1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AMERICAN CIVIL LIBERTIES UNION, Case No. 23-cv-03450-DMR

8 Plaintiff,

ORDER ON CROSS MOTIONS FOR

9 v. SUMMARY JUDGMENT

10 UNITED STATES IMMIGRATION AND Re: Dkt. Nos. 34, 60 CUSTOMS ENFORCEMENT, et al., 11 Defendants. 12 13 Plaintiff American Civil Liberties Union (“ACLU”) filed this action for declaratory and 14 injunctive relief pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against 15 Defendants United States Immigration and Customs Enforcement (“ICE”) and United States 16 Department of Homeland Security (“DHS”). The parties filed cross motions for summary 17 judgment. [Docket Nos. 34, 60.] The court held a hearing on June 27, 2024 at which it ordered 18 Defendants to file supplemental evidence in support of their motion. [Docket No. 51 (Minute 19 Order).] For the following reasons, ACLU’s motion is denied. Defendants’ motion is granted. 20 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 21 A. ACLU’s FOIA Request 22 ACLU alleges that ICE detains over 29,000 individuals each day in approximately 200 23 detention facilities in the United States. Although immigrants have a right to counsel in 24 immigration proceedings, there is no right to government-appointed counsel. As a result, 25 “[d]etained immigrants rely on private counsel, pro bono representation, or pro se representation 26 throughout their immigration proceedings.” Compl. ¶¶ 2, 3. According to ACLU, only 14% of 27 individuals in ICE custody are represented by an attorney in their immigration proceedings. 1 library’” to detained individuals and that “given the overwhelming number of detained people 2 without legal representation,” “ICE’s provision of electronic legal materials in detention facilities 3 is a matter of public interest and concern.” Id. at ¶¶ 4, 6, 7. 4 On March 30, 2023, ACLU submitted a FOIA request for “records related to electronic 5 legal research media” provided by ICE to individuals detained in ICE facilities. Compl. Ex. A 6 (FOIA Request). Specifically, ACLU requested: 7 1. Electronic Law Library materials provided at any Immigration Detention Facility; 8 2. All supporting materials related to Electronic Law Library materials provided at or to any 9 ICE Detention Facility; and 10 3. Any document related to software requirements for use of Electronic Law Library 11 materials. 12 Id. at 4. The request defined “electronic law library” as follows:

