Case 2:17-cv-00132-GZS Document 1 Filed 04/12/17 Page 1 of 12 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION OF ) Case No. ________

MAINE, AMERICAN CIVIL LIBERTIES )

UNION OF NEW HAMPSHIRE, AMERICAN ) COMPLAINT FOR DECLARATORY

CIVIL LIBERTIES UNION OF VERMONT, ) AND INJUNCTIVE RELIEF FOR

AMERICAN CIVIL LIBERTIES UNION OF ) VIOLATION OF THE FREEDOM OF

MASSACHUSETTS, AMERICAN CIVIL

) INFORMATION ACT, 5 U.S.C. § 552

LIBERTIES UNION OF CONNECTICUT, and ) et seq.

AMERICAN CIVIL LIBERTIES UNION OF )

RHODE ISLAND,

)

)

)

Plaintiffs,

)

)

v.

U.S. CUSTOMS AND BORDER PROTECTION and U.S. DEPARTMENT OF HOMELAND SECURITY

Defendants.

INTRODUCTION 1. The American Civil Liberties Union of Maine, American Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont, American Civil Liberties Union of Massachusetts, American Civil Liberties Union of Connecticut, and American Civil Liberties Union of Rhode Island (collectively, “Plaintiffs” or “ACLU”) bring this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., as amended, to obtain injunctive and other appropriate relief requiring Defendants U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”) (collectively, “Defendants”) to respond to a FOIA request sent by Plaintiffs on February 2, 2017 (“Request”), and to promptly disclose the requested records. 2. The Request seeks records concerning CBP’s local implementation of President Trump’s January 27, 2017 Executive Order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” Exec. Order No. 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017) (“Executive Order No. 1”), as well as any other judicial order or executive directive issued regarding Executive Order No.1, including President Trump’s March 6, 2017 Executive Order,

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identically titled, Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017) (“Executive Order No. 2”) (collectively, “Executive Orders”). A true and correct copy of the Request is attached as Exhibit A.
3. Specifically, the Request seeks records concerning CBP’s local implementation of the Executive Orders at sites within the purview of CBP’s Boston Field Office. These include Bradley International Airport, Bangor International Airport, Logan International Airport, Manchester International Airport, TF Green Airport, and Burlington International Airport (“Local International Airports) and the Hartford, Bangor, Boston, Manchester, Providence, and Burlington ports of entry (“Port of Entry Offices”).
4. Among other things, the Executive Orders purport to halt refugee admissions and bar entrants from several predominantly Muslim countries from entering the United States.
5. Defendants’ implementation of the Executive Orders has been the subject of significant public concern, as reflected by mass protests around the country, substantial news coverage, and numerous lawsuits filed following the President’s signing of each Executive Order.
6. Over the weekend of January 27–29, 2017, at least five lawsuits resulted in emergency court orders enjoining implementation of various sections of Executive Order No. 1.1 On March 15, 2017, a district court enjoined implementation of Sections 2 and 6 of Executive Order No. 2.2
7. News reports described Defendants’ implementation of the Executive Orders as “chaotic” and “total[ly] lack[ing] . . . clarity and direction.”3
1 Vayeghan v. Kelly, No. CV 17-0702, 2017 WL 396531 (C.D. Cal. Jan. 29, 2017); Tootkaboni v. Trump, No. 17-CV-10154, 2017 WL 386550 (D. Mass. Jan. 29, 2017); Doe v. Trump, No. C17126, 2017 WL 388532 (W.D. Wash. Jan. 28, 2017); Aziz v. Trump, No. 1:17-CV-116, 2017 WL 386549 (E.D. Va. Jan. 28, 2017); Darweesh v. Trump, No. 17 CIV. 480 (AMD), 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017). 2 Hawai’i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017). 3 See, e.g., Ryan Devereaux et al., Homeland Security Inspector General Opens Investigation of Muslim Ban, Orders Document Preservation, THE INTERCEPT, Feb. 1, 2017, available at https://theintercept.com/2017/02/01/homeland-security-inspector-general-opens-investigation-ofmuslim-ban-rollout-orders-document-preservation/.

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8. Official DHS statements reflected this confusion. For example, DHS stated on January 28 that Executive Order No. 1 would “bar green card holders.”4 The next day, however,
DHS Secretary John Kelly deemed “the entry of lawful permanent residents to be in the national interest”5 and the government purported to clarify that Executive Order No. 1 did not apply to green card holders.6
9. Reportedly spurred by this chaos, on January 29, Senators Tammy Duckworth
and Dick Durbin called upon the Office of the Inspector General of the Department of Homeland Security to investigate Defendants’ implementation of Executive Order No. 1.7 The Senators
specifically sought information regarding: any guidance Defendants provided to the White
House in developing the order; any directions that were provided to Defendants in implementing
it; whether CBP officers complied with the relevant court orders; and whether DHS and CBP
officers kept a list of individuals that they had detained at ports of entry under the order. In
response, the Inspector General directed Defendants’ personnel to preserve all records “that
might reasonably lead to the discovery of relevant information relating the implementation of” Executive Order No. 1.8
10. At Boston’s Logan International Airport, implementation of the order harmed
both individuals and institutions. Scholars and academics from Boston-area institutions were denied entry into the United States.9 Doctors from New England hospitals and patients seeking medical care were delayed, denied entry, or subjected to unnecessary anguish.10
4 See Max Greenwood, Immigration Ban Includes Green Card Holders: DHS, THE HILL, Jan. 28, 2017, available at http://thehill.com/policy/national-security/316670-trump-refugee-ban-barsgreen-card-holders-report. 5 Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents Into The United States, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanentresidents-united-states. 6 See Robert Mackey, As Protests Escalate, Trump Retreats From Barring Green Card Holders, THE INTERCEPT, Jan. 29, 2017, available at https://theintercept.com/2017/01/29/trumpsexecutive-order-no-longer-bars-green-card-holders/. 7 See Ryan Devereaux et al., Homeland Security Inspector General Opens Investigation of Muslim Ban, Orders Document Preservation, THE INTERCEPT, Feb. 1, 2017, available at https://theintercept.com/2017/02/01/homeland-security-inspector-general-opens-investigation-ofmuslim-ban-rollout-orders-document-preservation/. 8 Id. 9 See Laura Crimaldi, et al., Boston-area academics face bans on entering US, THE BOSTON GLOBE, Jan. 28, 2017, available at http://www.bostonglobe.com/metro/2017/01/28/boston-area-

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11. Disclosure of the records Plaintiffs seek through this action would thus facilitate the public’s understanding of how Defendants implemented and enforced the Executive Orders through the Boston Field Office, including in particular at Logan International Airport. Such information is critical to the public’s ability to hold the government accountable.
12. This action is necessary because Defendants have failed to provide Plaintiffs with a determination as to whether they will comply with the Request, although more than 20 business days have elapsed since Defendants received the Request.
JURISDICTION 13. This Court has subject-matter jurisdiction over this action and personal jurisdiction over the parties under 5 U.S.C. § 552(a)(4)(B), 5 U.S.C. §§ 701–706, and 28 U.S.C. § 1331.
VENUE 14. Venue in the District of Maine is proper under 5 U.S.C. § 552(a)(4)(B) as the requested agency records are, upon information and belief, situated within this District at CBP facilities at or near Bangor International Airport and Portland International Jetport, and because Plaintiff ACLU of Maine’s principal place of business is in the District of Maine. For the same reasons, venue also is proper under 28 U.S.C. § 1391(e).
PARTIES 15. Plaintiffs American Civil Liberties Union of Maine, American Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont, American Civil Liberties Union of Massachusetts, American Civil Liberties Union of Connecticut, and American Civil Liberties Union of Rhode Island are non-profit, 501(c)(4) membership organizations that educate the public about the civil liberties implications of pending and proposed state and federal legislation, provide analysis of pending and proposed legislation, directly lobby legislators, and mobilize their members to lobby their legislators.
academics-facing-bans-entering/StddgeCOncofRfEFVG7LTL/story.html?event=event25. 10 See Eli Rosenberg, et al., Protesters Rally as Doctors, Students Blocked From Entering Country After Trump’s Orders, NBC BOSTON CHANNEL 10, Jan. 28, 2017, available at http://www.nbcboston.com/news/local/Immigrants-Blocked-From-Entering-Country-AfterTrumps-Orders--412049273.html

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16. Defendant U.S. Customs and Border Protection is a component of DHS and is a federal agency within the meaning of 5 U.S.C. § 552(f)(1).
17. Defendant Department of Homeland Security is a department of the executive branch of the U.S. government and is an agency within the meaning of 5 U.S.C. § 552(f)(1).
18. Plaintiffs are informed and therefore believe that Defendants have possession, custody, or control of the requested records.
FACTS 19. On February 2, 2017 Plaintiffs sent the Request via certified, trackable mail to CBP’s Boston Field Office (tracking number 7016 0340 0001 0884 6901) and CBP’s FOIA Officer at CBP Headquarters (tracking number 7016 0340 0001 0884 6918). 20. The Request sought copies of CBP’s local interpretation and enforcement of the Executive Order at: 1) certain airports specified in the Request, including Bradley International Airport, Bangor International Airport, Logan International Airport, Manchester International Airport, TF Green Airport, and Burlington International Airport (“Local International Airports”); and 2) certain Port of Entry offices specified in the Request, including Hartford, Bangor, Boston, Manchester, Providence, and Burlington (“Port of Entry Offices”). The Request expressly did not seek information held in the records of CBP Headquarters. 21. Specifically, the Request sought the following:
1. “Records created on or after January 27, 2017 concerning CBP’s interpretation, enforcement, and implementation of the following at Local International Airports: a. President Trump’s Executive Order, signed on January 27, 2017 and titled ‘Protecting the Nation From Foreign Terrorist Entry Into the United States’; b. Any guidance ‘provided to DHS field personnel shortly’ after President Trump signed the Executive Order, as referenced in CBP’s online FAQ;11
11 To assist CBP in responding, the Request included the following information in a footnote for reference: “Protecting the Nation from Foreign Terrorist Entry into the United States, U.S. CUSTOMS AND BORDER PROTECTION (Jan. 31, 2017), available at https://www.cbp.gov/bordersecurity/protecting-nation-foreign-terrorist-entry-united-states (‘The Executive Order and the instructions therein were effective at the time of the order’s signing. Guidance was provided to

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c. Associate Director of Field Operations for U.S. Citizenship and Immigration Services Daniel M. Renaud’s email, sent at 11:12 A.M. on January 27, 2017, instructing DHS employees that they could not adjudicate any immigration claims from the seven targeted countries;12
d. Judge Donnelly’s Decision and Order granting an Emergency Motion for Stay of Removal, issued in the Eastern District of New York on January 28, 2017, including records related to CBP’s efforts to comply with the court’s oral order requiring prompt production of a list of all class members detained by CBP;13
e. Judge Brinkema’s Temporary Restraining Order, issued in the Eastern District of Virginia on January 28, 2017;14
f. Judge Zilly’s Order Granting Emergency Motion for Stay of Removal, issued in the Western District of Washington on January 28, 2017;15
g. Judge Burroughs’ Temporary Restraining Order, issued in the District of Massachusetts on January 29, 2017;16
DHS field personnel shortly thereafter.’) (emphasis added).” 12 The following footnote was included for reference: “See Alice Speri and Ryan Devereaux, Turmoil at DHS and State Department—‘There Are People Literally Crying in the Office Here,’ THE INTERCEPT, Jan. 30, 2017, available at https://theintercept.com/2017/01/30/asylum-officialsand-state-department-in-turmoil-there-are-people-literally-crying-in-the-office-here/.” 13 The following footnote was included for reference: “Decision and Order, Darweesh v. Trump, No. 17 Civ. 480 (AMD) (E.D.N.Y. Jan. 28, 2017), available at https://www.aclu.org/legaldocument/darweesh-v-trump-decision-and-order.” 14 The following footnote was included for reference: “Temporary Restraining Order, Aziz v. Trump, No. 1:17-cv-116 (E.D. Va. Jan. 28, 2017), available at https://www.justice4all.org/wpcontent/uploads/2017/01/TRO-order-signed.pdf.” 15 The following footnote was included for reference: “Order Granting Emergency Motion for Stay of Removal, Doe v. Trump, No. C17-126 (W.D. Wash. Jan. 28, 2017), available at https://www.justsecurity.org/wpcontent/uploads/2017/01/Seattle-Order.pdf.” 16 The following footnote was included for reference: “Temporary Restraining Order, Tootkaboni v. Trump, No. 17-cv-10154 (D. Mass. Jan. 29, 2017), available at https://aclum.org/wpcontent/uploads/2017/01/6-TRO-Jan-29-2017.pdf.”

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h. Judge Gee’s Order granting an Amended Ex Parte Application for
Temporary Restraining Order, issued in the Central District of California on January 29, 2017;17
i. Assurances from the U.S. Attorney’s Office for the Eastern District of
Pennsylvania that all individuals detained at Philadelphia International
Airport under the Executive Order would be admitted to the United States
and released from custody on Sunday, January 29, 2017;
j. DHS’s ‘Response to Recent Litigation’ statement, issued on January 29, 2017;18
k. DHS Secretary John Kelly’s ‘Statement on the Entry of Lawful Permanent Residents Into the United States,’ issued on January 29, 2017;19
l. DHS’s ‘Statement on Compliance with Court Orders and the President’s Executive Order,’ issued on January 29, 2017;20 and
m. Any other judicial order or executive directive issued regarding the
Executive Order on or after January 27, 2017.
2. Records concerning the number of individuals who were detained or subjected to
secondary screening, extending questioning, an enforcement examination, or
consideration for a waiver at Local International Airports pursuant to the
17 The following footnote was included for reference: “Order, Vayeghan v. Trump, No. CV 170702 (C.D. Cal. Jan. 29, 2017), available at https://www.aclusocal.org/sites/default/files/vayeghan_-_order_re_tro.pdf.” 18 The following footnote was included for reference: “Department of Homeland Security Response to Recent Litigation, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/department-homeland-security-response-recentlitigation.” 19 Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents Into The United States, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanentresidents-united-states.
20 The following footnote was included for reference: “DHS Statement On Compliance With Court Orders And The President’s Executive Order, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/dhs-statement-compliance-courtorders-and-presidents-executive-order.”

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Executive Order, including: a. The total number of individuals who remain detained or subject to
secondary screening, extending questioning, an enforcement examination, or consideration for a waiver at Local International Airports both as of the date of this request and as of the date on which this request is processed; and b. The total number of individuals who have been detained or subjected to secondary screening, extending questioning, an enforcement examination, or consideration for a waiver for any length of time at Local International Airports since January 27, 2017, including the number of individuals who have been
i. released, ii. transferred into immigration detention, or iii. removed from the United States; 3. Records concerning the number of individuals who have been removed from Local International Airports from January 27, 2017 to date pursuant to the Executive Order; 4. Records concerning the number of individuals who arrived at Local International Airports from January 27, 2017 to date with valid visas or green cards who subsequently agreed voluntarily to return; and 5. Records containing the ‘guidance’ that was ‘provided to DHS field personnel shortly’ after President Trump signed the Executive Order.”21 Exh. A at 5–7.
21 The following footnote was included for reference: “Protecting the Nation from Foreign Terrorist Entry into the United States, U.S. CUSTOMS AND BORDER PROTECTION (Jan. 31, 2017), available at https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entryunited-states (‘The Executive Order and the instructions therein were effective at the time of the order’s signing. Guidance was provided to DHS field personnel shortly thereafter.’) (emphasis added).”

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22. The Request included an application for expedited processing, on the grounds that there is a “compelling need” for these records under 5 U.S.C. § 552(a)(6)(E)(v)(II) because the information requested is “urgen[tly]” needed by an organization primarily engaged in disseminating information “to inform the public concerning actual or alleged Federal Government activity.” Exh. A at 8–11.
23. The Request provided detail showing that the ACLU is primarily engaged in disseminating information within the meaning of 5 U.S.C. § 552(a)(6)(E)(v), given that a critical and substantial aspect of the ACLU’s mission is to obtain information about government activity, analyze that information, and publish and disseminate that information widely to the press and public. Exh. A at 8.
24. The Request described examples of the ACLU’s information-dissemination function. Exh. A at 8–11.
25. The Request also included an application for a fee waiver or limitation under 5 U.S.C. § 552(a)(4)(A)(iii) on the grounds that disclosure of the requested records is in the public interest and is “likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” In particular, the ACLU emphasized that the Request would significantly contribute to public understanding on a matter of profound public importance about which scant specific information had been made public, i.e., how local CBP Field Offices had enforced, and continue to enforce, the Executive Orders. The Request also made clear that the ACLU plans to disseminate the information disclosed as a result of the Request to the public at no cost. Exh. A at 11–12.
26. The Request also applied for a waiver of search fees under 5 U.S.C. § 552(a)(4)(A)(ii)(II) on the grounds that Plaintiffs qualify as “representatives of the news media” and the records are not sought for commercial use, given the ACLU’s non-profit mission and substantial activities to publish information for dissemination to the public, as discussed in greater detail in ¶ 24 above. Exh. A at 12-13.
27. CBP received the Request sent to CBP’s FOIA Officer at CBP Headquarters On February 7, 2017. CBP received the Request sent to CBP’s Boston Field Office on February 10,

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2017. Copies of the United States Postal Service tracking information indicating receipt is attached as Exhibit B.
28. CBP has not acknowledged receipt of the Request. 29. As of the filing date of this Complaint, Defendants have not notified Plaintiffs of a determination as to whether Defendants will comply with the Request. 30. Because Defendants failed to comply with the 20-business-day time limit provision of FOIA, 5 U.S.C. § 552(a)(6)(A)(i), Plaintiffs are deemed to have exhausted their administrative remedies with respect to the Request under 5 U.S.C. § 552(a)(6)(C)(i).
Violation of FOIA for Failure to Provide a Determination Within 20 Business Days
31. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 30 above, inclusive.
32. Defendants have a legal duty under FOIA to determine whether to comply with a request within 20 days (excepting Saturdays, Sundays, and legal public holidays) after receiving the request, and also have a legal duty to immediately notify a requester of the agency’s determination and the reasons therefor.
33. Defendants’ failure to determine whether to comply with the Request within 20 business days after receiving it violates FOIA, 5 U.S.C. § 552(a)(6)(A)(i), and applicable regulations promulgated thereunder.
Violation of FOIA for Failure to Make Records Available
34. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 30 above, inclusive.
35. Plaintiffs have a legal right under FOIA to obtain the specific agency records requested on February 2, 2017 and there exists no legal basis for Defendants’ failure to promptly make the requested records available to Plaintiffs, their members, and the public.
36. Defendants’ failure to promptly make available the records sought by the Request violates FOIA, 5 U.S.C. § 552(a)(3)(A), and applicable regulations promulgated thereunder.

