1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK E. GRAHAM, Case No. 2:19-cv-02429-TLN-JDP (PS) 12 Plaintiff,

FINDINGS AND RECOMMENDATIONS

13 v. 14 UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., 15 Defendants. 16 17 18 Plaintiff, proceeding without counsel on his first amended complaint, alleges that 19 defendants have violated the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), by failing to 20 provide certain information in response to two requests. ECF No. 26. Defendants have filed a 21 motion to dismiss for lack of subject matter jurisdiction, or in the alternative for summary 22 judgment, arguing that plaintiff’s claims were rendered moot by their production of responsive 23 records. ECF No. 45. Plaintiff has filed an opposition and cross motion for summary judgment, 24 arguing that defendants have not shown that they have produced all responsive records, and 25 asking that defendants produce a Vaughn index. ECF Nos. 50, 51, & 52. I find that the parties’ 26 motions are insufficient to enable a resolution on the merits. I recommend that both motions be 27 denied without prejudice and that defendants be ordered to produce a Vaughn index. 28 1 Background 2 The parties agree on the relevant history of plaintiff’s FOIA requests. In September 2011, 3 plaintiff submitted a FOIA request to the FOIA office of defendant U.S. Immigration and 4 Customs Enforcement (“ICE”), a division of defendant U.S. Department of Homeland Security. 5 ECF No. 45-3 at 3; ECF No. 26 at 26. The request sought “[d]ocuments that describe ICE’s 6 policies and procedures (including training manuals, rules, guidelines, court rulings, 7 administrative rulings, etc.) for conducting searches . . . [and] investigations,” and provided a list 8 of more specific requests. ECF No. 45-3 at 3-4 (declaration of ICE FOIA Director Fernando 9 Pineiro). ICE responded by providing 50 pages of responsive documents in early 2013 and, after 10 plaintiff filed an administrative appeal, by producing an additional 293 pages of responsive 11 documents, of which the agency withheld 82 pages and provided 211 pages. Id. at 4-5. In 12 December 2013, ICE denied plaintiff’s subsequent appeal and informed him that its response to 13 his FOIA request was complete. Id. at 5. In 2019, plaintiff brought this suit on the grounds that 14 ICE had failed to provide all responsive records, and that ICE had not adequately justified its 15 failure to disclose any training manuals. See ECF No. 1. 16 On April 23, 2020, plaintiff emailed a second FOIA request to ICE that requested 17 substantially the same documents as the first, except that it exempted documents that had already 18 been provided and requested responsive documents through the present date. ECF No. 26 at 23- 19 27; ECF No. 45-4 at 4; see also ECF No. 45-3 at 5-6. On April 29, 2021, plaintiff amended the 20 complaint to include a claim stemming from defendants’ failure to timely respond to the second 21 request. See ECF No. 26. In particular, he alleges that, “[w]ith respect to both record requests,” 22 defendants “failed to conduct a proper search for the responsive records,” and a “proper search 23 would have uncovered ICE’s [‘current’] training manuals and field manuals.” Id. at 54-55. He 24 alleges, inter alia, that defendants’ “application of Exemption 7E is wholly conclusory and lacks 25 any evidentiary basis . . . [because d]efendants failed to identify the ‘techniques and procedures 26 for law enforcement investigations of prosecutions’ allegedly contained in the training manual(s) 27 and other responsive documents.” Id. at 57. 28 After plaintiff filed his first amended complaint, ICE began to provide plaintiff with 1 documents responsive to the 2020 request. According to ICE FOIA director Piniero, “[b]etween 2 June 2021 and April 29, 2022, ICE reviewed approximately 4,730 documents and produced 3 approximately 1,337 documents subject to FOIA Exemptions (b)(5), (b)(6), (b)(7)(C), and 4 (b)7(E).” ECF No. 45-3 at 14. Pineiro attests that the “ICE FOIA Office determined that the 5 Office of Homeland Security Investigations (HSI), The Office of Principal Legal Advisor 6 (OPLA), and the ICE Office of Regulatory Affairs and Policy[(ORAP)] were the program offices 7 likely to have responsive records,” and that the ICE FOIA Office accordingly instructed each 8 office to conduct comprehensive searches for all potentially responsive records. Id. at 8-9. He 9 further states that representatives of each office conducted searches of their own computers and 10 various shared drives using relevant search terms, which are identified in Pineiro’s declaration, 11 and sent all potentially responsive records to the ICE FOIA Office for review and processing. Id. 12 at 10-15. 