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U.S. District Court - District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:18-cv-00302-JLK

Civil Rights Education and Enforcement Center v. United States Department of Homeland Security et al Assigned to: Judge John L. Kane Cause: 05:552 Freedom of Information Act

Date Filed: 02/07/2018 Jury Demand: None Nature of Suit: 895 Freedom of Information Act of 1974 Jurisdiction: U.S. Government Defendant

Plaintiff
Civil Rights Education and Enforcement Center

represented by Amber Rose Gonzales Armstrong Teasdale LLP-Denver 4643 South Ulster Street Suite 800 Denver, CO 80237 720-200-0676 Email: agonzales@atllp.com ATTORNEY TO BE NOTICED

Chad Phillip Jimenez Ballard Spahr LLP-Denver 1225 Seventeenth Street Suite 2300 Denver, CO 80202-5596 303-454-0546 Fax: 303-573-1956 Email: jimenezc@ballardspahr.com ATTORNEY TO BE NOTICED

Elizabeth B. Jordan Civil Rights Education and Enforcement Center-Denver 1245 East Colfax Avenue Suite 400 Denver, CO 80218 303-757-7901 Email: ejordan@creeclaw.org ATTORNEY TO BE NOTICED

V.
Defendant
United States Department of Homeland Security

Steven David Zansberg Ballard Spahr LLP-Denver 1225 Seventeenth Street Suite 2300 Denver, CO 80202-5596 303-376-2409 Fax: 303-296-3956 Email: steve@zansberglaw.com ATTORNEY TO BE NOTICED
Timothy Patrick Fox Civil Rights Education and Enforcement Center-Denver 1245 East Colfax Avenue Suite 400 Denver, CO 80218 303-757-7901 Fax: 303-595-9705 Email: tfox@creeclaw.org ATTORNEY TO BE NOTICED
Thomas B. Kelley Killmer Lane & Newman LLP 1543 Champa Street Suite 400 Denver, CO 80202 303-571-1000 Fax: 303-571-1001 Email: tkelley@kln-law.com ATTORNEY TO BE NOTICED
represented by Ian J. Kellogg U.S. Attorney's Office-Denver 1801 California Street Suite 1600 Denver, CO 80202 303-454-0100 Email: ian.kellogg@usdoj.gov ATTORNEY TO BE NOTICED
Kyle W. Brenton

Defendant
United States Immigration and Customs Enforcement

U.S. Attorney's Office-Denver 1801 California Street Suite 1600 Denver, CO 80202 303-454-0126 Fax: 303-454-0407 Email: kyle.brenton@usdoj.gov ATTORNEY TO BE NOTICED
Mark S. Pestal U.S. Attorney's Office-Denver 1801 California Street Suite 1600 Denver, CO 80202 303-454-0101 Fax: 303-454-0404 Email: mark.pestal@usdoj.gov TERMINATED: 07/22/2019
represented by Ian J. Kellogg (See above for address) ATTORNEY TO BE NOTICED
Kyle W. Brenton (See above for address) ATTORNEY TO BE NOTICED
Mark S. Pestal (See above for address) TERMINATED: 07/22/2019

Date Filed

#

02/07/2018 1

Docket Text
COMPLAINT for declaratory and injunctive relief against United States Department of Homeland Security, United States Immigration and Customs Enforcement (Filing fee $ 400,Receipt Number 1082-5934785)Attorney Thomas B. Kelley added to party Civil Rights Education and Enforcement Center(pty:pla), filed by Civil Rights Education and Enforcement Center. (Attachments: # 1 Exhibit 1 - FOIA Request, # 2 Exhibit 2 - Email, # 3 Exhibit 3 Automatic Reply, # 4 Exhibit 4 - Email, # 5 Exhibit 5 - Automatic Reply, # 6 Exhibit 6 - Email, # 7 Exhibit 7 - Email, # 8 Exhibit 8 FOIA Request, # 9 Exhibit 9 - Email, # 10 Exhibit 10 - Automatic

02/07/2018
02/07/2018 02/07/2018 02/09/2018 02/09/2018

Reply, # 11 Exhibit 11 - FOIA Request, # 12 Exhibit 12 - Email, # 13 Exhibit 13 - Automatic Reply, # 14 Exhibit 14 - FOIA Request,
# 15 Exhibit 15 - Email, # 16 Exhibit 16 - Automatic Reply, #
17 Exhibit 17 - Email, # 18 Exhibit 18 - FOIA Tracker Screenshot, # 19 Exhibit 19 - Email, # 20 Exhibit 20 - Automatic Reply, # 21 Exhibit 21 - Email, # 22 Exhibit 22 - Email, # 23 Exhibit 23 - Automatic Reply, # 24 Exhibit 24 - Email, # 25 Exhibit 25 - ICE FOIA Screenshot, # 26 Exhibit 26 - ICE FOIA Screenshot, # 27 Exhibit 27 - ICE FOIA Request, # 28 Exhibit 28 - Email, # 29 Exhibit 29 - Automatic Reply, # 30 Exhibit 30 - Email, # 31 Exhibit 31 - Email, # 32 Exhibit 32 - Email Response, # 33 Exhibit 33 Automatic Acknowledgement, # 34 Exhibit 34 - Email, # 35 Exhibit 35 - ICE FOIA Screenshot, # 36 Exhibit 36 - ICE FOIA Screenshot, # 37 Civil Cover Sheet)(Kelley, Thomas) (Entered: 02/07/2018)
2 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT
RULES/PROCEDURES:re: 1 Complaint filed by attorney Thomas B. Kelley. DO NOT REFILE THE DOCUMENT. Action to take - counsel must submit a change of contact request through the Attorney Services Portal Account pursuant to D.C.COLO.LAttyR 5(c) and 3.5 of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (rvill, ) (Entered: 02/07/2018)
3 Case assigned to Judge Richard P. Matsch and drawn to Magistrate Judge Kristen L. Mix. Text Only Entry. (rvill, ) (Entered: 02/07/2018)
4 Magistrate Judge consent form issued pursuant to 28 U.S.C. 636(c). No Summons Issued. (rvill, ) (Entered: 02/07/2018)
5 NOTICE of Entry of Appearance by Amber Rose Gonzales on behalf of Civil Rights Education and Enforcement CenterAttorney Amber Rose Gonzales added to party Civil Rights Education and Enforcement Center(pty:pla) (Gonzales, Amber) (Entered: 02/09/2018)
6 SUMMONS REQUEST as to U.S. Department of Homeland Security by Plaintiff Civil Rights Education and Enforcement Center. (Gonzales, Amber) (Entered: 02/09/2018)

02/09/2018 02/09/2018 02/15/2018 02/15/2018 03/06/2018
04/13/2018
04/16/2018 05/07/2018 05/08/2018

7 SUMMONS REQUEST as to U.S. Immigration and Customs Enforcement by Plaintiff Civil Rights Education and Enforcement Center. (Gonzales, Amber) (Entered: 02/09/2018)
8 SUMMONS issued by Clerk as to U.S. Immigration and Customs, (Attachments: # 1 Summons as to Department of Homeland Security) (evana, ) (Entered: 02/09/2018)
9 SUMMONS Returned Executed upon defendant(s) United States Department of Homeland Security served on 2/12/2018, answer due 4/13/2018. (Gonzales, Amber) (Entered: 02/15/2018)
10 SUMMONS Returned Executed upon defendant(s) United States Immigration and Customs Enforcement served on 2/12/2018, answer due 4/13/2018. (Gonzales, Amber) (Entered: 02/15/2018)
11 NOTICE of Entry of Appearance by Mark S. Pestal on behalf of All Defendants Attorney Mark S. Pestal added to party United States Department of Homeland Security(pty:dft), Attorney Mark S. Pestal added to party United States Immigration and Customs Enforcement(pty:dft) (Pestal, Mark) (Entered: 03/06/2018)
12 Unopposed MOTION for Extension of Time to File Answer or
Otherwise Respond re 1 Complaint,,,,,, by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Kellogg, Ian) (Entered: 04/13/2018)
13 ORDER Granting 12 unopposed motion for extension of time, to and including May 7, 2018, to response to complaint, by Judge Richard P. Matsch on 4/16/2018. (ktera) (Entered: 04/16/2018)
14 ANSWER to 1 Complaint, by United States Department of Homeland Security, United States Immigration and Customs Enforcement.(Kellogg, Ian) (Entered: 05/07/2018)
15 PROCEDURAL ORDER NUMBER ONE Counsel will meet and confer as required by Rule 26 (f)(2) within 30 days from the date of this order. Lead counsel shall attend the conference in person. The disclosures required by Rule 26(a)(1)(A) shall be made within 14 days after that conference. Counsel for the plaintiff will telephone chambers [303-844-4627] within 10 days after the disclosures to set a date and time for a Scheduling Conference pursuant to Rule 16. The instructions for preparation of the Scheduling Order and the form of that order are found at

06/21/2018 06/28/2018

http://www.cod.uscourts.gov/judges/judges.aspx, by Judge Richard P. Matsch on 5/8/2018. (ktera) (Entered: 05/08/2018)
16 ORDER SETTING SCHEDULING CONFERENCE A scheduling conference will be held on August 15, 2018, at 10:00 a.m. in the Conference Room, Second Floor, the Byron White United States Courthouse, 1823 Stout Street, Denver, Colorado. The proposed order (original only) on paper, shall be submitted directly to chambers by 12:00 noon on August 6, 2018. The conference is conducted with lead counsel present in person. No parties or representatives of parties will be permitted to attend, by Judge Richard P. Matsch on 6/21/2018. (ktera) (Entered: 06/21/2018)
17 Unopposed MOTION to Amend/Correct/Modify 1 Complaint,,,,,, by Plaintiff Civil Rights Education and Enforcement Center. (Attachments: # 1 Exhibit First Amended Complaint, # 2
Exhibit 1 - Written Request, # 3 Exhibit 2 - Cover Email, # 4 Exhibit 3 - Automatic Reply, # 5 Exhibit 4 - CREEC Email, # 6 Exhibit 5 - Automatic Reply, # 7 Exhibit 6 - Email to Bittner, # 8 Exhibit 7 - ICE-FOIA Email, # 9 Exhibit 8 - FOIA Request, # 10 Exhibit 9 - Cover Email, # 11 Exhibit 10 - Automatic Reply, # 12 Exhibit 11 - FOIA Request, # 13 Exhibit 12 - Cover Email, # 14 Exhibit 13 - Automatic Reply, # 15 Exhibit 14 - FOIA Request, # 16 Exhibit 15 - Cover Email, # 17 Exhibit 16 - Automatic Reply, # 18 Exhibit 17 - ICE-FOIA Email, # 19 Exhibit 18 - Screenshot, # 20 Exhibit 19 - CREEC Email, # 21 Exhibit 20 - Automatic Reply, # 22 Exhibit 21 - Email to CREEC, # 23 Exhibit 22 - CREEC Email, # 24 Exhibit 23 - Automatic Reply, # 25 Exhibit 24 - Email to Bittner, # 26 Exhibit 25 - Screenshot, # 27 Exhibit 26 - Screenshot, # 28 Exhibit 27 - FOIA Request, # 29 Exhibit 28 - Cover Email, # 30 Exhibit 29 - Automatic Reply, # 31 Exhibit 30 - ICE-FOIA Email, # 32 Exhibit 31 - ICE-FOIA Email, # 33 Exhibit 32 CREEC Response, # 34 Exhibit 33 - Automatic Acknowledgment, # 35 Exhibit 34 - Email to Bittner, # 36 Exhibit 35 - Screenshot, #
37 Exhibit 36 - Screenshot, # 38 Exhibit 37 - Report, # 39 Exhibit 38 - FOIA Request, # 40 Exhibit 39 - Cover Email, # 41 Exhibit 40 - Automatic Reply, # 42 Exhibit 41 - CREEC Email, # 43 Exhibit 42 - Automatic Reply, # 44 Exhibit 43 - Email to Bittner, # 45 Exhibit 44 - Automatic Reply, # 46 Exhibit 45 - FOIA Request, # 47 Exhibit 46 - ICE-FOIA Email, # 48 Exhibit 47 Website, # 49 Exhibit 48 - Screenshot, # 50 Exhibit 49 - FOIA Request, # 51 Exhibit 50 - Cover Email, # 52 Exhibit 51 - ICEFOIA Email, # 53 Exhibit 52 - Screenshot, # 54 Exhibit 53 - FOIA

