Board of County Supervisors of Prince William County, VA v. U.S. Department of Homeland Security

Filing 28

MEMORANDUM OPINION re: 13 MOTION for Judgment on the Pleadings by U.S. Department of Homeland Security. (See Memorandum Opinion For Details). Signed by District Judge James C. Cacheris on 3/1/12. (nhall)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

BOARD OF SUPERVISORS OF
PRINCE WILLIAM COUNTY,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY,
Defendant.

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1:11cv819 (JCC/JFA)

M E M O R A N D U M

O P I N I O N

This matter is before the Court on Defendant the
United States Department of Homeland Security’s (“Defendant” or
“DHS”) Motion for Judgment on the Pleadings (the “Motion”).
[Dkt. 13.]

Because the Motion is accompanied by an affidavit

attesting to matters outside the pleadings, it shall be treated
as a Motion for Summary Judgment.

See Fed. R. Civ. P. 12(d).

For the following reasons, Defendant’s Motion for Summary
Judgment is granted.
I. Background
This case arises out of an alleged withholding of
certain records by DHS in violation of the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552.

1

A.

Factual Background

Plaintiff is the Board of County Supervisors of Prince
William County, Virginia (“Plaintiff” or “the Board”).

The

Board funds, maintains, and oversees the Prince William County
Police Department, and is the primary funding and operational
partner in the regional entity, which operates the Prince
William/Manassas Regional Adult Detention Center.
[Dkt. 8] ¶ 5.)

(Am. Compl.

Both the Prince William County Police Department

and the Adult Detention Center have, with the authorization of
the Board, entered into written agreements with Immigration and
Customs Enforcement (“ICE”), a component of DHS, under which ICE
directs employees of the Police Department to investigate the
immigration status of offenders and directs employees of the
Adult Detention Center to issue ICE detainers against offenders
who are illegal immigrants.

(Am. Compl. ¶ 6.)

On November 22, 2010, the Board submitted a FOIA
request to DHS using its web interface application.
¶ 10.)

(Am. Compl.

The Board also sent the request via facsimile and e-mail

to Citizenship and Immigration Services (“CIS”), the component
of DHS that oversees lawful immigration to the United States.
(Am. Compl. ¶¶ 8, 10.)

The request sought access to three

distinct categories of information:
(1)

Copies of any and all records and reports (or any
non-exempt portions thereof) of the U.S.
Department of Homeland Security, the U.S.
Immigration and Customs Enforcement Division,
2

and/or the U.S. Citizenship and Immigration
Services Division regarding those individuals
taken into physical custody in Prince William
County (as held by the Police Department or the
Adult Detention Center) and to which physical
custody was then turned over to ICE from January
1, 2008 to present;
(2)

Copies of any and all alien files (or any nonexempt portions thereof) of the U.S. Department
of Homeland Security, the U.S. Immigration and
Customs Enforcement Division, and/or the U.S.
Citizenship and Immigration Services Division
regarding those individuals taken into physical
custody in Prince William County (as held by the
Police Department or the Adult Detention Center)
and to which physical custody was then turned
over to ICE from January 1, 2008 to present; and

(3)

Copies of any and all reports (or non-exempt
portions thereof) of the U.S. Department of
Homeland Security, the U.S. Immigration and
Customs Enforcement Division, and/or the U.S.
Citizenship and Immigration Services Division
that include data and/or statistics concerning
the contacts, disposition, and/or the status
regarding those individuals taken into physical
custody in Prince William County (as held by the
Police Department or the Adult Detention Center)
and to which physical custody was then turned
over to ICE from January 1, 2008 to present.

(Am. Compl. ¶ 11; Ex. A.)

The Board received an automated

electronic confirmation evidencing receipt of the request by DHS
and ICE.

(Am. Compl. ¶ 12.)
On December 6, 2010, the Board received a letter from

CIS dated November 30, 2010, stating that the records sought
were not under the purview of CIS, and if any such records
exist, they would be maintained by ICE.

(Am. Compl. ¶ 13.)

CIS

also indicated that although it maintains alien files, it could

3

not discern which files were sought and, even if it could, their
release would constitute an unwarranted invasion of personal
privacy.

(Am. Compl. ¶ 14.)
The Board also received a letter from ICE on December

6, 2010.

(Am. Compl. ¶ 15.)

