Robert F. Kennedy Human Rights et al v. U.S. Immigration and Customs Enforcement

Filing 39

ORDER granting 33 Motion Signed by Hon. H. Kenneth Schroeder Jr. on 8/28/2024. (DLR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Robert F. Kennedy Human Rights,
Prisoners’ Legal Services of New York,
Justice for Migrant Families,
v.

Plaintiffs,

United States Immigration and Customs
Enforcement,

22-CV-00929-LJV-HKS

Defendant.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. Lawrence J.
Vilardo, pursuant to 28 U.S.C. § 636(b)(1)(A), for all pretrial matters. Dkt. #9.

This is a Freedom of Information Act (“FOIA”) action in which
plaintiffs seek records from Immigration and Customs Enforcement (“ICE”) regarding the
treatment of immigrants detained at the Buffalo Service Processing Center (“Batavia”),
New York State’s largest immigrant detention facility. Dkt. #1, ¶ 1.

Currently before the Court is defendant’s motion to use a
representative sample Vaughn index. Dkt. #33.

~1~

BACKGROUND
The background of this matter was set forth in two prior Decisions and
Orders of this Court, and it is incorporated here. Dkt. ##21, 32.

Briefly, on April 25, 2023, the Court entered a Decision and Order requiring
defendant to provide plaintiffs with a discovery plan and subsequent monthly updates
stating, inter alia, the number of pages identified by defendant that are responsive to
plaintiffs’ FOIA requests. Dkt. #21. This order further required defendant to provide in the
monthly updates “a Vaughn index of documents being withheld or redacted pursuant to a
specified FOIA exemption.” Dkt. #21, p. 6.

On December 7, 2023—after informal efforts to resolve disputes regarding
defendant’s productions failed—plaintiffs filed a motion to compel. Dkt. #23. In a status
report filed on December 15, 2023, defendant stated that it had made nine document
productions to plaintiffs between March 29, 2023 and December 13, 2023, and that from
the December 2023 production forward, it would provide Vaughn indices based on twenty
randomly selected pages per production. Dkt. #25.

In opposition to plaintiff’s motion to compel, defendant argued, in part, that
it should not be required to provide a Vaughn index until the summary judgment stage.
Dkt. #29, p. 10. It also argued in the alternative that, should it be required to provide

~2~

Vaughn indices with its monthly productions, the large volume of records would require it
to use representative samplings of the withheld documents. Id.

By Decision and Order filed April 19, 2024, the Court granted plaintiffs
motion, noting that “provision of a Vaughn index will allow the parties to attempt to resolve
any disputes regarding the basis for ICE’s withholding of responsive documents.” Dkt.
#32, p. 6. However, the Court did not address the representative sampling issue or specify
the form of the Vaughn indices.

Defendant now states that in its May and June 2024 productions, it provided
Vaughn indices based on random samplings of every twenty-fifth page of withheld
documents, and it also states that it intends to provide similar indices retroactively for past
productions “as they become available.” Dkt. #34, p. 3.

DISCUSSION AND ANALYSIS
Vaughn Indices
“In any FOIA case, the Court must bear in mind that FOIA was drafted to
promote disclosure of governmental information.” Cox v. Dep’t of Just., 504 F. Supp.3d
119, 127 (E.D.N.Y. 2020).

“At the same time, the statute enumerates exemptions, which serve to
protect specified confidentiality and privacy interests.” Id. (citation and internal quotation
marks omitted). “These exemptions are the primary means by which an agency may avoid

~3~

production of records subject to FOIA; unless the requested material falls within one of
these nine statutory exemptions, FOIA requires that records and materials in the
possession of federal agencies be made available on demand to any member of the
general public.” Id.

“In Vaughn v. Rosen, the D.C. Circuit held that agencies must provide more
than conclusory and generalized allegations of exemptions, but rather relatively detailed
analysis in manageable segments explaining the basis for their claimed exemptions.” Id.
at 128 (citation and internal quotation marks omitted).

An agency will thus use a “Vaughn index” or “Vaughn affidavit” to outline its
claimed exemptions. Id. “While there is no set form for a Vaughn index, the agency should
describe the documents with as much information as possible without thwarting the
exemption’s purpose and provide a relatively detailed justification, specifically identifying
the reasons why a particular exemption is relevant and correlating those claims with the
particular part of a withheld document to which they apply.” Id. See also Radar Online
LLC v. Fed. Bureau of Investigation, 692 F. Supp.3d 318, 334 n. 5 (S.D.N.Y. 2023) (“A
Vaughn index is an affidavit that specifically describes the withheld or redacted
documents and justifies, in detail, why each withheld record that would be responsive to
the request is exempt from disclosure under FOIA.”) (citations and internal quotation
marks omitted); Borowski v. U.S. Customs and Border Prot., — F. Supp. 3d —, 1:23-CV00257, 2024 WL 2099268, at *8 (W.D.N.Y. May 10, 2024) (Vaughn index lists “the titles
and descriptions of [agency] records to identify responsive documents and discharge its

~4~

obligations to assert any claimed FOIA exemptions to the various documents withheld”)
(citations and internal quotation marks omitted).

