to Summary Judgment in FOIA Cases30
The Supreme Court has stated that “[t]he basic purpose of FOIA is to ensure an informed

citizenry, vital to the functioning of a democratic society, needed to check against corruption and
to hold the governors accountable to the governed.”31 Toward that end, FOIA is intended to
“facilitate public access to government documents,” and was “designed to pierce the veil of
administrative secrecy and to open agency action to the light of public scrutiny.”32 FOIA establishes
a “strong presumption in favor of disclosure,” and accordingly “places the burden on the
[government] agency [to which a request has been made] to justify the redaction of identifying
information in a particular document as well as when it seeks to withhold an entire document.”33
The Fifth Circuit has held that FOIA “modif[ies]” the “traditional” summary judgment
standard, insofar as it prescribes its own burdens and standards of proof to address the unique

27

FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

28

Id.

29

See Douglas v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
30

In Gahagan v. U.S. Citizenship and Immigration Serv’s., this Court set forth the standards governing
summary judgment in the FOIA context. No. 14-2233, 2015 WL 350356 (E.D. La. Jan. 23, 2014). These standards
are quoted, and applied in full, here.
31

John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citations omitted).

32

U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991).

33

Id.

5

evidentiary issues inherent in FOIA actions, where the subject matter of the suit—government
documents—may be partially or entirely hidden from view.34 Specifically, FOIA provides that
federal district courts:
[Have] jurisdiction to enjoin the agency from withholding agency records and
to order the production of agency records improperly withheld from the
complainant. In such a case the court shall determine the matter de novo, and may
examine the contents of such agency records in camera to determine whether such
records or any part thereof shall be withheld under any of the exemptions set forth
in subsection (b) of this section, and the burden is on the agency to sustain its action.
In addition to any other matters to which a court accords substantial weight, a court
shall accord substantial weight to an affidavit of an agency concerning the agency’s
determination as to technical feasibility under paragraph (2)(C) and subsection (b)
and reproducibility under paragraph (3)(B).35
In a FOIA action, an agency’s supporting affidavits and declarations are entitled to a
“presumption of legitimacy” in the absence of evidence of bad faith.36 Nonetheless, the burden of
establishing the validity of a decision to withhold information remains with the agency,37 and the
Court will not accept an agency’s “conclusory and generalized assertion[s]” on a motion for
summary judgment, even if those assertions are uncontroverted.38

34

Batton v. Evers, 598 F.3d 169, 175 (5th Cir. 2010); Cooper Cameron Corp. v. U.S. Dep’t of Labor,
Occupational Safety and Health Admin., 280 F.3d 539, 543 (5th Cir. 2002) (“The FOIA context is unusual, however,
because the threshold question in any FOIA suit is whether the requester can even see the documents the character of
which determines whether they can be released. The requester would thus face an evidentiary Catch–22 if the statute
and the case law did not make allowances. The statute expressly places the burden on the agency to sustain its action
and directs the district courts to determine the matter de novo, giving no deference to the agency's determinations.”)
(citations and internal quotation marks omitted).
35

5 U.S.C. § 552(a)(4)(B) (emphasis added).

36

Batton, 598 F.3d at 175 (5th Cir. 2010) (citing Ray, 502 U.S. at 179).

37

Cooper Cameron, 280 F.3d at 543.

38

Batton, 598 F.3d at 175.

6

III. Objections to Report and Recommendation
Gahagan timely filed objections to the Magistrate Judge’s Report and Recommendation on
May 11, 2015, urging the Court to reject the Report and Recommendation in full,39 because the
Magistrate Judge erred by applying a preliminary injunction standard to his motions and by failing
to construe the facts in the light most favorable to him, in violation of the legal standards applicable
to motions for summary judgment in FOIA cases.40
In response to this objection, the Government argues that the Magistrate Judge “properly
distinguished between the burden of proof for a FOIA preliminary injunction and the burden of
proof for a FOIA motion for summary judgment,” and correctly applied the respective burdens to
what it now alleges were Gahagan’s “separate and distinct requests” for injunctive relief and for

39

Rec. Doc. 40.

40

Rec. Doc. 40–1 at pp. 3–22. Gahagan also contends that the Magistrate Judge erred by:

(1) Ordering CBP and ICE to file supplemental declarations, rather than grant his motion for
summary judgment against these agencies, Id. at pp. 22–24;
(2) Giving weight to the facts that: (a) he did not state the purpose of his FOIA request, because
the purpose of a FOIA request is irrelevant; (b) USCIS “A-Files” are the “official files for all
immigration and naturalization records,” because other government agencies also maintain
immigration records; and (c) the process of responding to Gahagan’s FOIA request ‘took less than
six months,’ because FOIA requires that a response be given within 20 working days, Id. at pp.
24–28;
(3) Recommending that ICE be “allowed to refer an entire FOIA request to a third party,” because
FOIA requires agencies to conduct a search of their own records,” Id. at pp. 28–34;
(4) Recommending that Defendants not be compelled to release the names of the individuals who
conducted the searches pursuant to his FOIA request, because this places the burden on him to
“prove that Defendants are not allowed to withhold the names” of these individuals,” Id. at p. 35;
and
(5) Recommending that ICE be permitted to withhold seven pages of documents marked as “nonresponsive,” because this recommendation places “the burden of proof on [him] to prove that” ICE
is “not allowed to withhold responsive agency records without citing a lawful FOIA exemption,”
Id. at pp. 35–40.

7

summary judgment.41 According to Defendants, “there is a litany of cases that discuss” the
distinction between FOIA claims and injunctive claims, and these cases “place the burden squarely
on a plaintiff when deciding injunctive relief in FOIA matters.”42 Defendants maintain that the
Magistrate Judge therefore appropriately applied this burden of proof as to Gahagan’s “injunction
claim,” but “utilized the typical FOIA burden of proof for the remaining FOIA claims.”43
For the first time in their response to Gahagan’s objections, Defendants claim that Gahagan
is seeking relief under FOIA and additional injunctive relief, and cite cases not originally relied upon
in which the parties had moved for preliminary injunctive relief in the midst of FOIA litigation.44
Neither these cases nor such a distinction was argued by either party in the motions. The Court finds
these cases distinguishable and inapplicable here.
In Electronic Privacy Information Center v. Department of Justice, cited by Defendants, the
plaintiff simultaneously filed a complaint seeking “injunctive relief” under FOIA, and “a separate
motion that requests ‘entry of a preliminary injunction to enjoin . . . [the defendant’s] unlawful
attempts to impede plaintiff's efforts to obtain agency records under the [FOIA],’” a request alleging
injury and seeking relief that was “coterminous” with the injury alleged and the relief sought in the
complaint.45 In that case, the plaintiff asserted a claim pursuant to FOIA, and specifically filed a
separate motion for a preliminary injunction. After the district court denied the motion for

41

Rec. Doc. 42 at pp. 2–4.

42

Id. at p. 2.

43

Id.

44

Electronic Privacy Info. Ctr. v. Dep’t of Justice, 15 F.Supp.3d 32 (D.D.C. 2014); Judicial Watch, Inc. v.
U.S. Dep’t of Homeland Sec., 514 F.Supp.2d 7, 8–9 (D.D.C. 2007).
45

15 F.Supp.3d at 37.

8

preliminary injunction, the case moved forward under FOIA’s statutory procedures. Gahagan has
not filed a motion for a preliminary injunction here, or made a request for a preliminary injunction
in his pending motions, and so the Magistrate Judge’s characterization of his FOIA request as such,
and his application of the preliminary injunction standard to his FOIA request, was erroneous.
Similarly, in Judicial Watch, Inc. v. U.S. Department of Homeland Security, also cited by
Defendants in response to Gahagan’s objections, the plaintiff filed suit against several defendants
pursuant to FOIA, seeking “to compel the disclosure” of certain documents.46 After receiving a
disclosure it deemed unsatisfactory, the plaintiff moved for a preliminary injunction, urging the court
to enjoin the defendants “from continuing to withhold the requested documents.”47 The district court
applied a preliminary injunction standard to the express motion for a preliminary injunction. Thus,
there, again, the plaintiff specifically requested a preliminary injunction, and the preliminary
injunction standard was applied to that specific request.48 Again, Gahagan has not moved for a
preliminary injunction here, and so, the Magistrate Judge should not have applied the preliminary
injunction standard to any part of Gahagan’s FOIA request.
Furthermore, the Magistrate Judge himself clearly stated in the Report and Recommendation
that Gahagan did not specifically request a preliminary injunction.49 However, because the

46

514 F.Supp.2d at 8.

47

Id. at 9.

