United States District Court, D. Colorado
Jennifer M. SMITH, Plaintiff,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendant.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Silverstein, Sara R. Neel, American Civil Liberties Union,
Daniel James Culhane, Daniel J. Culhane, LLC, Denver, CO, for
Z. Moskowitz, Ian J. Kellogg, U.S. Attorney's Office,
Denver, CO, for Defendant.
GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN PART,
DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND
PERMANENTLY ENJOINING DEFENDANT
J. Martínez, United States District Judge.
Jennifer M. Smith ("Smith") is an immigration
attorney who frequently makes requests under the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552, for
information regarding her clients in the files of Defendant
U.S. Immigration and Customs Enforcement ("ICE").
ICE has a policy of denying any FOIA request when made by or
on behalf of a non-citizen whom ICE deems to be a
"fugitive" under the immigration laws. Smith
contends that this policy is facially unlawful under FOIA.
before the Court is ICE's Motion for Summary Judgment
(ECF No. 84) and Smith's competing Motion for Summary
Judgment (ECF No. 85). For the reasons explained below, the
Court finds that Smith has standing to pursue this challenge
and agrees with Smith that ICE's policy violates FOIA
(although not always for precisely the same reasons that
Smith advances). The Court will therefore grant Smith's
motion to the extent stated in this order, deny ICE's
motion, permanently enjoin ICE from applying its policy to
withhold records, and direct entry of final judgment.
review of FOIA sets the stage for the facts, law, and
arguments discussed below.
party makes a FOIA request for federal agency records, the
agency usually has twenty working days to "determine ...
whether to comply with such request," and then it must
inform the requester of its decision "and the reasons
therefor." 5 U.S.C. §
agency may refuse to disclose otherwise responsive records if
those records fall within certain enumerated categories.
See id. § 552(b). As relevant to this lawsuit,
one of those categories is "records or information
compiled for law enforcement purposes." Id.
§ 552(b)(7). But the agency may only invoke this
exception "to the extent that the production of such law
enforcement records or information" might lead to
certain consequences, including that disclosure "could
reasonably be expected to interfere with enforcement
proceedings." Id. § 552(b)(7)(A). As the
parties normally do, the Court will refer to this exception
as "Exemption 7(A)."
requesting party disagrees with the agency's withholding
decision, the party may file an administrative appeal with
the head of the agency. Id. §
552(a)(6)(A)(i)(III). If the appeal is unsuccessful, the
party may file a lawsuit in federal district court.
Id. § 552(a)(4)(B). 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 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 [§ 552(b)], and the burden
is on the agency to sustain its action.
The § 552(b) exemptions are
"exclusive"—if the document is not properly
withheld under one of them, it must be disclosed. Milner
v. Dep't of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259,
179 L.Ed.2d 268 (2011).
actions are typically decided on motions for summary
judgment." Info. Network for Responsible Min. v.
BLM, 611 F.Supp.2d 1178, 1182 (D. Colo. 2009). Summary
judgment is appropriate "if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
evaluating a FOIA summary judgment motion, "two guiding
principles apply. First, FOIA is to be broadly construed in
favor of disclosure. Second, its exemptions are to be
narrowly circumscribed." Trentadue v. Integrity
Comm., 501 F.3d 1215, 1226 (10th Cir. 2007). In other
words, "disclosure, not secrecy, is [FOIA's]
dominant objective." Dep't of Interior v.
Klamath Water Users Protective Ass'n, 532 U.S. 1, 8,
121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (internal quotation
rare case where a FOIA summary judgment motion reveals a
genuine dispute of material fact—"material"
in this context meaning a dispute on which the propriety of
an exemption turns—then the Court may hold a bench
trial to resolve that dispute. See Animal Legal Def. Fund
v. U.S. Food & Drug Admin., 836 F.3d 987, 990 (9th Cir.
2016) (en banc); Brown v. Perez, 835 F.3d 1223, 1233
(10th Cir. 2016); Brown v. U.S. Dep't of Labor,
342 F.Supp.3d 1112, 1114 (D. Colo. 2018).
III. FACTS & PROCEDURAL HISTORY
matter, it is impossible to judge the significance of factual
agreements and disputes without setting them in their
procedural context. The Court will therefore discuss the
facts and procedural history together. The facts recounted
below are undisputed unless attributed to a party or
otherwise noted. The procedural history is, of course, a
matter of record.