Request, # 55 Exhibit 54 - Cover Email, # 56 Exhibit 55 - ICEFOIA Email, # 57 Exhibit 56 - Screenshot, # 58 Exhibit 57 Screenshot, # 59 Exhibit 58 - FOIA Request, # 60 Exhibit 59 Cover Email, # 61 Exhibit 60 - Email and Response, # 62 Exhibit 61 - ICE-FOIA Email, # 63 Exhibit 62 - Website)(Kelley, Thomas) (Entered: 06/28/2018)

06/29/2018

18 ORDER Granting 17 Plaintiff's Unopposed Motion for Leave to File First Amended Complaint. The First Amended Complaint attached thereto is accepted for filing, by Judge Richard P. Matsch on 6/29/2018. (ktera) (Entered: 06/29/2018)

06/29/2018

19 FIRST AMENDED COMPLAINT filed by Civil Rights Education and Enforcement Center. (ktera) (Entered: 06/29/2018)

07/12/2018

20 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 19 Amended Complaint by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Pestal, Mark) (Entered: 07/12/2018)

07/12/2018

21 ORDER Granting 20 Defendants' motion for extension of time, to and including July 31, 2018, to respond to the amended complaint, by Judge Richard P. Matsch on 7/12/2018. (ktera) (Entered: 07/12/2018)

07/27/2018

22 NOTICE of Entry of Appearance by Timothy Patrick Fox on behalf of Civil Rights Education and Enforcement CenterAttorney Timothy Patrick Fox added to party Civil Rights Education and Enforcement Center(pty:pla) (Fox, Timothy) (Entered: 07/27/2018)

07/30/2018

23 NOTICE of Entry of Appearance by Elizabeth B. Jordan on behalf of Civil Rights Education and Enforcement CenterAttorney Elizabeth B. Jordan added to party Civil Rights Education and Enforcement Center(pty:pla) (Jordan, Elizabeth) (Entered: 07/30/2018)

07/31/2018

24 ANSWER to 19 Amended Complaint by United States Department of Homeland Security, United States Immigration and Customs Enforcement.(Pestal, Mark) (Entered: 07/31/2018)

08/06/2018 25

DECLARATION of Catrina Pavlik-Keenan by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Pestal, Mark) (Entered: 08/06/2018)

08/15/2018

26 COURTROOM MINUTES for Scheduling Conference held before Senior Judge Richard P. Matsch on 8/15/2018. ORDERED: This matter is set for continued Scheduling Conference on September 25, 2018, at 10:00 a.m. FTR: Kathy Terasaki. (lrobe) (Entered: 08/15/2018)

08/15/2018 27

ORDER SETTING FURTHER SCHEDULING CONFERENCE Pursuant to the August 15, 2018 scheduling conference, a further scheduling conference is scheduled for September 25, 2018 at 10:00 a.m. in the Conference Room, Second Floor, the Byron White United States Courthouse, 1823 Stout Street, Denver, Colorado, by Judge Richard P. Matsch on 8/15/2018. (ktera) (Entered: 08/15/2018)

08/15/2018

28 Utility Confirming Setting Hearings: Scheduling Conference set for 9/25/2018 10:00 AM before Judge Richard P. Matsch. Text Only Entry (evana, ) (Entered: 08/20/2018)

09/17/2018 29

MOTION for Leave to File Response to Defendants' 25 Declaration by Plaintiff Civil Rights Education and Enforcement Center. (Gonzales, Amber) (Entered: 09/17/2018)

09/17/2018 30

RESPONSE to 25 Declaration Re ICE FOIA Office Workload and Resources by Plaintiff Civil Rights Education and Enforcement

Center. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3

Exhibit C, # 4 09/17/2018)

Exhibit D)(Gonzales, Amber) (Entered:

09/17/2018

32 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT

RULES/PROCEDURES: re: 29 MOTION for Leave to File

Response to Defendants' 25 Declaration filed by attorney Thomas B. Kelley. The s/signature did not match the filers name on the account for which the login and password are registered. DO NOT REFILE THE DOCUMENT. Action to take - future documents must be filed pursuant to D.C.COLO.LCivR 5.1(a) and 4.3(c) of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (evana, ) (Entered: 09/18/2018)

09/17/2018

33 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT

RULES/PROCEDURES: re: 30 Response filed by attorney

Thomas B. Kelley. The s/signature did not match the filers name on the account for which the login and password are registered. DO NOT REFILE THE DOCUMENT. Action to take - future documents must be filed pursuant to D.C.COLO.LCivR 5.1(a) and 4.3(c) of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (evana, ) (Entered: 09/18/2018)

09/18/2018 31

ORDER Granting 29 Plaintiff's Motion for Leave to File Response to Defendants' Declaration Regarding ICE FOIA Office

Workload and Resources. Plaintiff's Response Doc. 30 is accepted for filing, by Judge Richard P. Matsch on 9/18/2018. (ktera) (Entered: 09/18/2018)

09/25/2018

34 MINUTE ENTRY for Scheduling Conference proceedings held before Judge Richard P. Matsch on 9/25/2018. Scheduling Order APPROVED and SIGNED with changes and interlineations. Status Conference set for 10/26/2018 10:00 AM in Courtroom A before Judge Richard P. Matsch. FTR: K. Terasaki. (babia) (Entered: 09/25/2018)

09/25/2018

35 SCHEDULING ORDER approved and signed with changes and interlineations by Judge Richard P. Matsch on 9/25/2018. (babia) (Entered: 09/25/2018)

10/26/2018 36

MINUTE ENTRY for proceedings held before Senior Judge Richard P. Matsch: Status Conference held on 10/26/2018. Status Conference set for 12/7/2018, at 10:00 AM, in Courtroom A before Senior Judge Richard P. Matsch. FTR: K. Terasaki. (rkeec) (Entered: 10/26/2018)

12/07/2018

37 MINUTE ENTRY for Status Conference proceedings held before Judge Richard P. Matsch on 12/7/2018. ORDERED:Counsel shall meet and confer to draft and submit a proposed order requiring the agency to set out what their priority schedule is on production of documents in each category, on or before December 20, 2018. Status Conference set for 1/18/2019 10:00 AM in Courtroom A before Judge Richard P. Matsch. FTR: K. Terasaki. (babia) (Entered: 12/07/2018)

12/12/2018

38 Unopposed MOTION to Clarify re 37 Status Conference,, Terminate Hearings,, Set/Reset Hearings, by Plaintiff Civil Rights

Education and Enforcement Center. (Attachments: # 1 Exhibit 1 - proposed Order Regarding Production Schedule)(Kelley, Thomas) (Entered: 12/12/2018)

12/20/2018

39 Unopposed MOTION for Extension of Time to Submit Proposed Production Schedule by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Pestal, Mark) (Entered: 12/20/2018)

12/21/2018

40 ORDER Granting 39 Defendants' unopposed motion for extension of time, to and including January 9, 2019, to submit a proposed production schedule. By Judge Richard P. Matsch on 12/21/2018. (ktera) (Entered: 12/21/2018)

12/21/2018 41

ORDER on 38 Motion for Clarification. By Judge Richard P. Matsch on 12/21/2018. (ktera) (Entered: 12/21/2018)

01/02/2019

42 NOTICE of Entry of Appearance by Steven David Zansberg on behalf of All Plaintiffs Attorney Steven David Zansberg added to party Civil Rights Education and Enforcement Center(pty:pla) (Zansberg, Steven) (Entered: 01/02/2019)

01/07/2019

43 Unopposed MOTION for Extension of Time to File Proposed Production Schedule and to Vacate and Reset Status Conference by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Pestal, Mark) (Entered: 01/07/2019)

01/08/2019

44 ORDER Upon review of Defendants' unopposed motion for an extension of time, to and including February 8, 2019, to submit a proposed production schedule and rescheduling the January 18, 2019, status conference to February 15, 2019, at 10:00 a.m., it is ORDERED that the motion is granted, by Judge Richard P. Matsch on 1/8/2019. (evana, ) (Entered: 01/08/2019)

01/09/2019

45 NOTICE of Change of Address/Contact Information and Firm Affiliation by Thomas B. Kelley (Kelley, Thomas) (Entered: 01/09/2019)

02/08/2019 46

Joint STATUS REPORT AND PROPOSED PRODUCTION SCHEDULE by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Pestal, Mark) (Entered: 02/08/2019)

02/15/2019 47

COURTROOM MINUTES for Status Conference held before Judge Richard P. Matsch on 2/15/2019. Defendants shall produce the three categories of documents in 60 days or explain why they are unable to do so. Status Conference set for 4/26/2019 10:00 AM in Conference Room before Judge Richard P. Matsch. FTR: K. Terasaki. (ebuch) (Entered: 02/15/2019)

04/25/2019

48 NOTICE of Entry of Appearance by Kyle W. Brenton on behalf of United States Department of Homeland Security, United States Immigration and Customs EnforcementAttorney Kyle W. Brenton added to party United States Department of Homeland Security(pty:dft), Attorney Kyle W. Brenton added to party United States Immigration and Customs Enforcement(pty:dft) (Brenton, Kyle) (Entered: 04/25/2019)

04/26/2019

49 MINUTE ORDER Due to a conflict with the Court's calendar, the

47 status conference set for April 26, 2019, is rescheduled for May 1, 2019, at 10:00 a.m. in the Conference Room, Second Floor, the Byron White United States Courthouse, 1823 Stout Street, Denver, Colorado, by Judge Richard P. Matsch on 4/26/2019. (ktera) (Entered: 04/26/2019)

04/29/2019

50 MINUTE ORDER Due to a conflict with the Court's calendar, the 49 May 1, 2019, status conference is vacated. The conference will be rescheduled at a later date, by Judge Richard P. Matsch on 4/30/2019. (ktera) Modified on 4/29/2019 to enter the correct date of status conference (ktera). (Entered: 04/29/2019)

05/23/2019 51

WITHDRAWN MOTION for Sanctions and Order to Produce Documents by Plaintiff Civil Rights Education and Enforcement

Center. (Attachments: # 1 Exhibit 1 - Email, # 2 Exhibit 2

- Email, # 3 Exhibit 3 - Email, # 4 Exhibit 4 - Email, # 5

Exhibit 5 - FOIA Letter, # 6 Exhibit 6 - Complaint, # 7 Exhibit 7 - Declaration)(Kelley, Thomas) (Modified on 2/3/2020 Withdrawn pursuant to the 74 Order)(evana, ). (Entered: 05/23/2019)

05/24/2019

52 NOTICE of Entry of Appearance by Chad Phillip Jimenez on behalf of Civil Rights Education and Enforcement CenterAttorney Chad Phillip Jimenez added to party Civil Rights Education and Enforcement Center(pty:pla) (Jimenez, Chad) (Entered: 05/24/2019)

05/30/2019

53 Upon the passing of Judge Richard P. Matsch, and pursuant to D.C.COLO.LCivR 40.1(a), this case has been reassigned to Judge John L. Kane effective this date. All future pleadings should be designated as 18-cv-00302-JLK. (Text Only Entry). (sphil, ) (Entered: 05/30/2019)

06/13/2019

54 RESPONSE to 51 MOTION for Sanctions and Order to Produce Documents filed by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Pestal, Mark) (Entered: 06/13/2019)

06/25/2019

55 Unopposed MOTION for Extension of Time to File

Response/Reply as to 51 MOTION for Sanctions and Order to Produce Documents by Plaintiff Civil Rights Education and Enforcement Center. (Attachments: # 1 Proposed Order (PDF Only))(Kelley, Thomas) (Entered: 06/25/2019)

