Case 5:17-cv-11149-JEL-EAS ECF No. 47 filed 04/27/18 PageID.584 Page 1 of 12 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, Plaintiff, Case No.: 5:17-cv-11149-JEL-EAS Judge Judith E. Levy v. U.S. DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND BORDER PROTECTION, Defendants. JOINT STATUS REPORT The Parties submit this Joint Status Report pursuant to this Court’s October 26, 2017 Order directing the Parties to file a Joint Status Report on April 27, 2018, addressing the status of Defendants’ response to Plaintiff’s FOIA requests. Dkt. #42 (hereinafter, the “October 26 Order”). This Joint Status Report summarizes two topics: 1. The status of the government’s document production in response to the Plaintiffs’ February 2017 FOIA requests; and 2. Other outstanding issues. I. Status of Production This Court’s October 26 Order instructed Defendants to review “for responsiveness and for information exempt from disclosure under the FOIA the 1 Case 5:17-cv-11149-JEL-EAS ECF No. 47 filed 04/27/18 PageID.585 Page 2 of 12 first 820 pages of the records identified as potentially responsive to plaintiff’s FOIA requests, located through Defendants’ search of email records from the six identified custodians in the Customs and Border Protection (‘CBP’) Detroit Field Office.” Dkt. #42 at 2, Pg ID 483. Defendants were to “repeat this process subject to the above requirements each successive month for each successive batch of 820 documents, with each batch to be reviewed and produced by the 27th of each month, or by the next business day if the 27th of the month falls on a weekend or a holiday.” Id. Following the Court’s October 26 Order, Defendants have reviewed and produced responsive Michigan documents from the initial six custodians as follows:1 Production Date Pages October 27, 2017 7 November 17, 2017 1,936 December 18, 2017 640 December 28, 2017 585 January 2, 2018 53 January 16, 2018 275 1 Plaintiff notes that the production timeline did not technically comply with the production schedule of this Court’s October 26 Order, but since the totals produced are in compliance, Plaintiff does not object. 2 Case 5:17-cv-11149-JEL-EAS ECF No. 47 filed 04/27/18 PageID.586 January 19, 2018 54 February 27, 2018 197 February 28, 20182 Page 3 of 12 0 March 27, 2018 2,296 April 16, 2018 1143 The column labeled “Pages” reflects the total number of pages reviewed by Defendants. It includes pages that were withheld, as well as pages that were produced, either in whole or in part. Defendants state that they have reviewed 6,157 pages of Michigan records following the October 26 Order. This figure does not include Defendants’ review of non-responsive spreadsheets. Defendants anticipate zero pages of records from the initial six custodians remain to be reviewed. Plaintiff separately states that although Defendants claim to have completed their production, they have produced documents in gross that are relevant to multiple actions brought by ACLU affiliates, rather than strictly responsive to 2 Parties note that while no responsive pages were produced on this date, Defendants did review eight non-responsive spreadsheets. 3 On April 16, 2018, Defendants notified Plaintiff that 114 pages of responsive, non-exempt records were inadvertently excluded from Defendants’ March 27, 2018 production due to an administrative oversight. Defendants produced these records on April 16, 2018. 3 Case 5:17-cv-11149-JEL-EAS ECF No. 47 filed 04/27/18 PageID.587 Page 4 of 12 Plaintiff’s two FOIA requests.4 Plaintiff accordingly is in the process of reviewing the documents that Defendants have produced in order to determine their responsiveness to this litigation. In addition, Plaintiff is in the process of reviewing the production to determine the propriety of redactions. Finally, Plaintiff’s document review will help determine whether there are additional custodians to be searched or other avenues to identify additional responsive documents. II. Outstanding Issues In the Joint Status Report filed on September 29, 2017, the Parties discussed numerous issues that were then before the court. Although many of those issues have been resolved either through this Court’s October 26 Order or negotiations between the parties, two issues remain outstanding: (1) the appropriate date range for responsive documents; and (2) the review and production of records from the TECS database. These remaining issues are discussed in turn below. 1. Appropriate Date Range for the Search Plaintiff’s Statement As set out more fully in the Joint Status Report filed September 29, 2017, Plaintiff maintains that Defendants’ decision to limit their response to records 4 Defendants note that Plaintiff in this case and plaintiffs to multiple actions brought by ACLU affiliates requested that all records be sent to the same point of contact. See Complaint, Dkt. #1, Exhibit A, at 15. 