Smith's Original FOIA Request
operates the Law Office of Jennifer M. Smith, P.C., in
Glenwood Springs, Colorado. (ECF No. 84 at 6, ¶ 1; ECF
No. 85-4 ¶ 2.) In May 2013, she submitted a FOIA
request to United States Citizenship and Immigration Services
("CIS") seeking the "Complete Alien File
(A-File)" for, and "any and all records you may
have" regarding, Marta Alicia del Carmen Orellana
Sanchez ("Ms. Sanchez"), one of Smith's
clients. (ECF No. 84 at 6, ¶¶ 2-4.) In August 2013,
CIS responded that it had identified 52 pages of responsive
records, some of which it released to Smith. (Id.
¶¶ 5-6; ECF No. 89 at 2, ¶ 6.)
search efforts also located "potentially responsive
records that may have originated with ICE." (ECF No. 84
at 6, ¶ 7.) CIS asked ICE to determine whether those
records should be released, and it informed Smith of the
referral to ICE. (Id. ¶ 8.)
two years later—in September 2015—ICE sent a
letter to Smith announcing that it would not release any
records because it deemed Ms. Sanchez to be a
ICE's records indicate that as of September 03, 2015, the
subject of your request is a fugitive under the Immigration
and Nationality Act of the United States. It is ICE'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.
The agency has reviewed the information sought in your
request and has determined that there is a connection between
that information and the subject of the request's status
as a fugitive. The information you have requested and the
fugitive status are both directly related to the Immigration
and Nationality Act of the United States.
(Id. at 7, ¶ 9.) The letter did not invoke any
specific FOIA exemption. (See ECF No. 15-3 at 2-3.)
The letter was signed by a certain Ms. Stoney on behalf of
Catrina M. Pavlik-Keenan, whose title is "FOIA
Officer." (Id. at 3.)
"practice to deny fugitive alien FOIA requesters access
to the FOIA process" was not a written policy, but it
was nonetheless an established ICE practice at the time. (ECF
No. 84 at 7, ¶ 10.) The Court will refer to this as the
Early Proceedings in this Lawsuit
Original & Amended Complaints
challenged the withholding under the Fugitive Practice
through the required administrative channels and received no
relief. (ECF No. 85 at 6, ¶ 7.) Smith then filed this
lawsuit on August 24, 2016, arguing that FOIA contains no
exception that would justify the Fugitive Practice. (ECF No.
1 ¶ 17.) Smith originally sought two forms of relief:
(1) disclosure of Ms. Sanchez's records, and (2) a
declaration "that defendant ICE's stated policy of
denying access to records otherwise obtainable under
the FOIA process pertaining to persons it deems to be
`fugitive alien FOIA requesters' is in violation of the
FOIA." (See id. at 7.)
letter dated September 27, 2016, Ms. Pavlik-Keenan (through a
subordinate) "sent another letter to [Smith's] law
office in response to a FOIA request related to [her]
representation of a different client." (ECF No. 85 at 7,
¶ 11 (emphasis removed).) The letter was addressed to
"Ms. Brown" (see ECF No. 19-2 at 1), whose
identity and role ICE has repeatedly questioned (see
ECF No. 35 at 4-5, 9 & n.5; ECF No. 46 at 3 & n.1; ECF No. 84
at 14 n.8; ECF No. 88 at 36 & n.11) but Smith has never
explained (see generally ECF Nos. 40, 49, 85-4, 89,
90)—except it is clear that Ms. Brown can be reached
by mail at the Law Office of Jennifer M. Smith, P.C. Using
materially the same language employed in the letter regarding
Ms. Sanchez's records, the letter to Ms. Brown invoked
the Fugitive Practice to refuse release of records relating
to this other client. (ECF No. 19-2 at 1.)
next day, September 28, 2016, Smith's attorney in this
lawsuit "received an unannounced overnight delivery from
an unfamiliar address in Maryland, which contained 20 pages
of additional documents that were subsequently confirmed to
be the missing portions of [Ms. Sanchez's] A-File."
