Union Leader v . US Dept Homeland Sec. CV-12-134-PB 4/18/13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Union Leader Corporation

v. Case N o . 12-cv-134-PB Opinion N o .

US Department of Homeland Security, Immigration and Customs Enforcement

MEMORANDUM AND ORDER

The Union Leader Corporation (“Union Leader”), a New

Hampshire newspaper, filed a complaint based on the Freedom of

Information Act (“FOIA”),

5 2 , seeking to compel

Immigration and Customs Enforcement (“ICE”), a division of the

Department of Homeland Security, to produce records of the names

and addresses of six individuals ICE arrested in 2011. ICE

filed a motion to dismiss for lack of subject matter

jurisdiction o r , in the alternative, for summary judgment,

claiming that the names and addresses are exempt from

disclosure. The Union Leader responded by objecting to ICE’s

motion to dismiss and filing a cross-motion for summary

judgment.1 For the reasons provided below, I deny the Union

Leader’s motion and grant ICE’s motion for summary judgment.

1 The Union Leader’s combined filing does not comply with Local Rule 7.1(a)(1). Under that rule, “[o]bjections to pending motions and affirmative motions for relief shall not be combined I. BACKGROUND

Operation Cross Check is a national immigration enforcement

initiative designed to arrest convicted criminal aliens,

including “criminal fugitives; criminal aliens who illegally

reentered the United States after having been removed; and at

large criminal aliens.” Doc. N o . 1-1. The first nationwide

Cross Check operation resulted in the arrest of 2,442 convicted

criminal aliens. In 2011, ICE performed its second Cross Check

operation. That operation resulted in the arrest of 2,901

convicted criminal aliens, six of whom were arrested in New

Hampshire. On September 2 8 , 2011, ICE’s public affairs office

issued an Operation Cross Check press release describing the

operation and listing cities in New England where ICE arrested

individuals.

The Union Leader contacted an ICE public affairs officer to

request the names and addresses of the six individuals arrested

in New Hampshire during Operation Cross Check. The officer

provided the Union Leader information about the arrestees,

including the individuals’ sexes, ages, countries of birth,

state of arrest (i.e. New Hampshire), criminal conviction

in one filing.” Nonetheless, I will consider both parts of the filing because ICE has responded to both. 2 information, and ICE custody status, but not the names and

addresses of the individuals. The Union Leader filed suit in

this court on January 1 3 , 2012. Finding that the Union Leader

failed to exhaust its administrative remedies, the court

dismissed the Union Leader’s suit on March 2 3 , 2012. Union

Leader Corp. v . U.S. Dep’t of Homeland Security, Immigration and

Customs Enforcement Div., N o . 12-cv-18-JL,

, at

*3 (D.N.H. Mar. 2 3 , 2012).

On February 2 9 , 2012, the Union Leader submitted a FOIA

request to ICE seeking “any and all records and documents

relating t o , and/or concerning the six individuals” ICE arrested

in New Hampshire during the agency’s second Cross Check

operation.2 Doc. N o . 1-3. The Union Leader’s request did not

Specifically, the Union Leader requested: Copies of any and all records and documents relating t o , and/or concerning the six individuals arrested by [ICE] and identified in an email sent by Chuck Jackson, Public Affairs Officer, U.S. Immigration and Customs Enforcement, Thomas P. O’Neil Federal Building, Suite 7 2 2 , 10 Causeway Street, Boston, Massachusetts, on October 1 3 , 2011, reading as follows: - Male, 3 2 , from Mexico, arrested in New Hampshire, convicted of DUI and assault; still in ICE custody - Male, 3 1 , from Dominican Republic, arrested in New Hampshire, convicted of assault and shoplifting; still in ICE custody - Male, 6 3 , from Bolivia, arrested in New Hampshire, convicted of cocaine possession; still in ICE custody 3 include a privacy waiver or other authorization from any of the

six individuals. Doc. N o . 7-2. ICE’s FOIA office reviewed the

request and forwarded it to the ICE Office of Enforcement and

Removal Operations3 (“ICE ERO”) after determining that ICE ERO

might have records responsive to Union Leader’s request. ICE’s

search resulted in nineteen pages of responsive documents, which

consisted of forms I-213 for each of the six criminal aliens.4

Deputy FOIA Officer Ryan Law reviewed the responsive

records and redacted portions of the documents, including the

- Male, 2 3 , from Columbia, arrested in New Hampshire, convicted of cocaine possession; still in ICE custody - Male, 4 2 , from Mexico, arrested as a fugitive in New Hampshire for illegal entry; still in ICE custody; [and] (vi) Male, 3 6 , from Dominican Republic, arrested in New Hampshire, convicted of selling cocaine. Doc. N o . 1-3. 3 ICE ERO is responsible for the execution of Operation Cross Check and is tasked with identifying and apprehending removable aliens, detaining individuals when necessary, and removing illegal aliens from the United States. Doc. N o . 7-2. 4 ICE law enforcement officers fill out a form I-213 to document the arrest of an individual who is unlawfully in the United States. The form contains a narrative description of the encounter and documents the action ICE took upon the individual’s arrest. I-213 forms also contain the name, alien number, address, date of birth, photograph, fingerprints, criminal and immigration history, and other information about the individual being arrested. Doc. N o . 1-4.

