United States District Court, E.D. Louisiana
ORDER AND REASONS
NANNETTE JOLIVETTE BROWN, District Judge.
Before the Court are Plaintiff Michael W. Gahagan's objections to the April 27, 2015 Report and Recommendation of the United States Magistrate Judge. Gahagan, an immigration lawyer, filed the instant action seeking the production of documents from Defendants United States Customs and Border Protection ("CBP"), United States Immigration and Customs Enforcement ("ICE"), and United States Department of State ("State") (collectively, "Defendants") pursuant to the Freedom of Information Act ("FOIA") in order to defend his client in removal proceedings. Gahagan filed two motions for summary judgment,  and the Court referred both motions to the Magistrate Judge. The Magistrate Judge issued a "Findings and Recommendations" ("Report and Recommendation") on April 27, 2015, recommending that the Court deny Gahagan's motions, subject to orders requiring ICE and CBP to file supplemental declarations regarding the adequacy of their searches. Gahagan timely objected. Having reviewed the Magistrate Judge's Report and Recommendation, the objections, the opposition to those objections, the motions, the memoranda in support, the memoranda in opposition, the record, and the applicable law, the Court will reject the Report and Recommendation, grant Gahagan's motions in part, deny Gahagan's motions in part, and find Gahagan's motions moot in part. Finally, the Court will order the production of certain disputed documents for in camera review before ruling in part.
Gahagan, an immigration attorney, filed the instant action against CBP, ICE, and State in order to obtain materials required to represent his client, Theodore Weegar, in removal proceedings. In his complaint, Gahagan alleges that he filed FOIA requests seeking these materials from CBP, ICE, and State in July 2014.
He further alleges that, as of November 15, 2014, when he filed the instant complaint, he had received no response from CBP. ICE, on the other hand, allegedly notified Gahagan that it "would... forward [his] request" to the United States Citizenship and Immigration Services ("USCIS"), prompting Gahagan to appeal ICE's "refusal to search its files for the requested agency records" on August 18, 2014. Gahagan maintains that, as of November 15, 2014, he had received 56 "fully redacted and fully withheld agency records" from USCIS marked "Referred to Immigrations and Customs Enforcement, " but that he had received no response from ICE regarding his request or his appeal. Finally, Gahagan contends that State mailed him a letter on July 31, 2014 requesting additional information to process his request, an action Gahagan deemed to be a denial of his request, prompting him to file a FOIA appeal. Gahagan avers that he supplied the requested information to State, but had received "no substantive reply" at the time he filed the instant complaint. Gahagan argues that Defendants have harmed him by failing to provide him with the information he requested, and requests that the Court order Defendants to respond to his FOIA request by conducting an adequate search, producing responsive agency records, providing a " Vaughn index" of withheld responsive records, and preventing Defendants from withholding responsive records. He also urges the Court to award him attorney's fees pursuant to FOIA and the Equal Access to Justice Act.
Gahagan filed two motions for summary judgment in this matter. The first motion asserts that he is entitled to judgment as a matter of law based upon ICE's "routing" of his request to USCIS and Defendants' failure to produce responsive documents, conduct an adequate search, or justify their withholding of responsive information. The second motion requests judgment as a matter of law premised upon: (1) CBP's failure to produce a Vaughn index; (2) ICE's production of seven pages of documents marked as "Non Responsive" and redacted in full; and (3) ICE's production of a one-page document marked as exempt and redacted in full.
The Court referred both motions to the Magistrate Judge for a Report and Recommendation. On April 27, 2015, the Magistrate Judge recommended that the Court deny Gahagan's pending motions "subject to the following orders:" (1) that CBP and ICE file supplemental declarations regarding their search for documents; and (2) that CBP file a supplemental declaration that more specifically describes the information it redacted pursuant to FOIA exemptions 6 and 7(C), and provide a "meaningful, less conclusory description of the types of information withheld under Exemption 7(E)."
II. Standard of Review
A. Standard Applied in Review of the Magistrate Judge's Report and Recommendation
In accordance with Local Rule 73.3, the Court referred this case to a Magistrate Judge to provide a Report and Recommendation. A District Judge "may accept, reject, or modify the recommended disposition" of a Magistrate Judge on a dispositive matter. The District Judge must "determine de novo any part of the [Report and Recommendation] that has been properly objected to." As to parts of the report to which no proper objection has been made, the District Court's review is limited to plain error.