48

Id. at 9–10. See 736 F.Supp.2d. 202, 206 (D.D.C. 2010) (summarizing the procedural history of the case
and stating that, in deciding prior motions for summary judgment, “[t]he Court ordered defendant to search for and
produce any non-exempt responsive records and to compile a Vaughn index for all exempt records.”). See also Sai v.
Transp. Sec. Admin., 54 F.Supp.3d 5 (D.D.C. 2014) (denying motion for preliminary injunction in FOIA case, and
concluding that “[t]he Court need not do more than exercise its ordinary jurisdiction over this FOIA action”);
Wadelton v. Dep’t of State, 941 F.Supp.2d 120 (D.D.C. 2013) (denying motion for preliminary injunction in FOIA
action); Landmark Legal Found. v. EPA, 910 F.Supp.2d 270 (D.D.C. 2012) (same).
49
See Rec. Doc. 38 at pp. 10–12 (“Although Gahagan does not couch most of the relief he seeks in his
motions in terms of injunctive relief . . . For the reasons discussed fully herein, his motions for summary judgment

9

Magistrate Judge believed that Gahagan’s claims sounded in injunctive language, he applied the
preliminary injunction standard. FOIA’s language sounds in injunctive language; however, it sets
forth specific and distinctive standards to apply. In the cases cited by Defendants, the plaintiffs, in
addition to their FOIA claims, which are similar to the claims Gahagan asserts here, specifically
filed motions for preliminary injunctive relief, which justified those courts applying the preliminary
injunction standard to those specific preliminary injunction motions. Gahagan does not request a
preliminary injunction in the motions currently pending before the Court. The parties do not dispute
that these specific facts are not argued here, and so the Magistrate Judge clearly erred in his
application of a preliminary injunction standard. Gahagan objects to the entire Report and
Recommendation because of the Magistrate Judge’s application of the incorrect standard. The Court
believes that this mischaracterization permeated the Magistrate Judge’s analysis, and because the
Court is unable to discern to what aspects the Magistrate Judge applied the preliminary injunction
standard as opposed to the standard under FOIA, the Court will apply a de novo review to every
aspect of the Report and Recommendation.50
IV. De Novo Review of Report and Recommendation
In addressing the applicable legal standard, the Report and Recommendation first quotes a
Fifth Circuit decision setting forth the standard applicable to motions for summary judgment in the
FOIA context,51 and summarizes this standard as follows:
To prevail, Gahagan must show the absence of any genuinely disputed material facts
as to each of his claims, such that a rational trier of fact could not find for defendants
based on the evidence presented. Defendants, who bear the burden of proof at trial,

seeking preliminary injunctive should be denied.”).
50
Additionally, Gahagan objects to every determination made by the Magistrate Judge; thus, de novo
review of the Magistrate Judge’s Report and Recommendation is supportable on this basis as well.
51

Rec. Doc. 38 at pp. 9–10 (citing Batton, 598 F.3d at 175-76).

10

must come forward with admissible evidence to show material fact disputes as to the
adequacy of their searches for responsive records and the applicability of their
claimed exemptions from disclosure. Factual controversies are construed in the light
most favorable to the non-movants, the defendants, in this situation.52
Immediately thereafter, however, the Report and Recommendation recites the “stringent
standards” governing preliminary injunctive relief,53 and states that:
Although Gahagan does not couch most of the relief he seeks in his motions in
terms of injunctive relief, he is seeking judgment in his favor on all claims in his
Complaint for Declaratory and Injunctive Relief that defendants have not complied
with their obligations under FOIA. He requests affirmative relief, also known as
a mandatory injunction, directing defendants to conduct an adequate search for
responsive records, produce all non-exempt responsive records, produce a
Vaughn index, produce unredacted copies, produce any reasonably segregable
portion of each responsive agency record being withheld and stop withholding nonexempt responsive records. For the reasons discussed fully herein, his motions for
summary judgment seeking preliminary injunctive relief should be denied,
subject to an order granting him some intermediate relief in the form of
supplemental evidentiary declarations from two of the defendants.54
Reviewing the Report and Recommendation de novo, the Court finds that the Magistrate
Judge erred in construing Gahagan’s motions as seeking preliminary injunctive relief outside of the
statutorily-defined injunctive relief FOIA provides. Although Gahagan requests “injunctive and
other appropriate relief,” he specifically states that he is requesting such relief under FOIA,55 and
52

Id. at p. 11.

53

Specifically, the Report and Recommendation states:

To obtain a preliminary injunction, Gahagan must demonstrate (1) a substantial likelihood of success
on the merits, (2) a substantial threat of irreparable injury if the injunction is not granted, (3) that his
substantial injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) that
granting the preliminary injunction would not disserve the public interest.
Id. at p. 13.
54

Id. at pp. 11–12 (emphasis added).

55

Rec. Doc. 1 at p. 1 (“This is an action under the Freedom of Information Act, 5 U.S.C. § 552. (“FOIA”)
for injunctive and other appropriate relief seeking immediate disclosure and release of agency records unlawfully
withheld . . .”).

11

urges that the Court “enjoin” Defendants from withholding responsive records, a remedy specifically
provided by FOIA. Thus, Gahagan’s motion clearly seeks relief that falls within the scope of FOIA’s
statutory scheme, and to which the burdens of proof set forth by that scheme apply. As noted above,
FOIA expressly provides that:
On complaint, the district court . . . has jurisdiction to enjoin the agency from
withholding agency records and to order the production of any agency records
improperly withheld from the complainant. In such a case the court shall determine
the matter de novo . . . and the burden is on the agency to sustain its action.56
On this point, the Supreme Court has noted that FOIA “explicitly confers jurisdiction to grant
injunctive relief of a described type,” creates “a specific remedy for noncompliance,” and contains
“the precise machinery” intended to effectuate its statutory purpose, and has concluded that FOIA’s
statutory remedy supplements, rather than limits, the equitable remedies at district courts’ disposal.57
FOIA’s goal is to “pierce the veil of administrative secrecy and to open agency action to the
light of public scrutiny.”58 To effectuate this goal, FOIA “prescribes its own burdens and standards
of proof to address the unique evidentiary issues inherent in FOIA actions.”59 Specifically, FOIA
“expressly places the burden on the agency to sustain its action and directs the district courts to
determine the matter de novo, giving no deference to the agency’s determinations,”60 thereby
creating a “strong presumption in favor of disclosure.”61 The Fifth Circuit applies this standard when

56

5 U.S.C. § 552(a)(3)(A) (emphasis added).

57

Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 3 (1974).

58

Batton, 598 F.3d at 176.

59

Gahagan, 2015 WL 350356 at *11.

60

Cooper Cameron, 280 F.3d at 542 (citations and internal quotation marks omitted).

61

Id. at 545 (citations and internal quotation marks omitted).

12

deciding motions for summary judgment in FOIA cases,62 and the Court is aware of no authority
indicating that a deviation from that standard is warranted here.
Unlike the plaintiffs in the cases cited by Defendants in their response to Gahagan’s
objections to the Magistrate Judge’s Report and Recommendation, Gahagan has not moved for a
preliminary injunction. Rather, his two motions seek relief that falls squarely within FOIA’s
statutory framework. The motions, in their entirety, are therefore properly governed by the standards
and burdens of proof that apply to a motion for summary judgment in the FOIA context. In this
context, Gahagan, the moving party, is entitled to the relief he seeks if a reasonable trier of fact
could not find that Defendants have met their burden of disclosing non-exempt responsive agency
records.63
Gahagan contends that the Magistrate Judge’s error pervades the entire Report and
Recommendation.64 This Court, reviewing the Report and Recommendation de novo, agrees.
Although the Report and Recommendation concludes, at various points, that Gahagan’s motion
should be denied because a “rational trier of fact” could find for Defendants,65 and thus ostensibly
recognizes that Defendants have the ultimate burden of proof, the Report and Recommendation
fundamentally mischaracterizes Gahagan’s requests for injunctive relief under FOIA as requests for
a preliminary injunction. Because this error goes to the heart of Gahagan’s requests, this Court will
reject the Report and Recommendation in full, and will review Gahagan’s motions de novo.

62

See, e.g., Batton, 598 F.3d at 175; Cooper Cameron, 280 F.3d at 543.

63

Cooper Cameron, 280 F.3d at 543. See, e.g. ,Gahagan, 2015 WL 350356 at *11–*12.

64

Rec. Doc. 40–1 at pp. 1–2.

65

See, e.g., Rec. Doc. 38 at p. 23.

13

V. Gahagan’s First Motion for Summary Judgment
A.

Gahagan’s Arguments in Support of His “Motion for Summary Judgment”66
In his first motion, Gahagan urges the Court to: (1) order that Defendants “conduct a lawfully

adequate search for responsive agency records in accordance with [his] FOIA requests and
FOIA;” (2) order that Defendants “respond to [his] FOIA request as mandated by 5 U.S.C. § 552,
produce forthwith any and all non-exempt agency records responsive to [his] FOIA request, and
produce a Vaughn index of any responsive records withheld under claim of exemption;” and
(3) consistent with the language of FOIA, order that Defendants “are enjoined from continuing to
withhold any and all non-exempt agency records responsive to [his] FOIA request.”67 The Court
addresses his arguments in turn below.
1.

ICE’s “Routing” of Gahagan’s Request

First, Gahagan contends that ICE did not “obey its lawful duty to search the records in its
possession for responsive agency records,” but rather “unlawfully ‘routed’” his FOIA request to
another government agency.68 According to Gahagan, “[t]he legal obligation to respond under FOIA
rests exclusively with the agency to which the FOIA request is directed and which possesses the
record at the time of the FOIA request,”69 and the requestee agency has a statutory duty to timely
respond to the request, regardless of whether it “routes” or “refers” the request.70
Gahagan maintains that a requestee agency improperly withholds documents pursuant to

66

Rec. Doc. 9.

67

Id. at p. 1.

68

Rec. Doc. 9–2 at p. 7.

69

Id. at p. 10.

70

Id. at p. 11.

14

FOIA if it “routes” the request and then does not timely respond to the request, because “[t]here is
no routing exception to the mandate that an agency must disclose responsive agency records within
20 working days,”71 and because a referral “could be considered a withholding if its net effect is to
impair the requester’s ability to obtain the records or significantly increase the amount of time he
must wait to obtain them.”72 Accordingly, Gahagan maintains, ICE cannot “route a FOIA request
to a different government agency, and then refuse to conduct a lawfully adequate search of records
in its possession,” as is required by FOIA.
Gahagan argues that ICE is “withholding” responsive records from him, because it “has not
searched for or produced the responsive and improperly withheld agency records,” and “continues
to refuse to search for or produce” the records.73 Further, Gahagan argues, this withholding is
“improper” under FOIA, because it has “resulted in very long delays” not lawfully justified by ICE,
forcing him to file this lawsuit and “ensuring ineffective assistance of counsel” to his client.74
2.

