Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.485 Page 1 of 16 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, Plaintiff, v. Case No.: 5:17-cv-11149-JEL U.S. DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND BORDER PROTECTION, Defendants. Judge Judith E. Levy PLAINTIFF’S SUPPLEMENTAL BRIEFING PURSUANT TO COURT ORDER 25949438.2 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.486 Page 2 of 16 ISSUES PRESENTED 1. Should the Court order Defendants to produce Microsoft Excel files in their native, original format where Plaintiff is entitled to specify its preferred production format, the files sought are readily reproducible in their native format, and Defendants have failed to identify any authority to support their withholding? Plaintiff answers “Yes.” 2. Should the Court order Defendants to produce a sample of responsive records from the TECS System, where there are records plainly responsive to Plaintiff’s FOIA request? Plaintiff answers “Yes.” 2 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 I. PageID.487 Page 3 of 16 INTRODUCTION On October 26, 2017, the Court ordered the Parties to submit supplemental briefing on two issues: (1) whether Defendants should be required to produce Microsoft Excel files in their original, native format; and (2) whether and how Defendants should be required to produce individual records from the TECS system database. Dkt. #42 at 2-3, Pg ID 483-84. Because applicable law requires the government to provide documents in the format requested by the requesting person, and in light of the broad scope of Plaintiff’s FOIA requests, Plaintiff requests that the Court enter an order compelling Defendants (1) to produce documents in the format requested, including native Excel files and (2) to produce TECS System files. II. A. ARGUMENT Defendants Must Produce Records in Any Readily Reproducible Format Identified by Plaintiff – Including Native Excel Files 1. Plaintiffs Have Requested All Productions In Native Format, As Authorized by FOIA Plaintiff has indicated that its preferred production format for all Microsoft Excel spreadsheets is as original, native .xls or .xlsx files. Dkt. #40 at 10, Pg ID 462. Plaintiff is entitled to make such a request to the agency pursuant to the Electronic Freedom of Information Act of 1996, which amended the FOIA statute to require agencies to “provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.” 3 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.488 Page 4 of 16 5 U.S.C. § 552(a)(3)(B). The Department of Homeland Security’s own published regulations establish that the Department’s component agencies “shall honor a requester’s preference for receiving a record in a particular form or format where it is readily reproducible by the component in the form or format requested.” 6 C.F.R. § 5.11(c)(2); 19 C.F.R. § 103.2 (adopting 6 C.F.R. part 5, subpart A for FOIAs submitted to Customs and Border Protection); see also FOIA Update: Congress Enacts FOIA Amendments, The United States Department of Justice, Office of Information Policy (Jan. 1, 1996), https://www.justice.gov/oip/blog/foiaupdate-congress-enacts-foia-amendments (“The requester, not the agency, ordinarily will be entitled to choose the form of disclosure when multiple forms of a record already exist.”). The discretion to choose the production format lies solely with the plaintiff and is limited only by the requirement that the production format selected be “readily reproducible.” 5 U.S.C. § 552(a)(3)(B). This issue has previously been considered at length by the Ninth Circuit Court of Appeals in TPS, Inc. v. United States Department of Defense, where the court held that an electronic record is “readily reproducible” if the agency already has the capability to create and convert documents in the requested format even if it does not routinely do so for purposes of responding to FOIA requests. 330 F.3d 1191, 1195-96 (9th Cir. 2003). The panel in TPS noted that, “[w]hen an agency already creates or converts documents in a certain format – be it for FOIA 4 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.489 Page 5 of 16 requestors, under a contract, or in the ordinary course of business – requiring that it provide documents in that format to others does not impose an unnecessarily harsh burden, absent specific, compelling evidence as to significant interference or burden.” Id. at 1195. The Defendants have failed to satisfy any such burden here and indeed cannot, because Defendants have the routine ability to produce Excel files in their native format. 