13 [A]ll required and optional electronic legal research media, utilized and/or distributed by ICE to detention facility law libraries. Electronic 14 law library materials may include, but are not limited to, materials available on CD-ROMs or External Hard Drives, materials developed 15 by legal research vendors such as Lexis Nexis, and/or materials listed in [Performance-Based National Detention Standards] “Appendix 16 6.3.A: List of Legal Reference Materials for Detention Facilities” and “Appendix 6.3.B: Optional Legal Reference Materials.” 17 18 Id. at 3. ACLU requested a fee waiver under 5 U.S.C. § 552(a)(4)(A)(ii) and (iii). Compl. ¶¶ 40, 19 41; FOIA Request 4-5. 20 DHS acknowledged receipt of the FOIA request on May 8, 2023 and notified ACLU that it 21 was transferring the request to ICE for processing. Compl. Ex. C. ICE subsequently 22 acknowledged receipt of ACLU’s FOIA request from DHS and identified a tracking number. 23 Compl. Ex. D. On May 24, 2023, ICE notified ACLU of its invocation of a 10-day extension to 24 respond to the request under 5 U.S.C. § 552(a)(6)(B) and described the charges for providing 25 records without addressing ACLU’s fee waiver request. Compl. Ex. E. ACLU then requested 26 review and determination of the fee waiver request. Compl. Ex. F. ICE notified ACLU on June 27 28, 2023 that it had granted ACLU’s request for a fee waiver. Compl. Ex. H. 1 were being withheld, ACLU filed this lawsuit on July 11, 2023 alleging Defendants failed to make 2 a determination on its FOIA request within the statutory timeframe and failed to make a 3 reasonable effort to search for and release records. See Compl. ¶¶ 51-57, 59-63; 5 U.S.C. § 4 552(a)(6)(A) (requiring agency to make a determination on a request within 20 days after receipt). 5 In October 2023, Defendants produced documents responsive to category 2 of the request, 6 which calls for “supporting materials related to Electronic Law Library materials.” [Docket Nos. 7 19 (Oct. 11, 2023 Jt. CMC Statement) 3; 41 (Jones Decl. Feb. 28, 2024) ¶ 12.] Defendants also 8 advised ACLU that documents responsive to category 3 (“document[s] related to software 9 requirements”) do not exist. Oct. 11, 2023 Jt. CMC Statement 3; Pl.’s Mot. 4-5. The remaining 10 dispute centers around category 1, which ACLU describes as “a copy of the electronic law library 11 in its native format.” See Pl.’s Mot. 5. According to ACLU, “[t]he content, accuracy, 12 accessibility, and operation of electronic law library materials that ICE provides to detained people 13 is . . . a matter of public importance, and public disclosure of these materials will shed light on 14 ICE’s compliance with requirements to provide constitutionally adequate law library materials to 15 people it detains and seeks to deport.” Id. at 3. 16 B. ICE’s Contract with RELX Inc. for Electronic Law Library Materials 17 ICE contracts with a third party to provide legal research materials to individuals detained 18 in its facilities. Jessica Jones is an ICE Management Program Analyst who serves as a 19 Contracting Officer’s Representative for electronic law library contracts. Jones states that in 20 December 2022, ICE contracted with RELX Inc. (“RELX”), which owns the LexisNexis Research 21 Service, “for a subscription to the LexisNexis research service to provide access to legal research 22 materials to detained noncitizens.” Jones Decl. ¶¶ 2, 4; Defs.’ Mot. 1. The contract provides that 23 RELX “will deploy both the custom interface online/tablet solution for 45,000 detainees and 24 maintain/update 250 external hard drives across the entire ICE network of facilities.” [Docket No. 25 34-1 (Dominguez-Ruiz Decl. Jan. 29, 2024) ¶ 5, Ex. A (RELX contract) at ECF pp. 4-6; Jones 26 Decl. ¶ 5, Exs. A, B (RELX contract and attachments thereto).] The Statement of Work attached 27 to the contract specifies two methods for detainees to access legal research materials: 1) a “self- 1 offline system; and 2) an “online legal research system.” RELX contract at 3, 8. Only the offline 2 “self-contained legal research system” is at issue in these motions. See Pl.’s Mot. 6; Defs.’ Mot. 3. 3 Defendants refer to the offline legal research materials as the “Offline Lexis Materials.” Jones 4 Decl. ¶ 4.1 5 Shawn O’Donnell, the chief of ICE’s Office of Acquisition Management and the 6 Detention, Compliance and Removals unit, states “[t]he Offline Lexis Materials consist of 7 electronic databases containing legal research materials . . . and software necessary to utilize those 8 databases[.]” [Docket No. 42 (O’Donnell Decl. Feb. 28, 2024) ¶¶ 1, 9.] The Statement of Work 9 sets forth the databases RELX must include on the electronic hard drives and requires RELX to 10 update all resources on a quarterly basis. Attachment B to the contract specifically identifies the 11 required databases. RELX contract at 6, 7; Jones Decl. Ex. B. Under the contract, RELX installs 12 on the electronic hard drives the contracted-for databases and software to make the databases 13 function offline. It furnishes the Offline Lexis Materials to ICE solely on the electronic hard 14 drives and does not provide the materials on CD-ROM. Jones Decl. ¶ 6. Jones describes the 15 process as follows: RELX updates and services the electronic hard drives quarterly and sends them 16 to ICE detention facilities and Field Offices. The contents of the electronic hard drives are then 17 uploaded to law library computers in the detention facilities. Following the uploads, ICE ships the 18 electronic hard drives back to RELX. Installation and troubleshooting issues are addressed by a 19 RELX technician. Id. at ¶ 9. Attachment D to the contract contains a Quality Assurance 20 Surveillance Plan, which provides that “the Service Provider [RELX], and not the Government, is 21 responsible for the day-to-day operation of the electronic law library and all the management and 22 quality control actions required to meet the terms of the Agreement.” Jones Decl. Ex. B at ECF p. 23 65. RELX is required to submit monthly Quality Control reports to ICE. Id. 24 According to Jones, “[t]he Offline Lexis Materials are maintained for the use of detained 25 noncitizens in ICE custody. ICE personnel do not use the Offline Lexis Materials to conduct any 26 agency research or decision-making.” Jones Decl. ¶ 7. 27 C. The Master Agreement 1 According to Defendants, ICE’s contract with RELX is governed by a “LexisNexis Master 2 Agreement” that restricts ICE’s use of the Offline Lexis Materials in a manner relevant to the 3 parties’ dispute. See Defs.’ Mot. 11-14; O’Donnell Decl. ¶ 6, Ex. A (“Master Agreement”).2 4 In relevant part, the Master Agreement grants the following license: “a non-exclusive, non- 5 transferable limited license to access and use the Legal Research Service for your own internal 6 use.” Master Agreement at ECF p. 1. “Legal Research Service” includes “the Licensed Program, 7 Materials, updates made available on Distributed Media or online, and related documentation.” 8 Id. at ECF p. 10. The Master Agreement defines “you or your” to mean “the person or entity 9 indicated on the signature page of the Order Form, the person or entity on whose behalf a click- 10 through version of this Master Agreement is accepted, or any other person or entity that accesses 11 or uses the Legal Research Service.” Id. at ECF p. 11. It defines “us or we” to mean “the 12 applicable LexisNexis Company,” and defines “LexisNexis Company” as “LexisNexis, a division 13 of Reed Elsevier Inc., Matthew Bender & Company, Inc., or any company that may become 14 affiliated with them.” Id. at ECF p. 11. The parties agree that Reed Elsevier, Inc. became RELX, 15 Inc. in 2015. See Pls.’ Reply 11 & n.10; Defs.’ Reply 3-4. 16 The Master Agreement contains certain “Restrictions on Use.” These restrictions provide 17 that “you may not, nor may you permit others to: . . . copy all of any portion of the Legal Research 18 Service,” or “allow anyone other than yourself, your employees, and independent contractors 19 working solely on your behalf to use the Legal Research Service[.]” Master Agreement at ECF p. 20 2. The Master Agreement further sets forth certain “Prohibited Uses,” which provide that “[y]ou 21 may not, nor may you permit others to: . . . use the Legal Research Service in any fashion that may 22 infringe the copyright, intellectual property right, or proprietary or property right or interest of us 23 or our Suppliers” or “make any portion of the Legal Research Service available to third parties 24 through any timesharing system, service bureau, the Internet, or any other similar technology now 25 existing or developed in the future.” Id. at ECF p. 3. 26 Finally, the Master Agreement states “[t]he Legal Research Service and any copyrights, 27 1 trademarks, patents, trade secrets, intellectual property rights, and other proprietary rights in and to 2 the Legal Research Service are owned by us and our Suppliers, and you obtain no right, title, or 3 interest therein.” Id. at ECF p. 5. 