06/25/2019 56

ORDER granting 55 Unopposed Motion for Extension of Time to File Reply Brief in Support of Motion for Sanctions and Order to Produce Documents. ORDERED by Judge John L. Kane on 6/25/2019.(cthom, ) (Entered: 06/25/2019)

07/05/2019 57

WITHDRAWN MOTION to Amended Complaint Second Amended Complaint against United States Department of Homeland Security, United States Immigration and Customs Enforcement, Ginger Wentz, filed by Civil Rights Education and Enforcement Center. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Proposed Order (PDF Only))(Kelley, Thomas) Modified to add motion event on 7/9/2019 (cthom, ). (Modified on 2/3/2020 Withdrawn pursuant to the 74 Order)(evana, ). (Entered: 07/05/2019)

07/05/2019

58 REPLY to Response to 51 MOTION for Sanctions and Order to Produce Documents filed by Plaintiff Civil Rights Education and Enforcement Center. (Attachments: # 1 Exhibit 8 - Email from M Pestal 9-10-18, # 2 Exhibit 9 - Email from T Kelley 9-14-18, # 3 Exhibit 10 - Email from M Pestal 10-26-18, # 4 Exhibit 11 - Email from A Rose 12-3-18, # 5 Exhibit 12 - Memorandum Opinion)(Kelley, Thomas) (Entered: 07/05/2019)

07/12/2019 59

MOTION for Extension of Time to Respond to Motion to Amend Complaint by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Brenton, Kyle) (Entered: 07/12/2019)

07/12/2019

60 SUPPLEMENT/AMENDMENT to Response to Motion for Sanctions by Defendants United States Department of Homeland

07/12/2019 07/12/2019
07/22/2019 07/22/2019 08/09/2019 08/22/2019 08/22/2019

Security, United States Immigration and Customs Enforcement. (Brenton, Kyle) (Entered: 07/12/2019)
61 Exhibits in Support of 60 Supplement/Amendment by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Brenton, Kyle) (Entered: 07/12/2019)
62 ORDER THE COURT, having reviewed Defendants' Unopposed Motion for Extension of Time to respond to Plaintiff's Motion to Amend Complaint, and being sufficiently advised of the premises,
hereby GRANTS the Motion (ECF No. 59 ). Defendants' response to Plaintiff's Motion to Amend Complaint is due on or before August 9, 2019, by Judge John L. Kane on 7/12/2019.(evana, ) (Entered: 07/15/2019)
63 Unopposed MOTION to Withdraw as Attorney by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Pestal, Mark) (Entered: 07/22/2019)
64 MINUTE ORDER GRANTING 63 Unopposed Motion to Withdraw as Counsel of Record. Given that representation of Defendants will continue through Mr. Kellogg and Mr. Brenton of the U.S. Attorney's Office, Attorney Mark S. Pestal is authorized to WITHDRAW as counsel. Mr. Pestal SHALL be REMOVED from future electronic notifications in this case. ORDERED by Judge John L. Kane on 7/22/2019.(cthom, ) (Entered: 07/22/2019)
65 RESPONSE to 57 MOTION to Amend/Correct/Modify Complaint filed by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Brenton, Kyle) (Entered: 08/09/2019)
66 Unopposed MOTION for Extension of Time to File
Response/Reply as to 57 MOTION to Amend/Correct/Modify Complaint by Plaintiff Civil Rights Education and Enforcement Center. (Attachments: # 1 Proposed Order (PDF Only))(Kelley, Thomas) (Entered: 08/22/2019)
67 ORDER granting 66 Plaintiff's Unopposed Motion for Extension of Time to File Reply in Support of Motion to File Second Amended Complaint. The Reply is due on or before September 3, 2019.

09/03/2019 09/16/2019 12/11/2019 12/12/2019 01/16/2020
01/31/2020

Ordered by Judge John L. Kane on 8/22/2019. Text Only Entry(jlksec) (Entered: 08/22/2019)
68 REPLY to Response to 57 MOTION to Amend/Correct/Modify filed by Plaintiff Civil Rights Education and Enforcement Center. (Attachments: # 1 Exhibit 1 - March 1, 2019 Request, # 2 Exhibit 2 - April 19, 2019 Request, # 3 Exhibit 3 - Related Documents)(Kelley, Thomas) (Entered: 09/03/2019)
69 NOTICE Joint Notice of Potential Partial Settlement by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement (Brenton, Kyle) (Entered: 09/16/2019)
70 NOTICE of Change of Address/Contact Information for Timothy P. Fox and Elizabeth B. Jordan by Timothy Patrick Fox (Fox, Timothy) (Entered: 12/11/2019)
71 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES:re: 70 Notice of Change of Address/Contact Information filed by attorneyTimothy P. Fox. DO NOT REFILE THE DOCUMENT. Action to take - counsel must submit a change of contact request through the Attorney Services Portal Account pursuant to D.C.COLO.LAttyR 5(c) and 3.5 of the Electronic Case Filing Procedures (Civil cases).(Text Only Entry) (evana, ) (Entered: 12/12/2019)
72 MINUTE ORDER. On September 16, 2019, the parties notified the Court that they reached a preliminary agreement to resolve several outstanding issues, and that the agreement could negate the need for the Court to rule on the motions currently pending in this case. The parties are ORDERED to file a joint status report on or before February 3, 2020, indicating whether it remains necessary for the Court to rule on Plaintiff's Motion for Sanctions and Order to
Produce Documents 51 , or Plaintiff's Opposed Motion for
Leave to File Second Amended Complaint 57 . Ordered by Judge John L. Kane on 1/16/2020. Text Only Entry (jlksec) (Entered: 01/16/2020)
73 STIPULATION Regarding Conclusion of Matter and Procedure for Determination of Remaining Issues and Plaintiff's Claim for Attorney Fees by Plaintiff Civil Rights Education and Enforcement Center. (Attachments: # 1 1 - FOIA Documents Chart)(Kelley, Thomas) (Entered: 01/31/2020)

02/03/2020
02/25/2020 03/30/2020 03/30/2020 05/06/2020

74 ORDER Pursuant to the parties' Stipulation Regarding Conclusion of Matter and Procedure for Determination of Remaining Issues and Plaintiff's Claim for Attorney Fees (ECF No. 73 ), IT IS HEREBY ORDERED that Plaintiff's Motion for Sanctions and Order to
Produce Documents (ECF No. 51 ) and Plaintiff's Motion for
Leave to File Second Amended Complaint (ECF No. 57 ) are WITHDRAWN AS MOOT. that if the parties cannot reach an agreement regarding the documents referenced in the Stipulation, they will so inform the Court via a notice filed on or before February 25, 2020. If no agreement is reached, Defendants shall file a motion for summary judgment on or before March 30, 2020, addressing the propriety of the claimed exemptions and redactions. That Plaintiff's motion for award of attorney fees and costs, including affidavits and documents supporting the amount of attorney fees claimed, shall be filed within 20 days of the date of this Court's order resolving all issues raised by the Defendants' motion for summary judgment, OR, if no motion for summary judgment is filed, by March 21, 2020. by Judge John L. Kane on 2/3/2020.(evana, ) (Entered: 02/03/2020)
75 NOTICE re 74 Order on Motion for Sanctions,,,,, Order on Motion to Amend/Correct/Modify,,,, Regarding Motion for Summary Judgment by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement (Brenton, Kyle) (Entered: 02/25/2020)
76 Unopposed MOTION for Extension of Time to File Motion for Summary Judgment by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Brenton, Kyle) (Entered: 03/30/2020)
77 ORDER granting 76 Unopposed Motion for Extension of Time to File Motion for Summary Judgment. The deadline for Defendants to file a motion for summary judgment is extended to on or before May 6, 2020. Ordered by Judge John L. Kane on 3/30/2020. Text Only Entry(jlksec) (Entered: 03/30/2020)
78 STIPULATION REGARDING RESOLUTION OF THE MERITS OF PLAINTIFFS FOIA CLAIM AND SETTING BRIEFING SCHEDULE ON PLAINTIFFS MOTION FOR AWARD OF ATTORNEY FEES AND COSTS by Plaintiff Civil Rights Education and Enforcement Center. (Kelley, Thomas) (Entered: 05/06/2020)

05/06/2020 06/08/2020
06/08/2020 06/10/2020 07/15/2020 07/20/2020

79 MINUTE ORDER: Pursuant to the parties' Stipulation 78 , it is ordered that in the event the parties are unable to resolve the attorney fee issue between themselves, Plaintiff will file its Motion for Award of Attorney Fees and Costs on or before June 8, 2020. Defendant's response is due on or before July 17, 2020. Plaintiff's reply is due on or before August 11, 2020. Ordered by Judge John L. Kane on 05/06/2020. Text Only Entry (jlksec) (Entered: 05/06/2020)
80 MOTION for Attorney Fees and Costs by Plaintiff Civil Rights Education and Enforcement Center. (Attachments: # 1 Declaration of Thomas B Kelley in Support of Motion for Award of Attorney Fees and Costs, # 2 Exhibit 1 - Recording of 12/7/2018 status conference, manually submitted, # 3 Exhibit 2 - Letter of 1/31/2018 by Catrina M. Pavlik Keenen of ICE to Robin Urevich of Muck Rock, # 4 Exhibit 3 - Report of investigation of Death of Vicente Caceres Maradiaga, # 5 Exhibit 4 - Complaint in ACLU v. U.S. Immigration and Customs Enforcement, # 6 Exhibit 5 - First page of Detainee Death Review for Kamyar Samimi, # 7 Exhibit 6 Email of 12/10/2019, # 8 Exhibit 7 - Email of 12/19/2019, # 9 Exhibit 8 - Email of 3/8/2020, # 10 Exhibit A - Invoice of Ballard Spahr, # 11 Exhibit B - Invoice of Killmer Lane & Newman, # 12 Exhibit C - Invoice of Armstrong Teasdale, # 13 Delcaration of Timothy Fox, # 14 Exhibit 1 to Declaration of Fox, CREEC Invoice, # 15 Declaration of Michael McCarthy)(Kelley, Thomas) (Entered: 06/08/2020)
81 NOTICE of Filing Conventionally Submitted Exhibit to ECF 80 by Plaintiff Civil Rights Education and Enforcement Center (Kelley, Thomas) (Entered: 06/08/2020)
82 Conventionally Submitted Material : EXHIBIT 1 to [80-1], Declaration of Thomas B. Kelley. 1 CD Disc of Audio Recording. by Plaintiff Civil Rights Education and Enforcement Center. Filed in the Clerk's Office. Text Only Entry (evana, ) (Entered: 06/10/2020)
83 Unopposed MOTION for Extension of Time to File Response/Reply as to 80 MOTION for Attorney Fees and Costs by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Brenton, Kyle) (Entered: 07/15/2020)
84 ORDER granting 83 Unopposed Motion for Extension of Time to File Response/Reply. Defendants' response is due on or before July 24, 2020. Plaintiff's reply is due on or before August 18, 2020.