4 Case 5:17-cv-11149-JEL-EAS ECF No. 47 filed 04/27/18 PageID.588 Page 5 of 12 dated between January 27, 2017 and February 4, 2017 is unreasonable in light of the continuing language in both FOIA requests, the date of the filing of the FOIA requests – one of which was not even filed until February 10, 2017 – and the evolving circumstances surrounding the requests. Dkt. #40, Pg ID 455-57. Plaintiff anticipated that the original Executive Order may be subject to revision and specifically drafted its FOIA requests to capture “[a]ny other judicial order or executive directive issued regarding the Executive Order on or after January 27, 2017.” Dkt. ##1-2 at 6, Pg ID 37; Dkt. ##1-3 at 7, Pg ID 55. The language of the FOIA requests makes clear that they are ongoing through the date of production. See, e.g. Dkt. No. 1-2 at 7, Pg ID 38; Dkt. No. 1-3 at 8, Pg ID 56 (requesting numbers for those detained and questioned “both as of the date of this request and as of the date on which this request is processed”). Plaintiff asks this Court to decide the proper date through which Defendants must review and produce responsive documents. Defendants have argued that a “date-of-search cut-off date is reasonable.” Dkt. #40, at 6, Pg ID 458. Here, Defendants’ initial production – which was not specifically for Michigan, but rather was to all of the ACLU FOIA requesters – was provided on July 17, 2017. Id. Plaintiff and Defendants negotiated search terms for responsive Michigan records throughout the summer and agreed on core search terms and an initial list 5 Case 5:17-cv-11149-JEL-EAS ECF No. 47 filed 04/27/18 PageID.589 Page 6 of 12 of custodians on October 16, 2017. Thus, the earliest that a Michigan search was done was October 16, 2017. Nevertheless, although Plaintiff remains willing to reach a compromise regarding the appropriate date range, Plaintiff believes that Defendants’ date cutoff – which is premised on the idea that the search commenced before Plaintiff’s second FOIA request was even sent – is unreasonable. Defendants could not have started searching for documents responsive to Plaintiffs’ second FOIA request until it was submitted on February 10, 2017. Since both parties acknowledge the principle of a date-of-search cut-off, the question here is what the relevant date of search is. That date is necessarily after February 10, 2017, and should be based on when Defendants started searching for Michigan records. How this Court determines both this issue and the recordkeeping system request noted below will determine how best to procedurally resolve these matters. Defendants’ Statement As explained in the Joint Status Report filed September 29, 2017, Dkt. #40, Pg ID 458-62, Defendants maintain that the search date range of January 27, 2017 to February 4, 2017 is reasonable. As Defendants explained, the overwhelming legal authority establishes that a “date-of-search cut-off date is reasonable [in FOIA], even if subsequent searches are conducted, to avoid ‘an endless cycle of judicially mandated reprocessing.’” McClanahan v. U.S. Dep’t of Justice, 204 F. 6 Case 5:17-cv-11149-JEL-EAS ECF No. 47 filed 04/27/18 PageID.590 Page 7 of 12 Supp. 3d 30, 47 (D.D.C. 2016) (quoting Bonner v. U.S. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991)). However, also relevant to the question of whether an agency’s search was adequate, which includes whether the agency searched for records from a reasonable time period, is the question of where (and from what time period) the agency reasonably believes responsive records are likely to be found. See, e.g., Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325-26 (D.C. Cir. 1999) (at summary judgment, the agency must “demonstrate beyond a reasonable doubt that its search was ‘reasonably calculated to uncover all relevant documents.’”). In this particular case, as Defendants have explained to Plaintiff, the agency does not believe responsive records exist beyond February 4, 2017. Plaintiff’s requests ask for records related to CBP’s “interpretation, enforcement, and implementation” of EO 13,769. EO 13,769 was issued on January 27, 2017 and was enjoined on a nationwide basis on February 3, 2017. Following that nationwide injunction, guidance was sent from the Acting Commission to CBP leadership on February 3, 2017 to stop enforcement of the provisions of EO 13,769 which were enjoined. A copy of that guidance has been released to Plaintiff and its effect is supported by Excel spreadsheets that have been released to Plaintiff showing that the last traveler processed under EO 13,769 was processed on February 4, 2017). For purposes of a grace period, the agency 7 Case 5:17-cv-11149-JEL-EAS