The letter was dated November 22,

2010, and indicated that the FOIA request had been received, had
been assigned a case number, and was being processed.

(Id.)

On January 25, 2011, the Board submitted a written
request to ICE for a status update with respect to the FOIA
request.

(Am. Compl. ¶ 17.)

The Board, by counsel, also

contacted ICE several times by telephone.
19.)

(Am. Compl. ¶¶ 18-

Yanil Escobar, to whom the FOIA request had been assigned,

indicated that responsive documents would be forthcoming.
Compl. ¶¶ 18, 20.)

(Am.

It was eventually communicated that Ryan

Law, the Deputy FOIA Officer for ICE, would be providing a
response.

(Am. Compl. ¶ 20.)
ICE provided a response on February 11, 2011, which

included a three-page cover letter and a redacted spreadsheet
responsive to items (1) and (3) of the Board’s FOIA request.
(Am. Compl. ¶ 21; Exs. G, H.)

In support of the redactions, ICE

cited FOIA Exemptions 2, 6, and 7(C), 5 U.S.C. §§ 552(b)(2), (6)
& (7)(C).1

(Am. Compl. Ex. G.)

The cover letter indicated that

1

DHS notes that ICE has withdrawn reliance on Exemption 2 due to the Supreme
Court’s decision in Milner v. Department of the Navy, --- U.S. ----, 131
S.Ct. 1259, 1271 (2011), and substituted reliance on Exemption 7(E). (Def.’s
Mem. [Dkt. 14] at 3 n.1.) Exemption 6 exempts “personnel and medical files

4

the alien files sought in item (2) of the FOIA request were
maintained by CIS and that the request would be forwarded to
that component.

(Am. Compl. ¶¶ 22-23; Ex. G.)

The Board never

filed an administrative appeal of ICE’s response to the FOIA
request.

(Mot. [Dkt. 13] Ex. 1 (“Law Decl.”) ¶ 12.)
In a letter dated June 10, 2011, CIS advised the Board

that it was further reviewing the request for alien files.
Compl. ¶ 28.)

(Am.

CIS also asked the Board to provide written

consent and verifications of identity for the individuals whose
records were being sought, as well as each subject’s alien
number, name, date of birth, and country of birth.
¶ 28; Ex. I.)

(Am. Compl.

The letter indicated that if the Board failed to

provide this information within thirty days, the request would
be administratively closed.
B.

(Am. Compl. ¶ 28; Ex. I.)

Procedural Background

The Board initially filed suit on August 4, 2011.
[Dkt. 1.]

In response to a motion to dismiss filed by DHS, the

Board filed an Amended Complaint on September 27, 2011.
8.]

[Dkt.

In the Amended Complaint, the Board alleges that DHS

violated FOIA by failing to provide a timely response to the
and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(6). Exemption 7
exempts “records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records or
information . . . could reasonably be expected to constitute an unwarranted
invasion of personal privacy,” id. § 552(7)(C), or “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,” id. § 552(7)(E).

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Board’s FOIA request and withholding records based on
inapplicable exemptions.

(Am. Compl. ¶¶ 32-33.)

The Board

seeks the production of non-exempt documents responsive to its
FOIA request, the production of a Vaughn index of withheld
documents, and attorneys’ fees and other litigation costs.
Compl. at 8.)

(Am.

DHS subsequently withdrew its motion to dismiss

and answered the Amended Complaint.

[Dkts. 10, 11.]

DHS then

filed its Motion for Judgment on the Pleadings on December 23,
2011 [Dkt. 13], which, as noted above, shall be treated as a
Motion for Summary Judgment.

The Board filed its opposition on

January 20, 2012 [Dkt. 22], to which DHS replied on January 25,
2012 [Dkts. 23, 24].

DHS’s Motion is before the Court.
II.

Standard of Review

Summary judgment is appropriate only if the record
shows that “there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986); Evans v. Techs. Apps. & Serv. Co.,
80 F.3d 954, 958-59 (4th Cir. 1996) (citations omitted).

The

party seeking summary judgment has the initial burden of showing
the absence of a material fact.
U.S. 317, 325 (1986).

Celotex Corp. v. Catrett, 477

A genuine issue of material fact exists

“if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.”

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Anderson, 477 U.S. at 248.

Once a motion for summary judgment is properly made
and supported, the opposing party must come forward and show
that a genuine dispute exists.

See Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

The

party opposing summary judgment may not rest upon mere
allegations or denials.

Rather, the non-moving party “must set

forth specific facts showing that there is a genuine issue for
trial.”

Anderson, 477 U.S. at 250 (quotation omitted).
Unsupported speculation is not enough to withstand a

motion for summary judgment.

See Ash v. United Parcel Serv.,

Inc., 800 F.2d 409, 411-12 (4th Cir. 1986).

Summary judgment is

appropriate when, after discovery, a party has failed to make a
“showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.”

Celotex, 477 U.S. at 322.

In reviewing the record on summary judgment, the court “must
draw any inferences in the light most favorable to the nonmovant” and “determine whether the record taken as a whole could
lead a reasonable trier of fact to find for the non-movant.”
Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1259 (4th
Cir. 1991) (citations omitted).

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III. Analysis
A.

Legal Framework

The issue raised in DHS’s Motion is whether the
Board’s FOIA claim should be dismissed because the Board failed
to exhaust its administrative remedies.

Generally, a requester

may seek judicial review of his FOIA request only after he has
exhausted administrative remedies.

Pollack v. Dep’t of Justice,

49 F.3d 115, 118 (4th Cir. 1995) (citing Spannaus v. Dep’t of
Justice, 824 F.2d 52, 58 (D.C. Cir. 1987)).

However, the

agency’s failure to respond to the request within the required
time period may constitute “constructive exhaustion.”

Id.

(citing 5 U.S.C. 552(a)(6)(C); Oglesby v. Dep’t of the Army, 920
F.2d 57, 62 (D.C. Cir. 1990)).

The agency is required to

determine within twenty working days after receiving a request
whether it will comply and to notify the requester of that
decision.

5 U.S.C. § 552(a)(6)(A)(i).

A requester who has not

received timely notice of the agency’s decision is deemed to
have constructively exhausted administrative remedies, and may
proceed to court without filing an administrative appeal.
Pollack, 49 F.3d at 118.

If, however, an agency responds to a

FOIA request before the requester files suit, then constructive
exhaustion is inapplicable and actual exhaustion of
administrative remedies is required.

See id. (“Under FOIA's

statutory scheme, when an agency fails to comply in a timely

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fashion to a proper FOIA request, it may not insist on the
exhaustion of administrative remedies unless the agency responds
to the request before suit is filed.”) (emphasis added) (citing
5 U.S.C. 552(a)(6)(C); Oglesby, 920 F.2d at 62).

Exhaustion

under FOIA is a prudential doctrine rather than a jurisdictional
requirement.

Am. Mgmt. Servs., LLC v. Dep’t of the Army, --- F.

Supp. 2d ----, 2012 WL 215046, at *3 n.5 (E.D. Va. Jan. 23,
2012).2

Nonetheless, FOIA’s administrative scheme favors

treating failure to exhaust as a bar to judicial review.
Hidalgo v. FBI, 344 F.3d 1256, 1259 (D.C. Cir. 2003).
The Board does not question these legal principles.
Rather, the Board contends that it is entitled to constructive
exhaustion because the responses it received from CIS prior to
filing suit do not constitute determinations triggering a duty
to file an administrative appeal.

(Opp. [Dkt. 22] at 3-4.)

At

oral argument, the Board also argued that even if it is not
entitled to constructive exhaustion, prudential considerations
weigh in favor of the Court retaining this case.

Two components

of DHS -– ICE and CIS –- responded to the Board’s FOIA request.
The Court will analyze the responses from each component
separately.3

2

While some courts have held otherwise, those decisions are neither
persuasive nor controlling. See Hull v. IRS, 656 F.3d 1174, 1181–82 (10th
Cir. 2011) (collecting cases).
3
At oral argument, the Board argued that the Court should examine whether the
two components’ responses are adequate viewed collectively. This argument is
unavailing. The Board’s FOIA request sought access to three discrete
categories of information, with items (1) and (3) falling within ICE’s

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B.

ICE

Upon review of ICE’s February 11, 2011 response, the
Court finds the response adequate, and therefore concludes that
the Board was obligated to file an administrative appeal.

A

response is sufficient for purposes of requiring an
administrative appeal if it includes: (1) the agency’s
determination of whether or not to comply with the request; (2)
the reasons for the agency’s decision; and (3) notice of the
right to appeal if the decision was adverse.
at 65.