Adequacy of Defendants’ Responses to Gahagan’s FOIA Requests

Gahagan next maintains that Defendants have all “refused to conduct an adequate search for
responsive agency records or produce the responsive agency records within 20 working days,” as
required by FOIA.75 Thus, Gahagan asserts, because Defendants have not met “their burden of
demonstrating either the adequacy of their searches or the legal justification for their withholding

71

Id. (internal quotation marks omitted).

72

Id. at p. 14 (internal quotation marks omitted).

73

Id. at p. 17 (internal quotation marks omitted).

74

Id. at p. 18.

75

Id. at p. 20.

15

of agency records,” the Court “must grant [his] motion for summary judgment.”76
B.

Defendants’ Opposition77
In opposition to Gahagan’s first motion, Defendants aver that, at the time their opposition

was filed, they had “fully processed and responded to” Gahagan’s FOIA requests, having
“conducted an adequate search for documents,” “produced all non-exempt material responsive to
[his] request,” and “created a Vaughn index for any withheld documents.”78
1.

Adequacy of Defendants’ Responses to Gahagan’s FOIA Requests
a.

Declarations

Defendants first point to declarations filed by CBP, ICE, and State, and maintain that each
of these are sufficient to carry their burden of opposing Gahagan’s motion.
As to the sufficiency of CBP’s response to Gahagan’s request, Defendants indicate that a
declaration filed by Sabrina Burroughs “describes in specific detail the search undertaken to recover
responsive documents,” and indicates that the search yielded one document responsive to Gahagan’s
request, which was released to Gahagan on December 4, 2014 “but for minimal redactions pursuant
to FOIA exemption[s]” § 552(b)(6), (b)(7)(C) and (b)(7)(E).79
Addressing the sufficiency of State’s response to Gahagan’s request, Defendants contend that
a declaration submitted by John Hackett “describes in great detail the search undertaken to recover
responsive documents within State,” and indicates that State found two documents responsive to

76

Id.

77

Rec. Doc. 18.

78

Id. at p. 5.

79

Rec. Doc. 18 at pp. 5–6. This declaration was stricken from the record pursuant to an order of the
Magistrate Judge dated April 14, 2015, and re-filed, with dates of birth redacted, on April 21, 2015. Rec. Doc. 35
(Order); Rec. Doc. 37-1 (re-filed declaration).

16

Gahagan’s FOIA request, but withheld these documents in full pursuant to FOIA exemption
5 U.S.C. 552(b)(3) and 8 U.S.C. § 1202(f).80
Regarding the sufficiency of ICE’s response to Gahagan’s request, Defendants aver that a
declaration filed by Fernando Pineiro indicated that ICE, “understanding [that Gahagan’s client] was
in the midst of a removal process . . . forwarded [Gahagan’s] request to [USCIS],” which is “the
custodian of all A-files, which are the official files for all immigration and naturalization records.”81
Defendants contend that USCIS located 56 pages of documents originating from ICE, and in turn
“referred [those] . . . pages back to ICE for direct response to [Gahagan].”82 Further, Defendants
contend, ICE “tasked two of its local New Orleans Offices . . . to search for responsive documents,”
a request made due to the pendency of the underlying removal proceedings in New Orleans.83 The
declaration, Defendants argue, “describes in great detail the specific electronic filing systems that
were searched by each office” and provides the search queries used.84
b.

Redactions and Withholdings

Defendants next argue that they made “appropriate redactions and withholdings” pursuant
to FOIA exemptions “3, 7(C), and (E),” and that the foregoing declarations constitute proper Vaughn
indexes.85 Defendants contend that their redactions were “minimal,” and that these documents need

80

Id. at pp. 6–7. This declaration was stricken from the record pursuant to an order of the Magistrate Judge
dated April 14, 2015, and re-filed, with dates of birth redacted, on April 21, 2015. Rec. Doc. 35 (Order); Rec. Doc.
37-2 (re-filed declaration).
81

Id. at p. 7 (citing Rec. Doc. 18-4).

82

Id.

83

Id.

84

Id. at pp. 7–8.

85

Id. at p. 9.

17

not be examined in camera to ascertain whether the redactions were appropriate.86
2.

ICE’s “Routing” of Gahagan’s FOIA Request

Finally, Defendants argue that ICE properly referred documents to USCIS for direct response
to Gahagan, because this referral did not significantly impair Gahagan’s ability to obtain the
documents, and did not significantly increase the time required to obtain these documents.87
However, Defendants contend that any dispute as to this issue “is moot since the agencies have
processed and released the referred material” to Gahagan.88
C.

Gahagan’s Reply89
1.

Defendants’ Representations

In further support of his motion, Gahagan first argues that Defendants falsely represent:
(1) the date of his client’s removal hearing; and (2) that he has “obtained all the responsive records
that he has requested via FOIA.”90
2.

Adequacy of Defendants’ Responses to Gahagan’s FOIA Request
a.

Declarations

Next, Gahagan contends that Defendants’ declarations are insufficient, because these
declarations: (1) do not identify the individuals who conducted the searches in response to his
request;91 (2) do not indicate that Defendants searched the “likely locations of responsive records,”

86

Id. at p. 11.

87

Id. at pp. 12–13.

88

Id. at p. 13.

89

Rec. Doc. 21.

90

Id. at p. 2.

91

Id. at p. 6.

18

and (3) do not contain sufficient factual descriptions required to demonstrate the adequacy of the
search as a matter of law.92 According to Gahagan, these declarations fail to show the
“reasonableness and adequacy” of Defendants’ FOIA search; thus, Gahagan argues, Defendants
have failed to carry their burden, warranting summary judgment and an order compelling
Defendants to “conduct an adequate search for the requested information.”93
b.

Vaughn Index

Further, Gahagan argues, “CBP has refused to submit a Vaughn index as mandated by
FOIA.”94
4.

ICE’s “Routing” of Gahagan’s FOIA Request

Finally, Gahagan argues that ICE “simply refused to search its records for the
specific . . . information” he requested from ICE and instead “had USCIS search its records for an
‘A-File,’”95 a search at “an agency [he] did not request, for documents [he] is not seeking.”96
D.

Analysis97
In his first motion, Gahagan asserts that he is entitled to summary judgment based upon:

(1) ICE’s “routing” of his request to USCIS98 and (2) Defendants’ failure to produce responsive

92

Id. at pp. 8–9.

93

Id. at pp. 9–10.

94

Id. at p. 9.

95

Id. at p. 10.

96

Id.

97

In its Order in Gahagan, 2015 WL 350356, the Court set forth the law applicable to several of the issues
presented by Gahagan’s motions. Thus, where the Court’s prior Order sets forth the applicable law, it is quoted here.
98

Rec. Doc. 9-2 at pp. 7–20.

19

documents, conduct an adequate search, or justify their withholding of responsive information.99
At the time Gahagan filed his first motion for summary judgment, Gahagan averred that ICE
had disclosed 56 “fully redacted” pages of documents to him, while CBP and State had disclosed
nothing.100 The Local Rule 56.1 statement attached to Gahagan’s second motion for summary
judgment,101 however, points to several developments in the instant litigation relevant to Gahagan’s
first motion. First, Gahagan contends that on December 16, 2014, he received one page of
responsive information from CBP, and has not received a Vaughn index to “explain the legality of
its withholdings from this document.”102 Second, Gahagan avers that on December 29, 2014, he
received several documents from ICE, seven pages of which “were withheld in toto” and marked
as “non-responsive,” and one page of which was redacted in full.103 Finally, Gahagan contends that
State has “released no responsive agency records” to him, even though State “claims that it has
found responsive agency records pursuant to his request.”104
1.

ICE’s “Routing” of Gahagan’s FOIA Request

Gahagan first argues that ICE’s “routing” of his FOIA request to USCIS resulted in an
“improper witholding,” in violation of FOIA, entitling him to summary judgment.105 On this point,
99

Id. at pp. 20-21.

100

Rec. Doc. 9-1 at pp. 2–5.

101

Rec. Doc. 24-1.

102

Id. at p. 2.

103

Id. at pp. 2–4 (citing Rec. Doc. 18-2 at pp. 2–10). This exhibit was stricken from the record pursuant to
an order of the Magistrate Judge dated April 14, 2015, and re-filed, with dates of birth redacted, on April 21, 2015.
Rec. Doc. 35 (Order); Rec. Doc. 37-1 at pp. 2–10 10 (re-filed exhibit)
104

Id. at pp. 4-5 (citing Rec. Doc. 18-3 at p. 11 (declaration of John Hackett)). State’s supporting
declaration was stricken from the record pursuant to an order of the Magistrate Judge dated April 14, 2015, and refiled, with dates of birth redacted, on April 21, 2015. Rec. Doc. 35 (Order); Rec. Doc. 37-2 (re-filed declaration).
105

Rec. Doc. 9-2 at pp. 7–20.

20

the Court notes that it is undisputed that ICE has now produced documents to Gahagan.106 An
agency’s production of requested records moots a plaintiff’s FOIA claim.107 Therefore, the Court
deems Gahagan’s argument on this point to be moot, to the extent that it is premised upon ICE’s
outright failure to respond to his request and produce documents to him.
After ICE produced documents to him, Gahagan contended that ICE’s search was deficient
because it “refused to follow the FOIA mandate and had USCIS search its records for an A-File.”108
This Court has previously rejected the premise that an agency’s referral constitutes a per se violation
of FOIA.109 Specifically, in Gahagan v. United States Citizenship and Immigration Services, this
Court held that: (1) requestee agencies may make referrals to other agencies, as long as those
referrals do not result in an improper withholding of responsive, non-exempt agency records; and
(2) requestee agencies remain responsible for any improper withholding that results from a
referral.110 Accordingly, the Court likewise finds here that ICE’s “routing” of Gahagan’s FOIA
request is not a per se violation of FOIA. This does not end the Court’s inquiry, however, because
the Court still must determine whether ICE has conducted an adequate search or improperly
withheld responsive records. The Court will consider these issues below.