4 names and addresses of the criminal aliens.5 ICE created a

Vaughn index to document the redactions and identify the

exemptions claimed to justify nondisclosure,6 Doc. N o . 7-3, and

disclosed the redacted I-213 forms to the Union Leader on March

9, 2012. 7 According to the redacted forms, one of the criminal

aliens arrested by ICE was ordered removed by an immigration

judge and will remain in ICE custody pending removal; two were

scheduled for a hearing before an immigration judge at a later

date; and three were processed and served with a notice to

appear for removal proceedings.

5 ICE also redacted the aliens’ names, home addresses, alien numbers, birth dates, photographs, fingerprints, social security numbers, and places of employment. Doc. N o . 1-4. 6 The term “Vaughn index” refers to Vaughn v . Rosen,

(D.C. Cir. 1973). It is an index prepared by an agency that provides “a general description of each document sought by the FOIA requester and explains the agency’s justification for nondisclosure of each individual document or portion of a document.” Church of Scientology Int’l v . U.S. Dep’t of Justice,

2 4 , 228 (1st Cir. 1994). 7 In the Union Leader’s brief, it notes that “ICE did not produce the Notice to Appear, Warrant of Arrest, Custody Actions and Decisions, Case Actions and Decisions, and documents containing Bond Management information relating to each of the six (6) criminal aliens identified in Union Leader’s request.” Doc. N o . 8-1. The Union Leader apparently learned of the existence of these responsive documents after it made its FOIA request on February 2 9 , 2012. Because the Union Leader does not seek these documents in the present action, I do not address ICE’s failure to produce them. 5 On March 1 4 , 2012, the Union Leader administratively

appealed ICE’s initial determination that the names and

addresses of the arrestees are exempt from disclosure. Doc. N o .

1-5. On March 2 8 , 2012, the ICE Office of Principal Legal

Advisor, Government Information Law Division responded to the

Union Leader’s appeal and upheld ICE’s determination to

partially withhold the records. Doc. N o . 7-8. Having exhausted

its administrative remedies, the Union Leader filed this action

on April 4 , 2012, seeking a judicial order compelling ICE to

produce the names and addresses of the six individuals arrested

in New Hampshire during 2011.

II. STANDARDS OF REVIEW

A. Summary Judgment Standard

ICE seeks dismissal of this action on the ground that the

court lacks subject matter jurisdiction because ICE has not

unlawfully withheld records. In the alternative, ICE moves for

summary judgment.

Ordinarily, a motion to dismiss for lack of subject matter

jurisdiction is analyzed under Rule 12(b)(1). A court, however,

must treat a motion challenging subject matter jurisdiction as a

motion for summary judgment “where jurisdictional issues cannot

6 be separated from the merits of the case.” Gonzales v . United

States,

8 1 , 287 (1st Cir. 2002); see Valentin v . Hosp.

Bella Vista,

5 8 , 363 & n.3 (1st Cir. 2001). “A

jurisdictional issue is intertwined with the merits where the

court’s subject matter jurisdiction depends upon the statute

that governs the substantive claims in the case.” Gonzales, 284

F.3d at 287.

To invoke subject matter jurisdiction under the FOIA, a

plaintiff must allege that the agency “(1) ‘improperly’ (2)

‘withheld’ (3) ‘agency records.’” Kissinger v . Reporters Comm.

for Freedom of the Press,

(1980) (quoting

(a)(4)(B)). If the elements of jurisdiction are

properly alleged, the burden shifts to the agency to show that

the records sought by the plaintiff are not agency records or

were not improperly withheld. U.S. Dep’t of Justice v . Tax

Analysts,

, 142 n.3 (1989). “[B]ecause FOIA serves

as the source of both this court’s subject matter jurisdiction

and the plaintiff[’s] cause of action, the jurisdictional

inquiry is intertwined with the merits of [its] claim.”

Wilkinson v . Chao,

8 8 , 291 (D.N.H. 2003); see

United States ex rel. Fine v . MK–Ferguson Co.,

,

7 1543 (10th Cir. 1996). Accordingly, I analyze the FAA’s motion

under Rule 5 6 .