Oglesby, 920 F.2d

Even assuming, as the parties have, that ICE’s response

to the Board on December 6, 2010 was inadequate,4 ICE’s response
on February 11, 2011 to items (1) and (3) of the FOIA request
was clearly a “determination” which the Board was obligated to
administratively appeal.

The February 11, 2011, response

informed the Board that records responsive to items (1) and (3)
purview and item (2) falling within CIS’s purview. The Court sees no reason
why it should not examine ICE’s responses and CIS’s responses separately
under these circumstances. See Dettmann v. Dep’t of Justice, 802 F.2d 1472,
1477 (D.C. Cir. 1986) (“[A] plaintiff may have exhausted administrative
remedies with respect to one aspect of a FOIA request -- and thus properly
seek judicial review regarding that request -- and yet not have exhausted her
remedies with respect to another aspect of a FOIA request.”)
4
The Court notes that it is by no means clear that ICE’s December 6, 2010,
response was inadequate. The response fell within FOIA’s twenty-day
timeframe, and indicated that ICE had received the FOIA request and intended
to process it. (See Am. Compl. Ex. E.) In its opposition, the Board takes
the position that something more is required to comply with FOIA. However,
FOIA does not require an agency “to respond and produce responsive documents
within twenty days in order to require exhaustion of administrative
remedies.” Citizens for Responsibility & Ethics in Wash. v. Fed. Election
Comm’n, --- F. Supp. 2d ----, 2011 WL 6880679, at *6 (D.D.C. Dec. 30, 2011).
“Rather, in the event the agency intends to produce documents in response to
the request, the agency need only (1) notify the requesting party within
twenty days that the agency intends to comply; and (2) produce the documents
‘promptly.’” Id. The first element is clearly met here, and, given the
relatively broad nature of the FOIA requests, ICE’s production of the
redacted spreadsheet twelve weeks later was reasonably prompt.

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of the FOIA request had been located, stated the reasons for the
redactions in the attached spreadsheet, and notified the Board
of its right to appeal.

(See Am. Compl. Ex. G.)

Thus, ICE

properly responded to items (1) and (3) of the Board’s FOIA
request before the filing of this suit, and the Board is not
entitled to constructive exhaustion as to this portion of its
claim.
The Court also concludes that prudential
considerations counsel in favor of requiring exhaustion.
“Exhaustion of administrative remedies is generally required
before filing suit in federal court so that the agency has an
opportunity to exercise its discretion and expertise on the
matter and to make a factual record to support its decision.”
Oglesby, 920 F.2d at 61 (citing McKart v. United States, 395
U.S. 185, 194 (1969)).

In this case, judicial review “would cut

off the agency’s power to correct or rethink initial
misjudgments or errors and frustrate the policies underlying the
exhaustion requirement.”

Hidalgo, 344 F.3d at 1260 (citations

omitted) (applying exhaustion requirement to plaintiff
challenging agency’s invocation of FOIA Exemptions 6 and 7(C)).
The Board’s “disappointment in the quality of the records
provided does not dispense with the administrative appeal
requirement of the FOIA.”

Stuler v. IRS, No. 10-1342, 2011 WL

2516407, at *3 (W.D. Pa. June 23, 2011) (citation omitted).

11

For

these reasons, summary judgment is granted insofar as the
Board’s FOIA claim relates to items (1) and (3) of the FOIA
request.
C.

CIS

The Court also finds the Board’s FOIA claim
administratively barred as it relates to item (2) of the FOIA
request, because this portion of the request was defective.
CIS’s original letter, dated November 30, 2010, advised the
Board that additional information was required to process its
FOIA request.

(Am. Compl. Ex. D.)

CIS’s second letter, dated

June 10, 2011, reiterated that additional information was
required –- specifically, written consent and verifications of
identity for the individuals whose records were being sought
(Am. Compl. Ex. I (citing 6 C.F.R. §§ 5.3(a) & 5.21(d)))5 as well
as each subject’s alien number, name, date of birth, and country
of birth (id.).
Compliance with both FOIA and agency requirements is
necessary before the agency can release the requested records.
Dale v. IRS, 238 F. Supp. 2d 99, 102 (D.D.C. 2002).