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37. On information and belief, Defendants currently have possession, custody or control of the requested records.
Violation of FOIA for Failure to Provide a Determination As To Expedited Processing Within 10 Days 38. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 30 above, inclusive. 39. Defendants have a legal duty under FOIA to determine whether to provide expedited processing, and to provide notice of that determination to Plaintiffs, within 10 days after the date of the Request. 40. Defendants’ failure determine whether to provide expedited processing and to provide notice of that determination to Plaintiffs within 10 days after the date of the Request violates FOIA, 5 U.S.C. § 552(a)(6)(E)(ii)(I), and applicable regulations promulgated thereunder. 41. Because Defendants have not provided a complete response to the Request, this Court has jurisdiction under FOIA, 5 U.S.C. § 552(a)(6)(E)(iv) to review Defendants’ failure to make a determination concerning Plaintiffs’ request for expedited processing.
WHEREFORE, Plaintiffs request that the Court award them the following relief: 1. Declare that Defendants violated FOIA by failing to determine whether to comply with the Request within 20 business days and by failing to immediately thereafter notify Plaintiffs of such determination and the reasons therefor; 2. Declare that Defendants violated FOIA by unlawfully withholding the requested records; 3. Declare that Defendants violated FOIA by failing to determine whether to provide expedited processing, and to provide notice of that determination to Plaintiffs, within 10 days; 4. Order Defendants to immediately disclose the requested records to the public and make copies immediately available to Plaintiffs without charge for any search or duplication fees, or, in the alternative, provide for expedited proceedings to adjudicate Plaintiffs’ rights

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under FOIA; 5. Award Plaintiffs their reasonable costs and attorneys’ fees; and 6. Grant such other relief as the Court may deem just and proper.
DATED this 12th day of April, 2017.
Respectfully submitted, /s/ Zachary L. Heiden Zachary L. Heiden American Civil Liberties Union of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04101 (207) 619-6224 heiden@aclumaine.org Attorney for Plaintiffs American Civil Liberties Union of Maine, American Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont, American Civil Liberties Union of Massachusetts, American Civil Liberties Union of Connecticut, and American Civil Liberties Union of Rhode Island

 
 Case 2:17-cv-00132-GZS Document 15 Filed 05/31/17 Page 1 of 13 PageID #: 97

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION OF MAINE, et al.,
Plaintiffs,
v.
U.S. CUSTOMS AND BORDER PROTECTION, et al.,
Defendants.

) ) ) ) ) Case No. 2:17-cv-00132-GZS ) ) ) ) ) )

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS PENDING DECISION ON MOTION TO TRANSFER The Plaintiffs, which consist of American Civil Liberties Union membership organizations located in the northeast United States, filed the present action against Defendants United States Customs and Border Protection (“CBP”) and Department of Homeland Security (“DHS”) in April of 2017. The action seeks compliance with the Freedom of Information Act (“FOIA”) and production of documents in connection with the CBP Boston Field Office’s implementation of two Executive Orders purporting to ban individuals from seven Muslim countries from entering the United States. The Defendants have moved to stay the pending action exclusively on the grounds that they have asked the Judicial Panel on Multidistrict Litigation (“JPML”) to transfer this case. This basis is insufficient to sustain the heavy burden that must be shouldered
1

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by proponents of stays, however. The prejudice suffered by the Plaintiffs in further delaying access to documents to which the public unquestionably has a right to review far outweighs any hardship to the Defendants, much of which is self-imposed. Further, the Defendants have not articulated any basis upon which a stay in this matter promotes judicial economy. This Court should therefore deny the Defendants’ Motion to Stay.
FACTUAL BACKGROUND Earlier this year, President Trump signed two Executive Orders halting refugee admissions and barring entrants from seven predominantly Muslim countries from entering the United States. Compl. ¶¶ 2, 4 & Ex. A. The first order, executed on January 27, 2017, was entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States” (“Executive Order No. 1”). Compl. ¶ 2. The second Executive Order was identically titled but executed on March 6, 2017 (“Executive Order No. 2”). Id. Implementation of the Executive Orders was “chaotic” and “total[ly] lack[ing in] . . . clarity and direction.” Id. ¶ 7. In the three days that followed execution of Executive Order No. 1, at least five lawsuits resulted in emergency court orders enjoining implementation of various of its sections. Id. ¶ 6. Similarly, a district court enjoined implementation of Sections 2 and 6 of Executive Order No. 2 on March 15, 2017. Id. DHS, itself, was confused regarding implementation of the Executive Orders. Id. ¶ 8. For example, on January 28, 2017, DHS explained that Executive Order No. 1 would “bar green card holders.” Id. It reversed itself the next day when DHS Secretary John Kelly clarified that Executive Order No. 1 did not apply to green card holders because “the entry of lawful permanent residents . . . [is] in the national interest.” Id.
2

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Implementation of the Executive Orders had a detrimental local effect, harming both individuals and institutions at Boston’s Logan International Airport. Id. ¶ 10. Scholars and academics from Boston-area institutions were denied entry into the United States. Id. Even worse, doctors from New England hospitals and patients seeking medical care were delayed, denied entry, or subjected to unnecessary anguish. Id.
On February 2, 2017, Plaintiffs submitted a FOIA request to CBP’s Boston Field Office and its FOIA Officer at CBP Headquarters. Id. ¶ 19. The Request sought records related to CBP’s local interpretation and enforcement at ports of entry within the Boston Field Office’s jurisdiction, including (a) Bradley International Airport in Connecticut, Bangor International Airport in Maine, Logan International Airport in Massachusetts, Manchester International Airport in New Hampshire, TF Green Airport in Rhode Island, and Burlington International Airport in Vermont; and (b) certain port of entry offices including Hartford, Bangor, Boston, Manchester, Providence and Burlington. Id. ¶ 20. Importantly, Plaintiffs’ FOIA Request did not seek information held in the records at CBP Headquarters. Id. & Ex. A. Instead, the Request made clear that the Plaintiffs were seeking “information regarding CBP’s local implementation of the Executive Order at international airports within the purview of the Boston Field Office,” and “not information held in the records of CBP Headquarters.” Compl. Ex. A at 1, 7. This is because, in part, the approach by CBP officials across the country appeared to differ by location. Id. at 4.
Plaintiffs requested expedited processing of the FOIA Request pursuant to 5 U.S.C. § 552(a)(6)(E)(v)(II) on the grounds that there is a “compelling need” for the
3

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records by an organization primarily engaged in disseminating information to inform the public about actual or alleged Federal Government activity. Compl. ¶ 22 & Ex. A at 811. Although CBP’s Boston Field Office received the Plaintiffs’ Request on February 10, 2017,1 and despite the request for expedited processing, CBP failed to acknowledge receipt of the Request. Compl. ¶¶ 27-28 & Ex. B. To date, CBP still has not indicated whether it will comply with Plaintiffs’ Request. Compl. ¶ 29.
Plaintiffs waited more than two months for CBP to comply with the FOIA Request and produce the requested documents. Id. ¶¶ 28-29. On April 12, 2017, when it became evident that CBP was not going to comply with its statutory obligations, Plaintiffs filed the pending three-count Complaint, alleging violation of the FOIA for failing to determine whether it will comply with the Plaintiff’s Request within 20 days (Count I), failing to make available the records related to local the Boston Field Office’s interpretation and enforcement of the Executive Order (Count II), and failing to determine whether to provide expedited processing and notice of that determination within 10 days after the date of the Request (Count III). Id. ¶¶ 29-41.
Rather than producing the requested documents, the Defendants initiated a twofold response. First, on May 8, 2017, the Defendants responded to the Plaintiffs’ Complaint by filing a motion with the JPML, seeking to transfer this action to the District Court for the District of Columbia and consolidate it with other FOIA lawsuits naming DHS and CBP as defendants. Defs.’ 5/8/17 Notice of Motion at 1 & Exs. 1-2. Those
1 CBP’s FOIA Officer at CBP Headquarters received the Request three days earlier, on February 7, 2017. Compl. ¶ 27.
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cases involve different FOIA requests seeking local records held by local CBP offices, however. Defs.’ 5/8/17 Notice of Motion Ex. 2 at 4. None of those lawsuits involve the records held by the Boston Field Office that are at issue in the action pending before this Court.
Second, on May 11, 2017, the Defendants moved to stay the pending action on the sole ground that it seeks a transfer of the action to the JPML. Defs.’ Motion to Stay at 3. The JPLM will not hold argument on Defendants’ motion to transfer until at least July 27, 2017, however. Id. at 7. At that point, nearly six months will have passed since the date of Plaintiffs’ FOIA Request, still without any response from the Defendants’ to the Plaintiffs’ Request itself.
ARGUMENT Contrary to their argument, the Defendants are not entitled to a stay of proceedings merely because they have filed a motion with the JPML to transfer the matter. Although the decision to grant a stay is within this Court’s discretion, it should be “mindful” that the pendency of a motion to the JPLM to transfer an action does not affect or suspend pretrial proceedings or otherwise limit this Court’s pretrial jurisdiction. Witman v. Aetna Health, Inc., No. 1:14-cv-00322-JAW, 2015 WL 4772666, at **1-2 (D. Me. Sept. 24, 2014); see also J.P.M.L. R. 2.1(d).2 Courts therefore “should not automatically stay
2 Rule 2.1(d) of the Rules of the Judicial Panel on Multidistrict Litigation provides: The pendency of a motion, order to show cause, conditional transfer order or conditional remand order before the Panel concerning transfer or remand of an action pursuant to 28 U.S.C. § 1407 does not affect or suspend orders and pretrial proceedings in the district court in which the action is pending and does not in any way limit the pretrial jurisdiction of the court.
J.P.M.L. R. 2.1(d). 5

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discovery, postpone rulings on pending motions, or generally suspend further rulings upon a [party’s] motion to the [JPLM] for transfer and consolidation.” Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997).
This Court conducts a case-specific inquiry to determine whether a stay is warranted. Cousins v. Walmart Stores Inc., No. 1:15-00318-DBH, 2015 WL 10487975, at *1 (D. Me. Sept. 14, 2015) (citing Microfinancial, Inc. v. Premier Holidays Int’l, Inc., 385 F.3d 72, 77 (1st Cir. 2004)). In doing so, three factors are of primary importance: “(1) potential prejudice to the non-moving party; (2) hardship and inequity to the moving party without a stay; and, (3) judicial economy.” Good v. Altria Grp., Inc., 624 F. Supp. 2d 132, 134 (D. Me. 2009). The Defendants bear a “heavy burden” to prevail on a motion to stay. Microfinancial, Inc. v. Premier Holidays Int’l, Inc., 385 F.3d 72, 77 (1st Cir. 2004). Because the Defendants have failed to sustain their burden on all three factors, this Court should deny the Motion to Stay.
A. A stay of the pending action will perpetuate the prejudice already suffered by the Plaintiffs. FOIA operates to expose a federal agency’s functions to public scrutiny, thereby
furthering the right of citizens to know and understand “what their government is up to” and promoting an “informed citizenry.” Carpenter v. U.S. Dep’t of Justice, 470 F.2d 434, 437 (1st Cir. 2006) (internal quotations and citations omitted). See also Union Leader Corp. v. U.S. Dep’t of Homeland Sec., 749 F.3d 45, 49 (1st Cir. 2014) (explaining that FOIA’s policy of full agency disclosure furthers the statute’s purpose of permitting citizens to “know what their government is up to”); Providence Journal Co. v. U.S. Dep’t
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of the Army, 981 F.2d 552, 556 (1st Cir. 1992) (noting that FOIA seeks to prevent “the development and application of a body of ‘secret law”). “Indeed, the ‘core purpose’ of the FOIA . . . is to ensure that government activities are open to public scrutiny.” Carpenter, 470 F.3d at 441 (quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 774 (1989)).
In light of this core purpose, it is both important and statutorily required that a governmental agency makes records responsive to a FOIA request promptly available. See id. at 438; 5 U.S.C. § 552(a)(3). Federal agencies are obligated respond to a FOIA request within 20 days, absent “unusual” or “exceptional” circumstances. 5 U.S.C. § 552(a)(6)(A)(i). Additionally, a requestor has a statutory right to expedited processing where there is an “urgency to inform the public concerning actual or alleged Federal Government activity.” Id. § 552(a)(6)(E)(i). Under such circumstances, an agency must process a FOIA request “as soon as practicable.” Id. § 552(a)(6)(E)(iii). Although the meaning of this phrase may vary depending upon the specific facts of the case, courts have generally found that one to two months is more than sufficient for a federal agency to respond to an expedited FOIA request, even in the face of requests allegedly involving national security concerns or classified material. Elec. Privacy Info. Ctr. v. Dep’t of Justice, 416 F. Supp. 2d 30, 40 (D. Col. 2006) (collecting cases).
To date, Plaintiffs’ FOIA Request has been pending nearly four months. Based upon the Defendants’ expressed concern in the Motion to Stay that this Court might “set a schedule” to govern CBP’s search for and release of records, Defs.’ Motion to Stay at 5, it is clear that Defendants have not yet commenced any process to respond to the
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Plaintiffs’ Request. Instead, the Defendants’ Motion to Stay is part and parcel of a continued attempt to delay responding to Plaintiffs’ Request and flies in the face of FOIA’s purpose and Plaintiffs’ statutory right to expedited processing.
The Executive Orders have not only been the subject of significant national debate, the Boston Field Office’s implementation was subject to litigation and large-scale public protests.3 In light of the intense public scrutiny, there can be no question that there is an urgency to inform the public through the release of responsive records. Despite the overwhelming public interest in the Defendants’ operations and implementation of the Executive Orders, the Defendants continue to drag their feet and restrict the public’s right to know. This undermines the “informed citizenry, which is vital to democracy.” Carpenter, 470 F.3d at 437. Plaintiffs therefore will continue to suffer significant prejudice if the action is stayed.
B. Defendants have not sustained their burden of establishing a clear case of hardship. The second factor this Court must consider in analyzing a motion to stay is the
potential hardship to the moving party in the absence of a stay. Good, 624 F. Supp. 2d at 134. In order to sustain their burden, the Defendants must establish “a clear case of hardship.” Microfinancial, Inc., 385 F.3d at 77. The Defendants have failed to identify
3 See, e.g., John Hiliard and Nicole Dungca, Iranian Woman Held at Logan Airport For Several Hours, BOSTON GLOBE, Jan. 29, 2017, avail. at https://www.bostonglobe.com/metro/2017/01/29/logancolor/nSABR3UoOQNMDh3BGcZosI/story.html; Mark Arsenault, Thousands in Copley Square protest immigration order, BOSTON GLOBE, Jan. 29, 2017, avail. at https://www.bostonglobe.com/metro/2017/01/29/protest/5zOAYFudUwDp8TF4ZnYs5O/story.html.
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any real hardship, let alone a “clear case” sufficient to support the grant of a stay in this matter.
Defendants argue that “moving forward could . . . result in rulings on pretrial issues that conflict with those of other districts or of the transferee court” in the event the JPML grants the motion to transfer. Defs.’ Motion to Stay at 7 (emphasis added). This argument does not contain specificity regarding what pretrial rulings in this case might conflict with other districts, nor could it as there are no motions pending other than the instant Motion to Stay. Further, the Defendants must answer the complaint regardless of whether the matter is transferred by the JPML. See Guerro v. Target Corp., No. 1221115-CIV, 2012 WL 2054863, at *1 (S.D. Fla. June 7, 2012). See also Barber v. BP, PLC, No. 10-0263-WS-B, 2010 WL 2266760, at *2 (S.D. Ala. June 4, 2010) (denying motion to stay because “there is no reason in the world why defendants cannot file responsive pleadings prior to the MDL’s determination on the pending transfer and consolidation issues”).
Although the Defendants point to an alleged duplication of work associated with the actual production of documents as evidence of possible hardship, Defs.’ Motion to Stay at 7, there is no explanation, for example, how responding to a FOIA request regarding Boston Field Office implementation of the Executive Orders duplicates efforts in responding to a request regarding the Miami Field Office’s implementation of the Executive Orders. Further, to the extent the Defendants are relying upon a claim of duplication to support their argument that they will suffer clear hardship, such hardship
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appears to be self-imposed in light of the CBP’s decision to internally coordinate responses through CBP Headquarters rather than the relevant Field Offices.
C. A stay will not positively impact judicial economy. Defendants advance several arguments in support of their claim that judicial
economy supports a stay of the pending action. Defendants argue that courts “typically” grant stays pending motions to transfer to the JPML. As explained above, however, courts do not automatically grant a stay merely because a party has requested a transfer to the JPML. See Rivers, 980 F. Supp. at 1360. In fact, courts have denied motions to stay in circumstances similar to those presented in this matter. See, e.g., Sehler v. Prospect Mortg., LLC, No. 1:13cv473(JCC/TRJ), 2013 WL 5184216, at *3 (E.D. Va. Sept. 16, 2013); Guerro, 2012 WL 2054863, at *1; Sullivan v. Cottrell, Inc., No. 11CV1076S, 2012 WL 694825, at *4 (W.D.N.Y. Feb. 29, 2012); St. Joe Co. v. Transocean Offshore Deepwater Drilling Inc., 774 F. Supp. 2d 596, 601 (D. Del. 2011); Barber, 2010 WL 2266760, at *2.
Moreover, consolidation of FOIA actions is extremely rare. In the Memorandum in Support of Defendants’ Motion for Transfer, Defendants cite to only two cases in which the JPML has consolidated FOIA actions: In re Church of Scientology Flag Serv. Org./IRS FOIA Litig., No. 892 (J.P.M.L. Sept. 4, 1991) (“Church of Scientology”), and In re Freedom Magazine/IRS FOIA Litig., No. 910 (J.P.M.L. Feb. 12, 1992) (“Freedom Magazine”). Defs.’ 5/8/17 Notice of Motion to Transfer, Ex. 2 at 2. Both cases are factually distinguishable, highlighting that the underlying purpose of the Defendants’
10

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Motion to Stay is not to promote judicial economy but instead to delay responding to Plaintiffs’ FOIA Request.
In Church of Scientology, all of the FOIA requests were made upon the same IRS office in Jacksonville, Florida. Church of Scientology at 2. Here, however, the relevant FOIA requests were made upon the different CBP field offices governing local implementation of the Executives Orders. In Freedom Magazine, the selected transferee forum was the IRS national office because one of the constituent actions sought IRS records located at that office. Freedom Magazine at 2. Here, however, not a single FOIA request seeks documents located in the Defendants’ proposed transferee forum, the District of Columbia, and, in fact, all requests specifically disclaim any request for documents located in the District of Columbia.
Defendants also argue that a stay promotes judicial economy because CBP Headquarters “is coordinating the agency’s search for records.” Defs.’ Motion to Stay at 5. Whether CBP is internally coordinating a response to various requests for local records has nothing to do with judicial economy. One might even question whether such coordination positively impacts CBP’s internal efficiency, considering that the Plaintiffs’ Request seeks local records related to the Boston Field Office’s implementation of the Executive Orders and the other requests at issue similarly seek local records. Regardless of CBP’s internal procedures, the relevant question in this action is whether the Boston Field Office conducted the search required by FOIA. Adding an unnecessary layer of bureaucracy within the CBP in order to support its argument that transfer to the JPML is appropriate has no relation to this or any court’s efficient functioning.
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CONCLUSION The Defendants have failed to sustain their heavy burden to support a stay, which is particularly evident when the lack of articulated hardship is balanced against the significant prejudice that the Plaintiffs will continue to suffer in the event this matter is further delayed. In light of the foregoing, therefore, the Plaintiffs respectfully request that this Court deny the Defendants’ Motion to Stay Proceedings Pending Decision on Motion to Transfer.