07/24/2020 07/31/2020 08/17/2020

Ordered by Judge John L. Kane on 07/20/2020. Text Only Entry(jlksec) (Entered: 07/20/2020)
85 RESPONSE to 80 MOTION for Attorney Fees and Costs filed by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Brenton, Kyle) (Entered: 07/24/2020)
86 Conventionally Submitted Material : 1 CD - Native Excel Versions of Exhibits 1 and 3 to 85 Response to 80 Motion for Attorney Fees and Costs, by Defendants United States Department of Homeland Security, United States Immigration and Customs Enforcement. Text Only Entry (athom, ) (Entered: 07/31/2020)
87 REPLY to Response to 80 MOTION for Attorney Fees and Costs filed by Plaintiff Civil Rights Education and Enforcement Center. (Attachments: # 1 Exhibit 9 - GEO Letter, # 2 Exhibit 10 - Email chain, # 3 Exhibit 11 - ICE FOIA Website, # 4 Exhibit 12 - O'Neal v Fremont County Order on Fees, # 5 Exhibit 13 - O'Neal Supp Order on Fees, # 6 Exhibit 14 - BKP Order on Fees)(Kelley, Thomas) (Entered: 08/17/2020)

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 Case 1:18-cv-00302-RPM Document 1 Filed 02/07/18 USDC Colorado Page 1 of 17
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. _________________
CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY and UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants. ______________________________________________________________________________
COMPLAINT ______________________________________________________________________________
NATURE OF THE CASE 1. In this action, brought pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq., Plaintiff seeks declaratory and injunctive relief to effect the release by the Defendants of agency records that Plaintiff has requested from the Defendants pursuant to FOIA. 2. Plaintiff, Civil Rights Education and Enforcement Center (“CREEC”), is a non-profit corporation organized under the laws of the State of Colorado that is dedicated to protecting and defending the civil rights of individuals and educating the public concerning civil rights issues. 3. Defendants, agencies of the U.S. Government, maintain a network of detention facilities at which individuals who are not United States citizens are confined under authority

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exercised by the Defendants. With few exceptions, these individuals are confined in county jails or private facilities that are operated by public or private entities pursuant to contracts with the Defendants.
4. In recent years, there has developed significant public interest and controversy over the conditions of confinement of immigrant detainees placed into custody by the Defendants.
5. Defendants’ network includes the Adelanto Detention Facility (“ADF”) located in or near the city of Adelanto, California. ADF is operated by GEO Group, Inc., a private entity, pursuant to a contract between the City of Adelanto and the Defendants, and an operating agreement between GEO Group and the City, under which ADF undertakes responsibility for confinement of individuals detained under authority and oversight of the Defendants. ADF has been the subject of numerous complaints of substandard conditions of confinement, investigations of such complaints and conditions by non-governmental civil rights organizations, and reports to the public concerning substandard conditions of confinement issued by such organizations. On information and belief, the Defendants possess considerable records and data regarding substandard conditions of confinement at ADF that have not been made available to the public.
6. Defendants’ network of detention facilities also includes the Etowah County Detention Center (“ECDC”), situated in the town of Gadsden, Alabama. ECDC is operated by the Etowah County Sheriff’s Office pursuant to a contract with the Defendants under which ECDC undertakes responsibility for confinement of individuals detained under authority and oversight of the Defendants. ECDC has been the subject of numerous complaints of substandard
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conditions of confinement, investigations of such complaints and conditions by nongovernmental civil rights organizations, and reports to the public concerning substandard conditions of confinement issued by such organizations. On information and belief, the Defendants possess considerable records and data regarding substandard conditions of confinement at ECDC that have not been made available to the public.
7. In August and September of 2017, CREEC submitted to Defendants FOIA requests seeking agency records concerning conditions of confinement at ADF and ECDC of individuals detained pursuant to authority exercised by Defendants. CREEC seeks the requested agency records in order to inform public debate regarding conditions of confinement at ADF and ECDC, and accountability and oversight measures that may be needed to address substandard conditions of confinement.
8. Defendants have failed to comply with the statutory deadline for responding to CREEC’s requests pursuant to FOIA.
9. Defendants should not be permitted to ignore FOIA’s requirements. This Court should order Defendants to respond to CREEC’s FOIA requests and disclose the requested records.
JURISDICTION AND VENUE 10. This Court has subject matter jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331. 11. Venue lies in this District pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e).
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PARTIES 12. CREEC is a non-profit organization that provides legal assistance, advocacy, and public education concerning actions, practices, and policies that abridge or threaten the civil rights of individuals in the United States. CREEC has formed an internal immigration detainee task force charged with investigating suspected substandard conditions of confinement of noncitizens who have become immigration detainees pursuant to authority exercised by Defendants and, where warranted and appropriate, to consider litigation to vindicate the rights of such individuals. CREEC’s work that is the subject of this action has been undertaken by its immigration detainee task force. 13. Disclosure of the requested records will shed light on Defendants and their subcontractors’ operations and activities related to the confinement of immigration detainees. CREEC seeks the requested agency records in order to inform public debate regarding conditions of confinement at ADF and ECDC, and accountability and oversight measures that may be needed to address substandard conditions of confinement. 14. Defendant United States Department of Homeland Security (“DHS”) is a Cabinet department of the U.S. federal government with responsibilities for protecting the security of the United States. Defendant United States Immigration and Customs Enforcement (“ICE”) is a subsidiary component entity within DHS and is responsible for enforcing federal immigration and custom laws. Both ICE and DHS are “agenc[ies]” within the meaning of 5 U.S.C. § 552(f)(1). ICE and DHS have possession and control over records CREEC seeks and are responsible for responding to and fulfilling CREEC’s FOIA request.
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STATUTORY FRAMEWORK 15. “The 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.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). 16. To that end, FOIA requires federal agencies to make government records “promptly available to any person” unless an enumerated exemption applies. See 5 U.S.C. § 552(a)(3). 17. In addition to the general requirement that records be made “promptly” available, FOIA sets forth a specific timeline for responding to an FOIA request. In particular, the statute provides that a federal agency must “determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of,” among other things, “such determination and the reasons therefor.” Id. § 552(a)(6)(A)(i). In “unusual circumstances,” including a “need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records,” that deadline may be extended for a period not to exceed ten additional business days. Id. § 552(a)(6)(B). 18. FOIA provides that a requester may sue in federal court without waiting for an answer whenever an agency does not abide by the applicable deadline. Id. § 552(a)(4)(B), (a)(6)(C)(1).
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FACTUAL ALLEGATIONS A. Plaintiff’s Requests for Records Regarding ADF
19. On August 15, 2017, at 4:40 p.m. MDT, CREEC electronically filed (at ICE-FOIA@dhs.gov) an FOIA request with ICE seeking certain categories of agency documents regarding conditions of confinement at ADF1 and the Defendants’ oversight thereof. A true and correct copy of that written request is attached hereto as Ex. 1, and the cover e-mail is attached as Ex. 2. This request was addressed as directed on the ICE website and as directed by Defendants’ regulations for the most prompt disposition. See 6 C.F.R. § 5.3.
20. At 4:41 p.m. MDT on August 15, 2017, CREEC received an “automatic reply” from ICE-FOIA@ice.dh.gov stating that “ICE has received the information you submitted to the ICE-FOIA@dhs.gov mailbox.” This automatic reply also stated that “this courtesy reply does not replace the Acknowledgement Letter which will be sent to you once your request has been entered into our FOIA Request Tracking System.” The automatic reply is attached as Ex. 3.
21. On September 5, 2017, CREEC’s representative replied by e-mail to the automatic reply e-mail received from ICE-FOIA@dhs.gov on August 15, 2017, inquiring as to why CREEC had not received an “Acknowledgement Letter” regarding CREEC’s ADF request, noting that the ICE FOIA website advised that CREEC should receive an Acknowledgement Letter three to five business days after a request is submitted. A copy of the September 5, 2017
1 ADF has been variously referred to as Adelanto Detention Facility, Adelanto Detention Center, and the Adelanto ICE Processing Center. The facility has two buildings, one known as Adelanto East located at 10400 Rancho Road, Adelanto, CA 93201, and the other known as Adelanto West located at 10250 Rancho Road, Adelanto, CA 92301. For the purposes of this Complaint, ADF refers to the facility located at both of these addresses. CREEC’s FOIA requests regarding ADF made a similar reference to the location of the facility.
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e-mail is attached as Ex. 4. CREEC received an automatic reply to this e-mail, which is attached as Ex. 5.
22. On September 7, 2017, CREEC’s representative called (866) 633-1182, the number listed on the ICE FOIA website, https://www.ice.gov/foia/overview, but was unable to leave a message or speak to someone from the ICE FOIA Office about the pending FOIA request. The answering auto-attendant provided two options related to FOIAs. The CREEC representative first selected an option that forwarded this call to a voicemail box; however, the box was full and the CREEC representative was unable to leave a message. The CREEC representative redialed the number, and selected an option that offered the opportunity to speak to someone about pending FOIA requests, but the line produced a busy signal and then disconnected. The CREEC representative redialed and reselected the same option but was again connected to a full voicemail box where she could not leave a message.
23. Also on September 7, 2017, CREEC’s representative called the ICE Office of Diversity and Civil Liberties and spoke to a female employee. That individual was unable to assist in obtaining an Acknowledgement Letter for CREEC’s request, but did provide contact information for one Mark Bittner of the ICE FOIA office as an individual who could do so. CREEC’s representative e-mailed Mr. Bittner and inquired as to why CREEC had not received an Acknowledgement Letter regarding the ADF request, and attached the original FOIA request letter sent on August 15, 2017. The e-mail to Mr. Bittner is attached hereto as Ex. 6.
24. Mr. Bittner never responded to this e-mail, but on September 8, 2017, CREEC received an e-mail from ice-foia@dhs.gov with an Acknowledgement Letter in response to its
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August 15 FOIA request regarding ADF. The letter provided a reference number for the request, 2017-ICFO-45386. The September 8, 2017 e-mail is attached hereto as Ex. 7.
25. On September 14, 2017, CREEC’s representative used the Department of Homeland Security “Check Status of Request” website, https://www.dhs.gov/foia-status, to determine the estimated time of delivery for its ADF request. The Defendants are required to maintain this facility under FOIA, 5 U.S.C. § 552(f)(2). The website reported that the estimated time of delivery for Request No. 2017-ICFO-45386 was October 2, 2017.
26. On September 19, 2017 at 10:11 a.m. MDT, CREEC electronically filed (at ICE-FOIA@dhs.gov) a further FOIA request with ICE seeking categories of agency documents regarding administrative and disciplinary segregation at ADF. A true and correct copy of that written request is attached as Ex. 8 and the cover e-mail is attached as Ex. 9. On the same day, CREEC received an automatic reply, attached as Ex. 10.
27. On September 19, 2017 at 10:21 a.m. MDT, CREEC electronically filed (at ICE-FOIA@dhs.gov) a further FOIA request related to medical care subcontractors at ADF. A copy of that request is attached as Ex. 11 and a copy of the cover e-mail is attached as Ex. 12. CREEC received an automatic reply the same day, attached as Ex. 13.
28. On September 19, 2017, at 10:25 a.m. MDT, CREEC electronically filed (at ICE-FOIA@dhs.gov) a further FOIA request regarding mental health services at ADF. A copy of that request is attached as Ex. 14 and the cover e-mail is attached as Ex. 15. CREEC received an automatic reply the same day, and a copy is attached as Ex. 16.
29. On September 26, 2017, CREEC received an e-mail from ice-foia@dhs.gov, acknowledging receipt of the above three FOIA requests sent on September 19 and including
