United States District Court, D. Colorado
JENNIFER M. SMITH, Plaintiff,
v.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendant.
ORDER
Kristen L. Mix, United States Magistrate Judge
This
matter is before the Court on Plaintiff's Revised
Motion for Leave to Take 30(b)(6) Deposition of U.S.
Immigration and Customs Enforcement
[#69][1] (the “Motion”). Defendant
filed a Response [#72]. No. reply was permitted. See
Minute Entry [#68]. The Court has reviewed the filings,
the record, and the applicable law, and is sufficiently
advised in the premises. For the reasons stated below, the
Motion [#69] is GRANTED in part and
DENIED in part.
I.
Summary of the Case
Plaintiff,
an immigration attorney, filed this action challenging the
withholding of agency records pertaining to her client's
immigration status. Compl. [#1]. On or around May
22, 2013, Plaintiff submitted a Freedom of Information Act
(“FOIA”) request on behalf of her client seeking
agency records from U.S. Citizenship and Immigration Services
(“USCIS”) and U.S. Immigration and Customs
Enforcement (“Defendant” or “the
agency” or “ICE”). Am Compl. [#32]
¶ 15. On September 3, 2015, Defendant sent Plaintiff a
letter containing the following response:
[Defendant's] records indicate that as of September 3,
2015, the subject of your request is a fugitive under the
Immigration and Nationality Act of the United States. It is
[Defendant's] practice to deny fugitive alien FOIA
requesters access to the FOIA process when the records
requested could assist the alien in continuing to evade
immigration enforcement efforts.
Id. ¶ 20. Defendant withheld 18 pages of
documents. Id. ¶ 2. After Plaintiff filed the
Complaint [#1] initiating this case on August 24, 2016,
Defendant provided the 18 pages of documents to Plaintiff and
argued in this Court that the case was moot. Motion
to Dismiss [#15]. However, Plaintiff filed an
Amended Complaint [#32] on January 12, 2017, and the parties
were permitted a brief period of written discovery. See
Order Regarding Discovery Motions [#51];
Abbreviated Scheduling Order [#55]. Plaintiff's
First Amended Complaint acknowledges that her claim for
records is moot, but she continues to seek injunctive and
declaratory relief, which is further explained below.
Defendant's
practice of denying information to fugitive alien FOIA
requesters is referred to as the “fugitive alien
doctrine, ” or “fugitive disentitlement
doctrine.” Pursuant to this practice, FOIA requesters
are denied access to documents that “could assist the
alien in continuing to evade immigration enforcement
efforts.” Am Compl. [#32] ¶ 20. Plaintiff
argues that Defendant is unlawfully denying access to records
otherwise subject to disclosure under FOIA on the basis of
the “fugitive alien doctrine.” Id.
¶ 1. During the course of this case, Defendant drafted
and provided to Plaintiff a new Standard Operating Procedure
(“SOP”), which the agency has explained
represents its current policy with respect to withholding
documents pursuant to the “fugitive alien
doctrine.” Response [#72] at 2. Although
Defendant has now disclosed its new policy, Plaintiff
contends that the SOP is vague in various respects and
therefore seeks to conduct a Rule 30(b)(6) deposition of
Defendant in order to clarify the scope of its practices for
purposes of proving her claim for injunctive and declaratory
relief. See generally Motion [#69].
II.
Legal Standards
The
proper scope of discovery is “any nonprivileged matter
that is relevant to any party's claim or defense.”
Fed.R.Civ.P. 26(b)(1). However, the Court may prohibit
discovery “to protect a party or any person from
annoyance, embarrassment, oppression, or undue burden or
expense.” Fed.R.Civ.P. 26(c)(1). Further, discovery
that is duplicative or unduly burdensome should not be
permitted. Fed.R.Civ.P. 26(b)(2)(C); see also SEC v.
Nacchio, No. 05-cv-00480-MSK-CBS, 2008 WL 4087240, at *3
(D. Colo. Oct. 19, 2008).
“In
FOIA cases, discovery is both rare and disfavored.”
Freedom Watch v. Bureau of Land Mgmt., 220 F.Supp.3d
65, 68 (D.D.C. 2016). This is because discovery requests in
FOIA cases concerning the issue of a plaintiff's
entitlement to documents may be “tantamount to granting
the final relief sought.” Id. (quoting Tax
Analysts v. IRS, 410 F.3d 715, 722 (D.C. Cir. 2005)).
Exceptions to the general rule of not allowing discovery in
FOIA cases include circumstances where issues of material
fact exist, agency affidavits are incomplete, or the
plaintiff has made a showing that the agency acted in bad
faith. Id.; Scudder v. CIA, 25 F.Supp.3d
19, 50 (D.D.C. 2014).
“Agency
affidavits are accorded a presumption of good faith, which
cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents.”
Am. Ctr. for Law & Justice v. United States Dep't
of State, 289 F.Supp.3d 81, 86 (D.D.C. 2018) (quoting
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (internal quotation marks and citation
omitted)).
III.
Language of the SOP and Affidavit
The SOP
states that FOIA requests to the agency are received either
by: (1) direct request to Defendant, or (2) referral from
other DHS “components, ” such as USCIS, who
encounter requests for Defendant's records when
assembling their own responses to FOIA requests. SOP
[#60-2] at 1. The SOP states that it applies
only to FOIA requests submitted directly to ICE, which are
more likely to implicate law enforcement equities than
requests for portions of A-files [Alien Files] referred to
ICE. Referrals are processed in the ordinary course and
categorical ...