Dated: May 31, 2017

/s/ Jennifer A. Archer, Esq. Jennifer A. Archer, Esq. Kelly Remmel & Zimmerman 53 Exchange Street Portland, ME 04112 (207) 775-1020 jarcher@krz.com
/s/ Zachary L. Heiden, Esq. Zachary L. Heiden, Esq. American Civil Liberties Union of Maine 121 Middle Street, Ste. 301 Portland, ME 04101 (207) 774-5444 zheiden@aclumaine.org Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on May 31, 2017, I electronically filed Plaintiffs’ Opposition to Defendants’ Motion to Stay Proceedings Pending Decision on Motion to Transfer with the Clerk of Court using the CM/ECF system, which will send notification of such filing to counsel of record for all parties.

Dated: May 31, 2017

/s/ Jennifer A. Archer, Esq. Jennifer A. Archer, Esq. Kelly Remmel & Zimmerman 53 Exchange Street P. O. Box 597 Portland, ME 04112 (207) 775-1020 jarcher@krz.com

13

 
 Case 2:17-cv-00132-GZS Document 30 Filed 11/01/17 Page 1 of 13 PageID #: 200

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION OF )

MAINE, et al.,

)

)

)

Plaintiffs,

)

)

v.

) Civil No. 2:17-cv-132-GZS

)

U.S. CUSTOMS AND BORDER

)

PROTECTION, et al.,

)

)

Defendants.

)

)

JOINT STATUS REPORT

Plaintiffs American Civil Liberties Union of Maine, American Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont, American Civil Liberties Union of Massachusetts, American Civil Liberties Union of Connecticut, and American Civil Liberties Union of Rhode Island (collectively, “Plaintiffs”) and Defendants U.S. Customs and Border Protection and U.S. Department of Homeland Security (collectively, “Defendants”) hereby file their Joint Status Report pursuant to the Court’s September 15, 2017 Scheduling Order. (ECF No. 27): I. BACKGROUND
This case has been brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. On February 2, 2017, Plaintiffs sent to Defendants a FOIA request seeking records pertaining to the local implementation of President Trump’s January 27, 2017 Executive Order titled “Protecting the Nation from Foreign Terrorist Entry Into the United States,” Exec. Order No, 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017), at certain local international airports and ports of

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entry (the “FOIA Request” or “Plaintiffs’ Request”). The FOIA Request is attached to Plaintiffs’ Complaint at Exhibit A, and speaks for itself. (ECF No. 1-1). The FOIA Request “seeks information regarding CBP’s interpretation and enforcement of the Executive Order at the Local International Airports, not information held in the records of CBP Headquarters.” (Id. at 7). Plaintiffs filed the above-captioned case on April 12, 2017, to obtain injunctive relief requiring Defendants to respond to the FOIA Request. (ECF No. 1).
On September 13, 2017, the Parties filed a Joint Report and Motion in which they jointly requested that the Court set November 1, 2017 as the deadline for the submission of a Joint Status Report. (ECF No. 26). On September 15, 2017, the Court ordered the parties to submit a joint status report by November 1, 2017, “addressing the status of defendant’s search for and production of records . . . , the status of any negotiation on the scope and timing of future productions, and the parties’ proposed schedule for future proceedings herein.” (ECF No. 27). II. PRODUCTION PROGRESS AND THE STATUS OF NEGOTIATION ON THE
SCOPE AND TIMING OF FUTURE PRODUCTIONS Defendants’ Position:
Some background information is necessary in order to explain Defendants’ search and production process here. The CBP FOIA Office has received nearly 100 requests for information pertaining to Executive Order 13,769, and 21 of those requests are in litigation in district courts around the country. Eighteen of these requests seek records from various CBP field offices, and were submitted by ACLU affiliates (the “ACLU field office requests”), and 15 of those requests are in litigation in thirteen cases brought by the requesting ACLU affiliate(s), including the instant matter. For each of the 18 field office requests, the agency identified the

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local custodians most likely to possess email records responsive to each respective request. Nationwide, the agency has identified 85 field office custodians across all 18 ACLU field office requests. In addition, CBP has located custodians from CBP headquarters, whose records the agency is searching in connection with another ACLU request and other non-ACLU FOIA requests.
This background information is significant because, in processing Plaintiffs’ request and the requests of other ACLU entities, as well as some of the nearly 100 requests for information pertaining to Executive Order 13,769 that seek overlapping information, some coordination of the processing is necessary in order to be equitable and fair to all of the requests. Further, such coordination will yield economies of scale in processing and review that will increase the efficiency and speed of the agency’s processing and response times. For example, coordinating review for the 18 ACLU field office requests will allow streamlined review of similar documents located across the field offices. It also allows de-duplication of identical documents located in multiple field offices that cannot be achieved when searches are conducted separately by field office.
CBP has been processing Plaintiffs’ FOIA Request as quickly as practicable, and has begun making releases of records responsive to Plaintiffs’ Request on a rolling basis, including three interim releases of records, on July 14, July 26, September 21, 2017 and October 24, 2017 (“Interim Releases”). To date, Defendants’ Interim Releases focus primarily on information responsive to parts 2 through 4 of the Request, which seek certain numerical data, and parts 1(b) and 5 of the Request, which seek “‘guidance’ that was ‘provided to DHS field personnel shortly’ after President Trump signed [Executive Order No. 1].” Additionally, some of the material in

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Defendants’ Interim Releases consisted of email exchanges between CBP personnel at the headquarters and field office locations across the country, including personnel in CBP’s Boston Field Office. In relation to other requests, CBP is continuing to search, review, and process records from CBP’s headquarters. That process is ongoing, and it is anticipated that some of those additional records from headquarters may also be responsive to Plaintiffs’ request.
These communications between CBP personnel at headquarters and in the field offices are responsive to Plaintiffs’ Request. Though Plaintiffs’ Request seeks records “held” locally, as opposed to records “held” at headquarters, this distinction is nonexistent in the context of electronic documents. By their nature, electronic communications between personnel at headquarters and personnel in the Boston Field Office are “held” both locally and at headquarters. While the copy of the email that the agency produced happens to be the copy that was located in the files of the custodian at CBP headquarters, that copy is identical to the copy that would be located in the files of the custodians at CBP field offices across the country. For example, many emails already released by the agency consist of communications sent from CBP HQ personnel to the directors of field operations in all 20 field offices throughout the country.
In addition to documents gathered from CBP headquarters, CBP also has collected and begun processing approximately 103,000 potentially-responsive records consisting of email messages and attachments to or from 85 custodians in the various field offices covered by the ACLU field office requests. These records comprise approximately 275,000 pages.1
1 This total page count and all total page counts provided by Defendants in this document do not include several thousand spreadsheets that are attached to email messages, as it is difficult to translate spreadsheets into pages. However, the agency plans to process such spreadsheets in its review.

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Specifically with respect to Plaintiffs’ FOIA request, CBP has collected approximately 9,559 potentially responsive email messages and attachments, comprising approximately 25,096 pages, to or from seven custodians in the Boston Field Office and corresponding local airports. These custodians are the Director of Field Operations for the Boston Field Office, the Assistant Director of Operations for the Boston Field Office, and the Port Directors for Bradley International Airport, Bangor International Airport, Logan International Airport, Manchester International Airport, Burlington International Airport, and TF Green Airport. In addition, CBP has also collected approximately 10,000 email messages and attachments from custodians at CBP Headquarters, some of which include communications with the custodians in the Boston Field Office and corresponding local airports.2
The volume of the records compiled and the complexity of the review necessary for processing records potentially responsive to Plaintiff’s request compelled the agency to transition the collected email files to a new review platform that allows for more efficient processing. This effort was recently completed, and it is designed to streamline processing for all of the ACLU FOIA requests, increase efficiencies from de-duplication of documents within and across field offices, and enhance the agency’s ability to ensure consistent and accurate treatment of information exempt from disclosure under the FOIA. The agency expects that the transition to the new platform will expedite the agency’s review and release of responsive, non-exempt information.
2 The agency has not yet determined how many, if any, of these records are non-duplicative records collected from the custodians in the Boston Field Office and/or are responsive to Plaintiffs’ request.

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By email dated October 17, 2017, Defendants provided Plaintiffs’ counsel a list of “core search terms,” which were developed in consultation with Plaintiffs from some of the parallel actions brought by other ACLU affiliates.3 See Ex. 1. The agency has determined that these core search terms are reasonably calculated to identify records responsive to Plaintiffs’ FOIA request, as well as the FOIA requests submitted by the other ACLU affiliates. The agency will review the documents identified by this core list of search terms for responsiveness and for any information that should be withheld pursuant to a FOIA exemption, and will continue to release responsive, non-exempt records on a rolling basis.
The agency has begun its review of these documents by applying the core list of search terms attached to Defendants’ counsel’s October 17, 2017 email. See id. To maximize the efficiencies gained by de-duplication and email threading, the agency conducted a single search across all 85 of the custodians covered by the ACLU field office requests, rather than run separate, sequential searches in the records collected from particular custodians or field offices. Application of the core search terms identified approximately 30,000 potentially responsive documents totaling approximately 90,000 pages, including approximately 2,804 documents totaling approximately 8,976 pages held by the seven custodians in the Boston Field Office and corresponding local airports.
* * *
3 Plaintiffs in some of the other cases brought by ACLU affiliates proposed search terms for the agency to apply to the email records. Applying their proposed search terms did not significantly reduce the page count of the universe of potentially-responsive email records. Accordingly, over the last several weeks, Defendants have analyzed the proposed search terms to identify a set of terms that is reasonably calculated to identify responsive records.

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To the extent Plaintiffs may seek to challenge the search terms and/or custodians being used to respond to their FOIA Request, Defendants object to any such attempt to challenge the adequacy of Defendants’ search prior to summary judgment. Such arguments are properly raised at the summary judgment stage once the agency has completed processing Plaintiffs’ request, and the Court has before it affidavits from the agency attesting to the specific custodians whose records were searched, the methods used during those searches, and the agency’s rationale for doing so.
Moreover, CBP has not at this stage determined whether additional searches would be reasonable and intends to evaluate the potential need for additional searches based on its review of records it has collected from the identified seven custodians in the Boston Field Office and corresponding local airports. Defendants are open to continuing discussions with Plaintiffs regarding the scope of the agency’s search. As explained by email from Defendants’ counsel to Plaintiffs’ counsel on October 17, 2017, although the agency plans to move forward with a search consisting of the agency’s core list of search terms at this time, the agency will later consider whether additional searches are reasonably calculated to identify additional records responsive to Plaintiffs’ request and, as part of that process, the agency may consider additional search terms proposed by Plaintiffs. As in any FOIA case, the agency here is entitled to determine in the first instance what search is reasonable and adequate. Plaintiff’s Position:
This is a stand-alone case about documents relating to local implementation of Executive Order 13,769. The Government complicates the issue by focusing on its efforts in separate cases, in separate courts, relating to separate regions. In effect, the Government is seeking to

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relitigate the merits of its motion to consolidate all FOIA cases relating to Executive Order 13,769 into a single multi-district litigation. That motion was denied, and this case proceeds independently. See Order Denying Transfer, In re: American Civil Liberties Union Freedom of Information Act (FOIA) Requests Regarding Executive Order 13769, J.P.M.L., Docket Number MDL-2786, Document Number 88 (Filed August 2, 2017).
The status of production is that the Government has produced limited interim records, and has identified a modest quantity of other records responsive to our local request. As the Government states, it has identified “approximately 9,559 potentially responsive email messages and attachments . . . to or from seven custodians in the Boston Field Office and corresponding local airports.” Those messages and attachments comprise “approximately 25,096 pages.”
The status of negotiations is that Plaintiffs have requested this modest quantity of responsive records, and the Government has refused to provide them at this time, or even to provide a date certain for the production. Plaintiffs have requested that, at the very least, the Government agree to review and produce records at a rate of 820 pages per month. The Government has refused. Instead, it insists on processing these local records alongside the records requested in separate cases. While we do not presume to dictate how the Government chooses to process these records, we do object to the Government using obligations in separate cases to delay this case.
To the extent the Government argues that it must take time to de-duplicate, apply search terms, and process the less-than-10,000 records before producing them, we do not agree that such measures are necessary for the limited quantity of documents in this case. It would not be

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uncommon for a lawyer in practice in Maine to review 9,000 documents in a week. The Government ought to be able to process Plaintiffs’ entire request in a matter of weeks, not years.4
Although the Government relies on the additional burden of processing records in CBP Headquarters, our FOIA request was clearly limited to “information regarding . . . Local International Airports, not information held in the records of CBP Headquarters.” FOIA Request, ECF No. 1-1 at 7 (emphasis added). The Government quibbles with the meaning of records “held” at CBP Headquarters, supra at 4, but the remainder of that qualifier is clear that we request only those records “regarding” Local International Airports.5 FOIA Request, ECF No. 1-1 at 7. The Government has identified less-than 10,000 records as responsive to that narrower request, and it should produce those records. If the Government refuses to do so, this case should proceed to summary judgment briefing to determine whether the Government’s refusal is valid.
In short, we ask that the Government act expeditiously on this case. The Government implemented the President’s travel ban order in a matter of hours, but they now claim that it will take years to review and produce all of the documents generated by that implementation. That is unacceptable, particularly given the expedited processing requested in Plaintiffs’ FOIA request. FOIA Request, ECF No. 1-1 at 8-11 (citing, e.g., 5 U.S.C. § 552(a)(6)(E)).
III. PROPOSED DEADLINES FOR PRODUCTION
4 In any event, without any documents to review, it is impossible for Plaintiffs at this time to take a position on whether the proposed search terms and custodians will lead to production of all documents to which Plaintiffs are entitled.
5 “Local International Airports” is defined in our FOIA request as Bradley International Airport, Bangor International Airport, Logan International Airport, Manchester International Airport, TF Green Airport, and Burlington International Airport, and corresponding Port of Entry Offices and Regional Field Operations Offices. FOIA Request, ECF No. 1-1 at 4.

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Defendant’s Position: Due to the recent completion of the migration of records to a new processing platform, CBP has required additional time to accurately estimate a monthly processing rate. The agency has now loaded the email records collected from the 85 field office custodians across all 18 ACLU field office requests into a review platform that allows for de-duplication and email threading, which enable considerable efficiencies. As explained above, to maximize the efficiencies gained by de-duplication and email threading, the agency will conduct a single search across all of the custodians during the applicable time period, rather than run separate, sequential searches of the records collected from particular custodians or field offices. The agency has applied search terms to these documents, which resulted in the identification of approximately 30,000 potentially responsive documents totaling approximately 90,000 pages, including approximately 2,804 documents totaling approximately 8,976 pages held by the seven custodians in the Boston Field Office and corresponding local airports. The agency currently estimates that it will be able to process on average approximately 3,575 pages per month across all of the related ACLU FOIA requests concerning Executive Order 13,769, of which Plaintiffs’ request is one. Each month, those approximately 3,575 processed pages will include records from each of the field offices, so some fraction (which will likely vary from month-to-month) of each monthly release will consist of records from the Boston field office custodians. The agency intends to release these records on a rolling basis, and continue monthly productions until completed. CBP proposes that the Court order quarterly status reports to advise the Court on CBP’s progress and to assure the Court that CBP is proceeding diligently under the circumstances.

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As Defendants have explained above, centralization of the agency’s processing of these parallel requests allows for efficiencies from de-duplication across cases and streamlined review and treatment of similar records. The agency believes that this centralized review will allow for faster processing of records potentially responsive to all ACLU requests, and that production schedules for records tied to any particular field office prevents the agency from ensuring that it is processing the requests in the most efficient way possible. In addition, this centralized review process will enhance the agency’s ability to ensure consistent and accurate treatment of exempt information, which may implicate sensitive government information and personally identifiable information pertaining to individual travelers.
During this same time, the agency will continue to process and release responsive, nonexempt records located through searches of the records collected from personnel at CBP headquarters. As explained, supra, many emails collected from headquarters custodians (including many already released to Plaintiffs) consist of communications sent from CBP headquarters personnel to the directors of field operations in all 20 field offices throughout the country.
The agency is also searching for non-email records but intends to prioritize processing of email records. Plaintiff’s Position:
We respectfully request that the Court order the Government to produce responsive local records by January 19, 2018. That provides more than two-and-a-half months to produce less than 10,000 records. The subject matter of this request is a matter of intense concern to Plaintiffs

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and to the public. The Government is under a legal obligation to respond to this request, and they must allocate the resources necessary to do so.
In the alternative, and at the very least, we respectfully request that the Court order the Government to produce 820 pages per month. In a similar case related to records in the possession of the Customs and Border Protection Detroit Field Office, Judge Levy of the United States District Court for the Eastern District of Michigan recently ordered DHS to review and produce records at a rate of 820 pages per month.6 In another case related to records in the possession of the Seattle Field Office, Judge Pechman of the United States District Court for the Western District of Washington recently ordered DHS to review and produce records at a rate of 1,000 pages/month.7 Even at that rate, an additional year would pass before the Government responds to our FOIA request (filed approximately ten months ago). That is a far cry from the expedited processing that we requested and are entitled to by statute. 5 U.S.C. § 552(a)(6)(E). The Government must be able to meet at least that low bar.
Plaintiffs further respectfully request that the Court order the parties to file a joint status report and proposed summary briefing schedule within 14 days after the Government’s production is complete.
Dated: November 1, 2017
Respectfully submitted,
6 See American Civil Liberties Union of Michigan v. United States Department of Homeland Security, et al., 5:17-cv-11149-JEL-EAS, Document No. 42 (filed October 26, 2017).
7 See American Civil Liberties Union of Washington, et al. v. United States Department of Homeland Security, et al., 2:17-cv-00562-MJP, Document No. 36, ¶¶ 2-4 (filed October 20, 2017).