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them under the same reference number as the August 15 FOIA request, 2017-ICFO-45386. A copy of that e-mail is attached hereto as Ex.17
30. CREEC’s representative then checked the Department of Homeland Security “Check Status of Request” website, https://www.dhs.gov/foia-state, to determine the estimated time of delivery for CREEC’s August 15 and September FOIA requests regarding ADF. The website reported that the estimated time of delivery for Request No. 2017-ICFO-45386 was October 2, 2017.
31. On November 6, 2017, CREEC’s representative checked the Department of Homeland Security “Check Status of Request” website, https://www.dhs.gov/foia-status, for an update on CREEC’s FOIA requests regarding ADF. The website continued to report the estimated time of delivery for the request remained October 2, 2017. A screenshot of that page of the FOIA tracker, including the date of the estimated delivery, is attached hereto as Ex. 18.
32. On November 6, 2017, CREEC’s representative sent a reply e-mail to ice-foia@dhs.gov, asking for the materials requested or an updated timetable for delivery regarding the various ADF requests, which were due on October 2, 2017. A copy of that e-mail is attached hereto as Ex. 19. CREEC received an automatic reply to that e-mail, copy attached as Ex. 20.
33. On November 8, 2017, CREEC received a reply to its November 6 e-mail that stated, “Responsive documentation has been received and this request has been assigned to an analyst for processing.” A copy of that e-mail is attached hereto as Ex. 21.
34. On November 14, 2017, CREEC’s representative responded to ICE’s e-mail asking when CREEC could expect to receive the documents requested. A copy of that e-mail is
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attached hereto as Ex. 22. CREEC received an automatic reply e-mail, copy attached as Ex. 23, but never received a substantive response to that e-mail.
35. On December 7, 2017, having heard nothing further from the Defendants regarding the ADF requests, CREEC’s representative again sent an e-mail to Mr. Bittner in the ICE FOIA office that requested a status report on both the 2017-ICFO-45386 and 2018-ICFO-03033 requests. A copy of that e-mail is attached hereto as Ex. 24. CREEC has not received a response from Mr. Bittner.
36. On December 14, 2017 at 2:57 MST, CREEC’s representative called (866) 633-1182, the phone number listed on the ICE website, https://www.ice.gov/foia/overview, to inquire about the FOIA requests: 2017-ICFO-45386 and 2018-ICFO-03033. The answering auto-attendant provided two options related to FOIAs. The CREEC representative first selected an option that forwarded this call to a voicemail box; however, the box was full and the CREEC representative was unable to leave a message. The CREEC representative redialed the number at 3:00 p.m. MST, and selected an option that offered the opportunity to speak to someone about pending FOIA requests, but the line produced a busy signal and then disconnected. The CREEC representative redialed and reselected the same option but was again connected to a full voicemail box where she could not leave a message.
37. On December 15, 2017, CREEC’s representative used the Department of Homeland Security “Check Status of Request” website, https://www.dhs.gov/foia-status, to determine the estimated time of delivery for both the requests: 2017-ICFO-45386 and 2018-ICFO-03033. The estimated date of delivery for Request No. 2017-ICFO-45386, the
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requests regarding ADF, had been updated from October 2, 2017 to December 29, 2017. A screenshot of that page from the ICE FOIA website is attached as Ex. 25.
38. On December 19, 2017, CREEC’s representative called the ICE FOIA number, (866) 633-1182. Once again, the voicemail box was full and the CREEC representative was unable to leave a message. The CREEC representative redialed the number and selected an option that offered the opportunity to speak to someone about pending FOIA requests, but the line produced a busy signal and then disconnected.
39. On December 22, 2017, CREEC’s representative used the Department of Homeland Security “Check Status of Request” website, https://www.dhs.gov/foia-status, to determine the estimated time of delivery for both the requests: 2017-ICFO-45386 and 2018-ICFO-03033. For Request No. 2017-ICFO-45386 the estimated date of delivery was December 29, 2017. A screenshot of that page from the ICE FOIA website is attached as Ex. 26.
40. As of the date of this filing, no updated information has been provided by the Department of Homeland Security on the “Check Status of Report” page regarding either Request Nos. 2017-ICFO-45386 or 2018-ICFO-03033.
41. Even assuming that a ten-business-day extension was warranted, a response to CREEC’s August 15 request should have been forthcoming by no later than September 26, 2017, pursuant to 5 U.S.C. § 552(a)(6)(A)(i) and (a)(6)(B). Once that request was combined with CREEC’s September 19 further requests concerning ADF, the response to the combined requests should have been provided no later than October 17, 2017. Even assuming that a ten-businessday extension was warranted, a response to CREEC’s combined August 15 and September 19, 2017 requests should have been forthcoming by no later than October 31, 2017,
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pursuant to 5 U.S.C. § 552(a)(6)(A)(i) and (a)(6)(B). Despite its follow-up efforts, CREEC has received no substantive response to its August 15, 2017 and September 19, 2017 requests.
42. Pursuant to 5 U.S.C. § 552(a)(6)(C), CREEC is deemed to have exhausted any and all administrative remedies with respect to FOIA Request Nos. 2017-ICFO-45386 and 2018-ICFO-03033, because Defendants failed to comply within the time limit set forth in 5 U.S.C. § 552(a)(6)(A). B. Plaintiff’s Request for Records Regarding ECDC
43. On September 29, 2017, CREEC electronically filed (at ice-foia@dhs.gov) an FOIA request with ICE seeking certain categories of agency documents regarding conditions of confinement at ECDC and the Defendant’s oversight thereof. A true and correct copy of that written request is attached hereto as Ex. 27, and the cover e-mail is attached as Ex. 28. This request was addressed and submitted as directed by Defendants’ regulations for the most prompt disposition, 6 C.F.R. § 5.3. On that same day, CREEC received an automatic reply from ice-foia@dhs.gov, a copy of which is attached as Ex. 29.
44. On October 20, 2017, CREEC received an e-mail from ice-foia@dhs.gov with an Acknowledgment Letter acknowledging receipt of its September 29, 2017 FOIA request and invoking the ten-day extension available in “unusual circumstances.” This letter indicated that the September 29th FOIA request had been assigned Reference No. 2018-ICFO-03033. A true and correct copy of the October 20, 2017 e-mail is attached as Ex. 30.
45. On October 24, 2017 at 9:45 a.m. MDT, CREEC received an e-mail from ice-foia@dhs.gov requesting clarification of the September 29th ECDC FOIA request. The e-mail stated:
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In conducting a search for responsive records, the ICE FOIA office has determined that further clarification is needed regarding your request. To assist our procurement staff in the search for responsive documents, please provide the contract number or solicitation number. Please provide the ICE FOIA office with a response as soon as possible to avoid any further delay in the processing of your request. If a response is not received within 10 days, your request will be administratively closed. The e-mail requesting clarification is attached hereto as Ex. 31. 46. At 10:30 a.m. MDT on October 24, 2017, CREEC responded to ICE’s e-mail requesting clarification providing such clarification. A true and correct copy of that response is attached hereto as Ex. 32. 47. CREEC received an automatic acknowledgement to this e-mail, a true and correct copy of which is attached as Ex. 33. CREEC received no further requests for clarification. 48. On or about October 30, 2017, CREEC’s representative used the DHS “Check Status of Request” website, https://www.dhs.gov/foia-status, to determine the estimated time of delivery for the September 29th FOIA request regarding ECDC. The website advised CREEC’s representative that the estimated time for delivery for the Request No. 2018-ICFO-03033 was November 19, 2017. 49. On December 7, 2017 at 10:53 a.m. MST, CREEC’s representative e-mailed Mr. Bittner at Mark.d.bittner@ice.dhs.gov at the address provided by the Defendants’ Office of Diversity and Civil Liberties, requesting a status report on outstanding FOIA request, including the September 29, 2017 request regarding ECDC, Request No. 2018-IFCO-03033. A true and correct copy of that e-mail is attached as Ex. 34. CREEC received no response to this e-mail. 50. On December 14, 2017 at 2:57 p.m. MST, CREEC’s representative called (866) 633-1182, the phone number listed on the ICE website, https://www.ice.gov/foia/overview,
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to inquire about, inter alia, FOIA Request No. 2018-ICFO-03033. The answering auto-attendant provided two options related to FOIA requests. The CREEC representative first selected an option that forwarded the call to a voice mailbox, however, the box was full and the CREEC representative was unable to leave a message. The CREEC representative redialed the same telephone number at 3:00 p.m. MST, and selected an option that offered the opportunity to speak to someone about a pending FOIA request, but the line produced a busy signal and disconnected. The CREEC representative redialed the number and reselected the opportunity to speak to an agent, but was again connected to a full mailbox where the representative was unable to leave a message.
51. On December 15, 2017, CREEC’s representative used the DHS “Check Status of Request” website, https://www.dhs.gov/foia-status, to determine the estimated time of delivery for Request No. 2018-ICFO-03033 regarding ECDC was November 22, 2017. A screenshot of that page from the ICE FOIA website displaying this information is attached as Ex. 35.
52. On December 18, 2017, CREEC’s representative again used the DHS “Check Status of Request” website, and received exactly the same information. A screenshot of that page from the ICE FOIA website displaying this information is attached as Ex. 36.
53. On December 19, 2017, CREEC’s representative again dialed the ICE FOIA number, (886) 663-1182, but was again unable to leave a message due to a full mailbox or to speak to anyone in the ICE FOIA office.
54. As of the date of this filing, no updated information has been provided by the Department of Homeland Security on the “Check Status of Report” page regarding request 2018-ICFO-03033.
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55. Even assuming that a ten-business-day extension was warranted, a response to CREEC’s September 29, 2017 request should have been forthcoming by no later than November 10, 2017, pursuant to 5 U.S.C. § 552(a)(6)(A)(i) and (a)(6)(B). Despite its follow-up efforts, CREEC has received no response to the September 29th request other than the acknowledgements of receipt and request for clarification described above.
56. Pursuant to 5 U.S.C. § 552(a)(6)(C), CREEC is deemed to have exhausted any and all administrative remedies with respect to FOIA Request No. 2018-ICFO-03033, because Defendants failed to comply within the time limit set forth in 5 U.S.C. § 552(a)(6)(A).
CLAIMS FOR RELIEF 57. CREEC realleges and incorporates herein by reference the allegations of ¶¶ 1 through 56 above. 58. As of the date of this Complaint and in violation of the deadline set forth in 5 U.S.C. § 552(a)(6), Defendants failed to notify CREEC of any determination about whether Defendants will comply with the Plaintiff’s FOIA Request Nos. 2018-ICFO-03033 and 2017-ICFO-45386, the reasons for any such determination, or CREEC’s right to appeal any adverse determination to the head of the agency. 59. As of the date of this Complaint, Defendants have failed to produce any records responsive to the request, indicate when responsive records will be produced, or demonstrate that the responsive records are exempt from production. 60. Defendants have not invoked any FOIA exception, and none apply. Even if one or more exemptions did apply to certain portions of the requested records, Defendants must disclose any reasonably segregable non-exempt portions. 5 U.S.C. § 552(a)(8)(A)(ii)(II). And
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even if ICE determines that all of the agency documents CREEC has requested are somehow exempt, ICE is required to inform CREEC of that determination.
61. Defendants have violated 5 U.S.C. § 552(a)(6)(A) by failing to timely respond to CREEC’s Requests Nos. 2018-ICFO-03033 and 2017-ICFO-45386. As a result, Defendants may not charge CREEC any retrieval fees, duplication charges, or review fees as a condition of providing the requested records. 5 U.S.C. § 552(a)(4)(A)(viii).
WHEREFORE, Plaintiff, Civil Rights Education and Enforcement Center, requests that this Court enter judgment in its favor and
(a) declare that Defendants’ withholding of the requested records is unlawful, and permanently enjoin the same;
(b) order Defendants to make the records available for Plaintiff; (c) enjoin Defendants from imposing any retrieval fees or duplication costs as a
condition of providing the requested records; (d) order Defendants to produce a Vaughn index describing with particularity the
content of any documents withheld, in whole or in part, and identifying the FOIA exemptions Defendants assert to justify such withholding; (e) award Plaintiff its costs and reasonable attorneys’ fees in accordance with 5 U.S.C. § 552(a)(4)(E); and (f) order such other and further relief as the Court may deem just and proper.
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Dated: February 7, 2018.
Plaintiff’s Address: 104 Broadway, Suite 400 Denver, CO 80203