“Given its purpose, the Second Circuit has explained that a Vaughn affidavit
should provide a ‘fact-specific justification that either (a) would permit appellant to contest
the affidavit in an adversarial fashion, or (b) would permit a reviewing court to engage in
effective de novo review of the [withheld] information.’” Cox, 504 F. Supp.3d at 128
(quoting Halpern v. F.B.I., 181 F.3d 279, 293 (2d Cir. 1999)).

Representative Sampling in Vaughn Indices
In FOIA cases involving a large volume of responsive documents,
“[r]epresentative sampling is an appropriate procedure to test an agency’s FOIA
exemption claims.” Chaverra v. U.S. Immigr. And Customs Enf’t, Civil Action No. 18-289
(JEB), 2023 WL 6291642, at *1 (D.D.C. July 31, 2023) (citation and internal quotation
marks omitted). “Sampling transforms a voluminous FOIA exemption case [into] a
manageable number of items that can be evaluated individually through a Vaughn index,
and a well-chosen sample can still be extrapolated from with some confidence.” Id. See
also Boundaoui v. Fed. Bureau of Investigation, No. 17 CV 4782, 2024 WL 2019532, at
*4 (N.D. Ill. May 3, 2024) (collecting cases and noting that “representative sampling is
commonly accepted in FOIA cases”).

In Chaverra, the court cited cases dating back to the 1980s in which courts
have approved random sampling of voluminous FOIA productions as an acceptable

~5~

means of scrutinizing the agency’s claimed exemptions, noting that in such situations
requiring a “full Vaughn index would unnecessarily burden the limitations of time and
resources that constrain agencies, courts, and FOIA requesters alike.” Chaverra, 2023
WL 6291642, at *1 (citation and internal quotation marks omitted). The cases cited in
Chaverra endorsed samplings ranging from 1% to 10% of withheld documents, and the
court approved ICE’s proposed 7% sampling methodology. Id.

Here, defendant notes that it has, to date, produced approximately 9,000
potentially responsive documents, and that nearly 5,000 of those documents contain
withholdings. Dkt. #33-1, p. 1. It further states that there are approximately 12,000
additional pages of potentially responsive records still to process. Id. This would result in
a production of approximately 21,000 pages, which is clearly “voluminous” under the
above authority. 1

To conserve limited agency resources, defendant proposes that it provide a
representative sampling of every twenty-fifth page of responsive records that contain
withholdings. Dkt. #33-1, p. 2. Given that 5,000 pages of the approximately 9,000 pages
produced to date contain withholdings, defendant’s proposed sampling would result in a

The Court notes that there is an inconsistency in defendant’s memorandum. It first states that
its production will total approximately 21,000 pages (9,000 + 12,000), Dkt. #33-1, p. 1, but it later
states that its production will total approximately 17,000 pages. Dkt. #33-1, 5. It is unclear whether
this is a scrivener’s error, but the difference is immaterial because either number represents a
voluminous production.

1

~6~

4% representative sampling of the pages for which defendant claims exemptions. 2 This
is well within the authorities discussed above. Chaverra, 2023 WL 6291642, at *1.

Plaintiffs oppose defendant’s motion, but they cite no contrary authority.
Plaintiffs simply argue that defendant is disregarding the Court’s orders and that its
current motion is a belated motion for reconsideration. Dkt. #35. The Court disagrees.

Defendant is correct when its states in its reply brief that the Court’s prior
orders “did not address the form of ICE’s rolling Vaughn Indices.” Dkt. #36, p. 2. Allowing
the proposed representative sampling should, in fact, bring this matter to an earlier
resolution and afford plaintiffs the relief they seek: obtaining the agency documents in
question.

Plaintiffs will have ample opportunity on summary judgment to challenge all
claimed exemptions, an issue on which defendant bears the burden. Cox, 504 F. Supp.3d
at 151. See also CLEAR v. U.S. Customs and Border Prot., No. 19-CV-7079 (RER), 2022
WL 16636686, at *4 (E.D.N.Y. Nov. 2, 2022) (“The burden to establish that a FOIA
exemption protects information from disclosure sits squarely with the agency seeking to
withhold responsive records.”) (citation omitted).

2

(5,000 ÷ 25) ÷ 5,000 = .04.

~7~

CONCLUSION
Consistent with this decision, defendant’s motion to use a representative
sample Vaughn index (Dkt. #33) is granted.

SO ORDERED.

DATED:

Buffalo, New York
August 28, 2024
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

~8~