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CHAD A. READLER Acting Assistant Attorney General
ELIZABETH J. SHAPIRO  Deputy Director, Federal Programs Branch
/s/ Michael L. Drezner MICHAEL L. DREZNER (VA Bar No. 83836) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 Tel.: (202) 514-4505 Fax: (202) 616-8470 Email: Michael.L.Drezner@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

/s/ Zachary L. Heiden Zachary L. Heiden ACLU of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04103 Tel: (207) 619-6224 zheiden@aclumaine.org
Attorney for Plaintiffs American Civil Liberties Union of Maine, American Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont, American Civil Liberties Union of Massachusetts, American Civil Liberties Union of Rhode Island, and American Civil Liberties Union of Connecticut

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Core Search Terms for Field Office Records in ACLU Requests
executive w/3 order EO "E.O." "13,769" 13769 protecting w/3 nation President w/5 order "foreign terrorist entry" waiver w/3 request exemption w/3 request Iran* Iraq* Syria* Sudan* Yemen* Somali* Libya* "seven countries" "7 countries" “seven nations” "7 nations" LPR* permanent w/3 residen* "extreme vetting" CAT "crisis action team" secondary w/3 screen* secondary w/3 inspect* secondary w/3 interrogat* secondary w/3 question* enforcement w/3 examination Muslim* Islam* Arab Arabs Judge* w/5 (order or Robart or Roberts or Birotte or Zilly or Brinkema or Burroughs or Gee or Donnelly) TRO "temporary restraining order" court* w/3 (order or enjoin* or stay) injunction Daniel w/2 Renaud response w/2 "recent litigation" ("United States Attorney" or "U.S. Attorney*") w/8 (Pennsylvania OR Philadelphia)

 
 Case 2:17-cv-00132-GZS Document 35 Filed 12/08/17 Page 1 of 6 PageID #: 216

U.S. Department of Justice
Civil Division Federal Programs Branch

Mailing Address

Overnight Delivery Address

P.O. Box 883

20 Massachusetts Ave., N.W.

Washington, D.C. 20044 Washington, D.C. 20530

Tel: (202) 514-4505 Fax: (202) 616-8470 Michael.L.Drezner@usdoj.gov

December 8, 2017
By ECF Filing
The Honorable Magistrate Judge John H. Rich III U.S. District Court, District of Maine Edward T. Gignoux U.S. Courthouse 156 Federal Street Portland, ME 04101
Dear Magistrate Judge Rich III,
Pursuant to your Minute Order of November 24, 2017, Defendants respectfully submit the following letter brief concerning the instant case, ACLU of Maine, et al. v. U.S. Customs and Border Protection, et al. (17-cv-132). On the conference call with the parties on November 21, 2017, your honor identified the key points of disagreement in this FOIA suit: (1) whether document production should be specific to this case or permitted to proceed in a manner that takes into consideration the Defendants’ need to coordinate its response in this case with responses in the other related cases pending nationally, and (2) the appropriate pace at which the court should order Defendants to process and serve responsive documents.
First, Defendants respectfully submit that they should be entitled to process the 17 related ACLU affiliate requests in a coordinated manner with the instant case, and Plaintiffs can offer no argument as to why their particular field office request should be elevated and given a specific, accelerated production schedule. Second, the law requires that Defendants process the requested documents as soon as practicable – a threshold that is clearly met in this case. Accordingly, Defendants propose that they continue to be permitted to process the instant FOIA request as swiftly as practicable, while providing quarterly status updates to the Court to ensure that Defendants are meeting their legal obligations.
The FOIA requires federal agencies to make requested records “promptly available” to any person upon receiving a request which “(i) reasonably describes such records and (ii) is made in accordance with published rules . . . .” 5 U.S.C. § 552(a)(3)(A); see also id. § 552(a)(6)(C)(i). If an agency grants a request expedited processing, the FOIA provides that it must process the request “as soon as practicable.” Id. § 552(a)(6)(E)(iii). A request which has received expedited processing is placed on a separate track, and is processed prior to earlier-filed non-expedited requests in the

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processing queue, but after other earlier-filed expedited requests. See 6 C.F.R. § 5.5(b). Of note, the FOIA permits agencies to aggregate for purposes of processing, “certain requests by the same requestor, or by a group of requestors acting in concert . . . .” 5 U.S.C. § 552(a)(6)(B)(iv). And CBP has specifically promulgated regulations authorizing just this type of aggregation. 6 C.F.R. § 5.5(d).
As a default rule, agencies must “determine” within 20 business days of receiving a proper FOIA request “whether to comply with such request.” 5 U.S.C. § 552(a)(6)(A)(i). However, the 20business day deadline does not require that an agency complete its processing of a FOIA request within that timeframe. See, e.g., CREW v. FEC, 711 F.3d 180, 185 (D.C. Cir. 2013).1 The FOIA “does not assign any particular time frame to release . . . the records sought.” Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270, 275 (D.D.C. 2012). If the agency fails to comply with the 20-business day requirement, the only effect is that the requester “shall be deemed to have exhausted his administrative remedies,” enabling the requester to file suit. 5 U.S.C. § 552(a)(6)(C)(i); see also Daily Caller v. DOS, 152 F. Supp. 3d 1, 10 (D.D.C. 2015).
Where an agency needs more time to process a request, in light of the nature of the request or resource considerations, “the court (if suit has been filed) will supervise the agency’s ongoing progress, ensuring that the agency continues to exercise due diligence in processing the request.” CREW, 711 F.3d at 189; see also Protect Democracy Project, Inc. v. DOD, No. 17-cv-00842 (CRC), 2017 WL 2992076, at *5 (D.D.C. July 13, 2017). Moreover, in order to satisfy competing demands of multiple requesters, agencies typically process requests within a particular processing queue on a firstin, first-out basis. See, e.g., Daily Caller, 152 F. Supp. 3d at 8 (“In general, federal agencies process incoming FOIA requests on a first-in/first-out basis.”); Schweihs v. FBI, 933 F. Supp. 719, 723-24 (N.D. Ill. 1996) (finding that plaintiff failed to identify “exceptional circumstances” necessary to “overrule defendants’ first in/first out method of handling FOIA requests”).
Plaintiffs submitted their FOIA request to CBP on February 2, 2017. See ECF No. 1-1. Generally speaking, the request asks CBP to search its Boston Field Office and the offices for numerous airports within the Boston Field Office’s jurisdiction for various categories of records regarding the implementation and enforcement of Executive Order 13,769. Several of these categories are strikingly broad. For example, Plaintiffs seek all records “concerning CBP’s interpretation, enforcement, and implementation” of the Executive Order; all records concerning “[a]ny other judicial order or executive directive issued regarding” the Executive Order; and all records concerning “[a]ny guidance provided to DHS field personnel shortly after” the issuance of the Executive Order. See ECF No. 1-1 at 5-6.
On the same day, various other ACLU affiliates submitted 16 parallel requests seeking the
1 As other courts have recognized, FOIA decisions by the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. District Court for the District of Columbia are entitled to particular deference because of the special expertise and experience of those courts in applying the statute. See, e.g., Our Children’s Earth Found. v. EPA, No. 08-cv-1461, 2008 WL 3181583, at *6 (N.D. Cal. Aug. 4, 2008) (decisions “entitled to appropriate deference”); Matlack, Inc. v. EPA, 868 F. Supp. 627, 630 (D. Del. 1994) (describing the D.C. Circuit as “on the leading edge of interpreting” the FOIA statute); cf. Estate of Abduljaami v. DOS, No. 14-cv7902, 2016 WL 94140, at *5 n.2 (S.D.N.Y. Jan. 7, 2016) (“considerable experience” with FOIA).
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same or substantially similar categories of records from other specified field offices, airports, and ports of entry, and on February 10, 2017, the ACLU of Michigan submitted a supplemental request seeking similar information from certain land borders. In addition, the national ACLU organizations and their District of Columbia affiliate also submitted a FOIA request on February 2, 2017 seeking the same or similar categories of records, this time from CBP’s headquarters. Fifteen of these requests are now in litigation in thirteen cases filed in thirteen district courts throughout the country.
Because the various ACLU affiliates all seek substantially the same categories of records— indeed, in many instances, overlapping records—and were submitted in what the ACLU has described as a “coordinated FOIA filing,”2 CBP aggregated the requests pursuant to 5 U.S.C. § 552(a)(6)(B)(iv) and 6 C.F.R. § 5.5(d). As a result of this aggregation, CBP coordinated a single search for records responsive to all of the requests, which included a search of the email records for custodians in the various field offices identified in the ACLU affiliates’ requests. In addition, based on its aggregation of the requests, CBP granted all the requests expedited processing—placing them in the expedited processing queue ahead of all non-expedited requests and later-filed expedited requests—and granted the ACLU affiliates’ requests for fee waivers.
While CBP’s collection and processing efforts were ongoing, it sought to consolidate the thirteen parallel cases filed by the ACLU affiliates into a single multi-district litigation. See ECF 19. The Judicial Panel on Multidistrict Litigation denied CBP’s motion on the grounds that the related actions were “unlikely to entail extensive pretrial proceedings” and “[i]ndeed . . . probably will not involve any discovery.” ECF 21 at 1. Contrary to Plaintiffs’ suggestion, the Panel did not reject the agency’s decision to coordinate a single search for records potentially responsive to the ACLU affiliates’ requests, nor would such a decision fall within the Panel’s jurisdiction. Indeed, Plaintiffs “do not presume to dictate how the Government chooses to process these records,” and instead are asking the Court to set an accelerated schedule for the release of non-exempt records responsive to their particular request. See ECF No. 30 at 8.
This Court first inquired whether it should issue a document processing requirement specific to this case, or whether Defendants should be permitted to coordinate their document processing in the related cases. The Court should reject Plaintiffs’ demand for a processing schedule tied to Bostonspecific records for several reasons.
A specific production schedule here would likely delay the agency’s completion of the processing of all the ACLU affiliates’ field office requests. As explained above, the ACLU affiliates’ requests seek identical categories of records from field offices, and, accordingly, there is substantial overlap in the types of potentially responsive records the agency must review. See Howard Decl. ¶ 34, attached as Exhibit A. The agency can most efficiently and expeditiously process these records if it is not required to parse them by case or custodian to satisfy processing thresholds for records specific to a particular field office. Deferring to the agency’s assessment as to how best it can process the records allows the agency to achieve a faster processing rate, in particular through the application of search tools and the streamlined review of records raising similar issues related to responsiveness and
2 See ACLU, Press Release, ACLU Files Demands for Documents on Implementation of Trump’s Muslim Ban (Feb. 2, 2017), https://www.aclu.org/news/aclu-filesdemands-documents-implementation-trumps-muslim-ban.
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exemptions. Id. at ¶ 37. Not only does this expedite the ultimate release of responsive records to all ACLU affiliates, it better ensures consistent and accurate treatment of exempt information, much of which could implicate sensitive law enforcement information and/or privacy rights of individual travelers. Id.; see also Daily Caller, 152 F. Supp. 3d at 15 (compelling production on truncated timeline “raises a significant risk of inadvertent disclosure of records properly subject to exemption under FOIA”). By contrast, requiring the agency to process records so as to meet field office-specific processing thresholds may slow the release of records, as the agency will need to shift resources to identify and focus on specific field office records, rather than conducting the review in the most efficient manner possible.3 Howard Decl. ¶ 38.
Moreover, absent truly extraordinary circumstances, courts have routinely denied efforts by FOIA requesters to substantially accelerate document production pursuant to an arbitrary timetable. See The Nation Magazine v. Dep't of State, 805 F. Supp. 68, 74 (D.D.C. 1992) (stating that “only rarely” will a court order an “agency to abandon its first-in first-out processing” schedule).
Plaintiffs put forward no such circumstances showing that they are entitled to a faster production schedule. Plaintiffs state only that the current processing rate is “unacceptable, particularly given the expedited processing requested in Plaintiffs’ FOIA request.” ECF No. 30 at 9. Yet, as noted above, Defendants have already granted expedited processing to Plaintiffs’ request. And once a request is in the expedited queue, the FOIA requires only that the agency process the request “as soon as practicable.” 5 U.S.C. § 552(a)(6)(E)(iii). “The statute does not assign any particular time frame to release . . . the records sought.” Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270, 275 (D.D.C. 2012). As the attached Declaration makes clear, the agency is indeed processing the related ACLU requests as quickly as practicable, and consequently, Plaintiffs’ claim that they are somehow entitled to greater expedition is without merit. See Howard Decl. ¶ 36.
Further, it is not clear what harm Plaintiffs will suffer if they are not granted accelerated processing. In the Joint Status Report, Plaintiffs state only that that “[t]he subject matter of this request is a matter of intense concern to Plaintiffs and to the public.” ECF No. 30 at 11-12. It is doubtful whether Plaintiffs could allege harm in not immediately receiving documents for which they are “concerned.” And in any event, in cases like this one, where the plaintiff has not provided evidence of a looming event necessitating the immediate release of information, and merely hopes to contribute to a public discussion, courts have found similar conclusory claims of harm to be lacking. See, e.g., Electronic Privacy Information Center v. Dept. of Justice (EPIC), 15 F. Supp. 3d 32, 44-47 (rejecting similar claim based on desire for “public [to] participate fully in the ongoing debate,” as “fundamentally flawed because it ignores the well-established statutory FOIA process”). Absent any harm that could be visited upon Plaintiffs in allowing the agency to produce at its current pace, there is no basis to impose an arbitrary timeline for production in this case.
In addition, Courts have held that both agencies and the public have a strong interest in
3 In at least one District Court, that of the Northern District of Georgia, the court declined to accept an ACLU affiliate’s conclusory assertion for the production of requested documents by a date certain, and instead ordered further briefing as to a production schedule. A copy of that order is attached hereto. See Court Order, attached as Exhibit B.
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maintaining an “orderly, fair, and efficient administration of FOIA,” which would be jeopardized by accelerating one request to the detriment of others. The Nation Magazine, 805 F. Supp. at 74. Given the finite nature of the agency’s FOIA capabilities, Plaintiffs’ demand effectively asks the Court to order the agency to vault Plaintiffs’ request over earlier-filed expedited requests and to dedicate an inequitably large fraction of its FOIA processing resources to their request. Courts have explained that “for every FOIA request that is expedited, another one must be moved back in the queue,” and such accelerated processing “means that either some requests are merely put ahead of others, or that expedited processing is rendered meaningless, as expediting all requests is tantamount to expediting none.” Progress v. Consumer Fin. Prot. Bureau, No. CV 17-686 (CKK), 2017 WL 1750263, at *7 (D.D.C. May 4, 2017); see also EPIC, 15 F. Supp. 3d at 47 (“[A]llowing EPIC to jump to the head of the line would upset the agency’s processes and be detrimental to the other expedited requesters, some of whom may have even more pressing needs.”); Protect Democracy Project, 2017 WL 2992076, at *6 (“[R]equiring production by a date certain, without any factual basis for doing so, might actually disrupt FOIA’s expedited processing regime rather than implement it.”). It is difficult to conceive of any basis upon which to accelerate Plaintiff’s Boston Field Office request ahead of ACLU’s Los Angeles, Miami, Houston or Baltimore Field Office requests, to name a few, submitted the same day. Thus, to ensure equitable treatment of other FOIA requestors, including the other ACLU affiliates in related requests, Defendants respectfully submit that a production requirement specific to this case should not be ordered.
As to the Court’s second question, the appropriate processing rate that should be ordered, this query is answered directly by the FOIA: the agency must process the request “as soon as practicable.” 5 U.S.C. § 552(a)(6)(E)(iii). What is practicable—and hence what is required by the statute—will vary depending on the size, scope, detail, and complexity of the records sought by the request; other agencies or components which must be consulted or to which documents might have to be referred for additional review; exemption issues; and the resources available to process the request. Here, based on those considerations, the agency currently estimates that it should be able to process, on average, approximately 6,500 pages per month across all of the ACLU field office requests, and will release the responsive, non-exempt records on a rolling basis.4 As set forth in the accompanying declaration of Patrick Howard, a processing rate greater than 6,500 pages per month is impracticable under the current circumstances.
First, CBP’s FOIA review process for requests like Plaintiffs’ is complex and takes time to conduct properly in accordance with CBP’s legal obligations. Howard Decl. ¶¶ 13, 24. The records potentially responsive to Plaintiffs’ and the other ACLU affiliates’ requests include substantial amounts of information exempt from disclosure under one or more of the FOIA’s nine statutory exemptions, including privileged information, 5 U.S.C. § 552(b)(5); information “the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,” id. § 552(b)(6); and information compiled for law enforcement purposes, id. § 552(b)(7). Howard Decl. at ¶ 25. The records also contain information in which other agencies and components of DHS have equities,
4 By “process,” the agency generally means that it should review those pages for responsiveness, apply any applicable redactions to responsive records, and then release those non-exempt, responsive records which have been fully reviewed and redacted. The complete review process is described in detail in the accompanying declaration. Howard Decl. ¶¶ 27-32.
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requiring inter- and intra-agency consultation to ensure appropriate exemptions are asserted. Id.
As a result, despite Plaintiffs’ claims, this FOIA review process is substantially different than document review for civil discovery, and review rates for FOIA processing are not comparable to those achievable in civil discovery. Significantly, “the stakes of disclosure are different in the two regimes, justifying and arguably necessitating separate reviews with distinct considerations in mind during each.” See Stonehill v. IRS, 558 F.3d 534, 539-40 (D.C. Cir. 2009). Because the agency must make records available to the public as a whole and because “there is no opportunity to obtain a protective order . . . the stakes of disclosure for the agency are greater in the FOIA context.” Id. Thus, review and processing of a record in consideration of the FOIA’s nine statutory exemptions is substantially more involved, and therefore, substantially more time-consuming, than simply reviewing a document for relevance and a few applicable privileges.
Second, while CBP is dedicating significant resources to the review of Plaintiffs’ and the other ACLU affiliates’ requests, the agency’s FOIA resources are stretched thin overall. CBP, which is a component of DHS and not a cabinet-level department, has only 25 full-time FOIA staff and four supervisory employees. Howard Decl. ¶ 7. Despite these limited resources, CBP has been inundated by an escalating number of FOIA requests this fiscal year. As compared to Fiscal Year 2016, the number of FOIA requests CBP received in Fiscal Year 2017 increased by approximately 33% percent (and approximately 70% as compared to Fiscal Year 2015). Id. at ¶ 15. In particular, CBP has received over 100 FOIA requests in Fiscal Year 2017 related to Executive Order 13,769 and/or Executive Order 13,780, also entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” Id. at ¶ 17. Over 90 of these requests are still open and being processed, and at least 21 of these are the subject of litigation in district courts across the country. Id. And these requests are in addition to the thousands of simple FOIA requests the agency has received from individuals this year. Id. at ¶ 15. Any processing rate the agency can achieve in this case (and the other ACLU affiliate cases) must be balanced against the agency’s obligations to process the myriad other requests it has received. In sum, the agency believes that it has shown that it is currently processing Plaintiffs’ request “as soon as practicable” and urges the Court not to order a production timetable in excess of the agency’s legal obligations or resource constraints.
For the foregoing reasons, Defendants request that this Court enter an order permitting CBP to continue processing Plaintiffs’ request as swiftly as practicable, and directing the parties to submit quarterly joint status reports on the agency’s progress.
Sincerely,
/s/ Michael Drezner Michael Drezner
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION OF )

MAINE, et al.,

) )

)

Plaintiffs,

) )

v.