106

Rec. Doc. 24-1 at pp. 4–5.

107

Ayanbadejo v. Chertoff, 517 F.3d 273, 278 (5th Cir. 2008) (“Although the Ayanbadejos argue that the
district court erred in dismissing their FOIA claim as moot, the USCIS did produce the Ayanbadejos' immigration
record to their counsel pursuant to their FOIA request, making this claim moot.”).
108
109

110

Rec. Doc. 21 at p. 10 (internal quotation marks omitted).
See Gahagan, 2015 WL 350356 at *19–*20.
Id. (citing McGehee v. C.I.A., 697 F.2d 1095, 1110 (D.C. Cir. 1983)).

21

2.

Adequacy of Defendants’ Responses to Gahagan’s FOIA Requests
a.

Failure to Produce

Gahagan argues that Defendants failed to produce responsive records to him, in violation of
FOIA.111 It is undisputed that CBP, like ICE, has now produced responsive records to Gahagan.
Accordingly, to the extent that Gahagan’s first motion seeks summary judgment based upon CBP’s
outright failure to produce responsive records, the motion is moot. Gahagan’s allegations regarding
State’s outright non-production of documents are not moot, however, as State has not produced
responsive agency records to Gahagan. However, because Gahagan’s arguments on this point are
properly addressed pursuant to legal standards that apply to several aspects of Gahagan’s second
motion, the Court will address Gahagan’s production-related arguments as to all Defendants,
including State, in its analysis of Gahagan’s second motion.
b.

Sufficiency of Declarations

Gahagan also argues that Defendants have not conducted an adequate search,112 a “threshold”
issue in this FOIA case.113 Specifically, Gahagan contends that declarations submitted by Defendants
after he filed his first motion (1) do not identify the individuals who conducted the searches in
response to his request; (2) do not indicate that Defendants searched the “likely locations of
responsive records,” and (3) do not contain sufficient factual descriptions required to demonstrate
the adequacy of the search.114 Gahagan further argues that ICE “simply refused to search its records

111

Rec. Doc. 9-2 at pp. 20–21.

112

Id.

113

Batton, 598 F.3d at 176.

114

Rec. Doc. 21 at pp. 5–9.

22

at all” for the information he specifically requested.115
“An agency may demonstrate that it conducted an adequate search by showing that it used
methods which can be reasonably expected to produce the information requested.”116 In considering
whether an agency has met its burden on this point, “there is no requirement that an agency search
every record system.”117 Rather, the Court “must decide only whether the search was adequate.”118
In Batton v. Evers, the Fifth Circuit found that two declarations “sufficiently prove[d] the
adequacy and reasonableness of the IRS’s search” by “list[ing] the particular databases that were
searched and explain[ing] that these databases contain the type of information requested.” The
Court explained:
[T]he Oklahoma City disclosure office searched documents identified by the agent
assigned to investigate [the Plaintiff,] as well as internal databases and systems of
records to locate documents responsive to [the Plaintiff’s] FOIA request. The IRS
conducted the search based on the personal information provided by [the Plaintiff]
in his FOIA request within the databases and systems of records available to the
disclosure office.119
Applying these legal standards here, the Court will now determine whether Defendants have met
their burden of proving that they conducted an adequate search pursuant to Gahagan’s request.
i.

Identity of the Individual Performing the Search

Preliminarily, the Court will address Gahagan’s argument that Defendants’ declarations are
insufficient because they do not name the individual who actually searched for records pursuant to

115

Id. at p. 9.

116

598 F.3d at 176 (citations and internal quotation marks omitted).

117

Id. (citations omitted).

118

Id. (citations and internal quotation marks omitted).

119

Batton, 598 F.3d at 176.

23

his FOIA request.120 On this point, Gahagan cites several cases from district courts in the District
of Columbia, in which those courts applied legal standards developed by United States Courts of
Appeals from the District of Columbia Circuit. These cases suggest that in the District of Columbia
Circuit, agency declarations must identify “by whom” the search was conducted.121 This Court,
which is located in the Fifth Circuit, applies Fifth Circuit authority on this point. Gahagan does not
cite, and the Court has not found, any Fifth Circuit case requiring affidavits to identify the individual
who conducted a FOIA search. Therefore, this Court applies Batton, which does not appear to
require an agency to name the individual who conducted the search.122 Applying Batton, Defendants’
declarations are not per se deficient for failing to name the individuals who conducted Gahagan’s
search. Therefore, to the extent that Gahagan contends that a rational trier of fact could not find for
Defendants based upon their failure to name the individual who conducted the search pursuant to
his FOIA request, his arguments are unavailing.
ii.

Adequacy of CBP’s Search

Applying Batton here, the Court turns first to CBP’s supporting declaration. Addressing
CBP’s search methodology, the declaration first summarizes Gahagan’s FOIA request, and then
states that:
120

Rec. Doc. 21 at pp. 6–7.

121

See Nat’l Sec. Counselors v. C.I.A., 960 F.Supp.2d 101, 152 (D.D.C. 2013) (quoting Steinberg v. U.S.
Department of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994)) (“in order to satisfy its burden of establishing the
adequacy of its search, an agency's affidavit must “describe in ... detail what records were searched, by whom, and
through what process.”); People for the American Way Found. v. Nat’l Park Serv., 503 F.Supp.2d 284, 293 (D.C.
Cir. 2007) (quoting Ferranti v. ATF, 177 F. Supp.2d 41, 47 (D.D.C. 2001)) (“[a]ffidavits that include search
methods, locations of specific files searched, descriptions of searches of all files likely to contain responsive
documents, and names of agency personnel conducting the search are considered sufficient.”); Ctr. for Pub. Integrity
v. F.C.C., 505 F.Supp.2d 106, 117 (D.D.C. 2007) (same).
122

In Batton, as noted above, the Fifth Circuit found sufficient a declarations that stated that (1) the
“Oklahoma City Disclosure Office” conducted the search; (2) identified the databases and records searched; and (3)
“explain[ed] that these databases contain the type of information requested.” 598 F.3d at 176. Batton does not
address who conducted the search.

24

In an effort to locate documents responsive to Plaintiff’s FOIA request, the FOIA
Division conducted a search in “ENFORCE.” ENFORCE is an electronic database
system utilized by CBP and is an integrated system that combines two major
systems: the Enforcement Case Tracking System (ENFORCE), which supports
enforcement case processing and management functions and stores data in a single
repository (EID-Enforcement Integrated Database) and IDENT, the Automated
Biometric Identification System which captures biometric information, including
photographs and fingerprints. The purpose of ENFORCE is to record information
for producing both administrative and legal documents to support Department of
Homeland Security (DHS) enforcement activities. ENFORCE records were searched
using the name Theodore Weegar, and variations on the name combined with the
provided date-of-birth.123
Like the declarations at issue in Batton, CBP’s supporting declaration identifies the locations
CBP searched and how the search was conducted. Unlike the declarations at issue in Batton,
however, CBP’s supporting declaration is devoid of any non-conclusory explanation of why CBP
chose to employ the foregoing search methodology in response to Gahagan’s search for “any and
all” materials relating to Mr. Weegar. Thus, on this showing, a rational trier of fact could not find
that CBP conducted a search that was “reasonably expected to produce the information requested,”
even when viewing the declaration in the light most favorable to CBP and even affording it a
presumption of legitimacy. Accordingly, and for this reason, Gahagan is entitled to summary
judgment to the extent that he contends that CBP failed to conduct an adequate search.124

123

Rec. Doc. 37-1 at pp. 2–3.

124

After the Magistrate Judge issued its Report and Recommendation, CBP filed a “supplemental
declaration” indicating that it searched both ENFORCE and another database, TECS, and searched no other record
systems “because standard operating procedures for FOIA database research for Travel related FOIA Requests are
conducted in TECS and ENFORCE which, as stated above, are combined of multiple record systems and databases,
which would most likely contain any and all responsive records.” Rec. Doc. 42-1 at pp. 2–3. Gahagan urges the
Court to strike this supplemental declaration, because it is not based upon the declarant’s personal knowledge. Rec
Doc. 45 at p. 6. Even if the declaration were based upon Burroughs’ personal knowledge, and even if the Court
deemed the supplemental declaration to be an amendment to the Defendants’ opposition to Gahagan’s motions, the
supplemental declaration does not specify why the search methodology employed was reasonably expected to
produce the information requested.

25

iii.

Adequacy of ICE’s Search

ICE’s declaration likewise summarizes Gahagan’s FOIA request.125 Like the declarations at
issue in Batton, ICE’s declaration then describes the search methodology it employed, which
included a referral to USCIS. Unlike CBP’s declaration, however, ICE’s declaration specifies why
it employed the search methodology it did, stating that it referred Gahagan’s search to USCIS
“[b]ecause [Gahagan] sought documents in connection with the removal proceedings before the
Immigration Court in New Orleans, Louisiana,” and later “determined that the files contained with
the ERO and OCC New Orleans would be most likely to maintain responsive records.”126
These declarations, however, do not indicate that ICE pursued “the type of information
requested” by Gahagan, unlike the declarations at issue in Batton. ICE notes in its declaration that
Gahagan requested “any and all” materials relating to Mr. Weegar,127 but does not explain why a
search tailored to Weegar’s removal proceedings and initially referred to USCIS “can be reasonably
expected to produce the information requested”128 by Gahagan, as Batton requires. Although
“[t]here is no requirement that an agency search every record system,”129 ICE must nonetheless
provide sufficient information to permit a rational trier of fact to conclude that “the search was
adequate.”130 ICE has not explained why a search premised upon the pendency of Weegar’s removal
proceedings in New Orleans and initially referred to USCIS could be reasonably expected to yield

125

Rec. Doc. 18-4 at p. 7.