B. Standard Applicable to Summary Judgment in FOIA Cases 
The Supreme Court has stated that "[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." Toward that end, FOIA is intended to "facilitate public access to government documents, " and was "designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." FOIA establishes a "strong presumption in favor of disclosure, " and accordingly "places the burden on the [government] agency [to which a request has been made] to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document."
The Fifth Circuit has held that FOIA "modif[ies]" the "traditional" summary judgment standard, insofar as it prescribes its own burdens and standards of proof to address the unique evidentiary issues inherent in FOIA actions, where the subject matter of the suit-government documents-may be partially or entirely hidden from view. Specifically, FOIA provides that federal district courts:
[Have] jurisdiction to enjoin the agency from withholding agency records and to order the production of agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.
In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).
In a FOIA action, an agency's supporting affidavits and declarations are entitled to a "presumption of legitimacy" in the absence of evidence of bad faith. Nonetheless, the burden of establishing the validity of a decision to withhold information remains with the agency,  and the Court will not accept an agency's "conclusory and generalized assertion[s]" on a motion for summary judgment, even if those assertions are uncontroverted.
III. Objections to Report and Recommendation
Gahagan timely filed objections to the Magistrate Judge's Report and Recommendation on May 11, 2015, urging the Court to reject the Report and Recommendation in full,  because the Magistrate Judge erred by applying a preliminary injunction standard to his motions and by failing to construe the facts in the light most favorable to him, in violation of the legal standards applicable to motions for summary judgment in FOIA cases.
In response to this objection, the Government argues that the Magistrate Judge "properly distinguished between the burden of proof for a FOIA preliminary injunction and the burden of proof for a FOIA motion for summary judgment, " and correctly applied the respective burdens to what it now alleges were Gahagan's "separate and distinct requests" for injunctive relief and for summary judgment. According to Defendants, "there is a litany of cases that discuss" the distinction between FOIA claims and injunctive claims, and these cases "place the burden squarely on a plaintiff when deciding injunctive relief in FOIA matters." Defendants maintain that the Magistrate Judge therefore appropriately applied this burden of proof as to Gahagan's "injunction claim, " but "utilized the typical FOIA burden of proof for the remaining FOIA claims."
For the first time in their response to Gahagan's objections, Defendants claim that Gahagan is seeking relief under FOIA and additional injunctive relief, and cite cases not originally relied upon in which the parties had moved for preliminary injunctive relief in the midst of FOIA litigation. Neither these cases nor such a distinction was argued by either party in the motions. The Court finds these cases distinguishable and inapplicable here.
In Electronic Privacy Information Center v. Department of Justice, cited by Defendants, the plaintiff simultaneously filed a complaint seeking "injunctive relief" under FOIA, and "a separate motion that requests entry of a preliminary injunction to enjoin... [the defendant's] unlawful attempts to impede plaintiff's efforts to obtain agency records under the [FOIA], '" a request alleging injury and seeking relief that was "coterminous" with the injury alleged and the relief sought in the complaint. In that case, the plaintiff asserted a claim pursuant to FOIA, and specifically filed a separate motion for a preliminary injunction. After the district court denied the motion for preliminary injunction, the case moved forward under FOIA's statutory procedures. Gahagan has not filed a motion for a preliminary injunction here, or made a request for a preliminary injunction in his pending motions, and so the Magistrate Judge's characterization of his FOIA request as such, and his application of the preliminary injunction standard to his FOIA request, was erroneous.
Similarly, in Judicial Watch, Inc. v. U.S. Department of Homeland Security, also cited by Defendants in response to Gahagan's objections, the plaintiff filed suit against several defendants pursuant to FOIA, seeking "to compel the disclosure" of certain documents. After receiving a disclosure it deemed unsatisfactory, the plaintiff moved for a preliminary injunction, urging the court to enjoin the defendants "from continuing to withhold the requested documents." The district court applied a preliminary injunction standard to the express motion for a preliminary injunction. Thus, there, again, the plaintiff specifically requested a preliminary injunction, and the preliminary injunction standard was applied to that specific request. Again, Gahagan has not moved for a preliminary injunction here, and so, the Magistrate Judge should not have applied the preliminary injunction standard to any part of Gahagan's FOIA request.