) Civil No. 2:17-cv-132-GZS )

U.S. CUSTOMS AND BORDER PROTECTION, et al.,

) ) )

Defendants.

) )

I, Patrick A. Howard, declare the following to be true and correct:
1. I am a Branch Chief within the Freedom of Information Act Division (FOIA Division) at U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security (DHS). I have been a Branch Chief in the FOIA Division since February 8, 2015. In this capacity, I oversee a staff of Government Information Specialists, the processing of requests for records submitted to CBP pursuant to FOIA, 5 U.S.C. § 552, the Privacy Act (PA), 5 U.S.C. § 552a, and other activities conducted pursuant to applicable records access provisions.
2. I am familiar with CBP’s procedures for responding to FOIA requests. I provide technical and administrative supervision and direction to a group of FOIA specialists in processing FOIA requests and assist with FOIA/PA litigation matters, and I am personally familiar with the processing of FOIA/PA responses, including, at times, by directly reviewing for adequacy and compliance to federal laws and regulations. I am familiar with the February 2, 2017, and February 10, 2017, FOIA requests submitted by various affiliates of the American Civil Liberties Union (ACLU) to CBP.
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3. The statements I make in this declaration are based upon my personal knowledge, which includes knowledge acquired through information furnished to me in the course of my official duties and agency files that I personally reviewed in the course of my official duties.
4. This declaration provides an overview of the FOIA Division’s process for responding to FOIA requests, describes the FOIA Division’s current workload and resource constraints, situates Plaintiffs’ FOIA request (and other parallel requests submitted by other ACLU affiliates) in that context, and describes the agency’s plan for completing its response to Plaintiffs’ request.
CBP’s Process for Responding to FOIA Requests, Resource Constraints, and Workload 5. CBP is a law enforcement agency comprised of more than 60,000 employees charged with enforcing hundreds of Federal statutes. Approximately 45,000 of those employees are armed law enforcement officers engaged in carrying out CBP’s expansive border security mission (U.S. Border Patrol Agents, CBP officers, and CBP Air and Marine Agents). 6. Broadly, the FOIA Division at CBP reviews FOIA requests, determines whether responsive records exist, and, if so, whether they can be released in accordance with the FOIA. In processing such requests, the FOIA Division consults with CBP personnel and, when appropriate, with other components in the Department of Homeland Security (DHS), as well as other Executive Branch agencies. 7. Despite the large size of CBP as an organization, the FOIA Division currently consists of only 25 full-time staff and four supervisory employees. Specifically, there are 25 Government Information Specialists (GISs) who report to three Branch Chiefs and one Director who, in turn, report to the Privacy and Diversity Office. None of these employees is an attorney.
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8. A GIS, sometimes referred to as a FOIA processor, is tasked with reviewing information and providing advice and assistance to managers and employees concerning FOIA issues, policies, and procedures. He or she is also responsible for processing FOIA requests for CBP records, a process that involves reviewing the content of records to make a determination regarding the proper disclosure under FOIA. A GIS is responsible for reviewing and preparing draft responses to requests for releases of information and in so doing must apply any relevant statute, regulation, agency rule and/or executive order as they pertain to FOIA requests. Additionally, a GIS must ensure compliance with DHS regulations, Department of Justice policies, and other applicable laws.
9. A Branch Chief in the FOIA Division is responsible for managing policy formulation, advising agency management, and ensuring compliance with federal laws governing the flow of information. Branch Chiefs oversee the release of CBP documents and information, assist with FOIA litigation matters, and oversee the processing of FOIA responses and adherence to federal laws and regulations.
10. The FOIA Division identifies incoming FOIA requests as either simple or complex. A simple request – also referred to as a traveler request – is one where a member of the traveling public requests records related to his or her travel. Examples of traveler requests include records of a person’s entry into and exit from the United States, I-94 records, and records of inspections and interactions with CBP employees. The FOIA Division generally has access to CBP’s travel database systems and is able to query the systems in order to quickly respond to simple FOIA requests.
11. Complex FOIA requests – also referred to as non-traveler requests – are all other types of requests received. Examples of complex requests include requests from businesses for
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import and export records, requests for Office of Professional Responsibility (OPR) investigation files, and requests from media sources or special interest groups focused on a variety of matters not specific to an individual traveler. The FOIA Division rarely has direct access to records that are responsive to complex requests. Rather, the FOIA Division must first determine which CBP offices are likely to have responsive information and then work with those offices to gather any responsive records. Assessments of where responsive records are likely to be maintained are based on a review of the content of the request itself and the nature of the records sought, as well as the FOIA Division’s familiarity with the types and location of records that each office maintains and discussions with knowledgeable agency personnel. Potentially responsive records may be located in one or multiple systems of records, email systems, computer hard drives, and/or hard copy (paper) files.
12. Based upon my experience, in a typical fiscal year, approximately 85% of the total volume of FOIA requests will be simple requests and 15% of the total volume will be complex requests.
13. Plaintiffs’ FOIA request is a complex request, as are the other related FOIA requests submitted by the various ACLU affiliates.
14. The FOIA Division’s caseload, which was already onerous, has dramatically increased over Fiscal Year 2017. In Fiscal Year 2015 (October 1, 2014 – September 30, 2015), the FOIA Division received 52,290 FOIA requests. The FOIA Division received 66,742 FOIA requests in Fiscal Year 2016 (October 1, 2015 – September 30, 2016), which constituted a 28 percent increase over requests received in Fiscal Year 2015.
15. The 2017 Annual FOIA Report will not be published for a number of months. However, based upon the raw data that has been supplied to me as of November 15, 2017, it
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appears that the initially reported total FOIA requests received for Fiscal Year 2017 is 88,840. This number may change slightly before the Annual Report is published. Based upon this initial information, the number of FOIA requests received in Fiscal Year 2017 exceeds the number of requests received in Fiscal Year 2016 by 33 percent and exceeds the requests made in Fiscal Year 2015 by 70 percent.
16. This surge in the amount of FOIA requests submitted to the agency has put the FOIA Division under considerable stress as its limited FOIA processing staff and resources struggle to keep up with this increased workload.
Plaintiffs’ FOIA Request and Others Seeking Records Relating to Executive Orders 13,769 and 13,780
17. The FOIA Division and other CBP offices have received over 100 FOIA requests since January 2017 related to Executive Order 13,769, dated January 27, 2017, and/or Executive Order 13,780, dated March 6, 2017, both entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” To my knowledge, more than 90 of those requests are still open and being processed, and there are 21 cases involving some of these requests in litigation in district courts across the country.
18. ACLU affiliates submitted 19 of the FOIA requests (18 directed to different CBP field offices and 1 directed to CBP headquarters) regarding Executive Order 13,769. Currently, there are 13 separate federal cases in active litigation based on 15 of these requests.
19. As of November 15, 2017, CBP is subject to five Court orders in the ACLU EO FOIA litigations. In the Southern District of California, case number 3:17-cv-00733, CBP has been ordered to process 1,000 pages of the records identified as potentially responsive by December 6, 2017, 1,000 more pages each month thereafter, and all documents (approximately
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4,300 pages) by April 6, 2018. In the Western District of Washington, case number 2:17-cv00562, CBP was ordered to process 1,000 pages by November 17, 2017, 1,000 more pages by December 18, 2017, and all remaining documents (approximately 4,100 pages) from the specified Seattle document custodians by January 16, 2018. In the Eastern District of Michigan, case number 5:17-cv-11149, CBP has been ordered to process all of the documents from the specified Detroit field office document custodians within 5 months, at a rate of 820 pages per month. CBP was required to process and release the first 820 pages by November 27, 2017. In the District of Oregon, case number 3:17-cv-00575, CBP has been ordered to process all documents identified as potentially responsive (more than 5,200 pages) and produce all responsive documents not in controversy on or before May 31, 2018. Finally, on November 21, 2017, in the Northern District of Illinois, case number 1:17-cv-02768, CBP has been ordered to process 950 pages per month, beginning December 31, 2017.
20. In addition to the dozens of requests related to Executive Order 13,769 and 13,780, as of November 15, 2017, the FOIA Division has received 94 requests related to President Trump’s plan to build a Border Wall. Thirty-five of those requests are in progress, 19 of those requests have documents that have been released or are awaiting redactions, and 40 requests are closed. Of the requests in progress, five are currently in litigation. In one of those five cases, CBP has agreed to produce 500 responsive, non-exempt pages per month.
21. The large number of these complex Executive Order- and Border Wall-related requests and the extensive litigation demands associated with them have put unusually high burdens on the agency’s FOIA processing capabilities.
22. I note that in my experience, the only complex FOIA request that compares with the scope of the current ACLU EO FOIA requests is CBP-2015-023425. That FOIA request,
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seeking records regarding “alleged abuse of minors while in CBP custody,” has been in active litigation in Tucson, Arizona since February 2015 – almost three years. Over 27 months, CBP has released approximately 14,500 responsive pages of records and there are still more documents to process.
CBP’s Processing Capabilities for the ACLU Affiliates’ FOIA Requests 23. As I noted above, normally the vast majority (85%) of FOIA requests that CBP receives are simple requests that seek one or more of certain categories of travel records related to an individual. Those records generally require minimal redactions due to their display format, and they typically involve routine redactions. 24. The email records sought by the ACLU affiliates, as well as other FOIA requests pertaining to Executive Order 13,769, are substantively different from the types of records CBP routinely processes, and more extensive efforts to review and redact these records are required. 25. For example, the records that CBP has identified thus far as potentially responsive to Plaintiffs’ request include a large amount of privileged information, including attorney-client communications, attorney work product, and information protected by the deliberative process privilege, as well as other sensitive information, including information compiled for law enforcement purposes and information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The records also contain information supplied by outside agencies such as the Department of State and other components of DHS, including United States Citizenship and Immigration Services (USCIS). Such information requires interand intra-agency consultation that further increases the time needed to process these FOIA requests.
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26. This contrasts with the simple requests that typically constitute the vast majority of requests received by CBP, for which review and processing is more straightforward, involve fewer types of redactions, and do not generally require inter- and intra-agency consultation.
27. The complexity of the records at issue in this and the related actions also require a correspondingly more extensive and complex review process. CBP is employing a multi-office review process to ensure that all information that must be protected from release is properly withheld, and that all information that can be released is provided to requestors. Put succinctly, each page that CBP produces in this litigation, as well as for the other ACLU affiliate requests will be reviewed multiple times.
28. First, documents are uploaded into the processing system and divided into “batches” for review. A batch is then released or tasked to a first-level reviewer to review for responsiveness to the request and for application of initial, proposed redactions consistent with FOIA exemptions. Thereafter, a second-level reviewer reviews the batch for accuracy.
29. Because Plaintiffs’ FOIA requests are in litigation, attorneys in the CBP Office of Chief Counsel are also involved. After the initial and secondary review by the FOIA Division, Office of Chief Counsel attorneys may conduct, or answer questions pertaining to, reviews for responsiveness and redactions for applicable FOIA exemptions. They may also assist with the identification of what, if any, outside agency equities exist in potentially responsive records.
30. No attorneys in the CBP Office of Chief Counsel are solely responsible for FOIA matters; rather, they all shoulder other responsibilities outside of the FOIA context. Therefore, these attorneys are unable to devote all of their time to this level of review.
31. In addition, agencies and individuals outside of CBP are also involved in the review. For example, if outside agency equities are identified, CBP consults with the relevant
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agency or agencies to ensure appropriate FOIA exemptions are applied. Additionally, because this and other requests are in litigation, the CBP Office of Chief Counsel must coordinate its review with the DHS Office of General Counsel and litigation counsel from the Department of Justice.
32. Only after all of these multiple levels of review are completed are the non-exempt responsive records provided to the FOIA Division to release, as appropriate, to Plaintiffs.
33. As the foregoing makes clear, there are significant differences between the records at issue in this case (and the nature of processing and review involved) and those that are typically sought in 85% of the FOIA requests submitted to CBP. Given the sheer number of FOIA requests seeking these and similar records regarding Executive Order 13,769, CBP’s FOIA processing resources are already under tremendous strain. The entry of demanding production orders has a direct and serious impact on CBP’s overall FOIA program, resulting in an increased backlog that raises the risk of additional litigation and, more importantly, prevents CBP from getting information to the people requesting it.
34. In an effort to provide Plaintiffs the records they seek in the most efficient and practicable timeframe possible, CBP is coordinating its processing of the ACLU affiliate FOIA requests concerning Executive Order 13,769 so that CBP avoids duplication of its processing efforts (collecting records, reviewing them for responsiveness and exemptions, etc.) in responding to the separate requests, which would only serve to delay the release of records. While the requests seek records from different field offices, there is significant overlap in the searches that will need to be completed in order to identify potentially responsive records, as well as in the documents that will ultimately need to be processed.
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35. CBP currently estimates that it should be able to process, on average, approximately 6,500 pages per month across all of the records collected as potentially responsive to the ACLU affiliates’ requests. While CBP will work as diligently as possible to meet this target, the precise volume processed each month could vary as a result of certain factors. For instance, the processing rate could decrease as a consequence of reviewing more complex, responsive documents, or due to processing obligations in other FOIA requests, competing Court orders, staffing leaves of absence, or government shutdown. Conversely, the processing rate may increase as a consequence of heightened efficiencies, additional staff, or an unusual concentration of simple or nonresponsive documents.
36. In sum, based on the nature of Plaintiffs’ request and the limitations on CBP’s resources, as discussed above, I do not believe CBP could currently achieve a faster average processing rate.
37. CBP’s estimated processing rate is, moreover, based on the agency’s ability to coordinate processing of the records for all ACLU affiliate requests. Coordination of the agency’s processing of these records will, I believe, result in economies of scale, thus leading to more expeditious completion of the agency’s responses to the FOIA requests. Equally important, coordination will help the agency to ensure that it provides consistent responses and redactions of potentially sensitive information that is exempt from disclosure under the FOIA across all of these related FOIA requests.
38. If CBP were unable to coordinate its processing of these records due to divergent search and conflicting response obligations, CBP estimates that its total processing rate across all of the ACLU affiliate requests would decrease substantially. Based on the significant overlap in terms of the records sought and the content they contain, treating each request as separate and
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distinct would result in duplication of large portions of the agency’s search and review process, as well as inefficient and unnecessary use of the agency’s already limited resources, to the detriment of all parties with active FOIA requests with the agency.
39. For example, among the records responsive to Plaintiffs’ request are communications between CBP personnel in Washington, D.C., and the group of Directors of Field Operations at CBP’s Field Offices across the country. With respect to this category of record, if the agency processed each of the ACLU affiliate requests separately, it would likely be forced to review the same email over a dozen times as it processed each of the ACLU affiliate field office requests because each Director of Field Operations would have a copy of the same email in his or her account. By coordinating its processing of these requests, CBP is working to substantially reduce such duplicative review. Other categories of records present similar opportunities to avoid duplicative efforts.
40. In addition, many records from the various field offices raise similar issues regarding responsiveness and redactions. Based on my experience overseeing FOIA processing at CBP, I believe that coordinated review of such records will allow CBP to process such records more expediently and more consistently with the FOIA’s statutory exemptions.
Efforts to Accelerate the Processing of This and Related Requests 41. CBP has recently made a number of changes in and to its FOIA program to respond to the influx of FOIA requests relating to Executive Orders 13,769 and 13,780, and the planned Border Wall. The agency expects that these changes will provide additional capacity to expeditiously and efficiently respond to these requests. 42. First, the FOIA Division has dedicated certain personnel to work solely on FOIA requests seeking records relating to Executive Orders 13,769 and 13,780.
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43. Second, the FOIA Division has recruited personnel from outside of its office to work on these requests. The FOIA Division solicited personnel to work for the FOIA Division on a full-time basis through what is known as the “temporary duty assignment” or “temporary detail” program (TDY). A CBP employee may volunteer for or be directed to fill a TDY position with his or her supervisor’s approval. A TDY position is for a finite period of time.
44. These TDY personnel normally lack any background in FOIA processing or review and thus require training regarding the statute and the obligations and exemptions it prescribes, as well as the software associated with the review. Moreover, because of their inexperience, the records processed and redacted by the TDY personnel are subjected to additional scrutiny by their supervisors.
45. Third, CBP has been diligently exploring ways to make the review process more effective and implemented improvements in its software. CBP’s existing processing systems and related software were not equipped to handle the magnitude or complexity of the results of the searches pursuant to ACLU affiliates’ FOIA requests. Accordingly, CBP migrated all records identified to date as potentially responsive to the ACLU affiliate requests to new software, which I believe will enable us to more efficiently process records, avoid duplication of efforts, and ensure consistent responses and applications of exemptions across the FOIA requests.
46. While this shift in technology will be labor-saving over time, the implementation of, and training of our employees on, the new software initially slowed the review and processing of the documents. It is my expectation, however, that our use of and familiarity with the new technology will grow over time, allowing the process to benefit from greater efficiency.
47. Finally, the FOIA division has been proactively posting documents that have been released in conjunction with EO litigation in its on-line reading room under its Executive
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Orders on Travel Section as a way to boost public accessibility to these documents. See foiarr.cbp.gov.
The Effect of a Court Ordered Processing Schedule on Other Requests Before CBP
48. CBP has a two-track system for processing expedited and non-expedited FOIA requests.
49. Ordinarily, CBP processes requests on a first-in, first-out basis within each track. 50. When CBP grants a request for expedition of a request, the effect is to move that request into the expedited queue, ahead of all non-expedited requests but behind earlier-filed expedited requests. 51. CBP granted Plaintiffs’ request for expedition of their request, which moved their request ahead of thousands of FOIA requests pending with the agency in the non-expedited queue. 52. CBP is now processing Plaintiffs’ request and the other ACLU affiliate requests as quickly as is practicable in light of this prioritization and the resource constraints described above. 53. A processing schedule that requires CBP to further prioritize Plaintiffs’ records would necessarily require the agency to divert resources away from other requests, including earlier-filed requests. 54. Many of the requests that would be displaced by Plaintiffs’ demand for additional priority concern Executive Order 13,769 and seek records from CBP Headquarters or records with national implications, as opposed to Plaintiffs’ request for local records. 55. Individual case processing schedules like those entered in some of the other ACLU EO FOIA cases lower CBP’s overall processing rate. Preparing document releases is time
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Case 2:17C-acsve-010:11372-c-Gv-Z0S130D9o-RcuWmSentD3o5c-u2meFnilte3d612F/0il8e/d1711/P08a/g1e71 Pofa3ge 1Poafg3eID #: 236

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

AMERICAN CIVIL LIBERTIES :

UNION OF GEORGIA, INC.;

:

AMERICAN CIVIL LIBERTIES :

UNION OF NORTH CAROLINA, :

INC.; AMERICAN CIVIL

: CIVIL ACTION NO.