Respectfully submitted,
s/Thomas B. Kelley Thomas B. Kelley Colo. Atty. Reg. No. 1971 Amber R. Gonzales Colo. Atty. Reg. No. 49993 BALLARD SPAHR, LLP 1225 Seventeenth Street, Suite 2300 Denver, Colorado 80202 Telephone: (303) 292-2400 Facsimile: (303) 296-3956 kelleyt@ballardspahr.com gonzalesa@ballardspahr.com
Timothy P. Fox Colo. Atty. Reg. No. 25889 Elizabeth B. Jordan N.Y. Atty. Reg. No. 5516422 La. Bar Roll No. 35186 CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 104 Broadway, Suite 400 Denver, Colorado 80203 tfox@creeclaw.org ejordan@creeclaw.org
Attorneys for Plaintiff, Civil Rights Education and Enforcement Center

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:18-cv-00302-RPM
CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY and UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants. ______________________________________________________________________________
FIRST AMENDED COMPLAINT ______________________________________________________________________________
NATURE OF THE CASE 1. In this action, brought pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq., Plaintiff seeks declaratory and injunctive relief to effect the release by the Defendants of agency records that Plaintiff has requested from the Defendants pursuant to FOIA. 2. Plaintiff, Civil Rights Education and Enforcement Center (“CREEC”), is a non-profit corporation organized under the laws of the State of Colorado that is dedicated to protecting and defending the civil rights of individuals and educating the public concerning civil rights issues. 3. Defendants, agencies of the U.S. Government, maintain a network of detention facilities at which individuals who are not United States citizens are confined under authority
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exercised by the Defendants. With few exceptions, these individuals are confined in county jails or private facilities that are operated by public or private entities pursuant to contracts with the Defendants.
4. In recent years, there has developed significant public interest and controversy over the conditions of confinement of immigrant detainees placed into custody by the Defendants.
5. Defendants’ network includes the Adelanto Detention Facility (“Adelanto”) located in or near the city of Adelanto, California. Adelanto is operated by GEO Group, Inc. (“GEO”), a private entity, pursuant to a contract between the City of Adelanto and the Defendants, and an operating agreement between GEO and the City, under which Adelanto undertakes responsibility for confinement of individuals detained under authority and oversight of the Defendants. Adelanto has been the subject of numerous complaints of substandard conditions of confinement, investigations of such complaints and conditions by nongovernmental civil rights organizations, and reports to the public concerning substandard conditions of confinement issued by such organizations. On information and belief, the Defendants possess considerable agency records and data regarding substandard conditions of confinement at Adelanto that have not been made available to the public.
6. Defendants’ network of detention facilities also includes the Etowah County Detention Center (“Etowah”), situated in the town of Gadsden, Alabama. Etowah is operated by the Etowah County Sheriff’s Office pursuant to a contract with the Defendants under which Etowah undertakes responsibility for confinement of individuals detained under authority and oversight of the Defendants. Etowah has been the subject of numerous complaints of
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substandard conditions of confinement, investigations of such complaints and conditions by nongovernmental civil rights organizations, and reports to the public concerning substandard conditions of confinement issued by such organizations. On information and belief, the Defendants possess considerable agency records and data regarding substandard conditions of confinement at Etowah that have not been made available to the public.
7. Defendants’ network of detention facilities also includes the Denver Contract Detention Facility (“Aurora”) located in or near the City of Aurora, Colorado. Aurora is operated by GEO Group, Inc., a private entity, pursuant to a contract between GEO and the Defendants, under which Aurora undertakes responsibility for confinement of individuals detained under authority and oversight of the Defendants. Aurora has been the subject of numerous complaints of substandard conditions of confinement, investigation of such complaints and conditions by nongovernmental civil rights organizations, and reports to the public concerning substandard conditions of confinement issued by such organizations. On information and belief, the Defendants possess considerable agency records and data regarding substandard conditions of confinement at Aurora that have not been made available to the public.
8. Defendants’ network also includes the Theo Lacy Facility (“Theo Lacy”) located in Orange County, California. Theo Lacy is operated by the Orange County Sheriff’s Office pursuant to a contract between the Orange County Sheriff’s Office and the Defendants under which Theo Lacy undertakes responsibility for confinement of individuals detained under authority and oversight of the Defendants. Theo Lacy has been the subject of numerous complaints of substandard conditions of confinement, investigations of such complaints and conditions by nongovernmental civil rights organizations, and reports to the public concerning
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substandard conditions issued by such organizations. On information and belief, the Defendants possess considerable agency records and data regarding substandard conditions of confinement at Theo Lacy that have not been made available to the public.
9. From August 2017 through April 2018, CREEC submitted to Defendants FOIA requests seeking agency records concerning conditions of confinement at Adelanto, Etowah, Aurora, and Theo Lacy of individuals detained pursuant to authority exercised by Defendants. In addition, in April of 2018, CREEC submitted to Defendants a set of requests seeking documents relating to conditions of confinement for disabled individuals at all detention facilities in the Defendants’ network.
10. CREEC seeks the requested agency records in order to inform public debate regarding conditions of confinement at Adelanto, Etowah, Aurora, Theo Lacy, and throughout Defendants’ network of detention facilities, and accountability and oversight measures that may be needed to address substandard conditions of confinement.
11. Defendants have failed to comply with the statutory deadline for responding to CREEC’s requests pursuant to FOIA.
12. Defendants should not be permitted to ignore FOIA’s requirements. This Court should order Defendants to respond to CREEC’s FOIA requests and disclose the requested records.
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JURISDICTION AND VENUE 13. This Court has subject matter jurisdiction pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331. 14. Venue lies in this District pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e).
PARTIES 15. CREEC is a non-profit organization that provides legal assistance, advocacy, and public education concerning actions, practices, and policies that abridge or threaten the civil rights of individuals in the United States. CREEC has formed an internal immigration detainee task force charged with investigating suspected substandard conditions of confinement of noncitizens who have become immigration detainees pursuant to authority exercised by Defendants and, where warranted and appropriate, to consider litigation to vindicate the rights of such individuals. CREEC’s work that is the subject of this action has been undertaken by its immigration detainee task force. 16. Disclosure of the requested records will shed light on Defendants and their subcontractors’ operations and activities related to the confinement of immigration detainees. CREEC seeks the requested agency records in order to inform public debate regarding conditions of confinement in immigration detention facilities, and accountability and oversight measures that may be needed to address substandard conditions of confinement. 17. Defendant United States Department of Homeland Security (“DHS”) is a Cabinet department of the U.S. federal government with responsibilities for protecting the security of the United States. Defendant United States Immigration and Customs Enforcement (“ICE”) is a
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subsidiary component entity within DHS and is responsible for enforcing federal immigration and customs laws. Both ICE and DHS are “agenc[ies]” within the meaning of 5 U.S.C. § 552(f)(1). ICE and DHS have possession and control over agency records CREEC seeks and are responsible for responding to and fulfilling CREEC’s FOIA request.
STATUTORY FRAMEWORK 18. “The 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.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). 19. To that end, FOIA requires federal agencies to make government records “promptly available to any person” unless an enumerated exemption applies. See 5 U.S.C. § 552(a)(3). 20. In addition to the general requirement that records be made “promptly” available, FOIA sets forth a specific timeline for responding to an FOIA request. In particular, the statute provides that a federal agency must “determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of,” among other things, “such determination and the reasons therefor.” Id. § 552(a)(6)(A)(i). In “unusual circumstances,” including a “need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records,” that deadline may be extended for a period not to exceed ten additional business days. Id. § 552(a)(6)(B).
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21. FOIA provides that a requester may sue in federal court without waiting for an answer whenever an agency does not abide by the applicable deadline. Id. § 552(a)(4)(B), (a)(6)(C)(1).
FACTUAL ALLEGATIONS A. Plaintiff’s Requests for Records Regarding Adelanto
22. On August 15, 2017, at 4:40 p.m. MDT, CREEC electronically filed (at ICE-FOIA@dhs.gov) an FOIA request with ICE seeking certain categories of agency records regarding conditions of confinement at Adelanto1 and the Defendants’ oversight thereof. A true and correct copy of that written request is attached hereto as Ex. 1, and the cover e-mail is attached as Ex. 2. This request was addressed as directed on the ICE website and as directed by Defendants’ regulations for the most prompt disposition. See 6 C.F.R. § 5.3.
23. At 4:41 p.m. MDT on August 15, 2017, CREEC received an “automatic reply” from ICE-FOIA@ice.dh.gov stating that “ICE has received the information you submitted to the ICE-FOIA@dhs.gov mailbox.” This automatic reply also stated that “this courtesy reply does not replace the Acknowledgement Letter which will be sent to you once your request has been entered into our FOIA Request Tracking System.” The automatic reply is attached as Ex. 3.
24. On September 5, 2017, CREEC’s representative replied by e-mail to the automatic reply e-mail received from ICE-FOIA@dhs.gov on August 15, 2017, inquiring as to
1 Adelanto has been variously referred to as Adelanto Detention Facility, Adelanto Detention Center, and the Adelanto ICE Processing Center. The facility has two buildings, one known as Adelanto East located at 10400 Rancho Road, Adelanto, CA 92301, and the other known as Adelanto West located at 10250 Rancho Road, Adelanto, CA 92301. For the purposes of this Complaint, Adelanto refers to the facility located at both of these addresses. CREEC’s FOIA requests regarding Adelanto made a similar reference to the location of the facility.
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why CREEC had not received an “Acknowledgement Letter” regarding CREEC’s Adelanto request, noting that the ICE FOIA website advised that CREEC should receive an Acknowledgement Letter three to five business days after a request is submitted. A copy of the September 5, 2017 e-mail is attached as Ex. 4. CREEC received an automatic reply to this e-mail, which is attached as Ex. 5.
25. On September 7, 2017, CREEC’s representative called (866) 633-1182, the number listed on the ICE FOIA website, https://www.ice.gov/foia/overview (“ICE FOIA Website”), but was unable to leave a message or speak to someone from the ICE FOIA Office about the pending FOIA request. The answering auto-attendant provided two options related to FOIA requests. The CREEC representative first selected an option that forwarded this call to a voicemail box; however, the box was full and the CREEC representative was unable to leave a message. The CREEC representative redialed the number, and selected an option that offered the opportunity to speak to someone about pending FOIA requests, but the line produced a busy signal and then disconnected. The CREEC representative redialed and reselected the same option but was again connected to a full voicemail box where she could not leave a message.
26. Also on September 7, 2017, CREEC’s representative called the ICE Office of Diversity and Civil Liberties and spoke to a female employee. That individual was unable to assist in obtaining an Acknowledgement Letter for CREEC’s request, but did provide contact information for one Mark Bittner (“Bittner”) of the ICE FOIA office as an individual who could do so. CREEC’s representative e-mailed Bittner and inquired as to why CREEC had not received an Acknowledgement Letter regarding the Adelanto request, and attached the original FOIA request letter sent on August 15, 2017. The e-mail to Bittner is attached hereto as Ex. 6.
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27. Mr. Bittner never responded to this e-mail, but on September 8, 2017, CREEC received an e-mail from ice-foia@dhs.gov with an Acknowledgement Letter in response to its August 15 FOIA request regarding Adelanto. The letter provided a reference number for the request, 2017-ICFO-45386. The September 8, 2017 e-mail is attached hereto as Ex. 7.
28. On September 14, 2017, CREEC’s representative used the Department of Homeland Security “Check Status of Request” website, https://www.dhs.gov/foia-status (“Check Status Website”), to determine the estimated time of delivery for its Adelanto request. The Defendants are required to maintain this facility under FOIA, 5 U.S.C. § 552(f)(2). The Check Status Website reported that the estimated time of delivery for Request No. 2017-ICFO-45386 was October 2, 2017.
29. On September 19, 2017 at 10:11 a.m. MDT, CREEC electronically filed (at ICE-FOIA@dhs.gov) a further FOIA request with ICE seeking categories of agency records regarding administrative and disciplinary segregation at Adelanto. A true and correct copy of that written request is attached as Ex. 8 and the cover e-mail is attached as Ex. 9. On the same day, CREEC received an automatic reply, attached as Ex. 10.
30. On September 19, 2017 at 10:21 a.m. MDT, CREEC electronically filed (at ICE-FOIA@dhs.gov) a further FOIA request seeking agency records related to medical care subcontractors at Adelanto. A copy of that request is attached as Ex. 11 and a copy of the cover e-mail is attached as Ex. 12. CREEC received an automatic reply the same day, attached as Ex. 13.
31. On September 19, 2017, at 10:25 a.m. MDT, CREEC electronically filed (at ICE-FOIA@dhs.gov) a further FOIA request seeking agency records regarding mental health
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services at Adelanto. A copy of that request is attached as Ex. 14 and the cover e-mail is attached as Ex. 15. CREEC received an automatic reply the same day, and a copy is attached as Ex. 16.
32. On September 26, 2017, CREEC received an e-mail from ice-foia@dhs.gov, acknowledging receipt of the above three FOIA requests sent on September 19 and including them under the same reference number as the August 15 FOIA request, 2017-ICFO-45386. A copy of that e-mail is attached hereto as Ex. 17
33. CREEC’s representative then checked the Check Status Website to determine the estimated time of delivery for CREEC’s August 15 and September FOIA requests regarding Adelanto. The website reported that the estimated time of delivery for Request No. 2017-ICFO-45386 was October 2, 2017.
34. On November 6, 2017, CREEC’s representative checked the Check Status Website for an update on CREEC’s FOIA requests regarding Adelanto. The Check Status Website continued to report the estimated time of delivery for the request as October 2, 2017. A screenshot of that page of the FOIA tracker, including the date of the estimated delivery, is attached hereto as Ex. 18.
35. On November 6, 2017, CREEC’s representative sent an e-mail to ice-foia@dhs.gov, asking for the materials requested or an updated timetable for delivery regarding the various Adelanto requests, which were due on October 2, 2017. A copy of that e-mail is attached hereto as Ex. 19. CREEC received an automatic reply to that e-mail, copy attached as Ex. 20.
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36. On November 8, 2017, CREEC received a reply to its November 6 e-mail that stated, “Responsive documentation has been received and this request has been assigned to an analyst for processing.” A copy of that e-mail is attached hereto as Ex. 21.
37. On November 14, 2017, CREEC’s representative responded to ICE’s e-mail asking when CREEC could expect to receive the documents requested. A copy of that e-mail is attached hereto as Ex. 22. CREEC received an automatic reply e-mail, copy attached as Ex. 23, but never received a substantive response to that e-mail.
38. On December 7, 2017, having heard nothing further from the Defendants regarding the Adelanto requests, CREEC’s representative again sent an e-mail to Bittner in the ICE FOIA office that requested a status report on the 2017-ICFO-45386 request (along with a related request assigned No. 2018-ICFO-03033, per ¶¶ 45-51, infra). A copy of that e-mail is attached hereto as Ex. 24. CREEC did not receive a response from Bittner or Defendants.
39. On December 14, 2017 at 2:57 MST, CREEC’s representative called (866) 633-1182, the phone number listed on the ICE FOIA Website, to inquire about FOIA requests 2017-ICFO-45386 and 2018-ICFO-03033. The answering auto-attendant provided two options related to FOIAs. The CREEC representative first selected an option that forwarded this call to a voicemail box; however, the box was full and the CREEC representative was unable to leave a message. The CREEC representative redialed the number at 3:00 p.m. MST, and selected an option that offered the opportunity to speak to someone about pending FOIA requests, but the line produced a busy signal and then disconnected. The CREEC representative redialed and reselected the same option but was again connected to a full voicemail box where she could not leave a message.
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40. On December 15, 2017, CREEC’s representative consulted the Check Status Website to determine the estimated time of delivery for the response to request 2017-ICFO-45386. The Check Status Website reported that estimated date of delivery for Request No. 2017-ICFO-45386 had been updated from October 2, 2017 to December 29, 2017. A screenshot of that page from the ICE FOIA website is attached as Ex. 25.
41. On December 22, 2017, CREEC’s representative consulted the Check Status Website to determine the estimated time of delivery for request 2017-ICFO-45386. For Request No. 2017-ICFO-45386 the estimated date of delivery was December 29, 2017. A screenshot of that page from the ICE FOIA website is attached as Ex. 26.
42. As of the date of this First Amended Complaint, the Check Status Website indicates that Request No. 2017-ICFO-45386 is “closed.” Neither ICE nor DHS provided CREEC with notice that it has “closed” the request, and neither agency has produced the requested records. A copy of the current report from the Check Status Website is attached as Ex. 37.2
43. Even assuming that a ten-business-day extension was warranted, a response to CREEC’s August 15 request should have been forthcoming by no later than September 26, 2017, pursuant to 5 U.S.C. § 552(a)(6)(A)(i) and (a)(6)(B). Once that request was combined with CREEC’s September 19 further requests concerning Adelanto, the 20-business-day response to the combined requests should have been provided no later than October 17, 2017. Even assuming that a ten-business-day extension was warranted, a response to CREEC’s combined