4 D. Cross Motions for Summary Judgment 5 Defendants contend that the Offline Lexis Materials are not agency records subject to 6 FOIA as a matter of law. They also contend that even if the Offline Lexis Materials qualify as 7 agency records, they are exempt from production pursuant to FOIA Exemption 4, which in 8 relevant part exempts “commercial or financial information [that is] obtained from a person and 9 [is] privileged or confidential.” 5 U.S.C. § 552(b)(4). 10 ACLU contends that the requested materials are agency records that must be produced. It 11 also disputes the applicability of Exemption 4. 12 At the hearing, the court ordered Defendants to file supplemental evidence supporting their 13 claim that the Master Agreement governs the contract between ICE and RELX. It also ordered 14 ACLU to file a response to the supplemental declaration(s). Minute Order. The parties timely 15 filed the requested evidence and response. [Docket Nos. 57 (Supp. O’Donnell Decl. Aug. 5, 16 2024); 62 (ACLU’s Supp. Reply).] 17 II. LEGAL STANDARDS 18 “FOIA ‘was enacted to facilitate public access to Government documents.’” Lahr v. Nat’l 19 Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009) (quoting U.S. Dep’t of State v. Ray, 502 20 U.S. 164, 173 (1991)). Its “‘core purpose’ is to inform citizens about ‘what their government is up 21 to.’” Yonemoto v. U.S. Dep’t of Veterans Affairs, 686 F.3d 681, 687 (9th Cir. 2012) (quoting 22 Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 775 (1989)). 23 Congress structured FOIA so that an agency must disclose records “to any person . . . unless they 24 may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b).” U.S. 25 Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 150-51 (1989) (citation and quotation marks 26 omitted); accord Maricopa Audubon Soc. v. U.S. Forest Serv., 108 F.3d 1082, 1085 (9th Cir. 27 1997). These exemptions are “explicitly exclusive” and “must be narrowly construed in light of 1 quotations omitted). 2 A district court “has jurisdiction to enjoin the agency from withholding agency records and 3 to order the production of any agency records improperly withheld” under FOIA. 5 U.S.C. § 4 552(a)(4)(B). “Therefore, when an agency withholds documents, a threshold inquiry is whether 5 they constitute ‘agency records.’” Rojas v. Fed. Aviation Admin., 941 F.3d 392, 396 (9th Cir. 6 2019) (citing Tax Analysts, 492 U.S. at 142) (quotation omitted)). “The burden is on the agency to 7 demonstrate, not the requester to disprove, that the materials sought are not ‘agency records’ or 8 have not been ‘improperly’ ‘withheld.’” Tax Analysts, 492 U.S. at 142 n.3. Given “FOIA’s 9 strong presumption in favor of disclosure,” the agency also bears the burden to “show that an 10 exemption properly applies to the records it seeks to withhold.” Hamdan v. U.S. Dep’t of Justice, 11 797 F.3d 759, 772 (9th Cir. 2015). Further, “[a] basic policy of FOIA is to ensure that Congress 12 and not administrative agencies determines what information is confidential.” Lessner v. U.S. 13 Dep’t of Commerce, 827 F.2d 1333, 1335 (9th Cir. 1987). For this reason, courts do not give 14 deference to a federal agency’s determination that requested information falls under a particular 15 FOIA exemption. Carlson v. U.S. Postal Serv., 504 F.3d 1123, 1127 (9th Cir. 2007). If an agency 16 determines that an exemption applies, the agency “may withhold only that information to which 17 the exemption applies” and “must provide all ‘reasonably segregable’ portions of that record to the 18 requester.” Yonemoto, 686 F.3d at 688 (quoting § 552(b)). 19 FOIA cases are typically decided on motions for summary judgment as the facts are rarely 20 in dispute. See Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996). On a 21 motion for summary judgment, district courts analyze the withholding of agency records de novo. 22 5 U.S.C. § 552(a)(4)(B). 23 III. DISCUSSION 24 The parties dispute whether the Offline Lexis Materials are agency records subject to 25 FOIA. FOIA does not define “agency records.” In Tax Analysts, the Supreme Court provided a 26 two-part test, holding that “a document is an agency record if (1) the agency ‘either create[d] or 27 obtain[ed] the requested materials,’ and (2) the agency is ‘in control of the requested materials at 1 Tax Analysts, 492 U.S. at 144-45). The parties do not dispute that ICE “obtained” the Offline 2 Lexis Materials, satisfying the first part of the test. Only the second part of the test regarding 3 ICE’s “control” of the materials is in dispute. 4 Defendants argue that the Offline Lexis Materials do not qualify as agency records subject 5 to FOIA for two reasons: 1) as library reference materials, the Offline Lexis Materials are not 6 agency records subject to FOIA as a matter of law; and 2) ICE does not “control” the Offline 7 Lexis Materials under Tax Analysts. Defs.’ Mot. 10-14. 8 As to the first argument, Defendants cite SDC Development Corp. v. Mathews, 542 F.2d 9 1116, 1120 (9th Cir. 1976), and Baizer v. U.S. Dep’t of Air Force, 887 F. Supp. 225, 229 (N.D. 10 Cal. 1995). Defs.’ Mot. 10. Both are distinguishable. In SDC, the Ninth Circuit addressed 11 “whether a complete reference library of medical writings and publications, accumulated and 12 stored in a computer data bank by” a federal agency, the National Library of Medicine, 13 “constitutes ‘agency records’ for purposes of” FOIA. 542 F.2d at 1117. As part of its statutory 14 mandate, the National Library of Medicine maintained the databank, MEDLARS, which “stored 15 citations and abstracts of two million articles” from thousands of medical and scientific journals 16 worldwide on tapes. Id. at 1117. Users could access the database on a paid subscription basis 17 through the National Library of Medicine or purchase a current set of tapes from the government 18 for $50,000. The plaintiff sought production of the MEDLARS tapes via FOIA request, 19 presumably to avoid the higher costs associated with a subscription or purchase. The agency 20 denied the request. Id. at 1117-18. 21 The court examined FOIA’s legislative history and concluded that “the type of documents 22 Congress was seeking to include in the public disclosure provision of [FOIA] were primarily those 23 which dealt with the structure, operation, and decision-making procedure of the various 24 governmental agencies.” Id. at 1119. The court recognized “a qualitative difference between the 25 types of records Congress sought to make available to the public by passing [FOIA] and the 26 library reference system” at issue: “[t]he library material does not directly reflect the structure, 27 operation, or decision-making functions of the agency, and where, as here, the materials are 1 sought to alleviate is not a consideration.” Id. at 1120. The court noted, “the agency is not 2 seeking to mask its processes or functions from public scrutiny. Indeed, its principal mission is 3 the orderly dissemination of material it has collected,” and the agency sought “to protect not its 4 information, but rather its system for delivering that information.” Id. It found that “[r]equiring 5 the agency to make its delivery system available [by FOIA request] at nominal charge” would 6 “hamper [the information gathering and dissemination function of the agency] substantially” and 7 concluded that the MEDLARS tapes “are not ‘records’ or ‘agency records’” under FOIA. Id. 8 In SDC, the FOIA request for the MEDLARS tapes did not seek information “about the 9 internal workings of [the] government”; rather, the request sought to bypass the agency’s system 10 for delivering medical reference information where its “principal mission is the orderly 11 dissemination of material it has collected.” See SDC, 542 F.2d at 1119, 1120. In contrast, 12 ACLU’s FOIA request is not an end run around the costs of acquiring reference materials from an 13 agency charged with gathering such materials. Instead, ACLU seeks production of research 14 materials that reflect the outcome of ICE’s decisions about how to satisfy its obligation to provide 15 a law library to detainees.3 Moreover, SDC was decided before Tax Analysts. As a result, its 16 analysis is not grounded in Tax Analyst’s two-part test for determining whether materials qualify 17 as agency records. For these reasons, SDC does not control the outcome here. 18 Defendants also cite Baizer, in which the plaintiff made a FOIA request for an electronic 19 copy of a “computer database containing the decisions of the United States Supreme Court” from 20 the Department of the Air Force. The Air Force denied the request on the ground that the database 21 was not an agency record. 887 F. Supp. at 226. The plaintiff filed a lawsuit under FOIA to 22 compel production and the court dismissed the case for lack of subject matter jurisdiction because 23 the “database is library reference material and is therefore not an ‘agency record’” under FOIA. 24 Id. The court discussed SDC, noting that “the Ninth Circuit focused on the purpose of the FOIA— 25 disclosure of records that ‘dealt with the structure, operation, and decision-making procedure of 26