13 Piniero attests that “a line-by-line review was conducted to identify information exempt 14 from disclosure”—in particular, “for FOIA Exemption (b)(7)(E), which protects from release 15 information that would disclose law enforcement techniques or procedures, the disclosure of 16 which could reasonably be expected to risk circumvention of the law”—and that “[w]ith respect 17 to the records that were released, all information not exempted from disclosure pursuant to the 18 FOIA exemptions specified above was correctly segregated and nonexempt portions were 19 released.” Id. at 14-15. “Among the documents produced to Plaintiff are handbooks, manuals, 20 and training materials, such as PowerPoint presentations, relating to Fourth Amendment searches 21 and seizures, as well as documents relating to ICE’s policies and procedures for conducting 22 investigations.” Id. at 14. 23 Defendants now move to dismiss for lack of subject matter jurisdiction, or in the 24 alternative for summary judgment, arguing that their production of responsive documents moots 25 plaintiff’s claims. ECF No. 45-1. Plaintiff opposes defendants’ motion and argues that 26 defendants have not met their burden of showing that they produced all responsive and non- 27 exempt documents. ECF Nos. 51 & 52. Plaintiff has also filed a cross-motion for summary 28 judgment in which he reiterates his opposition to defendants’ motion and requests both a Vaughn 1 index and an award of costs and fees. ECF No. 50-1 at 14 (citing Vaughn v. Rosen, 484 F.2d 820 2 (D.C. Cir. 1973)). 3 Legal Standards 4 Summary judgment is appropriate when “the pleadings, depositions, answers to 5 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 6 genuine issue as to any material fact and that the moving party is entitled to a judgment as a 7 matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that “might affect the outcome of the 8 suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A 9 party seeking summary judgment always bears the initial responsibility of informing the district 10 court of the basis for its motion” and identifying the portions of the pleadings and discovery 11 responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. 12 Catrett, 477 U.S. 317, 323 (1986). To satisfy this burden, the movant must demonstrate that no 13 genuine issue of material fact exists for trial. Id. at 322. 14 “FOIA cases are typically decided on motions for summary judgment.” Our Children’s 15 Earth Found. v. Nat’l Marine Fisheries Serv., 85 F. Supp. 3d 1074, 1081 (N.D. Cal. 2015) (citing 16 Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d 681, 688 (9th Cir. 2011) as amended (Jan. 18, 17 2012), overruled on other grounds in Animal Legal Def. Fund v. FDA (ALDF), 836 F.3d 987, 990 18 (9th Cir. 2016)). “Unlike the review of other agency action that must be upheld if supported by 19 substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the 20 agency to sustain its action’ and directs the district courts to ‘determine the matter de novo.’” 21 U.S. Dept. of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 22 § 552(a)(4)(B)). More specifically, an agency bears the burden of proving the adequacy of its 23 search and that it may withhold documents under one of the exemptions. 5 U.S.C. § 552 24 (a)(4)(B); U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). An agency can satisfy its burden 25 by submitting agency affidavits, declarations, or other evidence showing that the records in 26 question either were produced or are exempt from disclosure, provided that “they contain 27 reasonable specificity of detail rather than merely conclusory statements.” Judicial Watch, Inc. v. 28 U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed’n of Am. v. Dep’t 1 of Agric., 455 F.3d 283, 387 (D.C. Cir. 2006)) (internal quotation marks omitted). A district court 2 must accord “substantial weight” to an agency’s affidavits, “provided the justifications for 3 nondisclosure ‘are not controverted by contrary evidence in the record or by evidence of [the 4 agency’s] bad faith.’” Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996) (quoting Hunt v. CIA, 981 5 F.2d 1116, 1119 (9th Cir. 1992)); see also Chamberlain v. U.S. Dep’t of Just., 957 F. Supp. 292, 6 294 (D.D.C. 1997) (“Agency affidavits enjoy a presumption of good faith that withstands purely 7 speculative claims about the existence and discoverability of other documents.”). 8 Discussion 9 Defendants’ argument for mootness relies on a tenuous distinction between plaintiff’s two 10 claims. They contend that plaintiff’s first claim challenges the sufficiency of ICE’s 2013 11 disclosures, while his second claim is limited to defendants’ alleged failure to respond to his 2020 12 request within the applicable time limits. See ECF No. 45-1. In particular, they argue that their 13 2021 production of portions of a manual titled “Homeland Security Investigations Search and 14 Seizure Handbook,” dated to 2012, moots plaintiff’s first claim because that claim focused on 15 their failure to provide relevant training manuals. Id. at 6 (citing ECF No. 26 at 55 (alleging that 16 defendants improperly withheld “training and field manuals because those manuals will reveal 17 how Defendants train their agents to perform home searches”)). As for plaintiff’s second claim, 18 they argue that the sufficiency of their 2021 document production could not be at issue because 19 plaintiff filed his first amended complaint before any such disclosures were provided. Id. at 7. 20 On these bases, they argue that plaintiff’s claims are moot and that plaintiff must amend his 21 complaint if he wishes to contest the sufficiency of their response. ECF No. 45-1 at 7 (citing 22 Voinche v. FBI, 999 F.2d 962, 963 (5th Cir. 1993) (“[D]ismissing case as moot because only issue 23 in case was ‘tardiness’ of agency response, which was made moot by agency disclosure 24 determination.”)).1 25

1 In their reply brief, defendants’ argument appears to evolve, shifting away from this 26 tenuous distinction and advancing the argument that the sufficiency of their document production 27 is not at issue in either claim. See ECF No. 54 at 5 (“The only claim at issue in Plaintiff’s amended complaint is whether ICE has responded to Plaintiff’s FOIA request. A Vaughn index is 28 unnecessary to resolve such a claim.”). 1 2 Defendants cite no Ninth Circuit authority—and I am aware of none—adopting the logic 3 of Voinche. The D.C. Circuit squarely addressed and rejected a similar argument in Citizens for 4 Resp. & Ethics in Washington v. Fed. Election Comm’n, 711 F.3d 180 (D.C. Cir. 2013). In that 5 case, the plaintiff filed suit after the defendant FEC acknowledged receipt of a request and then 6 failed, for two months, to provide any documents or additional correspondence. Id. at 183. The 7 FEC subsequently produced documents and, “on the same day that it produced its final round of 8 responsive documents . . . [, moved] to dismiss [plaintiff’s] complaint, or, in the alternative, for 9 summary judgment,” on the basis that the plaintiff’s “challenge to the agency’s delay in 10 responding to a FOIA request was moot . . . .” Id. The court held that the case was not moot 11 because the plaintiff’s “complaint not only asserted that the FEC failed to respond to [plaintiff’s] 12 request in a timely fashion, but also raised a substantive challenge to the agency’s withholding of 13 responsive, non-exempt records.” Id. at 184. Ninth Circuit authority is consistent with this logic, 14 requiring defendants to demonstrate “the production of all nonexempt material” in order to 15 prevail on a mootness argument, even in cases in which a FOIA defendant initially failed to 16 respond. Papa v. United States, 281 F.3d 1004, 1013 (9th Cir. 2002) (emphasis added); 17 Yonemoto, 686 F.3d at 689 (explaining that “[a] FOIA claim is not moot, for example, if the 18 agency produces what it maintains is all the responsive documents, but the plaintiff challenges 19 ‘whether the [agency’s] search for records was adequate’” and emphasizing that “the agency’s 20 production must give the plaintiff everything to which he is entitled”) (quoting Nw. Univ. v. Dep’t 21 of Agric., 403 F. Supp. 2d 83, 85-86 (D.C. Cir. 2005)). 