126

Id. at p. 8.

127

Id. at p. 7.

128

Batton, 598 F.3d at 176 (citations omitted).

129

Id. (citations omitted).

130

Id.

26

“any and all” nonexempt information about Weegar, as Gahagan requested.
Gahagan also contends that a search of locations “most likely” to produce responsive
records, ICE’s stated basis for searching the ERO and OCC New Orleans offices, is insufficient
under FOIA.131 As noted above, the Fifth Circuit requires that an agency employ methods it
“reasonably expect[s] to produce the information requested.”132 This appears to be equivalent to a
requirement that a search be “likely” to yield responsive documents.133 Accordingly, ICE’s
declaration, in stating that it searched locations “most likely” to maintain responsive documents, is
also deficient on this basis, because it did not indicate that ICE searched all likely locations.134
Consequently, even when viewing this declaration in the light most favorable to ICE, the
nonmoving party, and even when affording a presumption of legitimacy to the declaration, a rational
trier of fact could not find for ICE on this point. Gahagan is therefore entitled to summary judgment
to the extent that he contends that ICE conducted an inadequate search.

131

Rec. Doc. 21 at p. 7 (citing Hall v. C.I.A., 881 F.Supp.2d 38, 59 (D.C. Cir. 2012); Oglesby v. U.S.
Department of Army, 920 F.3d 57 (D.C. Cir. 1990)) (“Because the CIA's affidavits stated that the CIA searched the
systems ‘most likely’ to contain responsive documents, the Court concludes that the CIA has only searched systems
‘most likely’ to contain responsive documents, and did not search all systems ‘likely to produce responsive
documents.’”).
132

Batton, 589 F.3d 169, 176 (5th Cir. 2010).

133

See BLACK’S LAW DICTIONARY (defining “likely” as “showing a strong tendency; reasonably

expected.”).
134

After the Magistrate Judge issued its Report and Recommendation, ICE filed a supplemental declaration
indicating that because Gahagan’s request was made “in connection with removal proceedings,” the ICE FOIA
office determined that there were no other offices” aside from those searched that were “likely to have records
responsive to the Request.” Rec. Doc. 42-2 at p. 5. This supplemental declaration appears to render moot Gahagan’s
arguments regarding ICE’s use of the “most likely” terminology. However, Gahagan also argues that this
supplemental declaration should be stricken from the record “for lack of personal knowledge of the facts on which
[sic] he asserts as true.” Rec. Doc. 45 at p. 13. Even if this supplemental declaration were based upon the declarant’s
personal knowledge, and even if the Court deemed the supplemental declaration to be an amendment to Defendants’
opposition, the supplemental declaration does not explain why a search tailored to the pendency of removal
proceedings in New Orleans was reasonably expected to yield all documents in ICE’s possession pertaining to Mr.
Weegar.

27

iv.

Adequacy of State’s Search

Finally, State’s declaration quotes Gahagan’s FOIA request, summarizes its activity in
response to that request, describes State’s methodology for evaluating FOIA requests, and indicates
that, in the course of evaluating Gahagan’s request, it determined that certain offices and records
systems were the “only” ones “reasonably likely to have documents responsive” to Gahagan’s
request.135 It then describes in detail the methods used to search for responsive documents in these
locations.136 State’s declaration not only sets forth the search methodology State employs and the
reason State employs this search methodology, but also explains, as did the declarations at issue in
Batton, why State executed the search at issue here in the manner that it did: because it could
reasonably be expected to yield the records Gahagan requested.137 Accordingly, when viewing this
declaration in the light most favorable to State, and when affording a presumption of legitimacy to
this declaration, a rational trier of fact could find that State conducted an adequate search for nonexempt agency records. Gahagan’s motion will therefore be denied to the extent that it contends that
State conducted an inadequate search.
3.

Vaughn Index

Finally, after Defendants produced documents to Gahagan and filed supporting declarations
into the record, he asserted that CBP failed to produce a proper Vaughn index.138 Gahagan briefed
this issue more fully on his second motion. The Court will therefore consider his arguments on this
point below.

135

Rec. Doc. 37-2 at pp. 2–5.

136

Id. at pp. 5–9.

137

Rec. Doc. 37-2 at p. 4.

138

Rec. Doc. 21 at p. 10.

28

VI. Gahagan’s “Second Motion for Summary Judgment”
A.

Gahagan’s Arguments in Support of His “Second Motion for Summary Judgment”139
In his second motion, Gahagan requests that the Court “enter an order granting summary

judgment in [his] favor with regard to his FOIA cause of action,” and order that: (1) CBP “produce
forthwith a Vaughn index of responsive agency records under claim of exemption for the responsive
document produced to him;” (2) ICE “produce forthwith . . . completely unredacted copies of the
agency records noted only as ‘Non Responsive’ . . . which are not being withheld under any claim
of a lawful FOIA exemption;” (3) ICE “submit an unredacted copy” of an agency record produced
to him “for an in camera inspection to determine whether [ICE’s] withholdings, and claim of nonsegregability, are lawful under FOIA;” (4) “Defendants produce forthwith to [him] any reasonably
segregable portion of each and every responsive agency record being withheld under claim of lawful
FOIA exemption;” and (5) “Defendants are enjoined from continuing to withhold any and all nonexempt agency records responsive to [his] FOIA requests,”140 for reasons summarized below.
1.

Vaughn Index

Gahagan first contends that CBP “has refused to produce its legally mandated Vaughn index
justifying its withholding of responsive agency records produced after he filed his first motion for
summary judgment,” and has therefore “not met its burden of demonstrating the legal justification
for its withholding of agency records,” requiring the Court to grant summary judgment to him.141
2.

Sufficiency of ICE’s Disclosures

Gahagan next argues that the Court should order ICE to produce a one-page, almost fully
139

Rec. Doc. 24.

140

Id. at pp. 1–2.

141

Rec. Doc. 24-2 at p. 8.

29

redacted document for in camera inspection, so that the Court may determine whether the
information in the document was properly withheld,142 and further contends that ICE has improperly
withheld the seven pages of agency records marked as “non-responsive” and produced to him in
fully-redacted form.143
Finally, Gahagan contends that by withholding the information contained in the one-page,
fully redacted document in toto, ICE is preventing him and the Court from “determining what the
document is,” thereby preventing “anyone from determining whether [ICE] is being truthful with
its exemption or description of the information,” and “whether its holdings are lawful under FOIA’s
nine enumerated exemptions.”144 According to Gahagan, ICE has therefore failed to meet its burden
of proof as to this document, warranting an order compelling ICE to release the “segregable,
nonexempt portions” of the document.145
B.

Defendants’ Opposition146
1.

Sufficiency of ICE’s Disclosures

In opposition to Gahagan’s second motion, Defendants argue that ICE is not required to
produce the documents it withheld as being “non-responsive,” because non-responsive information
is “simply not subject to the statute’s disclosure requirements,” and therefore may be withheld
“without invoking a statutory exception.”147 Next, Defendants argue, ICE’s declaration properly

142

Id. at pp. 8–10 (citing Rec. Doc. 18-3 at p. 10).

143

Id. at pp. 10–19 (citing Rec. Doc. 18-3 at pp. 2–8).

144

Id. at pp. 19–21 (citing Rec. Doc. 18-3 at p. 10).

145

Id. at p. 21.

146

Rec. Doc. 27.

147

Id. at p. 5.

30

justified ICE’s decision to withhold in full the single-page document Gahagan seeks in his second
motion.148
2.

Vaughn Index

Defendants further contend that CBP’s declaration constitutes a proper Vaughn index, as it
“describes the withholding made” in the one-page responsive document found by CBP,149 and “is
sufficient to permit the Court to analyze the withholding” in light of the “minimal redactions” made
to the document.150
C.

Gahagan’s Reply151
1.

Vaughn Index

In further support of his second motion, Gahagan reavers that CBP has not produced a proper
Vaughn index, because its declaration: “does nothing more than simply rewrite the legal definitions
for the different FOIA exemptions,” “does not explain why each redaction falls under the purported
exemptions,” and does not “itemize and index each withheld document” in order to permit the Court
to “make a ruling on the legality of the withholding.”152 Indeed, Gahagan contends, CBP’s
declaration indicates that it redacted certain information in the one-page document produced to him
based upon FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(E), but the only exemption indicated on
the document is (b)(7)(E).153

148

Id. at pp. 6–7.

149

Id. at p. 7.

150

Id.

151

Rec. Doc. 30.

152

Rec. Doc. 30 at pp. 3–5.

153

Id. at p. 4.

31

2.

Sufficiency of ICE’s Disclosures

Gahagan next reavers that ICE has not met its burden of proving that it legally withheld the
documents marked as “non-responsive” and produced to him, because ICE appears simultaneously
to contend that it searched for “responsive” documents, and that it found non-responsive documents
in the course of that search.154 According to Gahagan, ICE “cannot search specifically for
‘responsive’ agency records, discover ‘responsive’ agency records, and then attempt to fully redact
entire pages of these ‘responsive’ agency records simply by writing ‘Non Responsive’ on the
‘responsive’ documents.”155 Gahagan contends that if these records “were truly not responsive,” then
they “never would have been discovered according to [ICE’s] specifically described search terms,”
and “definitely would not have been produced to [him] after receiving multiple layers of review
from at least two government agencies to determine their responsiveness.”156
D.