2. Defendants Fail To Justify Denying Plaintiff’s Request Defendants do not dispute that they are readily capable of producing the requested records in the requested format but rather expressed concern with producing spreadsheets in any format that is capable of manipulation. Dkt. #40 at 12, Pg ID 464. Defendants’ stated reason for their unwillingness to produce Excel files is that the requested production format “creates the unreasonable risk that a member of the public (because documents released in a FOIA action must be made available to the public as a whole) might alter the data in those spreadsheets and represent the data as Customs and Border Protection (hereafter “CBP”) information based on the Bates numbers or other markings attached to the files.” Dkt. # 40 at 12, Pg ID 464. Rather than discuss the agency’s capacity to satisfy the requested production format, Defendants implicitly claim that the agency is within its authority to deny Plaintiff’s format request because of the potential that such information may be mishandled by unnamed third parties. 5 This is in direct Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.490 Page 6 of 16 opposition to the language of FOIA, which clearly establishes that the only limitation on plaintiff’s authority to choose the form of disclosure is the reproducible nature of the production format. 5 U.S.C. § 552(a)(3)(B). Defendants have not identified a proper ground for denying Plaintiff’s request. Defendants rely on unfounded and unreasonable fears about the hypothetical manipulation of Excel files. While the Defendants expressed concern that producing the records in a malleable format makes them susceptible to improper third party manipulation, this reality remains true regardless of the format of production. There is always a risk that the public might manipulate a government document produced in response to any FOIA request. PDF files, for example, are easily manipulated with programs such as Photoshop, but this has not prevented Defendants from producing documents in that format. And Defendants have pointed to no authority for the proposition that a hypothetical risk of manipulation alters the government’s obligation to comply with FOIA. There simply exists no reason in law or fact for treating Excel files any differently. The only alternative to PDF versions of Excel spreadsheets identified by the Defendants are “protected” Excel spreadsheets, which they acknowledged are functionally equivalent to PDFs. Dkt. # 40 at 12, Pg ID 464. A “protected” Excel file could still be manipulated by an individual intent on doing so, as production formats such as PDFs and protected Excel files only create minor impediments to a 6 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.491 Page 7 of 16 party that wants to render the data in a malleable format. The bottom line is that the Court cannot indulge Defendants’ speculation about a hypothetical manipulator of .xls and .xlsx files when it offers absolutely no basis for the assertion that somehow Excel files are uniquely susceptible to manipulation in a way that other formats are not – or that such hypothetical manipulation alters the government’s obligations under FOIA. Defendants’ proposed production formats serve only to inconvenience the Plaintiff in their request for responsive records. In order to properly review and assess the agency spreadsheets, Plaintiff must be able to not only search these files, but also use the functionality of Microsoft Excel to analyze their contents. Significantly, the Department of Homeland Security (hereafter “DHS”) regularly publishes FOIA records in .xls and xlsx format. For instance, a cursory review of the DHS FOIA website reveals Excel files detailing everything from the Countering Violent Extremism grant program recipients,1 to FEMA Disaster Grant allocations,2 to spreadsheets detailing USCIS I-407, Records of abandonment of Lawful Permanent Resident Status.3See FOIA Library, Department of Homeland Countering Violent Extremism Grant Program, Department of Homeland Security, available at https://www.dhs.gov/publication/countering-violentextremism-grant-program 2 DHS Open Government Data Sets, Deparmtnet of Homeland Security, available at https://www.dhs.gov/dhs-open-government-data-sets. 3 Executive Orders – FOIA, Deparmtnet of Homeland Security, available at https://www.dhs.gov/publication/executive-orders-foia (included in the zip file 1 7 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.492 Page 8 of 16 Security, available at https://www.dhs.gov/foia-library. These files all contain various forms of highly sensitive information in a malleable format that is potentially subject to manipulation. The possibility of any misleading use