2 This exhibit falls out of numerical order to avoid changing existing exhibit numbers for those exhibits filed with Plaintiff’s Complaint.
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August 15 and September 19, 2017 requests should have been forthcoming by no later than October 31, 2017, pursuant to 5 U.S.C. § 552(a)(6)(A)(i) and (a)(6)(B). Despite its follow-up efforts, CREEC has received no substantive response to its August 15, 2017 and September 19, 2017 requests.
44. Pursuant to 5 U.S.C. § 552(a)(6)(C), CREEC is deemed to have exhausted any and all administrative remedies with respect to FOIA Request Nos. 2017-ICFO-45386 and 2018-ICFO-03033, because Defendants failed to comply within the time limit set forth in 5 U.S.C. § 552(a)(6)(A). B. Plaintiff’s Request for Records Regarding Etowah
45. On September 29, 2017, CREEC electronically filed (at ICE-FOIA@dhs.gov) an FOIA request with ICE seeking certain categories of agency records regarding conditions of confinement at Etowah and the Defendant’s oversight thereof. A true and correct copy of that written request is attached hereto as Ex. 27, and the cover e-mail is attached as Ex. 28. This request was addressed and submitted as directed by Defendants’ regulations for the most prompt disposition, 6 C.F.R. § 5.3. On that same day, CREEC received an automatic reply from ice-foia@dhs.gov, a copy of which is attached as Ex. 29.
46. On October 20, 2017, CREEC received an e-mail from ice-foia@dhs.gov with an Acknowledgment Letter acknowledging receipt of its September 29, 2017 FOIA request and invoking the ten-day extension available in “unusual circumstances.” This letter indicated that the September 29 FOIA request had been assigned Reference No. 2018-ICFO-03033. A true and correct copy of the October 20, 2017 e-mail is attached as Ex. 30.
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47. On October 24, 2017 at 9:45 a.m. MDT, CREEC received an e-mail from ice-foia@dhs.gov requesting clarification of the September 29 Etowah FOIA request. The e-mail stated:
In conducting a search for responsive records, the ICE FOIA office has determined that further clarification is needed regarding your request. To assist our procurement staff in the search for responsive documents, please provide the contract number or solicitation number. Please provide the ICE FOIA office with a response as soon as possible to avoid any further delay in the processing of your request. If a response is not received within 10 days, your request will be administratively closed. The e-mail requesting clarification is attached hereto as Ex. 31. 48. At 10:30 a.m. MDT on October 24, 2017, CREEC responded to ICE’s e-mail requesting clarification providing such clarification. A true and correct copy of that response is attached hereto as Ex. 32. 49. CREEC received an automatic acknowledgement to this e-mail, a true and correct copy of which is attached as Ex. 33. CREEC received no further requests for clarification. 50. On or about October 30, 2017, CREEC’s representative used the Check Status Website to determine the estimated time of delivery for the September 29 FOIA request regarding Etowah. The website advised that the estimated time for delivery for the Request No. 2018-ICFO-03033 was November 19, 2017. 51. On December 7, 2017 at 10:53 a.m. MST, CREEC’s representative e-mailed Bittner at mark.d.bittner@ice.dhs.gov, the address provided by the Defendants’ Office of Diversity and Civil Liberties, requesting a status report on outstanding FOIA requests, including the September 29, 2017 request regarding Etowah, Request No. 2018-IFCO-03033. A true and correct copy of that e-mail is attached as Ex. 34. CREEC received no response to this e-mail.
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52. On December 14, 2017 at 2:57 p.m. MST, CREEC’s representative called (866) 633-1182, the phone number listed on the ICE FOIA Website, to inquire about, inter alia, FOIA Request No. 2018-ICFO-03033. The answering auto-attendant provided two options related to FOIA requests. The CREEC representative first selected an option that forwarded the call to a voice mailbox, however, the box was full and the CREEC representative was unable to leave a message. The CREEC representative redialed the same telephone number at 3:00 p.m. MST, and selected an option that offered the opportunity to speak to someone about a pending FOIA request, but the line produced a busy signal and disconnected. The CREEC representative redialed the number and reselected the opportunity to speak to an agent, but was again connected to a full mailbox where the representative was unable to leave a message.
53. On December 15, 2017, CREEC’s representative consulted the Check Status Website to determine the estimated time of delivery for Request No. 2018-ICFO-03033 regarding Etowah, which the website reported as November 22, 2017. A screenshot of that page from the ICE FOIA website displaying this information is attached as Ex. 35.
54. On December 18, 2017, CREEC’s representative again consulted the Check Status Website, and received exactly the same information. A screenshot of that page from the ICE FOIA website displaying this information is attached as Ex. 36.
55. On December 19, 2017, CREEC’s representative again dialed the ICE FOIA phone number, (886) 663-1182, but was again unable to leave a message due to a full mailbox or to speak to anyone in the ICE FOIA office.
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56. As of the date of this filing, no updated information has been provided by the Department of Homeland Security on the Check Status Website regarding request 2018-ICFO-03033.
57. Even assuming that a ten-business-day extension was warranted, a response to CREEC’s September 29, 2017 request should have been forthcoming by no later than November 10, 2017, pursuant to 5 U.S.C. § 552(a)(6)(A)(i) and (a)(6)(B). Despite its follow-up efforts, CREEC has received no response to the September 29 request other than the acknowledgements of receipt and request for clarification described above.
58. Pursuant to 5 U.S.C. § 552(a)(6)(C), CREEC is deemed to have exhausted any and all administrative remedies with respect to FOIA Request No. 2018-ICFO-03033, because Defendants failed to comply within the time limit set forth in 5 U.S.C. § 552(a)(6)(A). C. Plaintiff’s Request for Records Regarding Aurora
59. On January 22, 2018, at 12:48 p.m. MST, CREEC electronically filed (at ICE-FOIA@dhs.gov) an FOIA request with ICE seeking certain categories of agency records regarding conditions of confinement at Aurora and the Defendants’ oversight thereof. A true and correct copy of that written request is attached as Ex. 38, and the cover e-mail is attached as Ex. 39. The request was addressed as directed on the ICE website and as directed by Defendants’ regulations for the most prompt disposition. See 6 C.F.R. § 5.3.
60. At 12:49 p.m. MST on January 22, 2018, CREEC received an “automatic reply” from ICE-FOIA@ice.dhs.gov stating that “DUE TO THE RECENT FURLOUGH, THIS INBOX WILL NOT BE ACTIVELY MONITORED UNTIL AN APPROPRIATION OR CONTINUING RESOLUTION.” This automatic reply also stated that “this courtesy reply does
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not replace the Acknowledgement Letter which will be sent to you once your request has been entered into our FOIA Request Tracking System.” This automatic reply is attached as Ex. 40.
61. On January 30, 2018, CREEC replied to the automatic reply e-mail received from ICE-FOIA@dhs.gov on January 22, 2018, inquiring as to why CREEC had not received an “Acknowledgement Letter,” which, according to the ICE FOIA website, CREEC should have received three to five business days after the request was submitted. The e-mail sent on January 30, 2018 is attached as Ex. 41. The same day, CREEC received an automatic reply to this e-mail, attached as Ex. 42.
62. On February 7, 2018, having received no response to the e-mail of January 30, 2018, CREEC e-mailed Bittner, whose contact information had been provided to CREEC by the ICE Office of Diversity and Civil Liberties. In the e-mail, attached hereto as Ex. 43, CREEC asked for an Acknowledgement Letter with tracking number so that CREEC might keep track of the status of their request.
63. On February 7, 2018, at 10:54 a.m. MST, CREEC received an automatic response to its e-mail to Bittner saying he no longer worked at ICE and to address FOIA related e-mails to the ICE FOIA e-mail, ice-foia@ice.dhs.gov. The automatic reply is attached as Ex. 44.
64. On February 15, 2018, a representative of CREEC called the phone number listed on the ICE FOIA Website to inquire as to why CREEC had not received an Acknowledgement Letter from ICE for its January 22 FOIA request. The representative was unable to speak to a live person or leave a message by calling this number.
65. On February 16, 2018, having received no Acknowledgement Letter from ICE, CREEC resubmitted the January 22 request via Certified Mail. The resubmitted FOIA request
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included a cover letter indicating this was a resubmission designed to produce an Acknowledgement Letter and that the January 22 request should be considered the relevant date for the calculation of the agency’s time to respond under 5 U.S.C. § 552(a)(6)(A)(i) and 5 U.S.C. § 552(a)(6)(B). The resubmitted FOIA request and cover letter is attached as Ex. 45.
66. According to the United States Postal Service tracking website, the resubmitted FOIA request was received on February 28, 2018, at 11:19 a.m. EST.
67. On March 13, 2018, a representative of CREEC received from ice-foia@dhs.gov an Acknowledgement Letter responding to its FOIA request regarding Aurora and other Colorado facilities. However, the Acknowledgement Letter referred only to the February 16 resubmission sent via Certified Mail and not the initial e-mail submission on January 22. The request was assigned Request No. 2018-ICFO-24034, and ICE invoked the ten-day extension available in unusual circumstances. The March 13, 2018 e-mail is attached as Ex. 46.
68. On May 24, 2018, a representative of CREEC consulted the Check Status Website to determine the estimated time of response to its request. The website, as reflected in Ex. 47, stated that the estimated time for delivery for request 2018-ICFO-24034 was April 15, 2018.
69. As of this date, CREEC has not received any response to its request for documents involving Aurora and other Colorado detention facilities. As of the date of this First Amended Complaint, the Check Status Website indicates that the estimated time of response is April 15, 2018. A copy of a screenshot of the website reflecting this information is attached as Ex. 48.
70. Even assuming that the request date on Request No. 2018-ICFO-24034 is deemed to be February 16, 2018 rather than January 22, 2018 when the request was originally submitted,
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and even assuming that a ten-business-day extension was warranted, a response to CREEC’s Request No. 2018-ICFO-24034 should have been forthcoming by no later than April 2, 2018, pursuant to 5 U.S.C. § 552(a)(6)(A)(i) and (a)(6)(B).
71. On April 3, 2018, CREEC electronically filed (at ICE-FOIA@dhs.gov) a further FOIA request with ICE seeking certain categories of additional agency records and documents regarding conditions of confinement at Aurora. A true and correct copy of that written request is attached hereto as Ex. 49, and the cover e-mail is attached as Ex. 50.
72. On April 18, 2018, CREEC received an e-mail from ice-foia@dhs.gov a written Acknowledgement Letter responding to CREEC’s second FOIA request regarding Aurora. The Acknowledgement Letter assigned this request Request No. 2018-ICFO-29725. A copy of the e-mail and Acknowledgement Letter is attached hereto as Ex. 51.
73. As of the filing of this First Amended Complaint, the Check Status Website indicated that the estimated time for response to Request No. 2018-ICFO-29725 was May 6, 2018. A copy of a screenshot of the Check Status Website is attached as Ex. 52.
74. As of the date of this First Amended Complaint, CREEC has received no response to Request No. 2018-ICFO-29725.
75. Even assuming that a ten-business-day extension was warranted, a response to CREEC’s Request No. 2018-ICFO-29725 should have been forthcoming by no later than May 15, 2018, pursuant to 5 U.S.C. § 552(a)(6)(A)(i) and (a)(6)(B).
76. Pursuant to 5 U.S.C. § 552(a)(6)(C), CREEC is deemed to have exhausted any and all administrative remedies with respect to FOIA Request No. 2018-ICFO-29725, because Defendants failed to comply within the time limit set forth in 5 U.S.C. § 552(a)(6)(A).
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D. Plaintiff’s Request for Records Regarding Theo Lacy 77. On February 13, 2018, at 10:25 a.m. MST, CREEC electronically filed (at
ICE-FOIA@dhs.gov) an FOIA request seeking certain categories of agency records regarding conditions of confinement at Theo Lacy and the Defendants’ oversight thereof. A true and correct copy of that written request is attached as Ex. 53, and the cover e-mail is attached as Ex. 54.
78. On February 21, 2018, CREEC received an e-mail from ice-foia@dhs.gov with an Acknowledgement Letter responding to CREEC’s February 13 FOIA request regarding Theo Lacy. The request was assigned reference No. 2018-ICFO-20737. The February 21 e-mail is attached as Ex. 55.
79. On May 24, 2018, CREEC used the DHS Check Status Website to determine the estimated time of delivery for Request No. 2018-ICFO-20737, and the website indicated the estimated time of response was April 2, 2018. A copy of a screenshot of the Check Status Website is attached as Ex. 56. As of the date of this First Amended Complaint, the Check Status Website indicates that the estimated time of delivery of the response to Request No. 2018-ICFO-20737 is April 2, 2018. A copy of a screenshot of the Check Status Website is attached as Ex. 57.
80. As of this time, CREEC has received no response to Request No. 2018-ICFO-20737.
81. Even assuming that a ten-business-day extension was warranted, a response to CREEC’s February 13, 2018 request should have been forthcoming by no later than March 28, 2018, pursuant to 5 U.S.C. § 552(a)(6)(A)(i) and (a)(6)(B).
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82. Pursuant to 5 U.S.C. § 552(a)(6)(C), CREEC is deemed to have exhausted any and all administrative remedies with respect to FOIA Request No. 2018-ICFO-20737, because Defendants failed to comply within the time limit set forth in 5 U.S.C. § 552(a)(6)(A). E. Plaintiff’s Request for Records Regarding Defendants’ Entire Network of Facilities
83. On April 3, 2018, CREEC electronically filed (at ICE-FOIA@ice.dhs.gov) an FOIA request with ICE seeking certain categories of agency records regarding conditions of confinement at all facilities used by ICE for detention of individuals during their immigration proceedings, limited to ten discrete categories of information related to detainees having disabilities. A true and correct copy of that written request is attached as Ex. 58, and the cover e-mail is attached as Ex. 59.
84. On April 18, 2018, CREEC received an e-mail from ice-fioa@dhs.gov indicating a case number for CREEC’s April 3, 2018 request of 2018-ICFO-29727 and seeking clarification of “which facility you are seeking data related to your request.” A true and correct copy of the e-mail from ICE and CREEC’s response is attached as Ex. 60.
85. Also on April 18, 2018, CREEC responded to the request for clarification by indicating that the request sought records regarding individuals with disabilities detained by ICE at all facilities where ICE detainees are held, as well as the policies requested related to disabilities that are applicable to all facilities. Id.
86. On April 18, 2018, at 2:51 p.m., CREEC received an e-mail from ICE-FOIA@ice.dhs.gov that noted the request would require information from all ICE detention centers, and requested clarification as to what information CREEC was seeking relating to detainees with disabilities, and that CREEC narrow the request to certain field offices or
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locations. The e-mail also indicated that policies related to all facilities will be “easy to task out to the proper program.” A true and correct copy of this e-mail is contained in Ex. 61.
87. On April 24, 2018, CREEC responded to the foregoing e-mail, and, without prejudice to its rights to seek additional documents in the future, narrowed its request, in addition to documents applicable to all ICE detention facilities, to three specific categories and only to the extent they are to be found in Defendants’ field offices. Id. This communication noted that CREEC had “greatly reduced the scope of our request,” and invited Defendants to “contact me for any further information.” Id.
88. Although CREEC responded to both requests for clarification on April 24, 2018, and has received no further such requests, the status of CREEC’s April 3 request as shown on the DHS Check Status Website, indicates the status as “on hold – need info/clarification.” A copy of this response from the DHS FOIA Check Status Website, which remains as of the date of this First Amended Complaint, is attached as Ex. 62.
89. CREEC has received no response to its April 3, 2018 request as of the date of this First Amended Complaint.
90. Even assuming that a ten-business-day extension was warranted, a response to CREEC’s April 3, 2018 request should have been forthcoming by no later than May 15, 2018, pursuant to 5 U.S.C. § 552(a)(6)(A)(i) and (a)(6)(B).
91. Pursuant to 5 U.S.C. § 552(a)(6)(C), CREEC is deemed to have exhausted any and all administrative remedies with respect to FOIA Request No. 2018-ICFO-29727, because Defendants failed to comply within the time limit set forth in 5 U.S.C. § 552(a)(6)(A).
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CLAIMS FOR RELIEF 92. CREEC realleges and incorporates herein by reference the allegations of ¶¶ 1 through 91 above. 93. As of the date of this First Amended Complaint and in violation of the deadline set forth in 5 U.S.C. § 552(a)(6), Defendants failed to notify CREEC of any determination about whether Defendants will comply with the Plaintiff’s FOIA Request Nos. 2017-ICFO-45386, 2018-ICFO-03033, 2018-ICFO-24034, 2018-ICFO-29725, 2018-ICFO-20737, and 2018-ICFO-29727, the reasons for any such determination, or CREEC’s right to appeal any adverse determination to the head of the agency. 94. As of the date of this First Amended Complaint, Defendants have failed to produce any records responsive to any of the requests in the six numbered cases, indicate when responsive records will be produced, or demonstrate that the responsive records are exempt from production. 95. Defendants have not invoked any FOIA exception, and none apply. Even if one or more exemptions did apply to certain portions of the requested records, Defendants must disclose any reasonably segregable non-exempt portions. 5 U.S.C. § 552(a)(8)(A)(ii)(II). And even if ICE determines that any or all of the agency documents CREEC has requested are somehow exempt, ICE is required to inform CREEC of that determination and the reasons therefor. 96. Defendants have violated 5 U.S.C. § 552(a)(6)(A) by failing to timely respond to CREEC’s Requests Nos. 2017-ICFO-45386, 2018-ICFO-03033, 2018-ICFO-24034, 2018-ICFO-29725, 2018-ICFO-20737, and 2018-ICFO-29727. As a result, Defendants may not
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charge CREEC any retrieval fees, duplication charges, or review fees as a condition of providing the requested records. 5 U.S.C. § 552(a)(4)(A)(viii).
WHEREFORE, Plaintiff, Civil Rights Education and Enforcement Center, requests that this Court enter judgment in its favor and
(a) declare that Defendants’ withholding of the requested records is unlawful, and permanently enjoin the same;
(b) order Defendants to make the records available for Plaintiff; (c) enjoin Defendants from imposing any retrieval fees or duplication costs as a
condition of providing the requested records; (d) order Defendants to produce a Vaughn index describing with particularity the
content of any documents withheld, in whole or in part, and identifying the FOIA exemptions Defendants assert to justify such withholding; (e) award Plaintiff its costs and reasonable attorneys’ fees in accordance with 5 U.S.C. § 552(a)(4)(E); and (f) order such other and further relief as the Court may deem just and proper.
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Dated: June 28, 2018.