Analysis157
In his first and second motions, Gahagan contends that summary judgment should be granted

due to ICE’s production of seven pages of documents marked as “Non Responsive” and redacted
in full158 and ICE’s production of a one-page document marked as exempt and redacted in full,159
building on arguments asserted in connection with his first motion. Gahagan also requests that the

154

Id. at p. 6.

155

Id. at p. 7.

156

Id.

157

In its Order in Gahagan, the Court set forth the law applicable to several of the issues presented by
Gahagan’s motions. Thus, where the Court’s prior Order sets forth the applicable law, it is quoted here. See
Gahagan, 2015 WL 350356.
158

Id. at pp. 10–19 (citing Rec. Doc. 24-3 at pp. 2–8).

159

Id. at pp. 19–21 (citing Rec. Doc. 24-3 at p. 10).

32

Court order an in camera review of this one-page document.160 Additionally, Gahagan contends that
CBP has failed to produce a Vaughn index regarding the one-page document it disclosed to him.161
Preliminarily, the Court notes that it has deferred its analysis of several arguments advanced
in Gahagan’s first motion until this portion of its Order. Both motions attack the redaction and
withholding of Defendants’ disclosures. Gahagan more fully briefed this issue in connection with
the second motion. Therefore, the Court will consider Gahagan’s arguments on this point below.
Because the legal standards governing these issues also governs Gahagan’s arguments regarding
State’s failure to produce the responsive documents it found, raised in his first motion, the Court will
likewise consider State’s alleged improper withholding here.
1.

Redaction and Withholding

In keeping with FOIA’s “strong presumption in favor of disclosure,” Defendants have the
burden of “justify[ing] the redaction of identifying information in a particular document as well as
when it seeks to withhold an entire document.”162 Defendants may meet their burden by “identifying
the documents at issue and explaining why they fall under exemptions.”163 This Court determines
de novo the propriety of a redaction or withholding.164
Although an agency’s affidavits are afforded a presumption of legitimacy where no bad faith

160

Id. at pp. 8-10.

161

Rec. Doc. 24-2 at p. 8.

162

Ray, 502 U.S. at 173.

163

Batton, 598 F.3d at 175.

164

5 U.S.C. § 552(a)(4)(B) (“On complaint, the district court of the United States in which the complainant
resides, or has his principal place of business . . . has jurisdiction to enjoin the agency from withholding agency
records and to order the production of agency records improperly withheld from the complainant. In such a case the
court shall determine the matter de novo.”).

33

has been shown,165 further inquiry into the validity of an agency’s decision to withhold documents
may be warranted or required in some instances. Thus, courts may, in their discretion, order the
production of a Vaughn index or review disputed documents in camera to determine the validity of
a withholding.166 A Vaughn index is “a routine device through which the defendant agency
describes the responsive documents withheld or redacted and indicates why the exemptions claimed
apply to the withheld material,”167 and consists of an “index and detailed justification” of claims of
exemption.168
Gahagan requests that the Court order CBP to produce a Vaughn index, and order ICE to
submit certain documents produced by ICE for in camera review. The Fifth Circuit’s Batton
decision illustrates the circumstances in which the use of in camera review or a Vaughn index may
be warranted. In Batton, the defendant identified thousands of responsive documents, produced a
fraction of those documents to the plaintiff, and then moved for summary judgment, contending that
an array of FOIA exemptions justified its decision to withhold documents identified as “Examination
Workpapers”169 and “Agent’s Working Papers” and generically described in affidavits.170 The
plaintiff then urged the district court to order the defendant to produce a Vaughn index.171 The court
denied the plaintiff’s request for an order compelling the defendant to produce a Vaughn index, and

165

Batton, 598 F.3d at 176.

166

Stephenson, 629 F.2d at 1145.

167

Batton, 598 F.3d at 174 (citations omitted).

168

Stephenson, 629 F.2d at 1145.

169

598 F.3d at 174.

170

Id.

171

Id.

34

granted the defendant’s motion for summary judgment.172 The Fifth Circuit, in turn, reversed,
reasoning that the “broad, conclusory descriptions of the documents” afforded the plaintiff “no
opportunity to challenge the withholding and offer[ed] this court no opportunity to review the
applicability of the claimed exemptions.”173 In these circumstances, the court held, the district court
abused its discretion in failing to inquire further into the validity of the claimed exemptions, either
by ordering a Vaughn index or an in camera inspection of the withheld documents.174Applying these
legal standards here, the Court will now address Gahagan’s arguments regarding Defendants’
redactions and withholdings.
a.

ICE

Gahagan contends that ICE has violated FOIA, to the extent that it has fully redacted seven
pages of documents produced to him and marked those documents as “Non Responsive.”175 In its
supporting declaration, ICE claims that the documents fully redacted and marked as “Non
Responsive” are “Immigration Bond documents and a copy of a cancelled check which do not
pertain to Plaintiff’s client. The individual referenced in these documents has a different name and
Alien Number.”176
FOIA provides that an agency may permissibly withhold information that falls within
statutorily-defined categories; courts in the Fifth Circuit construe these categories narrowly.177 As
172

Id.

173

Id. at 181.

174

Id. at 178-184.

175

See Rec. Doc. 18-4 at p. 18.

176

Rec. Doc. 18-4 at p. 21.

177

Batton,598 F.3d at 175 (“The exemptions to disclosure are explicitly limited by statute and should be
construed narrowly.”).

35

Gahagan points out, FOIA contains no exemption for “non-responsive” documents. However, FOIA
requires agencies, “upon any request for records which . . . reasonably describes such records . . .
[to] make the records promptly available to any person.”178 Logically, requestee agencies need not
make non-responsive records available to the requester.179 However, an agency that receives a FOIA
request must “use[] methods which can be reasonably expected to produce the information
requested.”180 If the agency prepares and executes an appropriate query, then the information located
and produced as a result of the query should be responsive. ICE has not explained why it found the
above-described documents when executing Gahagan’s search, or why it ultimately redacted them
and produced them to Gahagan. Accordingly, the Court will exercise its discretion and will order
ICE to produce these documents for in camera review so that the Court may determine whether
these documents were lawfully withheld.181
Gahagan also asserts that ICE is unlawfully withholding segregable portions of the singlepage, almost fully redacted document disclosed to him, and has not met its burden of justifying why

178

5 U.S.C. § 552(a)(3)(A).

179

See, e.g. Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Justice, 48 F.Supp.3d 40, 52
(D.D.C. 2014) (holding that “non-responsive” documents are “simply not subject to the statute’s disclosure
requirements,” and may be withheld without invoking a statutory exemption); Competitive Enterprise Institute v.
United States Envtl. Prot. Agency, 12 F.Supp.3d 100, 114 (D.D.C. 2014) (“Documents that are ‘non-responsive’ to a
FOIA request, conversely, are simply not subject to the statute’s disclosure requirements, and agencies may thus
decline to release such material without invoking a statutory exemption”); White v. Center for Medicare and
Medicaid Servs., No. 06-2490, 2007 WL 1234987 (E.D. La. Apr. 6, 2007) (Barbier, J.) (holding that agency carried
its burden on summary judgment by submitting a “clear, specific, reasonably detailed” affidavit that “properly
described” withheld information, including documents withheld as “non-responsive”).
180

598 F.3d at 176 (citations and internal quotation marks omitted).

181

See Batton 598 F.3d at 183–84 (“Where the existence of the records is known and a factual dispute
exists regarding the content of the documents, the district court abused its discretion by failing to order a Vaughn
index or similar device.”). See, e.g., Citizens for Responsibility and Ethics in Wash., 48 F.Supp.3d at 52 (concluding,
after reviewing alleged “non-responsive” documents in camera, that these documents truly were non-responsive and
thus not subject to production pursuant to FOIA).

36

it redacted the document in this way.182 Thus, he urges the Court to review the document in camera
to determine the propriety of ICE’s redaction.183 Section 552(b) of FOIA provides that:
Any reasonably segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are exempt under this
subsection. The amount of information deleted, and the exemption under which the
deletion is made, shall be indicated on the released portion of the record, unless
including that indication would harm an interest protected by the exemption in this
subsection under which the deletion is made. If technically feasible, the amount of
the information deleted, and the exemption under which the deletion is made, shall
be indicated at the place in the record where such deletion is made.
The document at issue here is labeled “NCIC Unit Worksheet,” and is dated 5/10/2008.184
The body of the document is redacted in full, and marked “(b)(7)(E), (k)(2).” To justify its
redactions, ICE attached a document it labeled as a “Vaughn index.”185 This document contains an
“index and detailed justification” of claims of exemption,186 and therefore fits the description of a
Vaughn index. In its Vaughn index, ICE describes this document, and states:
One page document entitled “NCIC Unit Worksheet” for use by an ICE employee
when a packet of information must be created.
Redaction: Document contains the names of documents and law enforcement
databases that must be consulted when creating a packet of information for
submission to NCIC which is the National Crime Information Center which assists
law enforcement officials perform [sic] their official duties. FOIA Exemption
(b)(7)(E) exempts from release information that would disclose law enforcement
techniques or procedures, the disclosure of which could reasonably be expected to
risk circumvention of the law. Exemption (b)(7)(E) is asserted to withhold the types
of information submitted to NCIC. Moreover, the document was derived from the
Alien File, Index, and National File Tracking System of Records which has been

182

Rec. Doc. 24-2 at pp. 19–21; Rec. Doc. 24-3 at p. 10.

183

Rec. Doc. 24-2 at p. 9; 19–20.

184

Rec. Doc. 24-3 at p. 10.

185

Rec. Doc. 18-4 at p. 21.

186

See Stephenson, 629 F.2d at 1145.