27 3 The court notes that ACLU’s FOIA request does not, however, request documents showing 1 the various governmental agencies’” and “reasoned that, because library reference material does 2 not provide any insight into agency decision making, it does not constitute an agency record.” Id. 3 at 228 (discussing SDC, 542 F.2d at 1119). The court also considered the “control” requirement 4 from Tax Analysts and concluded that in both Tax Analysts and SDC, the courts “focused on how 5 the agency used the requested material”:

6 If an agency integrates material into its files and relies on it in decision making, then the agency controls the material. If, on the other hand, 7 material is maintained solely for reference purposes or as a research tool, then the indicia of control are lacking. 8 9 Id. at 227, 228 (citing Tax Analysts, 492 U.S. at 145). 10 The FOIA request in Baizer is distinguishable from ACLU’s request, which does not seek 11 material “maintained solely for reference purposes”; rather, it seeks reference materials that are the 12 product of ICE’s decision-making with respect to fulfilling its mandate to provide such materials 13 to detainees. 14 Defendants next argue that ICE does not “control” the Offline Lexis Materials under the 15 Tax Analysts test. For purposes of FOIA, “control” “mean[s] ‘that the materials have come into 16 the agency’s possession in the legitimate conduct of its official duties,’ or ‘in connection with the 17 transaction of public business.’” Rojas, 941 F.3d at 408 (quoting Tax Analysts, 492 U.S. at 145). 18 The Supreme Court has rejected the contention that “mere physical location of papers and 19 materials . . . confer[s] status as an ‘agency record.’” See Kissinger v. Reps. Comm. for Freedom 20 of the Press, 445 U.S. 136, 157 (1980) (holding that notes that Henry Kissinger made while 21 serving in the Office of the President and physically brought to the State Department were not 22 “agency records”). “[E]mails or other documents that are unrelated to agency business are not 23 agency records, even if they are stored on the agency’s server and used by an agency employee.” 24 Rojas, 941 F.3d at 409 (citing Kissinger, 445 U.S. at 155-56). 25 The Ninth Circuit has not adopted a test “to determine whether specified records are in the 26 agency’s possession in connection with agency-related business.” See Rojas, 941 F.3d at 408-09. 27 In Rojas, the Ninth Circuit discussed the D.C. Circuit’s four-factor framework that pre-dates Tax 1 document’s creator to retain or relinquish control over the records”; 2) “the ability of the agency to 2 use and dispose of the record as it sees fit”; 3) “the extent to which agency personnel have read or 3 relied upon the document”; and 4) “the degree to which the document was integrated into the 4 agency’s record system or files.” See id. (quoting Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 5 1060, 1069 (D.C. Cir. 1988)). Ultimately, the Ninth Circuit discounted the first and fourth factors 6 and expressly declined to adopt the test. It held instead that courts “may consider a range of 7 evidence to determine” whether an agency “controls” a record for purposes of FOIA. Id. at 409. 8 The parties dispute whether the Master Agreement limits ICE’s use of the Offline Lexis 9 Materials, which bears on the control inquiry. Defendants argue that the Master Agreement’s 10 restrictions on ICE’s use of the materials demonstrate ICE’s lack of “control.” ACLU contends 11 that Defendants have failed to establish that the Master Agreement applies to the Offline Lexis 12 Materials. Pl.’s Reply 11; Supp. Br. 3. 13 Defendants originally submitted somewhat conclusory evidence in support of their claim 14 that the Master Agreement applies to ICE’s contract with RELX. Defendants offered a declaration 15 by O’Donnell, who stated only that “ICE’s use of the Offline Lexis Materials is subject to the 16 terms of the LexisNexis Master Agreement” and that “[b]y purchasing a subscription to the Lexis 17 Nexis Research Service” pursuant to the RELX contract, “ICE is a party to the Master 18 Agreement.” O’Donnell Decl. ¶¶ 5, 6, Master Agreement at ECF p. 10 (“Agreement means this 19 Master Agreement together with the Order Form”). O’Donnell did not provide details about when 20 or how he obtained the Master Agreement and did not explain the basis for the statement that the 21 Master Agreement governs ICE’s contract with RELX. 22 As noted, the court granted Defendants leave to submit a supplemental declaration(s) 23 supporting their claim that the Master Agreement governs the contract between ICE and RELX for 24 the electronic law library. In a supplemental declaration, O’Donnell states that prior to submitting 25 his initial declaration, ICE contacted RELX to request a copy of the most recent version of the 26 Master Agreement and RELX provided the copy of the Master Agreement that was attached to his 27 original declaration. Supp. O’Donnell Decl. ¶ 5. Following the hearing, O’Donnell “made further 1 “searched for additional records,” and “contacted RELX for additional information.” He states 2 that based on these inquiries, he confirmed that the copy of the Master Agreement attached to the 3 original declaration “is identical to the Master Agreement that is included on each of the 4 [electronic hard drives] that are provided to ICE by RELX.” Id. at ¶¶ 6, 7. 5 O’Donnell also describes ICE’s acceptance of the Master Agreement, which he states 6 “occurs as part of the installation of the Offline Lexis Materials . . . quarterly when updates are 7 provided by RELX.” Id. at ¶ 8. The process is as follows:

8 Each time the quarterly updates are received, the Offline Lexis Materials and associated software are installed by an ICE employee 9 at the ICE facility where the Offline Lexis Materials are used. During the installation process, the Master Agreement is displayed and the 10 installer must agree to the terms in order to complete the installation by selecting the option “I accept the terms of the license agreement” 11 and clicking the “Next” button. An option to select “I do not accept the terms of the license agreement” also appears, however, the 12 installation will not proceed if the installer selects that option. It is my understanding that the installer must, and always does, accept the 13 terms of the Master Agreement during the installation process, and that this has been occurring throughout the life of the RELX Contract. 14 15 Id. Following the initial acceptance of the Master Agreement during each quarterly installation, 16 “the program does not again prompt users to affirmatively accept or acknowledge the terms of the 17 Master Agreement.” Id. at ¶ 10. 18 O’Donnell states that following the hearing, “ICE examined an [electronic hard drive] 19 provided by RELX and located the Microsoft Word file containing the Master Agreement, which 20 came preinstalled on the EHD and which appears as part of the installation process.” Id. at ¶ 9. 21 The preinstalled Microsoft Word file “contains the complete text of the Master Agreement,” which 22 O’Donnell states is identical to the Master Agreement he submitted with his prior declaration. Id. 23 The first page of the Microsoft Word file displays an image of the acceptance screen that appears 24 during the installation process, which confirms that the system prompts users to choose one of two 25 options before proceeding: 26 27 1 2 3 LexisNexis® CD