22 Here, plaintiff alleges in his first amended complaint, “[w]ith respect to both record 23 requests,” that defendants “failed to conduct a proper search for the responsive records” and 24 “[f]ailed to disclose to Plaintiff all responsive, non-exempt records.” ECF No. 26 at 55, 61. In 25 his opposition and cross motion for summary judgment, he maintains that defendants’ disclosures 26 fail adequately to demonstrate that they provided all responsive and non-exempt documents. ECF 27 Nos. 50-1 & 51. Thus, plaintiff has brought a “substantive challenge” to ICE’s withholding of 28 records, and his claims are not moot simply because defendants produced some—but not 1 necessarily all—records to which plaintiff is entitled. 2 The question remains whether defendants’ submissions are in fact sufficient to show that 3 they have produced all responsive and non-exempt material. This question is best broken into 4 two parts: first, whether defendants conducted an adequate search; and second, whether “an 5 exemption properly applies to the records [defendants] seek[] to withhold.” Hamdan v. U.S. 6 Dep’t of Just., 797 F.3d 759, 772 (9th Cir. 2015). 7 As to the first question, defendants provide a declaration from ICE FOIA Director Piniero 8 that details the personnel involved and search methods employed. ECF No. 45-3. Plaintiff does 9 not identify any insufficiency in these search methods or argue that they failed to uncover any 10 particular responsive documents. See ECF No. 50-1 at 6-7 (acknowledging without rebuttal 11 defendants’ claim that “ICE conducted an adequate search”). Even if he had challenged 12 defendants’ search methods, defendants’ attestations are sufficient to show that ICE “conducted a 13 search reasonably calculated to uncover all relevant documents.” Hamdan, 797 F.3d at 770 14 (internal marks and citations omitted); cf. Chamberlain, 957 F. Supp. at 294 (“Agency affidavits 15 enjoy a presumption of good faith that withstands purely speculative claims about the existence 16 and discoverability of other documents.”). 17 However, defendants’ submissions do not adequately justify the apparent withholding of 18 documents and redactions to the documents provided. “FOIA’s strong presumption in favor of 19 disclosure places the burden on the government to show that an exemption properly applies to the 20 records it seeks to withhold.” Hamdan, 797 F.3d at 772. FOIA further requires the government 21 to show that any “reasonably segregable portion of a record shall be provided to any person 22 requesting such record after deletion of the portions which are exempt under this subsection.” 5 23 U.S.C. § 552(b). Defendants attest that they produced 1,337 of the 4,730 documents initially 24 uncovered in their search. ECF No. 45-3 at 14. They provide almost no explanation of their 25 decision to withhold more than 3,000 potentially responsive documents. There is no indication 26 whether these documents were withheld because they were not responsive or because they were 27 exempt. Indeed, defendants do not attest that they provided all responsive, non-exempt records. 28 Instead, they provide a conclusory attestation regarding their compliance with FOIA’s 1 segregability provision: “With respect to the records that were released, all information not 2 exempted from disclosure pursuant to the FOIA exemptions specified above was correctly 3 segregated and nonexempt portions were released.” Id. (emphasis added). 4 But this claim is similarly unsubstantiated. Plaintiff contends that the records he received 5 were extensively redacted without substantial explanation. ECF No. 51 at 5. In “6 of their 7 6 production letters,” defendants pointed to FOIA Exemption 7(E) and stated, “disclosure of certain 7 law enforcement sensitive information contained within the responsive records could be expected 8 to risk circumvention of the law.”2 ECF No. 50-1 at 7. They do not specify whether this 9 statement refers to withheld or redacted documents. An excerpt of a 2012 search and seizure 10 handbook, included with defendants’ motion, shows that several sections were redacted with the 11 notation “(b)(7)(E)”—including information falling under seemingly mundane headings like 12 “Procedures for Inventory Searches.” See ECF No. 45-6 at 27. 