37

exempted from release under Exemption (k)(2) of the Privacy Act. The redacted
information is investigatory material compiled for law enforcement purposes.187
ICE’s declaration also refers to an “NCIC Unit Worksheet.”188 Specifically, it indicates that:
ICE compiled a NCIC Unit Worksheet for “detention and removal records pertaining to plaintiff
[sic] removal proceedings.”189 Here, ICE’s affidavit and Vaughn index indicate that the information
on the one-page document was redacted pursuant to FOIA exemption (b)(7)(E) and the Privacy Act.
Specifically, it explains that the document “contains the names of documents and law enforcement
databases that must be consulted when creating a packet of information for submission to NCIC
which is the National Crime Information Center which assists law enforcement officials perform
[sic] their official duties,”190 and was compiled for detention and removal records pertaining to
Weegar’s removal proceedings.191
FOIA exemption (b)(7)(E) exempts from disclosure “records or information compiled for
law enforcement purposes, but only to the extent that the production of such law enforcement
records or information . . . would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.”192
Further, at 5 U.S.C. § 552a(k)(2), the Privacy Act provides that:
The head of any agency may promulgate rules . . . to exempt any system of records
187

Rec. Doc. 18-4 at p. 31.

188

Id. at p. 18.

189

Id.

190

Id. at p. 31.

191

Id. at p. 18.

192

5 U.S.C. § 552(b)(7)(E).

38

within the agency from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f)
of this section if the system of records is . . . investigatory material compiled for law
enforcement purposes, other than material within the scope of subsection (j)(2) of
this section: Provided, however, That if any individual is denied any right, privilege,
or benefit that he would otherwise be entitled by Federal law, or for which he would
otherwise be eligible, as a result of the maintenance of such material, such material
shall be provided to such individual, except to the extent that the disclosure of such
material would reveal the identity of a source who furnished information to the
Government under an express promise that the identity of the source would be held
in confidence, or, prior to the effective date of this section, under an implied promise
that the identity of the source would be held in confidence.
Furthermore, ICE’s declarant states that he:
[R]eviewed each record line-by-line to identify information exempt from disclosure
or for which a discretionary waiver of exemption could be applied. With respect to
the records that were released in part, all information not exempted from disclosure
pursuant to the FOIA exemptions specified above was correctly segregated and nonexempt portions were released.193
As noted above, ICE’s declaration is entitled to a “presumption of legitimacy” in the
absence of any evidence of bad faith.194 No bad faith is alleged here. However, ICE’s declarant
indicates that non-exempt portions were released,195 but the body of the document at issue here is
redacted in full. ICE’s declarant has not indicated why any part of the document could not be
reasonably segregated and released. Because ICE has not explained why it was necessary to redact
the entire document, the Court will order in camera review of the document in order to determine
whether the body of the document was properly redacted in full and produced to Gahagan.196

193

Rec. Doc. 18-4 at p. 20.

194

Batton, 598 F.3d at 175 (5th Cir. 2010) (citing Ray, 502 U.S. at 179 (1991)).

195

Rec. Doc. 18-4 at p. 20.

196

See Batton, 598 F.3d at 176 (“[W]hile the FOIA leaves to the district court's discretion whether to order
an examination of the contents of the agency records at issue, in camera, in determining whether the claimed
exemptions apply, the legislative intent for exercise of this discretion is relatively clear. This is because in instances
where it is determined that records do exist, the District Court must do something more to assure itself of the factual
basis and bona fides of the agency's claim of exemption than rely solely upon an affidavit.”) (citations, brackets, and
internal quotation marks omitted).

39

b.

CBP

Gahagan also contends that CBP has not produced “the mandated Vaughn index” justifying
the redactions made on the one-page document it produced to him.197 This document contains three
redactions in fields labeled: “Subject ID,” “Case No.” and another field, the title of which is
illegible.198 Each redaction reads “(b)(7)(E).” In its supporting declaration, CBP indicates that it
withheld information pursuant to three FOIA exemptions: (b)(6), (b)(7)(C), and (b)(7)(E).199 The
declaration then indicates, in generalized and conclusory terms, what types of information “may”
have been withheld pursuant to these exemptions.200
If this vague and conclusory declaration were CBP’s only support for the withholding, a
Vaughn index would be warranted here. First, the redactions on the document itself list only
exemption (b)(7)(E), while CBP’s affidavit also lists exemptions (b)(7)(C) and (b)(6). Second, the
affidavit does not indicate, even in general terms, what type of information was redacted. Rather,
it lists an array of broad categories of information that may have been redacted. To remedy these
shortcomings, Gahagan, in both his reply in support of his first motion, and in his second motion,
urges the Court to order CBP to produce a Vaughn index explaining its redactions.
After Gahagan requested a Vaughn index, however, CBP filed a supplemental declaration
into the record indicating that the redacted information “reflects CBP’s internal coordination
procedures and law enforcement techniques,” and is comprised of “case numbers, codes and criteria

197

Rec. Doc. 24-1 at p. 22 (citing Rec. Doc. 18-2 at p. 10). This document was stricken from the record
pursuant to an order of the Magistrate Judge dated April 14, 2015 and re-filed on April 21, 2015. Rec. Doc. 35
(Order); Rec. Doc. 37-1 (document).
198

Rec. Doc 37-1 at p. 10.

199

Id. at pp. 3–6.

200

Id.

40

which are utilized by the Agency for law enforcement purposes.”201 The supplemental declaration
also indicates that CBP withheld this information pursuant to exemption (b)(7)(E) only, which is
consistent with the justifications listed on the document disclosed to Gahagan. It therefore provides
a sufficiently “detailed justification” of claims of exemption, consistent with what might be included
in a Vaughn index.202
Gahagan contends that this declaration should be stricken from the record, because it is not
based upon the declarant’s personal knowledge,203 as it does not indicate that the declarant was
involved in the search at issue here.204 Several circuit courts of appeals have articulated specific
standards governing the personal knowledge an agency’s declarant must possess in order to support
an agency’s FOIA arguments,205 although the Fifth Circuit does not appear to have done so. It is not

201

Rec. Doc. 42-1 at p. 5.

202

629 F.2d at 1145.

203

Rec. Doc. 45 at pp. 3–5 (citing FED. R. CIV. P. 56(c)(4); FED. R. EVID. 602; Akin v. Q-L Investments,
Inc., 959 F.2d 521, 530 (5th Cir. 1992) (“A district court is entitled to strike affidavits that do not comply with [the
predecessor of Rule 56(c)(4)]”)).
204

Id. at p. 5.

205

See Lahr v. Nat. Transp. Safety Bd., 569 F.3d 964, 990 (9th Cir. 2009) (“An affidavit from an agency
employee responsible for supervising a FOIA search is all that is needed to satisfy [the predecessor to Rule
56(c)(4)]”) (quoting Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814 (2d Cir. 1994)). See also Maynard v. C.I.A.,
986 F.2d 547, 569 (1st Cir. 1993) (“[A]n agency may rely on an affidavit of an agency employee responsible for
supervising the search.”); Safecard Serv., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991) (“Ms. Dishman was
in charge of coordinating the SEC's search and recovery efforts, and therefore she is the most appropriate person to
provide a comprehensive affidavit.”). See also Miccosukee Tribe of Indians of Fla. v. U.S., 516 F.3d 1235, 1246
(11th Cir. 2008) (noting that “at least two other Circuits that have held that the agency employee who actually
performed a search need not be the one to supply an affidavit or sworn testimony describing the adequacy of the
search so long as an official responsible for supervising the search efforts has provided testimony in one form or
another,” but concluding that it was not necessary to reach the issue in the matter before it, because the district court
granted depositions of the individuals who performed the search at issue); Patterson v. I.R.S., 56 F.3d 832, 841 (7th
Cir. 1995) (accepting an affidavit “based upon this form and his familiarity with the standard procedures followed by
the Disclosure Officer for the processing of such FOIA requests.”); Spannaus v. U.S. Dept. of Justice, 813 F.2d
1285, 1289 (4th Cir. 1987) (“Special Agent Cook attested to his personal knowledge of the procedures used in
handling Spannaus's request and his familiarity with the documents in question. He has therefore demonstrated
ample personal knowledge to render him competent to testify regarding the interference posed by disclosure.”).

41

necessary, however, to delve into this issue at this time, because the Court, in its discretion, may
review the disputed document in camera in order to determine whether CBP validly redacted the
information in dispute.206 The Court finds that in camera review is warranted here. Rather than order
CBP to produce a Vaughn index at this time, the Court will order CBP to submit the disputed
document for in camera review.
c.

State

In his first motion, Gahagan asserts that State failed to disclose responsive agency records
to him, in violation of FOIA. Unlike CBP and ICE, State has carried its burden of justifying its
search, but has not disclosed any documents to Gahagan.
In the portion of its supporting declaration in which it addresses the nature of its search for
responsive documents, State indicates that it found “two responsive records” located in the Office
of Visa Services.207 In the section of its supporting declaration addressing “FOIA exemptions
claimed,” State indicates that it “withheld certain information in two documents that pertains to the
issuance or refusal of visas that is exempt from disclosure under Exemption 3,” pursuant to 8 U.S.C.
§ 1202(f).”208 Finally, in a section titled “Narrative Vaughn Index,” State represents that:
Documents C05697816 and C05697817 are each three-page printouts from the
electronic CCD/VOIS providing the results of name checks run through CLASS in
the course of processing visa applications for Theodore Weegar, including consular
officers’ comments concerning those results. These documents pertain directly to the
issuance or refusal of visas to enter the United States. Therefore, the Department has
withheld both documents in full under FOIA Exemption 3, 5 U.S.C. § 552(b)(3),
pursuant to § 222(f) of the Immigration and Nationality Act, 8 U.S.C. § 1202(f). The
Department has conducted a thorough review of these documents for the purpose of
releasing any non-exempt information and determined that there is no information
206

Batton, 598 F.3d at 175–76.