MASTER AGREEMENT

4 5 MASTER AGREEMENT ‘four use of a Legal Research Service is subject to this Master Agreement. Capitalized 6 terms used in this Master Agreement are defined in Section 10.0. 1.0 LICENSE TO USE THE LEGAL RESEARCH SERVICE. | Ag 7 1.1 General Rights Granted: Restrictions. ‘You are granted 4 non-exclusive, non- transferable limited license to access and use the Legal Research Service for your own internal use. In addition, for a Legal Research Service provided on Distributed Media, this 8 license includes the rights to: 1.14 use the Legal Research Service on one single-user personal Computer or, ort 9 Ol accept the terms of the license agreement Print (1 do not accept the terms of the license agreement 10 lon fou Wl

12

13 Id. at 19, Ex. A at ECF p. 2.

v 14 Based on his inquiries, O’ Donnell understands that “the Master Agreement has been

15 included with the [electronic hard drive] and each quarterly update provided by RELX dating back

QO 16 to prior contracts between ICE and RELX regarding the Offline Lexis Materials, for which ICE

17 has been contracting with RELX (and its predecessor companies) since at least 2012,” and

. . . . . 42 18 || “continues to be included with the” electronic hard drive. Id. at 11. 19 In its response to O’Donnell’s supplemental declaration, ACLU maintains that the Master 20 || Agreement “does not apply to the law library.” Supp. Br. 3. ACLU notes that the Master 21 Agreement references a “LexisNexis® CD,” even though ICE contends that RELX furnishes the 22 || Offline Lexis Materials on electronic hard drives only. Id.; see Master Agreement at ECF p. 1; 23 || Jones Decl. {6 (“Under ICE’s current contract with RELX, RELX furnishes the Offline Lexis 24 || Materials to ICE exclusively on EHDs and does not provide the materials on CD-ROM.”). 25 However, by its terms, the Master Agreement applies to different forms of media. It states on the 26 || first page, “Your use of a Legal Research Service is subject to this Master Agreement” and defines 27 “Legal Research Service” to include “the Licensed Program, Materials, updates made available on 28 || Distributed Media or online, and related documentation.” Jd. at ECF pp. 1, 10. In turn,