LIBERTIES UNION OF SOUTH : 1:17-CV-01309-RWS

CAROLINA, INC.; and

:

AMERICAN CIVIL LIBERTIES :

UNION OF WEST VIRGINIA,

:

:

Plaintiffs,

:

:

v.

:

:

U.S. DEPARTMENT OF

:

HOMELAND SECURITY and

:

U.S. CUSTOMS AND BORDER :

PROTECTION,

:

:

Defendants.

:

ORDER

On November 3, 2017, the parties submitted their Joint Status Report

[Doc. No. 35] to the Court. After reviewing the Report, the Court enters the

following Order.

Defendants are presently processing Plaintiffs’ FOIA requests focusing

on numerical data sought by Plaintiffs and guidance provided to DHS field

AO 72A (Rev.8/82)

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personnel shortly after President Trump signed Executive Order 1. Defendants selected the custodians from whom emails would be collected and the date range for their search. Defendants also selected a list of core search terms to utilize in searching the emails. In order to facilitate the email searches, Defendants transitioned the email files to a new review platform. Defendants have begun their review process and are producing documents on a rolling basis.
Plaintiffs object to Defendants’ unilateral selection of search terms, custodians, and proposed date range. Plaintiffs also request that the Court impose a deadline for completion of the production.
The Court will permit Defendants to proceed with the review and production as they propose. Nonetheless, as the production progresses, the parties should communicate in good faith to address concerns raised by Plaintiffs. Also, the Court will be willing to revisit Plaintiffs’ objections should the production be inadequate.
The Court finds that it is appropriate to set a timetable for production. Defendants shall submit a proposed schedule within 14 days, and Plaintiffs may file a response within 14 days thereafter.
2
AO 72A (Rev.8/82)

Case 2:17C-acsve-010:11372-c-Gv-Z0S130D9o-RcuWmSentD3o5c-u2meFnilte3d612F/0il8e/d1711/P08a/g1e73 Pofa3ge 3Poafg3eID #: 238
SO ORDERED, this 7th day of November, 2017. ________________________________ RICHARD W. STORY United States District Judge
3
AO 72A (Rev.8/82)

 
 Case 2:17-cv-00132-GZS Document 36 Filed 12/08/17 Page 1 of 8 PageID #: 239
December 8, 2017
The Honorable John H. Rich III U.S. District Court, District of Maine Edward T. Gignoux U.S. Courthouse 156 Federal Street Portland, ME 04101
Re: American Civil Liberties Union of Maine, et al. v. United States Customs and Border Protection, et al., Case No. 17-132-GZS
Dear Judge Rich, Pursuant to the November 24, 2017 order, the Plaintiffs submit this letter
brief regarding the two questions asked by the Court: (1) whether the government’s document production should be specific to this Freedom of Information Act (FOIA) case or coordinated nationally with other cases, and (2) “the appropriate pace” for the government’s processing. Order, ECF No. 34. As discussed below, (1) the production must be responsive to the FOIA request underlying this specific litigation, not other FOIA requests in different cases, and (2) the government should complete processing the documents by mid-January 2018, or, at the very least, at a rate of 820 documents per month with a hard deadline of November 2, 2018.
BACKGROUND On January 27, 2017, President Trump issued Executive Order 13,769 (EO1), which temporarily banned nationals from seven predominantly Muslim countries and all refugees from entering into the United States.1 Days later, on February 2, 2017, the ACLU of Maine and other New England ACLU affiliates filed a FOIA request seeking information about the local implementation of EO-1. Compl. at Exh. 1, ECF No. 1-1 (Apr. 12, 2017). The request sought information related to “international airports within the purview of the Boston Field Office.” Id.
1 https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nationforeign-terrorist-entry-united-states (last accessed Dec. 8, 2017).
Because Freedom Can’t Protect Itself.

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at 1. When the government failed to respond, the requesters filed suit. Compl., ECF No. 1 (Apr. 12, 2017).
Counsel for the government sought to consolidate this litigation with other pending litigation nationwide over the failure to respond to FOIA requests concerning EO-1, but on August 2, 2017, the Judicial Panel on Multidistrict Litigation (MDL panel) denied the government’s motion to consolidate. Order, ECF No. 21 (Aug. 2, 2017). In denying consolidation, the panel reasoned that “the actions are brought by separate plaintiffs (albeit all ACLU affiliates), and each FOIA request targets a different CBP office.” Id. at 2.
It has now been over 10 months since the original FOIA request, and the government has failed to process or produce the vast majority of documents relating to the local international airports in New England.
DISCUSSION I. Production Should Be Case Specific The Court should order case-specific, rather than nationwide, processing and production. Such an order would not dictate the procedures the government may use in processing relevant documents. Instead, it would simply provide a timetable for the government’s processing and production of the documents specific to this FOIA litigation—whatever the procedures used. There are three primary reasons for this conclusion: (1) by statute, an individual FOIA case relates only to the specific FOIA request underlying it, (2) although multiple FOIA lawsuits could be consolidated in a single district, the MDL panel denied consolidation and the government cannot evade that ruling through a scheduling order, and (3) in similar circumstances, other courts have issued case-specific orders. First, the Court’s authority in a FOIA case extends to “any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B) (emphasis added). Here, the complainants are the New England ACLU affiliates, and they seek records related to implementation of EO-1 at local “international airports within the purview of the Boston Field Office.” Compl. Exh. 1 at 1, ECF No. 1-1. Accordingly, the appropriate scope of pretrial proceedings is limited to the records
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that the government has identified as potentially responsive to that specific request—namely, records from “seven custodians in the Boston Field Office and corresponding local airports.” Joint Status Report at 5, ECF No. 30 (Nov. 1, 2017) (Joint Status Report). From those custodians, the government has identified a modest quantity of “potentially responsive email messages and attachments,” made even smaller by the application of search terms. Id. at 5-7 2 Any scheduling order should be specific to those limited records that the government has identified as potentially responsive in this case.
The government argues that the Court should instead order nationwide processing and production. See, e.g., Joint Status Report at 3. But such an order would extend to separate FOIA requests filed by different “complainant[s].” 5 U.S.C. § 552(a)(4)(B) For instance, ACLU affiliates from Michigan, Illinois, California, and other states (all of which are separate entities than the New England ACLU affiliates) filed separate FOIA requests relating to the local international airports in their regions.3 Records that are potentially responsive to those separate requests are not within the ambit this case proceeding in the District of Maine. As such, those cases, complainants, and records are not the appropriate subjects of a scheduling order in this Court.
Second, the Court should reject the government’s attempt to relitigate its unsuccessful motion to consolidate. See Order, ECF No. 21 (Aug. 2, 2017). By statute, civil actions in different districts “may be transferred to any district for coordinated or consolidated pretrial proceedings.” 28 U.S.C. § 1407(a). Such transfer
2 The government also identified a similar quantity of potentially duplicative emails from custodians at CBP Headquarters to the local custodians and corresponding local airports. Id. at 5 & n.2. The Plaintiffs do not concede that these custodians and emails comprise the total universe of potentially responsive records. Records in the TECs database, for example, may also be responsive. Such disputes, however, can be litigated at summary judgment, and do not implicate the issues on which the Court ordered additional briefing.
3 See, e.g., Order, ACLU of Washington v. DHS, Case No. 17-562, ECF No. 36 (W.D. Wa. Oct. 20, 2017) (Exh. 1); Order, ALCU of Michigan v. DHS, No. 17-11149, ECF No. 42 (S.D. Mich., Oct. 26, 2017) (Exh. 2); Order, ACLU of San Diego & Imperial Counties v. DHS, No. 17-733, ECF No. 53 (S.D. Cal. Nov. 6, 2017) (Exh. 3); Order, ACLU of Illinois v. DHS, No. 17-2768, ECF No. 73 (N.D. Ill. Nov. 21, 2017) (Exh. 4).
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is permitted when the actions involve “one or more common questions of fact” and consolidation would promote “the convenience of parties and witnesses” and “the just and efficient conduct of such actions.” Id. In this case, the government filed a motion to consolidate this case with 12 other actions, arguing that “consolidation will alleviate the inefficiencies posed by litigating substantially similar cases in thirteen different districts. Gov. Mot., MDL No. 2786, ECF No. 1-1 (May 8, 2017).
The MDL panel rejected the government’s argument, reasoning that any overlapping issues between the 13 separate cases “appear relatively straightforward and unlikely to entail extensive pretrial proceedings.” Order, ECF No. 21 at 1 (citation omitted). In response to the government’s argument that consolidation “would reduce litigation costs,” the MDL panel held that “the potential for litigation cost savings, without more,” is insufficient, especially “where, as here, there is little likelihood of complex pretrial proceedings.” Id. at 2. Accordingly, the panel rejected the government’s motion for “coordinated or consolidated pretrial proceedings” under 28 U.S.C. § 1407.
This case thus proceeds separately and independently. As such, any scheduling order should reach no more broadly than the dispute in this case—which is limited to the local international airports cited in the FOIA request. Compl. Exh. 1 at 1, ECF No. 1-1.
The government argues that the Court should instead order nationwide processing. Yet the case-specific nature of pre-trial orders is precisely the reason for the MDL panel in the first place—because streamlining separate cases in different districts requires consolidation and transfer. 28 U.S.C. §1407. The MDL panel has already denied such consolidation here. Accordingly, the pretrial orders in this case must remain case-specific—not nationwide—in scope.
Third, the other courts to decide the issue have ordered case-specific processing. In the ACLU of Washington v. DHS, for example, the court ordered the government to process 1,000 pages per month “of the Records identified as potentially responsive to Plaintiffs’ FOIA request”—i.e., the request underlying that specific case. Order, Case No. 17-562, ECF No. 36 (W.D. Wa. Oct. 20, 2017) (Exh. 1).
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The court in ALCU of Michigan v. DHS similarly ordered the government to process 820 pages per month from custodians in the Detroit field office. Production Order, No. 17-11149, ECF No. 42 (S.D. Mich., Oct. 26, 2017) (Exh. 2). The court issued similar orders in ACLU of San Diego & Imperial Counties v. DHS, No. 17-733, ECF No. 53 (S.D. Cal. Nov. 6, 2017) (Exh. 3), and ACLU of Illinois v. DHS, No. 17-2768, ECF No. 73 (N.D. Ill. Nov. 21, 2017) (Exh. 4).
The Plaintiffs are not aware of any similar case in which a court ordered nationwide production. Although the government previously stated that a case in the Northern District of Georgia adopted its nationwide approach, the order made no such ruling. Instead, the court in Georgia ruled in the government’s favor on other issues such as “search terms, custodians, and proposed date range,” but requested further input from the parties regarding processing and production. Order, Case No. 17-1309, ECF No. 36 (Nov. 8, 2017). Indeed, the government’s postorder submission advocates for nationwide production (over the objection of plaintiffs seeking case-specific production), confirming that the issue remains undecided in Georgia. Gov. Proposal at 3-4, Case No. 17-1309, ECF No. 37 (Nov. 21, 2017). Accordingly, the other courts to consider the issue have ordered case-specific, rather than a nationwide, production. This Court should do the same.
II. The Government Should Expeditiously Process This Request When considering the appropriate processing rate, this Court should start
with the fact that this FOIA request was filed over ten months ago, on February 2, 2017. Since then, the government has identified a modest quantity of documents potentially responsive to our request. Joint Status Report at 5. Aside from approximately 10 pages, the government has not yet produced emails or other records related to the Boston Field Office. Given the modest quantity of records at issue (as detailed below), the government should be able to complete processing in a matter of weeks. At the very least, however, the government should process records at a rate of 820 pages per month, with a hard deadline of November 2, 2018. The parties can then proceed to summary judgment regarding whether the government correctly identified and produced all non-exempted, responsive records.
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The government has identified a small quantity of documents potentially responsive to our FOIA request. Specifically, it identified less than 10,000 potentially responsive email messages and attachments, pertaining to seven custodians in CBP’s Boston Field Office. Joint Status Report at 5. After applying search terms, the quantity of potentially responsive documents dwindled to 2,804 documents (less than 9,000 pages). Id. at 6. Although the Plaintiffs do not concede that the search terms selected by the government are legally adequate, both parties agree that such disputes are properly resolved at summary judgment. Id. at 7.
The government should be able to process this modest quantity of documents within a matter of weeks. As previously described, reviewing 9,000 documents in a week is standard fare for a Maine attorney. Joint Status Report at 8-9. Providing the government until mid-January 2018 to process the 2,804 documents (and less than 9,000 pages) at issue here should provide ample time. See id. at 11 (requesting a deadline of January 19, 2018).
At the very least, however, the Court should order the government to process 820 pages per month, with a deadline of November 2, 2018, to complete all processing. Other courts have ordered an even higher processing rate with a hard deadline. In ACLU of Washington, for example, the court ordered the government to process 1,000 pages per month with a hard deadline of January 16, 2018, to complete processing and production. Case No. 17-562, ECF No. 36 (Oct. 20, 2017). And in ACLU of San Diego & Imperial Counties, the court ordered a processing rate of 1,000 pages per month, to be completed no later than April 6, 2018. No. 17-733, ECF No. 53 (S.D. Cal. Nov. 6, 2017); see also ACLU of Oregon v. DHS, Case No. 17575, ECF No. 31 (Nov. 6, 2017) (ordering completion by May 31, 2018). Imposing an even gentler requirement here would require the government to process 820 pages per month, with a monthly status report detailing progress on the second day of each month (or the business day immediately after). The government would have 11 months from January 2, 2018, to complete processing of the less-than-9,000 potentially responsive pages, with a hard deadline of November 2, 2018—over one and one-half years from the date the Plaintiffs’ FOIA request was filed.
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A November 2, 2017 deadline (at the latest) is necessary to comply with FOIA’s requirement for prompt and open disclosure. The FOIA statute requires government agencies to make requested records “promptly available,” unless one of the nine narrow exemptions applies. Church of Scientology Int’l v. U.S. Dep’t of Justice, 30 F.3d 224, 228 (1st Cir. 1994) (citing 5 U.S.C. § 552(a)(3), (b)). The purpose of the FOIA is “‘to open agency actions to the light of public scrutiny’” and the policy is “one of broad disclosure.” Id. (quoting Dep’t of Justice v. Reporters Committee, 489 U.S. 749, 772 (1989)). Given the modest quantity of records involved, ordering the government to complete processing by November 2017 would not be onerous, and is the very least the government can do to comply with FOIA’s requirement to make records “promptly available.” 5 U.S.C. § 552(a)(3), (b).
The government argues that there is a difference between “processing” and “production.” The Plaintiffs agree to the following extent. If the Court adopts the 820-rate, that rate would be apply to “processing”—requiring the government to process at least 820 pages per month (with the hard deadline of November 2, 2017), and to produce the resulting non-exempt, responsive information. The monthly production should be accompanied by a status report stating (1) the number of hours spent in processing, and (2) a Vaughn index listing the reason for any claimed exemption for withheld documents. See Church of Scientology, 30 F.3d at 228–29 (citation omitted) (stating that a Vaughn index “is viewed as necessary to protect the adversary process in a FOIA case, in which only the party opposing disclosure will have access to all the facts”); cf. 32 CFR § 701.39 (Navy regulation setting forth required contents of Vaughn index). With those caveats, the Plaintiffs agree that “processing” 820 pages per month may not result in the government “producing” 820 pages.
CONCLUSION For these reasons, the Plaintiffs respectfully request that the Court issue a case-specific scheduling order requiring, at the very least, that the government process 820 pages per month with a deadline of November 2, 2018.
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Very truly yours, /s/Zachary L. Heiden Zachary L. Heiden Emma E. Bond American Civil Liberties Union of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04101 (207) 619-6224 heiden@aclumaine.org Jennifer A. Archer Kelly, Remmel & Zimmerman 53 Exchange Street P.O. Box 597 Portland, Maine 04112 (207) 420-3859 jarcher@krz.com
8

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1

The Honorable Marsha J. Pechman

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

9

10 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON, et al.,
11
Plaintiffs, 12
v. 13
UNITED STATES DEPARTMENT OF 14 HOMELAND SECURITY, et al.,

No. C17-00562-MJP ORDER

15

Defendants.

16

17

This matter came before the Court for a Status Conference on October 17, 2017. Plaintiffs

18 were represented by Eric M. Stahl and Defendants were represented by Jason Lee.

19

The Court orders as follows:

20

1. By no later than October 25, 2017, Plaintiffs shall provide Defendants with

21 their suggested search terms to assist Defendants in identifying records responsive to Plaintiffs’

22 FOIA request from the approximately 4,700 email records Defendants have identified to date

23 from the four custodians in the U.S. Customs and Border Protection Seattle Field Office (the

24 “Records”).