Furthermore, the Magistrate Judge himself clearly stated in the Report and Recommendation that Gahagan did not specifically request a preliminary injunction. However, because the Magistrate Judge believed that Gahagan's claims sounded in injunctive language, he applied the preliminary injunction standard. FOIA's language sounds in injunctive language; however, it sets forth specific and distinctive standards to apply. In the cases cited by Defendants, the plaintiffs, in addition to their FOIA claims, which are similar to the claims Gahagan asserts here, specifically filed motions for preliminary injunctive relief, which justified those courts applying the preliminary injunction standard to those specific preliminary injunction motions. Gahagan does not request a preliminary injunction in the motions currently pending before the Court. The parties do not dispute that these specific facts are not argued here, and so the Magistrate Judge clearly erred in his application of a preliminary injunction standard. Gahagan objects to the entire Report and Recommendation because of the Magistrate Judge's application of the incorrect standard. The Court believes that this mischaracterization permeated the Magistrate Judge's analysis, and because the Court is unable to discern to what aspects the Magistrate Judge applied the preliminary injunction standard as opposed to the standard under FOIA, the Court will apply a de novo review to every aspect of the Report and Recommendation.
IV. De Novo Review of Report and Recommendation
In addressing the applicable legal standard, the Report and Recommendation first quotes a Fifth Circuit decision setting forth the standard applicable to motions for summary judgment in the FOIA context,  and summarizes this standard as follows:
To prevail, Gahagan must show the absence of any genuinely disputed material facts as to each of his claims, such that a rational trier of fact could not find for defendants based on the evidence presented. Defendants, who bear the burden of proof at trial, must come forward with admissible evidence to show material fact disputes as to the adequacy of their searches for responsive records and the applicability of their claimed exemptions from disclosure. Factual controversies are construed in the light most favorable to the non-movants, the defendants, in this situation.
Immediately thereafter, however, the Report and Recommendation recites the "stringent standards" governing preliminary injunctive relief,  and states that:
Although Gahagan does not couch most of the relief he seeks in his motions in terms of injunctive relief, he is seeking judgment in his favor on all claims in his Complaint for Declaratory and Injunctive Relief that defendants have not complied with their obligations under FOIA. He requests affirmative relief, also known as a mandatory injunction, directing defendants to conduct an adequate search for responsive records, produce all non-exempt responsive records, produce a Vaughn index, produce unredacted copies, produce any reasonably segregable portion of each responsive agency record being withheld and stop withholding nonexempt responsive records. For the reasons discussed fully herein, his motions for summary judgment seeking preliminary injunctive relief should be denied, subject to an order granting him some intermediate relief in the form of supplemental evidentiary declarations from two of the defendants.
Reviewing the Report and Recommendation de novo, the Court finds that the Magistrate Judge erred in construing Gahagan's motions as seeking preliminary injunctive relief outside of the statutorily-defined injunctive relief FOIA provides. Although Gahagan requests "injunctive and other appropriate relief, " he specifically states that he is requesting such relief under FOIA,  and urges that the Court "enjoin" Defendants from withholding responsive records, a remedy specifically provided by FOIA. Thus, Gahagan's motion clearly seeks relief that falls within the scope of FOIA's statutory scheme, and to which the burdens of proof set forth by that scheme apply. As noted above, FOIA expressly provides that:
On complaint, the district court... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo... and the burden is on the agency to sustain its action.
On this point, the Supreme Court has noted that FOIA "explicitly confers jurisdiction to grant injunctive relief of a described type, " creates "a specific remedy for noncompliance, " and contains "the precise machinery" intended to effectuate its statutory purpose, and has concluded that FOIA's statutory remedy supplements, rather than limits, the equitable remedies at district courts' disposal.
FOIA's goal is to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." To effectuate this goal, FOIA "prescribes its own burdens and standards of proof to address the unique evidentiary issues inherent in FOIA actions." Specifically, FOIA "expressly places the burden on the agency to sustain its action and directs the district courts to determine the matter de novo, giving no deference to the agency's determinations, " thereby creating a "strong presumption in favor of disclosure." The Fifth Circuit applies this standard when deciding motions for summary judgment in FOIA cases,  and the Court is aware of no authority indicating that a deviation from that standard is warranted here.
Unlike the plaintiffs in the cases cited by Defendants in their response to Gahagan's objections to the Magistrate Judge's Report and Recommendation, Gahagan has not moved for a preliminary injunction. Rather, his two motions seek relief that falls squarely within FOIA's statutory framework. The motions, in their entirety, are therefore properly governed by the standards and burdens of proof that apply to a motion for summary judgment in the FOIA context. In this context, Gahagan, the moving party, is entitled to the relief he seeks if a reasonable trier of fact could not find that Defendants have met their burden of disclosing non-exempt responsive agency records.