1 “Distributed Media means the floppy disc, CD-ROM, DVD-ROM, external hard drive, or other 2 physical media now existing or developed in the future on which we furnish the Legal Research 3 Service.” Id. at ECF p. 10 (emphasis added). ACLU also notes that the original version of the 4 Master Agreement submitted with Defendants’ motion includes the following statement on the 5 first page: “Copyright © 2010 LexisNexis®, a division of Reed Elsevier Properties Inc.” Master 6 Agreement at ECF p. 1. ACLU contends that “Reed Elsevier ceased to exist in 2015,” long before 7 ICE signed the operative contract with RELX, Supp. Br. 3, but this argument ignores the 8 undisputed fact that Reed Elsevier, Inc. became RELX in 2015. See Pls.’ Reply 11 & n.10; Defs.’ 9 Reply 3-4. The Master Agreement expressly defines “us or we” to mean “the applicable 10 LexisNexis Company,” and defines “LexisNexis Company” as “LexisNexis, a division of Reed 11 Elsevier Inc., Matthew Bender & Company, Inc., or any company that may become affiliated with 12 them.” Id. at ECF p. 11 (emphasis added). 13 ACLU next objects that “critical” statements in O’Donnell’s supplemental declaration lack 14 foundation and are not supported by his own personal knowledge, including his statements that 15 ICE accepts the Master Agreement as part of the installation of the Offline Lexis Materials and 16 that O’Donnell understands “that the installer must, and always does, accept the terms of the 17 Master Agreement during the installation process, and that this has been occurring throughout the 18 life of the RELX Contract.” Supp. Br. 4-5 (citing Supp. O’Donnell Decl. ¶ 8). ACLU also objects 19 to O’Donnell’s statement that he understands “that the Master Agreement has been included with 20 the [external hard drive] and each quarterly update provided by RELX dating back to prior 21 contracts between ICE and RELX” based on lack of personal knowledge. Id. (citing Supp. 22 O’Donnell Decl. ¶ 11).4 These objections are without merit. “An affidavit or declaration used to 23 support or oppose a motion must be made on personal knowledge, set out facts that would be 24 4 ACLU also states that “Mr. O’Donnell can only speculate to whether any changes have occurred 25 to the Master Agreement ‘over the course of the relationship between ICE and RELX’ because he has only held his position as unit chief since 2020. Supp. Br. 5 (quoting Supp. O’Donnell Decl. ¶ 26 12). This ignores that O’Donnell describes ICE’s search for and failure to “locate any records reflecting any changes to the Master Agreement” and states, “[b]ased on my inquiries, I am 27 unaware of RELX providing ICE with . . . notice regarding changes to the terms of the Master 1 admissible in evidence, and show that the affiant or declarant is competent to testify on the matters 2 stated.” Fed. R. Civ. P. 56(c)(4). Here, O’Donnell makes clear in his supplemental declaration 3 that his statements about the Master Agreement are based on his “additional inquiries,” including 4 making “further inquiries to the contract officer responsible for the RELX Contract,” and that he 5 and the contract officer “searched for additional records, including any prior agreements or 6 contract drafts, and communications related to the agreement,” and that they “contacted RELX for 7 additional information.” See Supp. O’Donnell Decl. ¶¶ 6-8. He also states in paragraph 12 that 8 his understanding about the inclusion of the Master Agreement with the external hard drive is 9 “based on [his] inquiries.” See id. at ¶ 12. 10 Additionally, ACLU objects that certain of O’Donnell’s statements are based on hearsay, 11 but the Ninth Circuit has clarified that at the summary judgment stage, the focus is not on the 12 “admissibility of the evidence’s form,” but rather on the “admissibility of its contents.” Fraser v. 13 Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (citing cases); see also JL Beverage Co., LLC v. 14 Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016) (“[A]t summary judgment a district 15 court may consider hearsay evidence submitted in an inadmissible form, so long as the underlying 16 evidence could be provided in an admissible form at trial, such as by live testimony,” citing 17 Fraser). Accordingly, district courts in this circuit have routinely overruled authentication and 18 hearsay challenges at the summary stage where the evidence could be presented in an admissible 19 form at trial, following Fraser. See, e.g., Lawrence v. City & Cty. of San Francisco, 258 F. Supp. 20 3d 977, 986 (N.D. Cal. 2017) (overruling objections to admissibility of police reports on 21 authentication and hearsay grounds at summary judgment because the contents of the report “may 22 be presented in an admissible form at trial”); Faulks v. Wells Fargo & Co., 231 F. Supp. 3d 387, 23 397-98 (N.D. Cal. 2017) (overruling objections to admissibility of exhibit at summary judgment 24 because “it is possible that the facts underlying [the exhibit] could be admissible at trial”). As 25 Defendants could present their evidence about the Master Agreement in an admissible form, 26 ACLU’s objections to statements in O’Donnell’s supplemental declaration based on hearsay are 27 overruled. 1 installation and use of the Offline Lexis Materials is conditioned on acceptance of the Master 2 Agreement with RELX. See Supp. O’Donnell Decl. ¶ 8; Hamdan v. U.S. Dep’t of Justice, 797 3 F.3d 759, 770 (9th Cir. 2015) (“Affidavits submitted by an agency to demonstrate the adequacy of 4 its response are presumed to be in good faith.”). Accordingly, the court will consider its terms in 5 analyzing the “control” prong of the test. 6 As noted, “control” under FOIA “mean[s] ‘that the materials have come into the agency’s 7 possession in the legitimate conduct of its official duties,’ or ‘in connection with the transaction of 8 public business.’” Rojas, 941 F.3d at 408 (quoting Tax Analysts, 492 U.S. at 145). In Rojas, the 9 Ninth Circuit held that courts “may consider a range of evidence to determine whether specified 10 records are in the agency’s possession in connection with agency-related business” and that 11 “evidence relating to the agency’s use of documents (including its system for preserving, 12 retrieving, or disposing of the documents, and any reliance on the documents by agency 13 employees) may be relevant to this inquiry.” Id. at 409. Here, ICE does not have the ability to use 14 and dispose of the Offline Lexis Materials as it sees fit. Instead, any use of the materials is subject 15 to the terms of ICE’s “non-exclusive, non-transferable limited license,” which is limited by the 16 “Restrictions on Use” and “Prohibited Uses” set forth in the Master Agreement. O’Donnell Decl. 17 ¶¶ 5-8 & Master Agreement. Courts have held that similar contractual restrictions on use and 18 transfer of records placed them outside the agency’s control and thus not subject to FOIA. For 19 example, Tax Analysts v. U.S. Department of Justice, 913 F. Supp. 599, 607 (D.D.C. 1996) (“Tax 20 Analysts II”), involved a FOIA request for the portion of an electronic legal research database, 21 JURIS, provided by West Publishing Company (“West”) to the Department of Justice (“DOJ”) 22 pursuant to contract. The contract contained licensing provisions that “greatly restrict[ed] DOJ’s 23 right to use the data,” including by prohibiting the use of the data outside the JURIS system, the 24 use of the data by anyone other than authorized JURIS users, the transfer or assignment of the 25 data, or the distribution of the data by JURIS users absent written agreement from the transferee, 26 among other restrictions. Id. at 607. The court found that “although DOJ certainly possessed the 27 West-provided data, its right to use, transfer and/or dispose of it was greatly restricted, and thus 1 Similarly, in Gilmore v. U.S. Department of Energy, 4 F. Supp. 2d 912, 918-19 (N.D. Cal. 2 1998), the court examined video conferencing software known as CLERVER for which the 3 government possessed a non-exclusive license to use for “government purposes.” The court held 4 that CLERVER was not an agency record because the Department of Energy’s (“DOE”) “right to 5 use CLERVER” was restricted in ways similar to Tax Analysts II. 4 F. Supp. 2d at 918-19 6 (discussing Tax Analysts II, 913 F. Supp. at 604). The court concluded that “DOE lacks sufficient 7 control over CLERVER to make it an agency record of DOE.” Id. at 919. 8 In this case, ICE’s use of the Offline Lexis Materials is restricted by its limited license, like 9 the systems at issue in Tax Analysts II and Gilmore. In Tax Analysts II, West granted the DOJ a 10 nonexclusive license for limited use of the JURIS materials that specifically provided that West 11 remained the exclusive owner of the materials. 913 F. Supp. at 604. In Gilmore, a third party 12 “own[ed] the copyright in CLERVER, but gave the government a limited license to use 13 CLERVER for government purposes only.” 4 F. Supp. 2d at 922. Here, ICE has “a non- 14 exclusive, non-transferable limited license to access and use the Legal Research Service for [its] 15 own internal use,” while RELX remains the owner of the materials. Master Agreement at ECF pp. 16 1, 5. 17 With respect to the agency’s “reliance on” the materials, see Rojas, 941 F.3d at 409, 18 Defendants have submitted uncontroverted evidence that ICE personnel do not use the Offline 19 Lexis Materials to conduct any agency decision-making or agency research. Instead, the Offline 20 Lexis Materials are maintained for the use of detained noncitizens in ICE custody. Jones Decl. ¶ 21 7. See Baizer, 887 F. Supp. at 228 (if “material is maintained solely for reference purposes or as a 22 research tool, then the indicia of control are lacking.”). 23 In response, ACLU disputes that the Master Agreement applies to the Offline Lexis 24 Materials. Pl.’s Reply 11. As discussed above, the court concludes that Defendants have 25 submitted sufficient evidence to support the Master Agreement’s application to the materials.5 26 5 ACLU also argues that even if the Master Agreement applies to the Offline Lexis Materials, 27 Defendants have not offered evidence “to show that they are bound by its terms,” citing authority 1 ACLU also argues that ICE “intended to and retains control over” the Offline Lexis 2 Materials, as evidenced by the contract and Statement of Work, which “lay out in painstaking 3 detail the specific requirements, format, audience, screen display, content, research features, 4 functionality, and form of the electronic law library.” Id. at 10. This argument appears to be 5 based on the first factor of the D.C. Circuit’s four-factor test for determining whether a document 6 is in the control of an agency; that factor examines “the intent of the document’s creator to retain 7 or relinquish control over the records.” See Rojas, 941 F.3d at 408 (quotation omitted). As an 8 initial matter, Rojas discounted this factor, noting that it “is in tension with” the Supreme Court’s 9 conclusion in Tax Analysts that “‘the intent of the creator of a document’ is not relevant to a 10 determination of whether the document is an agency record[.]” Id. (citing Tax Analysts, 492 U.S. 11 at 147 (“[s]uch a mens rea requirement is nowhere to be found in [FOIA].”)). Even if it were 12 appropriate to consider intent, the first factor looks at the intent of the “document’s creator”—in 13 this case, RELX, which created the materials and licensed them to ICE. ACLU offers no 14 argument or evidence about RELX’s intent with respect to the Offline Lexis Materials. It also 15 offers no authority that ICE’s provision of detailed specifications for the services RELX must 16 provide pursuant to the contract bears on the issue of control, where “[r]esponsibility for 17 programming and maintaining the Offline Lexis Materials rests with the contractor, RELX, not the 18 agency,” see Jones Decl. ¶ 8, and RELX retains ownership of the Offline Lexis Materials. Master 19 Agreement at ECF p. 5.6 20 In sum, in light of governing Ninth Circuit authority and consideration of the evidence 21 bearing on the question of Defendants’ “control” over the requested materials, the court concludes 22 that ICE lacks sufficient control over the Offline Lexis Materials to make them “agency records” 23 Government representative who entered or ratified the agreement had actual authority to bind the 24 United States.”)); Pl.’s Supp. Br. 6. This authority is inapposite as this is not a contract dispute. In any event, Defendants have submitted uncontroverted evidence that the Master Agreement 25 governs ICE’s use of RELX’s materials. See Supp. O’Donnell Decl. ¶ 8.