(ECF No. 85 at 7, ¶ 9.) ICE "provided no
explanation for its decision to provide the documents it had
previously withheld." (Id. ¶ 10.)
events prompted Smith to file her First Amended Complaint
(still the currently operative complaint), acknowledging that
her claim specifically for Ms. Sanchez's records was
moot. (ECF No. 32 ¶ 4.) Smith instead pleaded that ICE
has a "pattern or practice" of violating FOIA, and
she requested that the Court "[p]ermanently enjoin
ICE's stated `practice' of denying access to records
otherwise obtainable under the FOIA process pertaining to
persons it deems to be `fugitive alien FOIA
requesters.'" (Id. at 8-9.) Smith also
repeated her previous request for a declaratory judgment that
the Fugitive Practice is unlawful. (Id. at 9.)
First Amended Complaint contains the following principal
allegations in support of a subsisting claim for injunctive
• Ms. Smith has made (and in the future will continue
to make) FOIA requests on a regular basis to various agencies
of the Department of Homeland Security...."
• "... in July 2015, another of Ms. Smith's
FOIA requests was also denied by ICE based on the challenged
practice. Ms. Smith appealed that denial, and on July 31,
2015, ICE denied the appeal, affirming the practice
challenged in this case."
• "Because Ms. Smith regularly submits FOIA
requests to the government that are related to non-citizen
clients who may be deemed `fugitives' by ICE, and because
she plans to continue to do so in the future, the
government's illegal practice subjects Ms. Smith to
substantial likelihood of ongoing and/or future injury, both
by depriving Ms. Smith of her rights under FOIA and by
impairing Ms. Smith's ability to fully and effectively
represent her clients."
(Id. ¶¶ 31, 32, 35.) Smith did not amend
her complaint to include the denial directed at Ms. Brown,
nor the July 2015 denial.
Motion to Dismiss the Amended Complaint
moved to dismiss, claiming that Smith lacked Article III
standing to seek an injunction against future applications of
the Fugitive Practice because Smith allegedly failed to show
that such applications
were "imminent." (See ECF No. 35.) See
also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (standing to sue in
federal court requires, among other things, "an injury
in fact—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical" (internal
quotation marks omitted)). ICE specifically stated that it
was not arguing for mootness through voluntary cessation of
challenged conduct (i.e., no longer invoking the
Fugitive Practice to withhold Ms. Sanchez's A-File), but
solely that Smith never had Article III standing to begin
with. (ECF No. 41 at 9.)
resolving ICE's motion, the Court began by noting the
different standards for evaluating Article III standing at
different stages of the case: "`[a]t the pleading stage,
general factual allegations of injury resulting from the
defendant's conduct may suffice.' By the summary
judgment phase, however, `the plaintiff can no longer rest on
such mere allegations, but must set forth by affidavit or
other evidence specific facts.'" Smith v. U.S.
Immigration & Customs Enf't, 249 F.Supp.3d 1203,
1206 (D. Colo. 2017) (ECF No. 45) (quoting Lujan,
504 U.S. at 561, 112 S.Ct. 2130) (alterations in original);
see also id. at 1209 ("[T]he Court is mindful
of Lujan's instruction that there is a
difference between the standing inquiry at the pleading phase
as compared to later phases of the case. This case, of
course, remains in the pleading phase." (citation
omitted)). In that light, the Court reasoned that Smith's
allegations were adequate, if not "overwhelming":
Smith alleges that FOIA requests are an integral part of her
practice as an immigration attorney because most of her
clients are not legally savvy and therefore the client's
A-File is often the only useful record of "[the] agency
[the client] met with, and what type of interaction
transpired, and what the legal issues may be." (ECF No.
32 ¶ 28.) Smith also alleges that she "regularly
submits FOIA requests to the government that are related to
non-citizen clients who may be deemed to be `fugitives'
by ICE." (Id. ¶ 35.) Smith has also
alleged three instances in which her FOIA requests have been
denied based on the Fugitive Practice. (Id.