“Failure to

comply with agency FOIA regulations amounts to a failure to
exhaust administrative remedies, which warrants dismissal.”

Id.

at 103 (citations omitted); see also In re Steele, 799 F.2d 461,
466 (9th Cir. 1986) (“The complainant must request specific
5

While CIS’s letter cites 6 C.F.R. § 5.21(d), it is 6 C.F.R. § 5.21(f) which
governs the verification of identity requirement in instances involving third
party information requests.

12

information in accordance with published administrative
procedures, and have the request improperly refused before that
party can bring a court action under the FOIA.”) (internal
citations omitted); Ramstack v. Dep’t of Army, 607 F. Supp. 2d
94, 102 (D.D.C. 2009) (“[O]nly a valid FOIA request can trigger
an agency’s FOIA obligations, and [] failure to file a perfected
request therefore constitutes failure to exhaust administrative
remedies.”) (internal quotation marks omitted); Schwarz v. FBI,
31 F. Supp. 2d 540, 542 (N.D. W.Va. 1998) (finding that
plaintiff failed to exhaust administrative remedies when agency
instructed her how to perfect FOIA request and she failed to do
so), aff’d 166 F.3d 334 (4th Cir. 1998) (unpublished table
decision).
FOIA commands that a request (1) “reasonably” describe
the records sought and (2) comply with any “published rules
stating the time, place, fees (if any), and procedures to be
followed.”

5 U.S.C. § 552(a)(3)(A).

Pursuant to FOIA, DHS has

promulgated regulations detailing the rules and procedures that
must be followed by persons requesting DHS records.

Relevant

here is the requirement that a request for records about another
individual include “either a written authorization signed by
that individual permitting disclosure of those records . . . or
proof that that individual is deceased.”

6 C.F.R. § 5.3(a).

In

addition, the records sought must be described “in enough detail

13

to enable Department personnel to locate them with a reasonable
amount of effort” and, whenever possible, “should include
specific information about each record sought, such as the date,
title or name, author, recipient, and subject matter of the
record.”

Id. § 5.3(b).

If the agency determines that the

request does not reasonably describe the records being sought,
“it shall tell [the requester] what additional information is
needed or why [the] request is otherwise insufficient.”

Id.

Item (2) of the Board’s FOIA request was facially
deficient because it sought records concerning other
individuals, but the Board failed to obtain written consent as
required by DHS regulations.

See Godaire v. Napolitano, No.

3:10cv01266, 2010 WL 6634572, at *7 (D. Conn. Nov. 18, 2010)
(dismissing FOIA claim against DHS where FOIA request seeking
information regarding another individual failed to provide that
individual’s consent as required by 6 C.F.R. § 5.3(a)); Strunk
v. Dep’t of State, 693 F. Supp. 2d 112, 115 (D.D.C. 2010)
(same); see also Vest v. Dep’t of Air Force, 793 F. Supp. 2d
103, 115-16 (D.D.C. 2011) (finding that plaintiff failed to
exhaust administrative remedies where he did not comply with
DHS’s regulatory requirements (i.e., 6 C.F.R. § 5.21(f)) and
rejecting plaintiff’s argument that the regulations are
invalid).

14

Indeed, the Board does not contend that it made an
effort to comply with CIS’s request for additional information
and perfect its FOIA request.

Rather, the Board asserts that it

is challenging the lawfulness of DHS’s consent requirement, and
that prudential considerations therefore weigh against
exhaustion.

Such a challenge turns on statutory interpretation,

which does lie in the judiciary’s area of expertise.

See I.A.M.

Nat’l Pension Fund Benefit Plan C v. Stockton TRI Indus., 727
F.2d 1204, 1209-10 & n.16 (D.C. Cir. 1984) (exhaustion not
required where there were no questions of fact and issue “was
purely one of statutory interpretation”).

However, failure to

obtain consent is not the only ground on which CIS deemed the
FOIA request defective.