Respectfully submitted,
s/Thomas B. Kelley Thomas B. Kelley Colo. Atty. Reg. No. 1971 Amber R. Gonzales Colo. Atty. Reg. No. 49993 BALLARD SPAHR, LLP 1225 Seventeenth Street, Suite 2300 Denver, Colorado 80202 Telephone: (303) 292-2400 Facsimile: (303) 296-3956 kelleyt@ballardspahr.com gonzalesa@ballardspahr.com
Timothy P. Fox Colo. Atty. Reg. No. 25889 Elizabeth B. Jordan N.Y. Atty. Reg. No. 5516422 La. Bar Roll No. 35186 CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 104 Broadway, Suite 400 Denver, Colorado 80203 tfox@creeclaw.org ejordan@creeclaw.org
Attorneys for Plaintiff, Civil Rights Education and Enforcement Center

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CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of June 2018, I served a true and correct copy of the foregoing FIRST AMENDED COMPLAINT by filing same with the Court’s CM/ECF filing system, which will send notification to the following:

Mark S. Pestal, Esq.

mark.pestal@usdoj.gov

Assistant U.S. Attorney

Office of the United States Attorney

1801 California, Suite 1600

Denver, CO 80202

s/ Darlene D. Dethlefs Darlene D. Dethlefs

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