of these records, however, does not justify agency imposed restrictions on the production format Moreover, CBP has previously released Excel files in other litigations, including Michigan Immigration Rights Center v. Department of Homeland Security, No. 16-14192, (hereafter MIRC) where the ACLU of Michigan also served as a plaintiff. There CBP agreed to produce password-protected Excel files that could be manipulated and also saved as an Excel file under a new filename. Plaintiff proposed that this same method be used here, and the government has agreed to consider the proposal but has yet to provide plaintiffs with a final response on the matter. See Ex. C. In sum, Defendants’ concerns are overstated, inconsistent with their past production of excel documents, and rendered irrelevant by the existing case law. When determining whether a plaintiff is entitled to the requested production format, the court’s analysis turns on the reproducible nature of the records at issue. It is uncontroverted that the Excel files are readily reproducible as Excel files; indeed, they already exist in that format, and Defendants have taken the additional titled “Presidential Executive Order 13769/13780 (Protecting the Nation from Foreign Terrorist Entry into the United States)” 8 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.493 Page 9 of 16 step of converting them into a less useful format that strips out the Excel file’s functionality. Since the spreadsheets at issue already exist in either .xls, .xlsx, or some other native Excel format, Plaintiff’s request to produce them in their existing format is reasonable. B. The TECS Files Are Responsive to Plaintiff’s FOIA Requests and Must Be Produced 1. Plaintiff Has Requested All Records Implementation of the Two Executive Orders Related to the Plaintiff requests that Defendants produce documents from the TECS System related to the enforcement of the Executive Order at the Michigan ports of entry. As explained by the Defendants in the Joint Status Report, “TECS is an overarching law enforcement system, composed of a number of sub-systems, that contains information about persons and goods crossing the border.” Dkt. #40 at 17, Pg ID 469. It is “the primary repository for enforcement related activities at the border.” See Privacy Impact Assessment for the TECS System, U.S. D.H.S. at 8 (Dec. 22, 2010), available at (cited by Defendants in Dkt. #40 at 17, Pg ID 469). As such, the TECS System contains a great deal of information about travelers, including Country of residence, U.S. border crossing event history, and “free-form text [that] may be entered . . . to contain comments about certain events that are not 9 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.494 Page 10 of 16 collected electronically by TECS, but have been determined necessary to properly reflect the context of a record or an activity.” Id. at 8-9. Given the role the TECS System plays in tracking enforcement activities at the border, it is obvious that such records are responsive to Plaintiff’s FOIA requests which seek “information regarding CBP’s local implementation of the Executive Order at [Michigan ports of entry]”. Dkt. #1-2 at 2, Pg ID 32; Dkt. #1-3 at 2, Pg ID 49. Indeed, Plaintiff’s FOIA requests seek the following: Records created on or after January 27, 2017 concerning CBP’s interpretation, enforcement, and implementation of the following at Local International Airports: a. President Trump’s Executive Order, signed on January 27, 2017 and titled ‘Protecting the Nation from Foreign Terrorist Entry Into the United States’; b. Any guidance ‘provided to DHS field personnel shortly’ after President Trump signed the Executive Order, as referenced in CBP’s online FAQ; . . . Dkt. #1-2 at 6-7 (emphasis added), Pg ID 36-37; Dkt. #1-3 at 6-7, Pg ID 53-54. The requests go on to list a number of other administrative and judicial documents that relate to the Executive Order, similarly seeking records concerning the interpretation, enforcement, and implementation of those documents. Defendants have consistently misconstrued the nature and scope of Plaintiff’s requests, improperly narrowing and essentially reading out completely entire portions of the requests. For example, in the most recent joint submission to 10 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.495 Page 11 of 16 the Court, Defendants state: “Defendants do not believe TECS records are responsive to Plaintiff’s requests given that Plaintiff’s requests focus on aggregate numbers of travelers (not specific traveler records).” Dkt. #40 at 17, Pg ID 469. While it is true that several of the requests specifically seek