CIS also found that the FOIA request

did not reasonably describe the records being sought and asked
for additional information –- i.e., each subject’s alien number,
name, date of birth, and country of birth.6

The Board asserts in

conclusory fashion that it provided a “detailed description” of
6

For this reason, Gonzales and Gonzales Bonds & Insurance Agency, Inc. v.
Department of Homeland Security, No. C-11-02267, 2012 WL 424852 (N.D. Cal.
Feb. 9, 2012), a case which the Board brought to the Court’s attention at
oral argument, is distinguishable. In that case, the plaintiff brought a
FOIA claim in connection with its requests for alien files. Id. at *1. The
arguments in the plaintiff’s opposition brief suggested that it meant to
challenge the lawfulness of DHS’s consent requirements in 6 C.F.R. §§ 5.3(a)
and 5.21(f). Id. at *6. The court stated that administrative exhaustion is
not required where “the party’s claim rests upon statutory interpretation,”
but dismissed the complaint with leave to amend because the plaintiff had not
sufficiently articulated such a claim in its complaint. Id. (emphasis
added). Here, however, a question of fact exists alongside the Board’s
challenge to DHS’s consent requirements. It is also worth noting that the
plaintiff in Gonzales filed 183 administrative appeals (out of 571 alien file
requests) and, because DHS failed to timely respond to all but one of the
appeals, the Court concluded that further appeals would be futile. Id. The
Board, by contrast, has not filed an administrative appeal.

15

the records sought and that CIS’s request for additional
information was unreasonable.

(Opp. at 4-5.)

However, the

Board neglects to explain why or how CIS should have been able
to determine which alien files correspond with individuals taken
into custody in Prince William County without the aid of the
additional information it requested.

Whether this request for

additional information was reasonable is a question that is
fact-based and agency-specific.

It is therefore appropriate to

require the Board to seek further administrative review before
pursuing judicial intervention.
The Board cites two cases which, though recognizing
that failure to comply with an agency’s rules and procedures
generally amounts to failure to exhaust administrative remedies,
nevertheless held that plaintiffs’ FOIA claims were not
administratively barred:

Hull v. IRS, 656 F.3d 1174 (10th Cir.

2011) and Tanoue v. IRS, 904 F. Supp. 1161 (D. Haw. 1995).
two cases are, however, readily distinguishable.

The

In both Hull

and Tanoue, plaintiffs contested determinations by the Internal
Revenue Service that their FOIA requests sought third party
“return information” and thus required third party
authorization.
at 1165.

Hull, 656 F.3d at 1180-81; Tanoue, 904 F. Supp.

Hull is distinguishable because there the plaintiff

filed an administrative appeal challenging the IRS’s
determination.

Hull, 656 F.3d at 1180-81.

16

As such, the Tenth

Circuit concluded that the purposes of exhaustion had been
served, and proceeded to address the case on the merits.
1183.

Id. at

In this case, by contrast, the Board has not filed an

administrative appeal, and the purposes of exhaustion will be
served by requiring the Board to avail itself of further
administrative review.

Turning to Tanoue, the agency there

failed to provide any response to the plaintiff’s FOIA request
whatsoever.

Tanoue, 904 F. Supp. at 1165.

Moreover, the court

distinguished the case before it by noting that the plaintiff’s
FOIA request included names and dates, and was sufficiently
explicit as to direct the IRS to the requested documents.
at 1165-66.

Id.

Indeed, the IRS did not contend that the

plaintiff’s request was too broad.

Id. at 1165.

As discussed

above, here CIS directed the Board to perfect its FOIA request
and asked for names and alien numbers because it found that the
request did not reasonably describe the records being sought.
The Board’s remaining arguments may be quickly
dispatched.

As the Board points out, CIS’s responses do not

indicate that CIS engaged in a search nor do they estimate the
volume of records withheld.

(Opp. at 4.)

However, an agency’s

FOIA obligations are triggered only by a valid FOIA request.
Ramstack, 607 F. Supp. 2d at 102.

The Board also argues that

CIS’s responses are inadequate, as they failed to apprise the
Board of its right to appeal.

(Opp. at 4.)

17

Because CIS’s

responses merely informed the Board that its FOIA request was
defective and requested additional information, this argument is
without merit.

See Vest, 793 F. Supp. 2d at 113.

In sum, the Board’s request for alien files failed to
satisfy DHS regulations and the Board neglected to perfect its
request by submitting additional information.

As such, the

Board failed to exhaust its administrative remedies.
Accordingly, summary judgment is granted insofar as the Board’s
FOIA claim relates to item (2) of the FOIA request.
IV.

Conclusion

For these reasons, the Court will grant Defendant’s
Motion for Summary Judgment.
An appropriate Order will issue.

March 1, 2012
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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