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The evidence submitted in support of the motion must be

considered in the light most favorable to the nonmoving party,

drawing all reasonable inferences in its favor. Navarro v .

Pfizer Corp.,

0 , 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the

absence of any genuine issue of material fact. Celotex Corp. v .

Catrett,

1 7 , 323 (1986). The burden then shifts to

the nonmoving party to “produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

verdict for i t ; if that party cannot produce such evidence, the

motion must be granted.” Ayala-Gerena v . Bristol Myers-Squibb

Co.,

6 , 94 (1st Cir. 1996); see Celotex,

.

B. The FOIA Standard

The FOIA was enacted to facilitate public access to

government documents. John Doe Agency v . John Doe Corp.,

(1989). It was designed to “pierce the veil of

8 administrative secrecy and to open agency action to the light of

public scrutiny.” U.S. Dep’t of State v . Ray,

6 4 , 173

(1991) (quoting Dep’t of Air Force v . Rose,

5 2 , 361

(1976)). The underlying policy is one of broad disclosure.

Church of Scientology Int’l v . U.S. Dep’t of Justice,

(1st Cir. 1994). An agency must make its records

available to the public upon request, unless it determines that

a specific exemption, narrowly construed, applies.

(a)(3),(b); see Aronson v . IRS,

6 2 , 966 (1st Cir.

1992). The court conducts a de novo review of the validity of

the agency’s asserted exemptions. Church of Scientology,

.

Given the strong presumption in favor of disclosure, an

agency seeking to withhold materials requested under the FOIA

has the burden of proving that those materials are exempt from

disclosure. Ray,

; Orion Research Inc. v . EPA,

5 1 , 553 (1st Cir. 1980) (citing

(a)(4)(B)). The FOIA mandates that “[a]ny reasonably

segregable portion of a record shall be provided . . . after

deletion of the portions which are exempt under this

subsection.”

(b); see Wightman v . Bureau of

Alcohol, Tobacco & Firearms,

(1st Cir. 1985).

9 The burden remains with the agency when it seeks to justify the

redaction of identifying information in a particular document.

Ray,

.

Congress “recognized that the policy of informing the

public about the operation of its Government can be adequately

served in some cases without unnecessarily compromising

individual interests in privacy.” Id. at 174. The questions in

this case are whether the disclosure of the I-213 forms, with

names and addresses redacted, adequately served the statutory

purpose and whether the release of identifying personal

information would constitute an “unwarranted” invasion of

privacy. See

(b)(7)(C).

III. ANALYSIS

Two exemptions potentially cover the information the Union

Leader requested. Exemption 6, applies to private information,

and Exception 7 ( C ) , applies to private information compiled for

law enforcement purposes. Both exemptions require me to balance

the public interest in disclosure against the individuals’

interest in privacy.8 Exemption 7(C) is more protective of

8 Exemption 6 excludes “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

privacy than Exemption 6 and thus requires a more substantial

public interest justification to override a valid individual

privacy interest. U.S. Dep’t of Def. v . Fed. Labor Relations

Auth.,

8 7 , 497 n.6 (1994); see Nat’l Archives and

Records Admin. v . Favish,

5 7 , 165–66 (2004); U.S.

Dep’t of Justice v . Reporters Comm. for Freedom of the Press,

(1989). Both parties agree that the

information the Union Leader seeks is potentially subject to

Exemption 7(C) because it was collected for law enforcement

purposes. Accordingly, I analyze the Union Leader’s claim under

Exemption 7(C). 9

The Union Leader cites American Federation of Government

Employees v . Dep’t of Housing and Urban Development,

, 794 (D.C. Cir. 1997), for the proposition that the

disclosure of an arrest does not violate an arrestee’s

constitutional right to privacy. See Doc. No 8-1; see also Paul

552(b)(6). Exemption 7(C) excludes “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

(b)(7)(C). 9 Precedents that apply Exemption 6 are nonetheless relevant to my analysis of Exemption 7(C) insofar as they identify cognizable public and private interests. See Reporters Comm.,

.

11 v . Davis,

(1976) (no constitutional

privacy right affected by publication of name of arrested but

untried shoplifter). Although I accept this proposition, it is

beside the point because, as the Supreme Court has recognized,

“privacy” under the FOIA has a more expansive meaning than it

has under either the Constitution or the common law. See

Favish,

(citing Reporters Comm.,

n.13); Associated Press v . U.S. Dep’t of Def.,

7 4 , 287

(2d Cir. 2009). Thus, it is a mistake to assume, as the Union

Leader does in this case, that a ruling that the Constitution

does not require the government to withhold the name of an

arrested person means that the government must disclose the same

information under the FOIA.