aggregate data, the requests are in no way limited to aggregate data only. The FOIA Requests are specifically structured as an initial broad request for “[r]ecords created on or after January 27, 2017 concerning CBP’s interpretation, enforcement and implementation of [the Executive Order and subsequent guidance, court decisions and orders]…” This is request 1. Dkt. #1-2 at 6-7, Pg ID 36-37; Dkt. #1-3 at 6-8, Pg ID 53-55. The FOIAs then go on, in requests 2-5 to seek specific documents, including data on the number of individuals detained, removed or who gave up valid visas or green cards, as well as record regarding guidance provided to field personnel. Dkt. #1-2 at 7-8, Pg ID 37-38; Dkt. #1-3 at 89, Pg ID 55-56. As is common in FOIA requests, the Plaintiff included both a broad request, but also included specific items to ensure that those would not be omitted in response. All of the records sought in request 2-5 are also responsive to request 1, but request 1 encompasses documents not specifically listed in requests 2-5. Thus, Plaintiff’s FOIA requests are not limited to aggregate data only but instead seek documents of any kind related to Defendants “interpretation, 11 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.496 Page 12 of 16 enforcement, and implementation,” a category in which TECS System records clearly fall. Dkt. #1-2 at 6, Pg ID 36; Dkt. #1-3 at 6, Pg ID 53. That the TECS System records are responsive is made even more obvious when considered in light of the widely recognized FOIA principle that “an agency ‘has a duty to construe a FOIA request liberally.’” Hertz Schram PC v. F.B.I., 2014 WL 764682, at *8 (E.D. Mich. Feb. 25, 2014) (quoting Nation Magazine, Washington Bureau v. United States Custom Service, 71 F.3d 885, 890 (D.C. Cir. 1995)) (finding that “FBI misinterpreted Plaintiff’s FOIA request,” rendering the search for records insufficient). These documents are plainly responsive and should be produced. 2. Defendants Have Failed to Justify Their Denial of Plaintiff’s Request Defendants argue that they should not be required to produce TECS records because the information contained in those records that Defendants believe is not exempt has been included in the excel spreadsheets. Plaintiff, of course, cannot know without looking at the TECS records whether all of the information of interest has been included in the spreadsheets or whether the redactions are proper. Plaintiff’s prior experience in Michigan Immigration Rights Center v. Department of Homeland Security, No. 16-14192 (hereafter MIRC) , which involves similar records maintained by CBP, suggests that such spreadsheet compilations do not cover many fields, much less narratives, that are contained in the individual 12 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.497 Page 13 of 16 records. Moreover, in MIRC, Plaintiff is contesting the propriety of redactions. To illustrate this point, Plaintiff attaches one page of a spreadsheet summarizing CBP’s daily apprehension logs and one sample redacted apprehension record from the MIRC litigation to show how different spreadsheet information is from individual records. These attachments are Exhibits A and B respectively. Plaintiff does not know what individual TECS records look like, and it may be, as Defendants claim, that they contain no releasable information beyond that which is in the spreadsheets. If that is so, Plaintiff may not need the records. Therefore, Plaintiff has proposed a compromise position: for each of the FOIAs, Defendants should be ordered to produce a randomized selection of 10 individual TECS records (e.g. 10 at the land border and 10 at the airport). Based on those productions, the Plaintiff and the Court will be in a better position to evaluate Defendants’ arguments that these documents are appropriately redacted, as well as arguments that the production of these records would be duplicative or burdensome.4 4 The Court need not decide Defendant’s burden argument at this stage, since Plaintiff is merely requesting a simple sample of 20 records. However, Plaintiff notes that naked assertions of burden are insufficient to sustain the withholding of documents. See Nation Magazine, 71 F.3d at 892 (requiring agency to “provide sufficient explanation as to why such a search would be unreasonably burdensome”); see also Ayuda, Inc. v. Fed. Trade Comm’n, 70 F.Supp.3d 247, 275 at *17 (D.D.C. 2014) (holding an agency’s affidavits must show with “reasonable specificity” why further segregation of documents, properly withheld under FOIA exemptions, would be unreasonably burdensome); Pub. Citizen, Inc. v. Dep’t of 13 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.498 Page 14 of 16 CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court enter an order (1) compelling Defendants to produce Excel documents in native format and (2) ordering Defendants to produce 20 randomized TECS records (10 for the land border FOIA and 10 for the airport FOIA) by a date certain, and requiring the parties thereafter to submit a joint status report regarding whether further TECS records should be produced. Educ., 292 F.Supp.2d 1, 6 (D.D.C. 2003) (rejecting agency’s claim that requested search was unreasonably burdensome “[w]ithout more specification as to why a search certain to turn up responsive documents would be unduly burdensome”). 