26 6 To the extent ACLU seeks to obtain documents reflecting ICE’s intent or decision-making process with respect to “the specific requirements, format, audience, screen display, content, 27 research features, functionality, and form of the electronic law library,” the court notes that such 1 for purposes of FOIA.’ Accordingly, Defendants’ motion for summary judgment is granted. 2 || ACLU’s motion is denied. 3 || IV.CONCLUSION 4 For the foregoing reasons, Defendants’ motion for summary judgment is granted. ACLU’s 5 motion is denied. The parties shall immediately meet and confer regarding all outstanding issues. 6 || By no later than October 11, 2024, the parties shall submit a brief joint letter describing any 7 remaining issues and a proposed schedule. KES DISTR 7 op 8 Sy £O 9 IT IS SO ORDERED eS 5 SO ORDERED |" 10 || Dated: September 20, 2024 2/\rr is ° Z. Dorka M, Ry. RYYY]& 3 12 © sage LO a ‘A Py (\ 12 ' “PTO OG) Ky

AY)

□□

Vy

DISTRICS

15 16

= 17

Z 18

19 20 21 22 23 24 25 26 27 9 Given the court’s conclusion that the Offline Lexis Materials are not agency records under FOIA, 2g || it need not reach Defendants’ argument that the materials are protected from disclosure under FOIA Exemption 4.