ECF No. 47 filed 04/27/18 PageID.591 Page 8 of 12 pulled almost 30 additional hours of emails after the time of the stop enforcement email (the remainder of February 3, 2017 and all of February 4, 2017). As Defendants have also explained, as to the question of when the agency began “searching” for records responsive to Plaintiff’s request, it is hard to divorce the agency’s search for records responsive to the DHS Office of Inspector General (OIG) investigation from the agency’s search for records responsive to Plaintiff’s (and the other ACLU affiliates’) FOIA requests. The agency initially received a formal request for records related to the EO implementation from the DHS OIG on February 1, 2017 and almost immediately began its search. In response to that request, the agency searched for and produced its first set of responsive documents to the OIG on February 3, 2017. Some of the products of this electronic and manual search process were also responsive to the ACLU FOIA requests and ultimately became records that the agency has produced for Plaintiff in the last few months. Accordingly, Defendants assert that the agency’s search for records responsive to Plaintiff’s requests commenced on or before the date of Plaintiff’s first FOIA request (given the significant overlap with the OIG search). During the September 26, 2017 conference, Plaintiff advised Defendants that Plaintiff believed the search cut-off date should be either September 25 or 26, 2017. Plaintiff now asserts that the search cut-off date should be October 16, 2017. To accept Plaintiff’s position – which has been a moving target at least until mere 8 Case 5:17-cv-11149-JEL-EAS ECF No. 47 filed 04/27/18 PageID.592 Page 9 of 12 days ago – would be to ignore the D.C. Circuit’s admonishment that “courts must be wary of creating ‘an endless cycle of judicially mandated reprocessing’ of FOIA requests.” ACLU v. U.S. Dep’t of Justice, 640 Fed. App’x 9, 13 (D.C. Cir. 2016). See also Bonner, 928 F.2d at 1152; McClanahan, 204 F. Supp. 3d at 47. It is also inconsistent with DHS’s own FOIA regulations, which provide that “[i]n determining which records are responsive to a request, a component ordinarily will include only records in its possession as of the date that it begins its search.” 6 C.F.R. § 5.4(a). Because the overwhelming weight of legal authority supports the date range applied by the agency, Defendants will oppose any motion by Plaintiff for summary judgment on this issue. Additionally, since production is now complete, this issue would appropriately be resolved through summary judgment briefing. Plaintiff’s request for leave to file a partial summary judgment motion on this issue should, accordingly, be denied. See Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993) (“Generally, FOIA cases should be handled on motions for summary judgment, once the documents in issue are properly identified.”) (cited in Rodriguez v. U.S. Dep’t of Army, 31 F. Supp. 3d 218, 225 (D.D.C. 2014)); see also Dkt. #40, Pg ID 460-62. 9 Case 5:17-cv-11149-JEL-EAS ECF No. 47 filed 04/27/18 PageID.593 Page 10 of 12 2. Search of Recordkeeping Systems for Responsive Records In its October 26 Order, the Court also ordered the parties to provide supplemental briefing regarding production of excel files in their native format (an issue which the parties have since resolved) and “whether and how the government should be required to produce individual records from the TECS system database.” Dkt. No. 42 at 2-3, Pg ID 483-84. The parties have fully briefed the second issue regarding TECS system records, and await a ruling from the Court, which will affect the volume of future productions that remain. See Dkt. ##43, 44, and 45. Dated: April 27, 2018 Respectfully submitted, Attorneys for Plaintiff Attorneys for Defendants /s Gabriel E. Bedoya Miriam Aukerman (P63165) American Civil Liberties Union Fund of Michigan 1514 Wealthy Street, Suite 201 Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org /s Ashley A. Cheung, with consent Ashley A. Cheung (NY 5405816) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, D.C. 20530 Tel: (202) 616-8267 Fax: (202) 616-8470 Email: ashley.cheung@usdoj.gov Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org kmoss@aclumich.org 10 Case 5:17-cv-11149-JEL-EAS ECF No. 47 filed 04/27/18 Gabriel E. Bedoya (P80839) Andrew M. Pauwels (P79167) 2290 First National Building 600 Woodward Avenue Detroit, Michigan 48226 (313) 465-7254 gbedoya@honigman.com apauwels@honigman.com 11 PageID.594 Page 11 of 12 Case 5:17-cv-11149-JEL-EAS ECF No. 47 filed 04/27/18 PageID.595 Page 12 of 12 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 April 27, 2018 The statement above is true to the best of my knowledge, information and belief. /s Gabriel E. Bedoya 12