25

2. By no later than November 18, 2017, Defendants shall have (i) reviewed for

26 responsiveness and for information exempt from disclosure under the FOIA the first 1,000

27 pages of the Records identified as potentially responsive to Plaintiffs’ FOIA request, located

ORDER (C17-00562-MJP) - 1

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1 through Defendants’ search of email records from custodians in the Customs and Border

2 Protection (“CBP”) Seattle Field Office, and (ii) produced to Plaintiffs responsive, non-exempt

3 records identified in this review and identified any asserted exemptions.

4

3. By no later than December 18, 2017, Defendants shall have (i) reviewed for

5 responsiveness and for information exempt from disclosure under the FOIA the next 1,000

6 pages of the Records identified as potentially responsive to Plaintiffs’ FOIA request, located

7 through Defendants’ search of email records from custodians in the CBP Seattle Field Office,

8 and (ii) produced to Plaintiffs responsive, non-exempt records identified in this review and

9 identified any asserted exemptions.

10

4. By no later than January 16, 2018, Defendants shall have (i) reviewed for

11 responsiveness and for information exempt from disclosure under the FOIA any remaining

12 pages of the Records identified as potentially responsive to Plaintiffs’ FOIA request, located

13 through Defendants’ search of email records from custodians in the CBP Seattle Field Office,

14 and (ii) produced to Plaintiffs responsive, non-exempt records identified in this review and

15 identified any asserted exemptions..

16

5. By January 31, 2018, the parties shall submit a joint status report and proposed

17 case schedule to the Court, addressing (without limitation):

18

a. The status of Defendants’ response to Plaintiffs’ FOIA request, and

19

b. A proposed briefing schedule for dispositive motions, if appropriate.

20

Dated this 20th day of October 2017.

21

22

23

A

24

Marsha J. Pechman

25

United States District Judge

26

27

ORDER (C17-00562-MJP) - 2

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Presented by: 1 Davis Wright Tremaine LLP 2
By /s/Eric M. Stahl 3 Eric M. Stahl, WSBA #27619
1201 Third Avenue, Suite 2200 4 Seattle, WA 98101-3045
Telephone: (206) 757-8148 5 Fax: (206) 757-7148
E-mail: ericstahl@dwt.com 6
Emily Chiang, WSBA #50517 7 American Civil Liberties Union of
Washington Foundation 8 901 Fourth Avenue, #630
Seattle, WA 98164 9 Email: echiang@aclu-wa.org 10 Attorneys for Plaintiffs
American Civil Liberties Union of 11 Washington, American Civil Liberties
Union of Montana, and American Civil 12 Liberties Union of North Dakota 13
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25
26
27
ORDER (C17-00562-MJP) - 3

United States Department of Justice
By /s/Jason Lee____________ Jason Lee United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 Tel.: (202) 514-3367 Fax: (202) 616-8470 Email: jason.lee3@usdoj.gov
CHAD A. READLER Acting Assistant Attorney General
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
Attorney for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

Case 2:17C-cavs-e0021:1372--cGv-Z0S056D2o-cMuJmPenDt 3o6cu-1meFnitle3d612F/0ile8d/1170/2P0a/g1e7 4 Poaf g4e 4Poafg4eID #: 250

CERTIFICATE OF ELECTRONIC SERVICE 1

2

I hereby certify that on October 19th, 2017, I electronically filed the foregoing

3 document with the Clerk of the Court using the CM/ECF system, which will send notification

4 of such filing to the attorneys of record registered on the CM/ECF system. All other parties (if

5 any) shall be served in accordance with the Federal Rules of Civil Procedure.

6

DATED this 19th day of October, 2017.

7

/s/Eric M. Stahl

8

Eric M. Stahl, WSBA #27619

9

10

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ORDER (C17-00562-MJP) - 4

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

American Civil Liberties Union of Michigan,
Plaintiff,
v.

Case No. 17-cv-11149
Judith E. Levy United States District Judge

U.S. Department of Homeland
Security and U.S. Customs and Border Protection,

Mag. Judge Elizabeth A. Stafford

Defendants.

________________________________/

ORDER REGARDING PRODUCTION OF DOCUMENTS FROM INITIAL CUSTODIANS AND SUPPLEMENTAL BRIEFING

On October 26, 2017, the Court held a telephonic status

conference regarding outstanding issues related to plaintiff’s Freedom

of Information Act (“FOIA”) requests. During that conference, the

Court was informed that defendants have used search terms provided

by plaintiff to narrow the scope of their FOIA requests as to six

identified custodians relevant to this case to 1,600 records totaling

4,100 pages.

The Court hereby orders that:

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By November 27, 2017, defendants will review for responsiveness and for information exempt from disclosure under the FOIA the first 820 pages of the records identified as potentially responsive to plaintiff’s FOIA requests, located through defendants’ search of email records from the six identified custodians in the Customs and Border Protection (“CBP”) Detroit Field Office. By that date, defendants will also produce to plaintiffs responsive, non-exempt records identified in this review and identify any asserted exemptions.
Defendants will repeat this process subject to the above requirements each successive month for each successive batch of 820 documents, with each batch to be reviewed and produced by the 27th of each month, or by the next business day if the 27th of the month falls on a weekend or a holiday.
By April 27, 2018, the parties will submit a joint status report to the Court, addressing the status of defendants’ response to plaintiff’s FOIA requests.
The parties are ordered to provide supplemental briefing regarding two other issues: first, whether defendants should be required to produce Microsoft Excel files in their original, native format,
2

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and second, whether and how the government should be required to

produce individual records from the TECS system database. Plaintiff

may file a brief of no more than fifteen pages on or before November 9,

2017, defendants may file a responsive brief of no more than fifteen

pages on or before November 28, 2017, and plaintiff may file a reply

brief of no more than seven pages by December 8, 2017.

The Court will address plaintiff’s request to file a motion for

partial summary judgment regarding the date cutoff the government

seeks to apply to the FOIA requests in a subsequent order.

IT IS SO ORDERED.

Dated: October 26, 2017 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on October 26, 2017.

s/Shawna Burns SHAWNA BURNS Case Manager

3

CaCsaes2e:137:1-7cv-c-0v-00103723-3G-ZLS-JLBDocDuomceunmte3n6t-533 FFileiledd1121/0/086/1/177 PPaaggee1IDo.f6237 PPaaggeeID1#o:f2254

1

2

3

4

UNITED STATES DISTRICT COURT

5

SOUTHERN DISTRICT OF CALIFORNIA

6

7 American Civil Liberties Union of San

8 Diego and Imperial Counties,
9 v.
10

Plaintiff,

11

U.S. Department of Homeland Security, et al.,

12

Defendants.

13

Case No.: 17-cv-00733-L-JLB SCHEDULING ORDER

14

Pursuant to Rule 16.1(d) of the Local Rules, a Case Management Conference was

15 held on November 6, 2017 regarding Plaintiff’s Freedom of Information Act (“FOIA”)

16 requests. After consulting with the attorneys of record for the parties and being advised of

17 the status of the case, and good cause appearing, IT IS HEREBY ORDERED:

18

1. By December 6, 2017, Defendants shall process the next 1,000 pages of the

19 records identified as potentially responsive to Plaintiff’s FOIA requests. Also by

20 December 6, 2017, Defendants shall: (1) produce to Plaintiff all responsive, non-exempt

21 records identified in this review; (2) identify any asserted exemptions; and (3) provide

22 Plaintiff with written confirmation that at least 1,000 pages were processed and a page

23 count for the number of potentially responsive pages that remain to be processed.

24

Defendants will repeat this process subject to the above requirements each

25 successive month for each successive batch of 1,000 pages, with each batch to be reviewed

26 and produced by the 6th of each month, or by the next business day if the 6th of the month

27 falls on a weekend or a holiday. Defendants represent that, with respect to Plaintiff’s FOIA

28 requests, there are “approximately 1,540 records totaling approximately 4,300 pages (not

1 17-cv-00733-L-JLB

CaCsaes2e:137:1-7cv-c-0v-00103723-3G-ZLS-JLBDocDuomceunmte3n6t-533 FFileiledd1121/0/086/1/177 PPaaggee2IDo.f6238 PPaaggeeID2#o:f2255

1 including spreadsheets).” (ECF No. 51 at 5.) Defendants’ production shall be completed

2 no later than April 6, 2018.

3

2. By April 30, 2018, the parties shall file a Supplemental Joint Discovery Plan

4 that provides both a status update and a proposed deadline for the parties to file cross-

5 motions for summary judgment.

6

3. A second Case Management Conference (“CMC”) pursuant to Fed. R. Civ. P.

7 16(b) is SET for May 7, 2018 at 11:00 AM before Magistrate Judge Jill L. Burkhardt. The

8 CMC shall be a telephonic, counsel-only Conference. Plaintiff’s principal attorney

9 responsible for the litigation is responsible for placing one joint call with all participating

10 counsel already on the line into Judge Burkhardt’s Chambers at (619) 557-6624.

11

4. The parties must review the chambers’ rules for the assigned district judge

12 and magistrate judge.

13

IT IS SO ORDERED.

14 Dated: November 6, 2017

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 17-cv-00733-L-JLB

CaseC2a:1se7:-c1v:-1070-1cv3-20-2G7Z6S8 DDooccuummeennt t#3: 67-34FiFleidle:d112/2/018/1/177PaPgaeg1eo1f o1fP1agePIaDg#e:I6D5#1: 256
UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 6.2.1
Eastern Division

American Civil Liberties Union of Illinois, et al. v.

Plaintiff,

U.S. Department of Homeland Security, et al.

Defendant.

Case No.: 1:17−cv−02768 Honorable Robert M. Dow Jr.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Tuesday, November 21, 2017: MINUTE entry before the Honorable M. David Weisman: Motion hearing held.
For the reasons stated on the record, the Court grants Plaintiffs' motion to set production schedule [54]. By the 15th of every month or the closest business day thereto, Defendants shall file a brief status report with the Court regarding the following information from the previous month: (1) the number of full−time employees at both the Level 1 and Level 2 review levels who have worked on the FOIA request as to the Executive Order itself over the preceding month; (2) the number of hours that the OCC attorneys worked on the project during the preceding month; and (3) the number of pages processed of the four "priority" record custodians in this case. As of 11/21/17, Defendants shall process 950 pages per month, with the first reporting period ending 12/31/17. Defendants' first status report is due 1/16/18. Plaintiffs agree that the current set of search terms is reasonable for the expedited review of the email accounts of the four prioritized custodians. Plaintiffs confirm that they will not request that Defendants run additional search terms as to these four prioritized custodians absent exceptional circumstances. Status hearing set for 6/20/18 at 9:15 a.m. Mailed notice (ao,)

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information. For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.

Case 2:17C-acsve-010:11372-c-Gv-Z0S130D9o-RcuWmSentD3o6c-u5meFnilte3d712F/0il8e/d1711/P2a1g/1e71 Pofa3g7e 1 Poaf g2e2ID #: 257

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

AMERICAN CIVIL LIBERTIES UNION OF GEORGIA, INC., AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA, INC., AMERICAN CIVIL LIBERTIES UNION OF SOUTH CAROLINA, INC., AMERICAN CIVIL LIBERTIES OF WEST VIRGINIA, INC.,

Case No.: 1:17-cv-01309-RWS

Plaintiffs,

v.

U.S. DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND BORDER PROTECTION,

Defendants.

DEFENDANTS’ PROPOSED PRODUCTION SCHEDULE Defendants U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”) (collectively, “Defendants”) hereby propose a schedule for the rolling release of documents in this Freedom of Information Act (“FOIA”) case pursuant to the Court’s November 8, 2017 Order. (ECF No. 36).

Case 2:17C-acsve-010:11372-c-Gv-Z0S130D9o-RcuWmSentD3o6c-u5meFnilte3d712F/0il8e/d1711/P2a1g/1e72 Pofa3g7e 2 Poaf g2e2ID #: 258
As detailed by Defendants in the Joint Status Report filed on November 3, 2017 (ECF No. 35), CBP is working diligently to process Plaintiffs’ FOIA request, along with the 18 other ACLU affiliate requests, as soon as practicable. CBP has made five releases to the ACLU affiliates of responsive, non-exempt records, totaling over a thousand pages, and has taken substantial steps to ramp up its processing of these requests, including migrating records to a new, more efficient document processing platform; analyzing and applying a core list of search terms; and staffing up its review team. The review process for these requests, however, is time- and resource-intensive, particularly given the broad scope of the request, the large volume of potentially responsive records collected, and the complex review necessary for these records, many of which implicate privileged information, personally identifiable information, and sensitive law enforcement information exempt from disclosure under the FOIA. Additionally, although CBP has been and continues to seek additional resources for FOIA review, its resources are finite and have been stretched thin by an escalating number of requests, including many requests that, like Plaintiffs’, concern Executive Order 13,769, “Protecting the Nation from Terrorist Entry Into the United States,” 82 Fed. Reg. 8977 (Jan. 27, 2017). Accordingly, the agency currently estimates that it can process on average 6,500 pages per month, across all of the 18 ACLU affiliate field office requests, of
2

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which Plaintiffs’ is one. Each month, the processed pages would likely include records from each field office, so some fraction (which would vary from month-tomonth) would contain records collected from custodians in the Atlanta Field Office and corresponding local airports. Notably, due to CBP’s efforts to streamline its processes and maximize its available resources for these cases, this current estimated processing rate for the ACLU affiliate cases is nearly double the rate that Defendants’ initially presented in the parties’ November 3, 2017 Joint Status Report (ECF No. 35) (initially estimating a rate of 3,575).
Given this context, a burdensome production schedule in this case requiring CBP to satisfy an isolated processing threshold for Atlanta Field Office-specific records would disrupt its processing of FOIA requests and prejudice numerous other FOIA requesters. Such an order would not hasten the completion of the agency’s processing of all of the ACLU affiliates’ requests, and would likely slow the release of responsive, non-exempt records, as it would prevent CBP from structuring its review process in the most efficient and expeditious way. Moreover, such an order would have the effect of moving Plaintiffs’ request ahead of earlier-filed expedited requests (and, for that matter, the other ACLU affiliates’ requests), from which resources would need to be diverted. That result would be inconsistent with the agency’s FOIA obligations and unfair to the FOIA requesters ahead of Plaintiffs in
3

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the processing queue—including other requesters who seek records related to the Executive Order—whose requests are no less important or time-sensitive than Plaintiffs’ request.
For the reasons set forth below, in light of CBP’s expectation that it can process on average 6,500 pages per month across all the ACLU affiliate requests, the Court should permit CBP to process records at such a rate, and order the parties to submit quarterly status reports, which will enable the Court to ensure that CBP continues to make progress in diligently processing these requests.
BACKGROUND A. Statutory and Regulatory Framework The FOIA requires federal agencies to make requested records “promptly available” to any person upon receiving a request which “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed.” 5 U.S.C. § 552(a)(3)(A); see also id. § 552(a)(6)(C)(i). If an agency grants a request for expedited processing, the FOIA provides that it must process the request “as soon as practicable.” Id. § 552(a)(6)(E)(iii). A request which has received expedited processing is placed on a separate track, and is processed prior to earlier-filed non-expedited requests in the
4

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processing queue, but after other earlier-filed expedited requests. See 6 C.F.R. § 5.5(b).
Processing a FOIA request can be time-consuming. An agency must search for and collect potentially-responsive records, and the time required for such a search necessarily depends on the scope and nature of the request and the agency’s records systems. Once an agency has located potentially responsive records, it must process them for potential release. This requires careful review to assess responsiveness and to identify and withhold information falling within any of the nine statutory exemptions from disclosure. See 5 U.S.C. § 552(b). In addition, where records might implicate another agency’s equities, that agency must be consulted before such records are released; these consultations take time and are not wholly within the control of the agency to which the FOIA request was directed. See id. § 552(a)(6)(B)(iii)(III).
As a default rule, agencies must “determine” within 20 business days of receiving a proper FOIA request “whether to comply with such request.” 5 U.S.C. § 552(a)(6)(A)(i). However, the 20-business day deadline does not require that an agency complete its processing of a FOIA request within that timeframe. See, e.g., CREW v. FEC, 711 F.3d 180, 185 (D.C. Cir. 2013).1 The FOIA “does not assign
1 As other courts have recognized, FOIA decisions by the U.S. Court of 5

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any particular time frame to release . . . the records sought.” Landmark Legal Found.
v. EPA, 910 F. Supp. 2d 270, 275 (D.D.C. 2012).2 If the agency fails to comply with
the 20-business day requirement, the only effect is that the requester “shall be
deemed to have exhausted his administrative remedies,” enabling the requester to
file suit. 5 U.S.C. § 552(a)(6)(C)(i); see also Daily Caller v. DOS, 152 F. Supp. 3d
1, 10 (D.D.C. 2015).
Where an agency needs more time to process a request, in light of the nature
of the request, resource considerations, consultations with other agencies, etc., “the
Appeals for the District of Columbia Circuit and the U.S. District Court for the District of Columbia are entitled to particular deference because of the special expertise and experience of those courts in applying the statute. See, e.g., Our Children’s Earth Found. v. EPA, No. 08-cv-1461, 2008 WL 3181583, at *6 (N.D. Cal. Aug. 4, 2008) (decisions “entitled to appropriate deference”); Matlack, Inc. v. EPA, 868 F. Supp. 627, 630 (D. Del. 1994) (describing the D.C. Circuit as “on the leading edge of interpreting” the FOIA statute); cf. Estate of Abduljaami v. DOS, No. 14-cv-7902, 2016 WL 94140, at *5 n.2 (S.D.N.Y. Jan. 7, 2016) (“considerable experience” with FOIA).
2 Although Landmark Legal and other cases cited herein concern denials of motions for preliminary injunctions, these cases are informative to Plaintiffs’ request for a fixed production schedule. Any demand by Plaintiffs’ for a schedule by which CBP must complete processing of Plaintiffs’ request is analogous to a demand for a mandatory injunction seeking the full relief requested in the Complaint. See Graham v. Med. Mut. Of Ohio, 130 F.3d 293, 295 (7th Cir. 1997) (defining mandatory injunction as “an injunction requiring an affirmative act by the defendant”); see also Daily Caller, 152 F. Supp. 3d at 6-7 (describing motion for immediate processing of outstanding FOIA requests as “the full relief [the plaintiff] seeks in filing its underlying Complaint”).
6