207

Rec. Doc. 37-2 at pp. 5–6.

208

Id. at p. 10.

42

that may be reasonably segregated and released.209
As an initial matter, this declaration “describes the responsive documents withheld or
redacted”—two three-page printouts pertaining to the issuance or refusal of visas—and also
“indicates why the exemptions claimed apply to the withheld material.”210 Specifically, the
declaration indicates that the documents were fully withheld pursuant to FOIA exemption (b)(3).
FOIA exemption (b)(3) permits agencies to exempt from disclosure matters that are:
[S]pecifically exempted from disclosure by statute . . . if that statute-(A)(i) requires that the matters be withheld from the public in such a manner as to
leave no discretion on the issue; or
(ii)

establishes particular criteria for withholding or refers to particular types of
matters to be withheld; and

(B)

if enacted after the date of enactment of the OPEN FOIA Act of 2009,
specifically cites to this paragraph.

Further, the declaration indicates that the documents are exempt from disclosure pursuant
to 8 U.S.C. § 1202(f), which provides, in pertinent part, that:
The records of the Department of State and of diplomatic and consular offices of the
United States pertaining to the issuance or refusal of visas or permits to enter the
United States shall be considered confidential and shall be used only for the
formulation, amendment, administration, or enforcement of the immigration,
nationality, and other laws of the United States, except that-(1)

in the discretion of the Secretary of State certified copies of such records may
be made available to a court which certifies that the information contained
in such records is needed by the court in the interest of the ends of justice in
a case pending before the court.

Thus, the declaration indicates (1) what State found; (2) what State withheld; (3) why State

209

Id. at p. 11.

210

Batton, 598 F.3d at 174.

43

withheld the information; and (4) why State was unable to release any reasonably segregable
information. Given that the declaration addresses each of these points, and given that State’s asserted
basis for withholding records appears to be consistent with the statute, the Court finds, when
viewing the declaration in the light most favorable to State, the non-moving party, that a rational
trier of fact could find for State as to the sufficiency of its basis for withholding responsive records
from Gahagan. Accordingly, Gahagan’s motion will be denied, to the extent that it seeks summary
judgment based upon State’s failure to produce responsive information.
VII. Conclusion
The Court referred Gahagan’s two pending motions for summary judgment211 to the
Magistrate Judge.212 The Magistrate Judge issued a Report and Recommendation denying the
motions,213 to which Gahagan timely objected.214 The Court, having considered Gahagan’s
objections, has determined that the Magistrate Judge improperly characterized Gahagan’s requests
for relief pursuant to FOIA as requests for preliminary injunctive relief, a remedy Gahagan did not
request, governed by legal standards that do not apply to the requests for FOIA injunctive relief that
Gahagan actually made here. Thus, the Court rejected the Report and Recommendation in full and
reviewed Gahagan’s motions de novo.
In his first “Motion for Summary Judgment,” Gahagan contends that he is entitled to
judgment as a matter of law pursuant to FOIA as a result of: (1) ICE’s “routing” process;215 and

211

Rec. Doc. 9; Rec. Doc. 24.

212

Rec. Doc. 33.

213

Rec. Doc. 38.

214

Rec. Doc. 40.

215

Rec. Doc. 9-2 at pp. 7–20.

44

(2) Defendants’ alleged failure to conduct an adequate search, produce responsive records, and
justify their withholding of responsive records.216 On this basis, he urges the Court to: (1) order
Defendants to “conduct a lawfully adequate search for responsive agency records in accordance with
[his] FOIA requests and FOIA;” (2) order Defendants to “respond to [his] FOIA request as mandated
by 5 U.S.C. § 552, produce forthwith any and all non-exempt agency records responsive to [his]
FOIA request, and produce a Vaughn index of any responsive records withheld under claim of
exemption;” and (3) consistent with the language of FOIA, order that Defendants “are enjoined from
continuing to withhold any and all non-exempt agency records responsive to [his] FOIA request.”217
After Gahagan filed his first motion, the underlying factual basis of this litigation changed.
Specifically, ICE and CBP produced documents to Gahagan, mooting Gahagan’s arguments for
summary judgment to the extent that these arguments were premised upon ICE and CBP’s outright
failure to produce documents to Gahagan. Additionally, all three Defendants submitted declarations
addressing the sufficiency of their searches and the basis for their decisions to withhold records, or
portions of records, from Gahagan. Defendants’ disclosures and declarations led Gahagan, in reply,
to challenge the adequacy Defendants’ searches and CBP’s failure to produce a Vaughn index.
As to Gahagan’s first asserted basis for summary judgment—ICE’s “routing”
process—Gahagan’s motion is moot to the extent that it is premised upon ICE’s outright failure to
produce documents to him. Further, this Court has previously found, and finds here, that “routing”
is not a per se violation of FOIA, and is permissible as long as it does not result in an improper
withholding of responsive records. Additionally, “routing” does not relieve ICE of its duty to

216

Rec. Doc. 9-2 at pp. 20–21.

217

Id. at p. 1.

45

conduct an adequate search. The Court therefore considered ICE’s “routing” in its analysis of these
issues, as is summarized below.
As to Gahagan’s second asserted basis for summary judgment—Defendants’ failure to
conduct an adequate search, produce responsive records, and justify their withholding of responsive
records—the Court considered Gahagan’s adequacy arguments in its analysis of his first motion, and
considered Gahagan’s production, withholding, and Vaughn index arguments in its analysis of
Gahagan’s second motion. In considering Gahagan’s search-related arguments, the Court has
determined that: (1) Defendants’ declarations are not per se deficient for failing to identify the
individual who conducted the search; (2) CBP and ICE have not carried their burdens of showing
that they conducted an adequate search; (3) State has carried its burden of showing that it conducted
an adequate search. Thus, Gahagan’s first motion will be granted to the extent that it asserts that
CBP and ICE have not conducted an adequate search, and denied to the extent that it asserts that
State has not conducted an adequate search.
In his second “Motion for Summary Judgment,”218 Gahagan seeks judgment in his favor due
to: (1) ICE’s full redaction of seven pages of documents on the basis that these documents are “nonresponsive” and ICE’s near-full redaction of a one-page agency record; and (2) CBP’s failure to
produce a Vaughn index.219 On this basis, he requests that the Court: (1) order ICE to produce the
seven pages of records produced to him in fully redacted form and marked as “Non Responsive;”
(2) order ICE to submit for in camera review an unredacted copy of the one-page record produced
to him in a fully redacted form; (3) order CBP to produce a Vaughn index; (4) order Defendants to

218

Rec. Doc. 24.

219

Rec. Doc. 24-2 at p. 8.

46

produce any reasonably segregable portion of records withheld under claim of exemption; and
(5) order Defendants to cease withholding all non-exempt responsive records.
In deciding this motion, this Court first considered whether Defendants have carried their
burden of showing that they lawfully redacted and withheld information from Gahagan, concluding
that: (1) it will order in camera review in order to determine whether ICE lawfully withheld seven
pages of records marked as “Non Responsive” and the information in one page of records redacted
nearly in full; (2) it will also order in camera review of the document CBP produced to Gahagan;
and (3) State had carried its burden with respect to its decision to fully withhold the responsive
documents it found pursuant to Gahagan’s FOIA request.
Accordingly,
IT IS ORDERED that the Magistrate Judge’s “Findings and Recommendation”220 is
REJECTED.
IT IS FURTHER ORDERED that Gahagan’s “Motion for Summary Judgment”221 is
MOOT IN PART, DENIED IN PART, AND GRANTED IN PART.
IT IS FURTHER ORDERED that Gahagan’s “Motion for Summary Judgment”222 is
MOOT to the extent that it requests judgment on the basis of ICE and CBP’s failure to produce any
responsive documents to him.
IT IS FURTHER ORDERED that Gahagan’s “Motion for Summary Judgment”223 is
DENIED to the extent that it seeks judgment on the basis that State did not conduct an adequate

220

Rec. Doc. 38.

221

Rec. Doc. 9.

222

Id.

223

Id.

47

search and did not produce responsive records to him.
IT IS FURTHER ORDERED that Gahagan’s “Motion for Summary Judgment”224 is
GRANTED to the extent that it requests judgment on the basis that ICE and CBP did not conduct
adequate searches.
IT IS FURTHER ORDERED that Gahagan’s “Second Motion for Summary Judgment”225
is GRANTED IN PART, AND JUDGMENT DEFERRED IN PART until the Court can conduct
an in camera review.
IT IS FURTHER ORDERED that Gahagan’s “Second Motion for Summary Judgment”226
is GRANTED to the extent that it requests that the Court order ICE to submit the one-page, fully
redacted document227 in dispute to the Court for in camera inspection. ICE is to submit this
document for in camera inspection no later than Monday, June 22, 2015. ICE is also to submit the
seven pages of documents marked as “non-responsive”228 for in camera inspection at this time. The
Court will defer its decision on whether ICE has lawfully withheld the information contained in
these documents until it has had an opportunity to complete its in camera review of the documents.

224

Id.

225

Rec. Doc. 24.

226

Id.

227

Rec. Doc. 24-3 at p. 10.

228

Id. at pp. 2–8.

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IT IS FURTHER ORDERED that CBP is to submit the disputed document229 to the Court
for in camera inspection no later than Monday, June 22, 2015. The Court will defer its decision on
whether CBP must submit a Vaughn index or has lawfully withheld the information contained in this
document until it has had an opportunity to complete its in camera review of the document.
NEW ORLEANS, LOUISIANA, this 16thday of June, 2015.
___

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

229

Rec. Doc. 37-1 at p. 10.

49