14 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.499 Page 15 of 16 Dated: November 9, 2017 By: /s/ Gabriel E. Bedoya Gabriel E. Bedoya (P80839) Andrew M. Pauwels (P79167) Andrew M. Goddeeris (P80674) 2290 First National Building 660 Woodward Avenue Detroit, MI 48226-3506 (313) 465-8072 gbedoya@honigman.com apauwels@honigman.com agoddeeris@honigman.com Attorneys for Plaintiff American Civil Liberties Union of Michigan Michael J. Steinberg (P43085) Kary Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6800 msteinberg@aclumich.org Miriam J. Aukerman (P63165) American Civil Liberties Union Fund of Michigan 1514 Wealthy SE, Suite 242 Grand Rapids, MI 49506 (616) 301-0930 mauckerman@aclumich.org Attorneys for Plaintiff American Civil Liberties Union of Michigan 25949438.2 Case 5:17-cv-11149-JEL-EAS ECF No. 43 filed 11/09/17 PageID.500 Page 16 of 16 CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing was served on the attorneys of record in this matter by efiling on November 9, 2017. The statement above is true to the best of my knowledge, information and belief. /s/ Gabriel E. Bedoya Gabriel E. Bedoya Case 5:17-cv-11149-JEL-EAS ECF No. 43-1 filed 11/09/17 Index of Exhibits A. Spreadsheet B. Sample Form I-44 C. Email Exchange PageID.501 Page 1 of 1 EXHIBIT A Page 1 of Customs and Border Protection Daily Apprehensions Spreadsheet Produced in Michigan Immigration Rights Center v. Department oj?I-Iomeland Security, No. 16-14192 3P ?nale. 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TRAVERE SONG lien" 55. z; MEXICO Pdid bidet TRAVEISE SONG aleniy u'sn Pdid bidet TRAVEISE SONG alenly 55 MEXICO EXHIBIT Sample Form 1-4-4 Produced in Michigan Immigration Rights Center v. Department Q/?Homelana' Security, No. 16-14192 REPORT OF APPREHENSION OR SEIZURE m: Office orAgency File CASE UNITED STATES BORDER PATROL . lib; BORDER PATROL STATION Patrol Agents Date 10/02/2011 i; b; station assisted theWucz DEPARTMENT on (Agency) (City and State) in the apprehension ?sum of the following: BEW/interviewedFirst Middle Date and Place of Birth (6) Ibi i'rE-i, ibi 17min GUANAJUATO, unnuoo Address of person apprehended/interviewed (6). Nationality TOL-O, on 43608 MEXICO El and VESSEL, VEHICLE 0R AIRCRAFT Description (Year. Make Model. Color) Motor or Serial No. Registry or License No. Value (Est) CONTRABVAND, MERCHANDISE OR OTHER Quantity Description Value (Est) hension or Seizure Date and Hour Offense 10/02/2011 0149 ALIEN NOT IN POSSESSION or IMMIGRATION 7 NARRATNE: (Include Circumstances of apprehension and seizure and facts to which apprehending officers can testify.) INCIDENT COGID INATES: Latitude: Longitude: on 1-331) (6), Signature of Reporting Officer Reoeediv above ersons and items: Details regarding placed PATROL AGENT IN CHARGE Signature and Title UNITED STATES BORDER PATROL Of?ce or Agency 10/02/2011 Date I 1 1H-.. LI I?l- All? ?Phi-?ml anm199? INSTRU CTIONS To be prepared when a citizen or non-deportable alien is processed for violation of the Immigration and Nationality Act, or the person arrested or article seized is delivered to an agency or person outside the Department of Homeland Security, or when such an arrest or seizure is made in a joint operation with another agency. The form is addressed to the of?ce receiving the person or article seized. In ajoint operation, the form is addressed to the Chief Patrol Agent and no receipt is required. Any number of persons, conveyances, or other articles may be listed on the same form provided they are a part of the same transaction. Estimated values should be based on Customs appraisal when readily available or on current market values. Value of automobiles may be obtained from National Automobile Dealers' Association Handbook (Blue Book) or similar sources. Value of narcotics shall be based on the appraised value by the receiving agency. The state of re?nement and location will be considered in establishing the value of seized narcotics. The narrative