The Union Leader is similarly misguided in attempting to

rest its case on state laws in New Hampshire, Vermont, Ohio,

California, Connecticut, and Wisconsin that require the

disclosure of arrest records. Of course, states are free to

disclose such records if they choose, but the federal government

is not bound to follow their lead. My job is to faithfully

interpret the law that is before m e . I do not have the power to

disregard statutory text and controlling precedent merely

12 because legislatures in several states have elected to follow a

different path.

The privacy interest at stake here is the interest of the

arrestees in not having their identities revealed to the public.

In Reporters Committee, the Supreme Court noted that the notion

of privacy under the FOIA “encompass[es] the individual's

control of information concerning his or her person.”

. The Court also stated that “the fact that an event is

not wholly private does not mean that an individual has no

interest in limiting disclosure or dissemination of the

information.”

(citation and quotations omitted). In

the context of this case, the disclosure of arrestees’ names and

addresses could subject them to harassment, embarrassment, or

unwanted public attention because the fact that they have been

arrested is not widely known. Accordingly, I follow the lead of

other courts that have recognized that individuals can have a

protectable privacy interest under the FOIA in their names and

addresses. See Associated Press, 554 F.3d at 292 (“an

individual has a general privacy interest in preventing

dissemination of his or her name and home address”); Harbolt v .

Dep’t of State,

7 2 , 774 (5th Cir. 1980) (“nothing

13 could be more personal than an individual’s name and home

address, when linked with the stigma of incarceration abroad”).

An individual’s interest in privacy, however, must be

balanced against the public interest in disclosure of the

information. Once the government has identified a cognizable

privacy interest, the relevant public interest for purposes of

the FOIA is the citizens’ right to be informed about “what their

government is up to.” Reporters Comm.,

(citations omitted). “That purpose . . . is not fostered by

disclosure of information about private citizens that is

accumulated in various governmental files but that reveals

little or nothing about an agency's own conduct.”

The

question thus becomes the extent to which disclosure of the

names and addresses of the arrestees would shed light on ICE’s

performance of its statutory duties or otherwise let citizens

know “what their government is up to.” See

The Union Leader does not argue that the disclosure of the

names and addresses of arrestees would directly reveal anything

about the way in which the government is conducting Operation

Cross Check. Instead, it argues that the public interest would

be served if the information is disclosed because the public

might be able to use the names and addresses to discover

14 additional relevant information. I am not persuaded by this

“derivative use” argument because the Supreme Court has

recognized that such arguments must be based on more than

“[m]ere speculation about hypothetical public benefits.” Ray,

.

In this case, the Union Leader bases its public interest

analysis entirely on speculation about what the public might

learn if the names and addresses of the arrestees were

disclosed. The FOIA does not require the government to disclose

the names of arrestees under such circumstances. Although the

names and addresses have been redacted from the I-213 forms, the

forms disclose the circumstances and details of each arrest.10

Nothing prevents the arrestees from identifying themselves,

disclosing the fact that they were arrested, or disclosing the

circumstances of their arrests. Because the Union Leader has

not explained how more would be revealed about the government’s

conduct during Operation Cross Check if the names and addresses

were disclosed, I conclude that any additional information that

10 At oral argument, the Union Leader submitted the results of a supplemental search that ICE performed “in an effort to reach an amicable resolution” of the case. If anything, this information only sheds more light on the circumstances of the arrests and undermines the Union Leader’s argument that the names are necessary to know “what the government is up to.”

15 could be gained from disclosure of the names and addresses is

merely speculative and does not outweigh the individuals’

privacy interests.

Accordingly, I join several other district courts that have

upheld the redaction of identifying information from I-213 forms

under Exception 7(c) of the FOIA. See Schiller v . Immigration

and Naturalization Serv.,

4 8 , 664 (W.D. Tex.

2002); The Buffalo Evening News, Inc. v . U.S. Border Patrol,

(W.D.N.Y. 1992); see also Unidad Latina en

Acción v . U.S. Dep’t of Homeland Sec.,

4 , 51 (D.

Conn. 2008) (holding that Exception 7(C) applies to biographical

information about individuals arrested in federal immigration

enforcement action).

V. CONCLUSION

For the aforementioned reasons, I deny the Union Leader’s

motion for summary judgment (Doc. N o . 8 ) and grant the

Department of Homeland Security’s motion for summary judgment

(Doc. N o . 7 ) .

SO ORDERED. /s/Paul Barbadoro Paul Barbadoro United States District Judge

April 1 8 , 2013 16 cc: Gregory V . Sullivan Michael T . McCormack

17