Gahagan contends that the Magistrate Judge's error pervades the entire Report and Recommendation. This Court, reviewing the Report and Recommendation de novo, agrees. Although the Report and Recommendation concludes, at various points, that Gahagan's motion should be denied because a "rational trier of fact" could find for Defendants,  and thus ostensibly recognizes that Defendants have the ultimate burden of proof, the Report and Recommendation fundamentally mischaracterizes Gahagan's requests for injunctive relief under FOIA as requests for a preliminary injunction. Because this error goes to the heart of Gahagan's requests, this Court will reject the Report and Recommendation in full, and will review Gahagan's motions de novo.
V. Gahagan's First Motion for Summary Judgment
A. Gahagan's Arguments in Support of His "Motion for Summary Judgment" 
In his first motion, Gahagan urges the Court to: (1) order that Defendants "conduct a lawfully adequate search for responsive agency records in accordance with [his] FOIA requests and FOIA;" (2) order that Defendants "respond to [his] FOIA request as mandated by 5 U.S.C. § 552, produce forthwith any and all non-exempt agency records responsive to [his] FOIA request, and produce a Vaughn index of any responsive records withheld under claim of exemption;" and (3) consistent with the language of FOIA, order that Defendants "are enjoined from continuing to withhold any and all non-exempt agency records responsive to [his] FOIA request." The Court addresses his arguments in turn below.
1. ICE's "Routing" of Gahagan's Request
First, Gahagan contends that ICE did not "obey its lawful duty to search the records in its possession for responsive agency records, " but rather "unlawfully routed'" his FOIA request to another government agency. According to Gahagan, "[t]he legal obligation to respond under FOIA rests exclusively with the agency to which the FOIA request is directed and which possesses the record at the time of the FOIA request, " and the requestee agency has a statutory duty to timely respond to the request, regardless of whether it "routes" or "refers" the request.
Gahagan maintains that a requestee agency improperly withholds documents pursuant to FOIA if it "routes" the request and then does not timely respond to the request, because "[t]here is no routing exception to the mandate that an agency must disclose responsive agency records within 20 working days, " and because a referral "could be considered a withholding if its net effect is to impair the requester's ability to obtain the records or significantly increase the amount of time he must wait to obtain them." Accordingly, Gahagan maintains, ICE cannot "route a FOIA request to a different government agency, and then refuse to conduct a lawfully adequate search of records in its possession, " as is required by FOIA.
Gahagan argues that ICE is "withholding" responsive records from him, because it "has not searched for or produced the responsive and improperly withheld agency records, " and "continues to refuse to search for or produce" the records. Further, Gahagan argues, this withholding is "improper" under FOIA, because it has "resulted in very long delays" not lawfully justified by ICE, forcing him to file this lawsuit and "ensuring ineffective assistance of counsel" to his client.
2. Adequacy of Defendants' Responses to Gahagan's FOIA Requests
Gahagan next maintains that Defendants have all "refused to conduct an adequate search for responsive agency records or produce the responsive agency records within 20 working days, " as required by FOIA. Thus, Gahagan asserts, because Defendants have not met "their burden of demonstrating either the adequacy of their searches or the legal justification for their withholding of agency records, " the Court "must grant [his] motion for summary judgment."
B. Defendants' Opposition 
In opposition to Gahagan's first motion, Defendants aver that, at the time their opposition was filed, they had "fully processed and responded to" Gahagan's FOIA requests, having "conducted an adequate search for documents, " "produced all non-exempt material responsive to [his] request, " and "created a Vaughn index for any withheld documents."
1. Adequacy of Defendants' Responses to Gahagan's FOIA Requests
Defendants first point to declarations filed by CBP, ICE, and State, and maintain that each of these are sufficient to carry their burden of opposing Gahagan's motion.
As to the sufficiency of CBP's response to Gahagan's request, Defendants indicate that a declaration filed by Sabrina Burroughs "describes in specific detail the search undertaken to recover responsive documents, " and indicates that the search yielded one document responsive to Gahagan's request, which was released to Gahagan on December 4, 2014 "but for minimal redactions pursuant to FOIA exemption[s]" § 552(b)(6), (b)(7)(C) and (b)(7)(E).
Addressing the sufficiency of State's response to Gahagan's request, Defendants contend that a declaration submitted by John Hackett "describes in great detail the search undertaken to recover responsive documents within State, " and indicates that State found two documents responsive to Gahagan's FOIA request, but withheld these ...