shall brie?y outline all the circumstances surrounding the apprehension or seizure and indicate the agency furnishing the original information. In a joint operation, disposition of the persons arrested or articles seized shall be shown. When the person arrested is a deportable alien, or will become deportable upon conviction, an appropriate ?Hold" order shall be placed and details inserted in the black box on the face of the form. In addition to this form, an I- 213 shall be prepared for each alien found to be deportable at time of apprehension and that fact so noed in the narrative on the ?le copy only. The copy retained at the Sector of apprehension shall re?ect distribution made. Where words ?apprehended/interviewed" and ?seized/recovered" are used, delete inappropriate words. NARRATIVE (Continued) nnpm1 998 US Department of Homeland Security Continuation Page for Form_ 144 Date 10/02/2011 EventNO' I (D) (THE) ASSI STING ASSETS Narrative Title: Report of Apprehension or Seizure Apprehe ndi ng Agent: Processing Agent: (7W3: ENCOUNTER INFORMATION AND IMMIGRATION VIOLATION: On October 1, 2011 at approximatel 2200 hours, Supervisory Border Patrol Agent 1 received a call from the WPolice Department in (7)(E)Ohio. Officer ?requested assistance regarding three sub'ects he encountered durin a traffic stop for suspicious activity at the intersection of The driver of the vehicle and the two passengers were unable to comunicateclearly in the English language dispatched Border Patrol to provide translation and identification assistance. Upon arrival, Agent run: a. . . sub'ects r-ooardin their citizenship. The subject, later identified as (6). (6). claimed to have a Notice of Action filed on his behalf by his United States Citizen Brother. did not have any legal identification in his possession. Therefore, (6). to the Border Patrol Station for further investigation in order to properly identify and verify his claim to have a valid Notice of Action filed on his behalf. After positively identifying (6) and reviewing his imigration records it was determined, that did have a valid Petition filed on his behalf clarifying his admittance into the United States and was awaiting further determination by the Immigration courts. BPA -- offered and transported to his home address of Toledo, on 43608. ?Signature Title (6), Border Patrol Agent of Pages Form l-831 Continuation Page (Rev. 08l01/07) (?Rpm1'197 Case 5:17-cv-11149-JEL-EAS ECF No. 43-4 filed 11/09/17 From: Sent: To: Cc: Subject: PageID.508 Page 1 of 3 Miriam Aukerman Thursday, November 9, 2017 11:04 AM Straus Harris, Julie (CIV) Goddeeris, Andrew; Pauwels, Andrew M.; Juan Caballero; Bedoya, Gabriel E. RE: ACLU v. DHS Excel Issue Julie, We will wait to file until 4 p.m., in the event that you are able to get us an answer today. Assuming you are not, we will need to include discussion of the excel issue in our brief. As noted yesterday, if we are able to resolve this issue after we file our brief, we can simply notify the Court at that time. Best, Miriam Miriam Aukerman Senior Staff Attorney American Civil Liberties Union of Michigan From: Straus Harris, Julie (CIV) [mailto:Julie.StrausHarris@usdoj.gov] Sent: Thursday, November 09, 2017 10:57 AM To: Miriam Aukerman Cc: Andrew Goddeeris; Andrew Pauwels; Juan Caballero; Bedoya, Gabriel E. (GBedoya@honigman.com) Subject: RE: ACLU v. DHS Excel Issue Miriam, As I advised you below, I will provide you with defendants’ substantive response to your below email as soon as practicable. However, given the other pressing litigation obligations of those who must be consulted on these issues, I do not expect that we will be able to adequately consider and reach a determination by 4 p.m. today. Thank you, Julie From: Miriam Aukerman [mailto:maukerman@aclumich.org] Sent: Wednesday, November 08, 2017 5:14 PM To: Straus Harris, Julie (CIV) Cc: Andrew Goddeeris ; Andrew Pauwels ; Juan Caballero ; Bedoya, Gabriel E. (GBedoya@honigman.com) Subject: RE: ACLU v. DHS Excel Issue Hi Julie, I certainly understand the need for more time. I am sorry that I was unable to get this to you sooner. I have been absorbed in other pressing litigation, and accordingly other attorneys on the team—who were not on the MIRC v. DHS email chain—have been taking the lead on this case. Due to deadlines in other cases, I have only been able to look at these issues now. 1 Case 5:17-cv-11149-JEL-EAS ECF No. 43-4 filed 11/09/17 PageID.509 Page 2 of 3 As you know we have a filing due tomorrow. We can wait till late in the day to file – say 4 p.m. – so that you have more time to confer with your client. If that is not enough time, we can always try to