13 Defendants argue that these conclusory recitations satisfy their burden because 14 “[e]xemption 7(E) ‘sets a relatively low bar for the agency to justify withholding.’” ECF No. 54 15 at 4 (quoting Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 2011)). But exemption 7(E) is not a 16 blank check for evading FOIA obligations. At a minimum, as defendants acknowledge, the 17 agency must “‘demonstrate logically how the release of the requested information might create a 18 risk of circumvention of the law.’” Id. (quoting Blackwell, 646 F.3d at 42). Defendants argue in 19 their reply—but nowhere attest—that “[t]he documents withheld are portions of the current 20 training materials used by ICE to train its law enforcement officers on how to conduct Fourth 21 Amendment searches and seizures.” Id. (citing, e.g., ECF No. 45-6). This is insufficient. Courts 22 in the Ninth Circuit have repeatedly identified limits on the application of exemption 7(E) to 23 training and policy manuals related to searches, seizures, and surveillance. See, e.g., Rosenfeld v. 24 U.S. Dep’t of Just., 57 F.3d 803, 815 (9th Cir. 1995) (holding that exemption 7(E) “only exempts 25

2 5 U.S.C. § 552(b)(7)(E) exempts “records or information compiled for law enforcement 26 purposes, but only to the extent that the production of such law enforcement records or 27 information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if 28 such disclosure could reasonably be expected to risk circumvention of the law.” 1 investigative techniques not generally known to the public”); ACLU of N. Cal. v. U.S. Dep’t of 2 Just., 880 F.3d 473, 491 (9th Cir. 2018) (rejecting application of exemption 7(E) to FBI manual 3 on surveillance techniques that described investigative techniques known to public generally); 4 ACLU Foundation v. U.S. Dep’t of Just., 418 F. Supp. 3d 466, 480 (N.D. Cal. 2019) (rejecting the 5 FBI’s reliance on 7(E) because “disclosure of social media surveillance—a well-known general 6 technique—would not reveal the specific means of surveillance”). 7 Defendants’ conclusory references to exemption 7(E) do not enable plaintiff or this court 8 to assess the propriety of their withholding. To remedy this deficiency, plaintiff asks that 9 defendants be ordered to provide a Vaughn index. ECF No. 50-1. A Vaughn index is a list 10 “identifying the documents withheld, the FOIA exemptions claimed, and a particularized 11 explanation of why each document falls within the claimed exemption.” Wiener v. Fed. Bureau 12 of Investigation, 943 F.2d 972, 977 (9th Cir. 1991). “The purpose of the index is to afford the 13 FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation 14 to review, the soundness of the withholding.” Id. (internal quotation and citation omitted). Other 15 than their argument that exemption 7(E) applies, defendants’ lone objection to this request is that 16 it is unnecessary because “[t]he only claim at issue in Plaintiff’s amended complaint is whether 17 ICE has responded to Plaintiff’s FOIA request.” ECF No. 54 at 5. For the reasons above, this 18 argument lacks merit. 19 At this time, in the absence of a Vaughn index, the court is unable to resolve the parties’ 20 motions for summary judgment. Accordingly, I will recommend that the parties’ motions be 21 denied without prejudice to renewal upon the production of a Vaughn index and that, within 60 22 days of the date of any order adopting these findings and recommendations, defendants be 23 ordered to produce a Vaughn index.3 24 Accordingly, it is hereby RECOMMENDED that: 25 1. defendants’ motion to dismiss, or in the alternative, for summary judgment, ECF 26 No. 45, be denied without prejudice; 27

28 3 Plaintiff’s request for fees and costs should be denied as premature. 1 2. plaintiff's motion for summary judgment, ECF No. 50, be denied without prejudice; 2 | and 3 3. defendants be ordered to produce a Vaughn index within 60 days of any order 4 adopting these findings and recommendations. 5 These findings and recommendations are submitted to the United States District Judge 6 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days of 7 | service of these findings and recommendations, any party may file written objections with the 8 | court and serve a copy on all parties. Such document should be captioned “Objections to 9 | Magistrate Judge’s Findings and Recommendations.” Any response shall be served and filed 10 | within fourteen days of service of the objections. The parties are advised that failure to file 11 | objections within the specified time may waive the right to appeal the District Court’s order. 12 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 13 1991). 14 15 IT IS SO ORDERED. 16 ( — Dated: _ July 31, 2023 q——— 17 at D. PETERSON 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 10