Smith v. U.S. Immigration and Customs Enforcement

          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 ...