¶¶ 20, 29, 32.) Finally, ICE's own words
establish that ICE indeed has a self-described
"practice" denying FOIA requests that could assist
a fugitive alien.
question is whether the allegations, taken together,
establish a sufficient probability that Smith will have a
future FOIA request rejected based on the Fugitive Practice.
Smith's case in this regard is not overwhelming. The
fact that she "regularly" submits FOIA requests
but has alleged only three instances of denial based on the
Fugitive Practice is concerning. But again, there is no
predetermined number of prior denials, combined with future
intentions, that distinguishes a plaintiff with standing
and one without. On this record at the pleading phase, the
Court finds that Smith has presented a sufficiently
"concrete" allegation of likely future harm based
on the Fugitive Practice—sufficient, at least, to
meaningfully "reduce the possibility of deciding a
case in which no injury would have occurred at all."
Lujan, 504 U.S. at 564 n.2, 112 S.Ct. 2130. Smith
accordingly possesses Article III standing to pursue this
lawsuit beyond the pleading phase.
Id. at 1209-10.
Court permitted limited discovery regarding the Fugitive
Practice and Smith's likelihood that she would again be
denied records on account of the Fugitive Practice.
(See ECF No. 51.) On that latter
topic, the Court permitted ICE to "inquire as to the
planned date of any request, and may require Smith to link
that planned request to a fictitious name corresponding to an
actual or prospective client known to Smith (e.g.,
`Client A,' `Prospective Client 1')."
(Id. at 1-2.)
2017, ICE propounded an interrogatory as follows:
For all FOIA requests that Plaintiff or her law firm plan to
submit to ICE or any other component of the Department of
Homeland Security seeking records related to an actual or
prospective non-citizen client, please provide a fictitious
name (such as "Client A," or "Prospective
Client 1") and the date of the planned request.
(ECF No. 84-8 at 2.) Smith's entire response was as
follows: "Plaintiff anticipates filing FOIA requests on
behalf of approximately five (5) prospective non-citizen
clients each month from and after the date hereof, for the
foreseeable future." (ECF No. 69-1 at 2.)
not clear how Smith reached her five-clients-per-month
estimate, and other discovery documents suggest a reasonable
estimate would be lower. In particular, ICE propounded the
For all FOIA requests submitted by Plaintiff or her law firm
to ICE or any other component of the Department of Homeland
Security seeking records related to a non-citizen client,
please provide the date of the request, the name of the
client, the client's A-File number, and the status of the
request. (ECF No. 69-1 at 1-2.) Smith responded with a chart
that reports FOIA requests submitted between January 2011
(see ECF No. 69-2 at 1) and June 2017 (see
id. at 3, 5)—a span of 78 months. By the
Court's count, the total number of clients for whom FOIA
requests were filed was 141, for an average of 1.8 per
month. Of those, only three requests were denied on Fugitive
Practice grounds. (See id. at 1 (entry for
06/01/2015), 2 (entry for 02/02/2016), and 4 (entry for
08/24/2015).) One of those denials was that related to Ms.
Sanchez. (Id. at 4 (entry for 08/24/2015).) The
other was that related to Ms. Brown's request.
(Id. at 2 (entry for 02/02/2016).) The third was the
July 2015 denial discussed in the amended complaint
(see Part III.B.1, above), which turns out to have
been a denial in name only. Smith or someone in her office
(she uses the pronoun "we") sent a FOIA request to
CIS, which produced documents and then referred the rest to
ICE, which also produced documents—but when Smith sent
a FOIA request to ICE directly, ICE invoked the
Fugitive Practice. (ECF No. 69-1 at 1, 5.) In other words,
when asked directly, ICE refused to release records it had
already released when asked indirectly.
Promulgation of the Standard Operating Procedure
2017, ICE disclosed to Smith a new written policy to govern
its treatment of FOIA requests that may implicate
"fugitive" status. (ECF No. 84 at 7-8, ¶¶
11, 15.) The policy came from ICE's
"Office of the Principal Legal Advisor," and was
designated a "Standard Operating Procedure
(SOP)" for "FOIA Requests Made By, or On Behalf of,
Fugitive Aliens." (ECF No. 60-2 at 1.) The parties refer
to this document simply as the "SOP," and the Court