resolve this after we file our motion tomorrow, and then simply notify the court that we have reached agreement. Best, Miriam Miriam Aukerman Senior Staff Attorney American Civil Liberties Union of Michigan From: Straus Harris, Julie (CIV) [mailto:Julie.StrausHarris@usdoj.gov] Sent: Wednesday, November 08, 2017 4:54 PM To: Miriam Aukerman Cc: Andrew Goddeeris; Andrew Pauwels; Juan Caballero; Bedoya, Gabriel E. (GBedoya@honigman.com) Subject: RE: ACLU v. DHS Excel Issue Miriam, Thank you for sharing with me the email below describing an arrangement reached to provide a native format Excel file in the MIRC v. DHS FOIA action. I will confer with my client and we will consider the relevance of the arrangement reached in the MIRC case to the question of whether the agency has an obligation under the FOIA to provide the records requested in this case in native Excel format. However, a single afternoon is simply not enough time for us to adequately consider and reach a determination about these issues. Despite the fact that you have had the below email in your possession since April 2017 and were aware of this example at the time of our October 26, 2017 status conference with the Court, you did not present it to me for consideration until today, and you have given me approximately 5 hours to provide defendants’ response. Although at the October 26 status conference you referenced for the Court an example of CBP providing a native format Excel file in a prior FOIA action in which you were involved, at that time you provided no additional information about that matter, and I had no awareness of the arrangement reached in the MIRC case until receiving your email today. Accordingly, at this late hour, I am unable to provide defendants’ substantive response by COB today but I will provide it as soon as practicable. Thank you, Julie Julie Straus Harris Trial Attorney U.S. Department of Justice, Civil Division Federal Programs Branch (202) 353-7633 Julie.StrausHarris@usdoj.gov From: Miriam Aukerman [mailto:maukerman@aclumich.org] Sent: Wednesday, November 08, 2017 11:52 AM To: Straus Harris, Julie (CIV) 2 Case 5:17-cv-11149-JEL-EAS ECF No. 43-4 filed 11/09/17 PageID.510 Page 3 of 3 Cc: Andrew Goddeeris ; Andrew Pauwels ; Juan Caballero ; Bedoya, Gabriel E. (GBedoya@honigman.com) Subject: ACLU v. DHS Excel Issue Dear Julie, We are preparing our brief regarding the production of documents in excel format. In doing so, I located information about excel productions in MIRC v. DHS—another FOIA case involving CBP records—that I had referenced during the status conference with Judge Levy. As you can see from the email below, in MIRC v. DHS, Customs and Border Protection provided excel spreadsheets in a password-protected format that allows 1) the documents to be manipulated; and 2) the user to save the document as a new excel file. In light of the agency’s past production of excel documents, we are writing again to request that you produce the documents here in excel. We have no objection to your providing the documents in a password-protected format as described in Ms. Nestler’s email below. Please let us know by the close of business whether CBP will produce the excel documents in ACLU v. DHS in the same excel password-protected format used for MIRC v. DHS. If so, we can resolve this issue. Best, Miriam Miriam Aukerman Senior Staff Attorney American Civil Liberties Union of Michigan From: Nestler, Emily B. (CIV) [mailto:Emily.B.Nestler@usdoj.gov] Sent: Thursday, April 06, 2017 5:08 PM To: Damren, Samuel (SDamren@dykema.com); Miriam Aukerman; Wheaton, Corey (CWheaton@dykema.com) Subject: Michigan Immigrant Rights v. DHS All, Attached please find a cover letter that was sent out to you today via Fed Ex with a disc containing the referenced documents. Copies were sent both to Dykema (to Sam’s attention) and to Miriam at the ACLU. In addition to the documents referenced in the cover letter, the disc contains the Category A data in the excel format that you requested. Note that the document is password protected in order to prevent it from being permanently edited. That means that you can open the file only in “Read Only,” when prompted. In “Read Only,” you will be able to manipulate the original document while it is on your screen, but not able to save it. Alternatively, you can create a new document using the “Save As” function- which you then will be able to handle as you will going forward. If you do create a new document using the “save as” function, please give the new document a distinct title to make clear that it is a document you have created, and not a document that you received from CBP. Best, Emily 3