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court (if suit has been filed) will supervise the agency’s ongoing progress, ensuring that the agency continues to exercise due diligence in processing the request.” CREW, 711 F.3d at 189; see also Protect Democracy Project, Inc. v. DOD, No. 17cv-00842 (CRC), 2017 WL 2992076, at *5 (D.D.C. July 13, 2017). Moreover, in order to satisfy competing demands of multiple requesters, agencies typically process requests within a particular processing queue on a first-in, first-out basis. See, e.g., Daily Caller, 152 F. Supp. 3d at 8 (“In general, federal agencies process incoming FOIA requests on a first-in/first-out basis.”); Schweihs v. FBI, 933 F. Supp. 719, 723-24 (N.D. Ill. 1996) (finding that plaintiff failed to identify “exceptional circumstances” necessary to “overrule defendants’ first in/first out method of handling FOIA requests”).
B. Plaintiffs’ FOIA Request Plaintiffs submitted their FOIA request to CBP on February 2, 2017. See ECF No. 1-2. In sum, the request asks CBP to search its Atlanta Field Office and the offices for numerous airports and ports of entry within the Atlanta Field Office’s jurisdiction for various categories of records regarding the implementation and enforcement of Executive Order 13,769. Several of these categories are strikingly broad. For example, Plaintiffs seek all records “concerning CBP’s interpretation, enforcement, and implementation” of the Executive Order, and including all such
7

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records concerning “[a]ny other judicial order or executive directive issued regarding” the Executive Order. See ECF No. 1-2 at 6-8.
On the same day, various other ACLU affiliates submitted 16 parallel requests seeking the same or substantially similar categories of records from other specified field offices, airports, and ports of entry, and on February 10, 2017, the ACLU of Michigan submitted a supplemental request seeking similar information from certain land borders. See generally ECF No. 6-3 at 2-8. In addition, the national ACLU organizations and their District of Columbia affiliate also submitted a FOIA request on February 2 seeking the same or similar categories of records, this time from CBP’s headquarters. See generally id. Fifteen of these requests are now in litigation in thirteen cases filed in thirteen district courts throughout the country. See generally id.
Because the various ACLU affiliates all seek substantially the same categories of records—indeed, in many instances, overlapping records—and were submitted in what the ACLU has described as a “coordinated FOIA filing,”3 CBP aggregated the requests pursuant to 5 U.S.C. § 552(a)(6)(B)(iv) and 6 C.F.R. § 5.5(d). Accordingly,
3 See ACLU, Press Release, ACLU Files Demands for Documents on Implementation of Trump’s Muslim Ban (Feb. 2, 2017), https://www.aclu.org/news/aclu-filesdemands-documents-implementation-trumpsmuslim-ban.
8

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CBP coordinated a single search for records responsive to all of the requests, which included a search of the email records for custodians in the various field offices identified in the requests. See ECF No. 35 at 4-9 (describing in detail the parameters of CBP’s search and collection process).4 In addition, due to the aggregation of the requests, CBP granted all of the ACLU affiliates’ requests for expedited processing—placing their FOIA requests in the expedited processing queue ahead of all non-expedited requests and later-filed expedited requests—and for fee waivers.
CBP’s search for records from field office custodians collected approximately 103,000 records from 85 custodians in the field offices covered by the aggregated requests. The agency also collected approximately 25,000 email records from custodians within CBP Headquarters, which are potentially responsive to the national ACLU organization’s request and contain records potentially responsive to the ACLU affiliates’ requests. With respect to Plaintiffs’ request in particular, the agency gathered approximately 5,644 potentially responsive email messages and attachments, comprising approximately 17,131 pages.
4 Because this Court already has ordered that it “will permit Defendants to proceed with the review and production as they propose,” ECF No. 36 at 2, the details of CBP’s search and collection process are not set forth here.
9

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To date, the agency has made five releases of responsive records to Plaintiffs and the other ACLU affiliates, on July 14, July 26, September 21, October 27, and November 17, 2017. These releases total approximately 1,276 pages, and have substantially completed the agency’s response to Parts 2-4 of all of the ACLU affiliates’ requests.
DISCUSSION I. THE COURT SHOULD PERMIT THE AGENCY TO PROCESS
DOCUMENTS AT A RATE OF 6,500 PAGES PER MONTH ACROSS ALL ACLU FIELD OFFICE REQUESTS CBP is working expeditiously both to process the substantial volume of records that are potentially responsive to the ACLU affiliates’ requests and to identify and implement ways to accelerate this process. In doing so, it is necessarily constrained by the complexities of the FOIA review process, the agency’s limited resources, and an escalating number of FOIA requests and court-imposed production requirements. In light of these burdens, Plaintiffs’ “effort to accelerate review of [their] request[] necessarily will displace in processing priority those of third parties who submitted equally urgent requests before the plaintiff[s],” Daily Caller v. DOS, No. 14-1777 (BAH), 2015 WL 9907802, at *11 (D.D.C. Dec. 8, 2015), and will monopolize resources needed to process other ACLU affiliates’ requests. Given CBP’s estimate that it can process on average 6,500 pages per month, the Court
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should instead permit CBP to continue processing Plaintiffs’ request, along with the other ACLU affiliates’ requests at such rate; to release responsive, non-exempt records on a rolling basis until processing of the records identified by the core list of search terms is complete; and to provide quarterly status reports on the agency’s progress to the Court.
A. CBP’s Current Estimated Average Monthly Processing Rate of 6,500 Pages Across All ACLU Field Office Requests Reflects the Agency’s Best Efforts to Process the Requests as Soon as Practicable Under the Circumstances
For an expedited request like Plaintiffs’, the agency must process the request “as soon as practicable.” 5 U.S.C. § 552(a)(6)(E)(iii). What is practicable—and hence what is required by the statute—will vary depending on the size, scope, detail, and complexity of the records sought by the request; exemption issues; other agencies or components which must be consulted or to which documents might have to be referred for additional review; and the resources available to process the request. Here, based on those considerations, the agency currently estimates that it will be capable of processing, on average, approximately 6,500 pages per month across all of the ACLU field office requests, and will release the responsive, nonexempt records on a rolling basis. As set forth in the accompanying Declaration of Patrick Howard, attached hereto as Exhibit A, a processing rate greater than 6,500 pages per month is impracticable under the current circumstances.
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First, CBP’s FOIA review process for requests like Plaintiffs’ is complex and takes time to conduct properly in accordance with CBP’s legal obligations. See Ex. A, Declaration of Patrick Howard ¶¶ 12-14, 25-33 (“Howard Decl.”). The records potentially responsive to Plaintiffs’ and the other ACLU affiliates’ requests include substantial amounts of information exempt from disclosure under one or more of the FOIA’s nine statutory exemptions, including information that is privileged, 5 U.S.C. § 552(b)(5); implicates personal privacy, id. § 552(b)(6); and was compiled for law enforcement purposes, id. § 552(b)(7). Id. ¶ 26. The records also contain information in which other agencies and components of DHS have equities, requiring inter- and intra-agency consultation to ensure appropriate exemptions are asserted. Id.
Given the complexity of the issues raised by review of these records, CBP employs a multi-level review process. Id. ¶ 28. Each record is reviewed by a firstlevel reviewer “for responsiveness to the request and for application of initial, proposed redactions.” Id. at 29. A second-level reviewer reviews the proposed responsiveness decision and redactions for consistency and accuracy. Id. Each record is then subject to legal review by attorneys in CBP’s Office of Chief Counsel. Id. ¶ 30. These attorneys also identify records that implicate the equities of other agencies or DHS components. Id. None of these attorneys are solely responsible
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for FOIA matters and must balance their FOIA processing obligations with their non-FOIA responsibilities. Id. ¶ 31. Only once all of these stages of review are completed can responsive, non-exempt records be released to the requester (and made available to the public, see 5 U.S.C. § 552(a)(2)(d)(i)). See Howard Decl. ¶ 33.
As a result, this FOIA review process is substantially different than document review for civil discovery, and review rates for FOIA processing are not comparable to those achievable in civil discovery. Significantly, “the stakes of disclosure are different in the two regimes, justifying and arguably necessitating separate reviews with distinct considerations in mind during each.” See Stonehill v. IRS, 558 F.3d 534, 539-40 (D.C. Cir. 2009). Because the agency must make records available to the public as a whole and because “there is no opportunity to obtain a protective order . . . the stakes of disclosure for the agency are greater in the FOIA context.” Id. Thus, review and processing of a record in consideration of the FOIA’s nine statutory exemptions is substantially more involved, and therefore, substantially more time-consuming, than simply reviewing a document for relevance and a few applicable privileges.
Second, while CBP is dedicating significant resources to the review of Plaintiffs’ and the other ACLU affiliates’ requests, the agency’s FOIA resources are
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stretched thin overall. CBP, which is a component of DHS and not a cabinet-level department, has only 25 full-time FOIA staff and four supervisory employees. Howard Decl. ¶ 8. Despite these limited resources, CBP has been inundated by an escalating number of FOIA requests this fiscal year. As compared to Fiscal Year 2016, the number of FOIA requests CBP received in Fiscal Year 2017 increased by approximately 33% percent (and approximately 70% as compared to Fiscal Year 2015). Id. ¶ 16. In particular, CBP has received over 100 FOIA requests in Fiscal Year 2017 related to Executive Order 13,769 and/or Executive Order 13,780, also entitled “Protective the Nation from Foreign Terrorist Entry Into the United States.” Id. ¶ 18. Over 90 of these requests are still open and being processed, and at least of 21 of these are in litigation in district courts across the country. Id. At the same time, the agency has received approximately 94 requests related to the President’s proposed Border Wall, 54 of which are still open and five of which are currently in litigation. Id. ¶ 21. And these requests are in addition to the thousands of simple FOIA requests the agency has received from individuals this year. Id. ¶ 13. Therefore, any processing rate the agency can achieve in this case (and the other ACLU affiliate cases) must be balanced against the agency’s obligations to process the myriad other requests it has received.
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Finally, Plaintiffs’ request—like those of the other ACLU affiliates—seeks all records (which is broadly defined) “concerning” the “interpretation, enforcement, and implementation” of the Executive Order and “[a]ny other judicial order or executive directive issued regarding the Executive Order.” ECF No. 1-2 at 6-8. Accordingly, these requests are problematically broad, see, e.g., Dale v. IRS, 238 F. Supp. 2d 99, 104 (D.D.C. 2002) (“[C]ourts have found that FOIA requests for all documents concerning a requester are too broad.”); Massachusetts v. HHS, 727 F. Supp. 35, 36 n.2d (D. Mass. 1989) (“A request for all documents ‘relating to’ a subject is usually subject to criticism as overbroad.”), and have imposed substantial burdens on CBP given the volume of potentially responsive records. Notwithstanding CBP’s belief that it has valid grounds for denying Plaintiffs’ request in part on the basis of this overbreadth, the agency is processing the request in good faith as it interprets it.
Notably, the agency’s estimated processing rate reflects its best guess of its processing capabilities at this time, based on its current level of resources, levels of staffing, FOIA experience of its reviewers, and competing FOIA and litigation obligations. The agency anticipates this rate will increase as the review process proceeds due to any number of factors, including reviewers’ increased experience with the FOIA and the particular records at issue; changes in the agency’s competing
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FOIA obligations; discussions with Plaintiffs and other ACLU affiliates to narrow the scope of their requests; and faster-than-expected processing gains from streamlining review of similar records. However, at this time, given the current circumstances, the agency estimates that it can process 6,500 pages on average per month across all ACLU Field Office requests.
B. The Court Should Not Enter an Isolated Production Schedule for this Case in Light of Defendants’ Current Estimated Processing Rate of 6,500 Pages per Month
Any order requiring CBP to satisfy specific, substantial processing thresholds for particular field office records would only serve to delay the ultimate release of records to all of the ACLU affiliates, see Howard Decl. ¶ 38, and would prejudice other requesters, including the other ACLU affiliates and numerous FOIA requesters whose requests pre-date Plaintiffs’. Instead, Defendants respectfully request that the Court: (1) permit CBP to continue to process Plaintiffs’ request along with the other ACLU affiliates’ request (which the CBP currently estimates it can accomplish at an average monthly rate of 6,500 pages) and release the responsive, non-exempt records on a rolling basis; and (2) order the parties to submit quarterly joint status reports so that the Court may supervise the agency’s progress and adjust accordingly based on any changes to the agency’s estimated processing rate.
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A schedule tied to Atlanta-specific records likely would delay the agency’s completion of the processing of all the ACLU affiliates’ field office requests. See id. ¶ 38. As explained above, the ACLU affiliates’ requests seek identical categories of records from field offices, and, accordingly, there is substantial overlap in the types of potentially responsive records the agency must review. See id. ¶¶ 35, 38. The agency believes that it can most efficiently and expeditiously process these records if it is not required to parse them by case or custodian to satisfy processing thresholds for records specific to a particular field office. Deferring to the agency’s assessment as to how best it can process the records would allow the agency to achieve a faster processing rate, in particular through the application of search tools and the streamlined review of records raising similar issues related to responsiveness and exemptions. Id. Not only would this expedite the ultimate release of responsive records to all ACLU affiliates, it would better ensure consistent and appropriate treatment of exempt information, much of which could implicate sensitive law enforcement information and/or privacy rights of individual travelers. Id. ¶ 37; see also Daily Caller, 152 F. Supp. 3d at 15 (compelling production on truncated timeline “raises a significant risk of inadvertent disclosure of records properly subject to exemption under FOIA”). By contrast, requiring the agency to process records so as to meet field office-specific processing thresholds may slow the release
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of records, as the agency will need to shift resources to identify and focus on specific field office records, rather than conducting the review as efficiently as possible.
Moreover, given the finite nature of CBP’s FOIA capabilities, a schedule tied to Atlanta-specific records would order the agency to vault Plaintiffs’ request over earlier-filed expedited requests and to dedicate an inequitably large fraction of its FOIA resources to their request. Plaintiffs’ request already was granted expedited treatment, which moved it ahead of all non-expedited FOIA requests. Howard Decl. ¶ 51. Ordering CBP to give additional preference to Plaintiffs’ request would necessarily come at the expense of the other requests in the expedited queue— including multiple other requests concerning Executive Order 13,769—from which agency resources would be diverted and which are no less important or timesensitive than Plaintiffs’. See, e.g., Daily Caller, 2015 WL 9907802, at *11 (“[T]he plaintiff’s effort to accelerate review of its requests necessarily will displace in processing priority those of third parties who submitted equally urgent requests before the plaintiff.”); EPIC v. DOJ, 15 F. Supp. 3d 32, 47 (D.D.C. 2014) (recognizing that given finite agency resources, “allowing EPIC to jump to the head of the line would upset the agency’s processes and be detrimental to the other expedited requesters”); cf. Caifano v. Wampler, 588 F. Supp. 1392, 1394 (N.D. Ill. 1984) (concluding that ordering agency to prioritize particular plaintiff’s request
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would have effect of “‘vault[ing]’ plaintiff’s request over the requests of other individuals who were ahead of him in the FOIA line but who did not seek judicial relief,” which “would unfairly prejudice those other individuals”); Schweihs, 933 F. Supp. at 723.
Indeed, an isolated schedule for Atlanta-specific records could exhaust the agency’s processing capabilities for the ACLU affiliate requests. In recent weeks, the agency has received production orders in four of the parallel actions, which combined require the agency to process approximately 8,740 pages for those cases in the next two months alone. See Order, ACLU of Washington v. DHS, No. C1700562-MJP (W.D. Wash. Oct. 20, 2017) (ECF No. 36) (ordering processing of 1,000 pages in each of the following two months, and remaining approximately 4,100 pages in third month); Order, ACLU of Michigan v. DHS, No. 17-cv-11149 (E.D. Mich. Oct. 26, 2017) (ECF No. 42) (ordering processing of 820 pages per month and productions on rolling basis until complete); Order, ACLU of San Diego v. DHS, No. 3:17-cv-00733 (S.D. Cal. Nov. 6, 2017) (ECF No. 53) (ordering processing of 1,000 pages per month until complete); Order, ACLU of Oregon v. DHS, 3:17-cv-00575 (D. Or. Nov. 13, 2017) (ECF No. 31) (ordering production of all responsive documents, which exceed 5,200 pages, by May 31, 2018). Another similarly burdensome order here would effectively force the other ACLU affiliates to wait in
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the back of the line and/or do the same to other FOIA requesters ahead of Plaintiffs in the expedited processing queue.
CONCLUSION For the foregoing reasons, this Court should enter an order: (1) permitting CBP to continue to process Plaintiffs’ request along with the other ACLU affiliates’ request at an average monthly rate of 6,500 pages, and release the responsive, nonexempt records on a rolling basis; and (2) order the parties to submit quarterly joint status reports so that the Court may supervise the agency’s progress and adjust accordingly based on any changes to the agency’s estimated processing rate.

Dated: November 21, 2017

Respectfully submitted,
CHAD A. READLER Principal Deputy Attorney General
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
/s/ Emily B. Nestler EMILY B. NESTLER (DC Bar No. 973886) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530
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Tel.: (202) 616-8489 Fax: (202) 616-8470 Email: emily.b.nestler@usdoj.gov Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection
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CERTIFICATE OF COMPLIANCE I hereby certify that the documents to which this certificate is attached have been prepared with one of the font and point selections approved by the Court in Local Rule 5.1B for documents prepared by computer.
/s/ Emily B. Nestler EMILY B. NESTLER
CERTIFICATE OF SERVICE I hereby certify that on November 21, 2017, I electronically filed a copy of the foregoing. Notice of this filing will be sent via email to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.
/s/ Emily B. Nestler EMILY B. NESTLER
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Exhibit A

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

American Civil Liberties Union of Georgia, Inc., et al.,
Plaintiffs,
v.
U.S. Department of Homeland Security and United States Customs and Border Protection,
Defendants.

Case No. 1:l7-CV-01309-RWS
Hon. Richard W. Story United States District Court Judge

I, Patrick A. Howard, declare the following to be true and correct:
I. I am a Branch Chief within the Freedom oflnformation Act Division (FOIA Division) at U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security (DHS). I have been a Branch Chief in the FOIA Division since February 8, 2015. In this capacity, I oversee a staff of Government Information Specialists, the processing of requests for records submitted to CBP pursuant to FOIA, 5 U.S.C. § 552, the Privacy Act (PA), 5 U.S.C. § 552a, and other activities conducted pursuant to applicable records access provisions.
2. I am familiar with CBP's procedures for responding to FOIA requests. I provide technical and administrative supervision and direction to a group of FOIA specialists in processing FOIA requests and assist with FOIA/PA litigation matters, and I am personally familiar with the processing of FOIA/PA responses, including, at times, by directly reviewing for adequacy and compliance to federal laws and regulations. I am familiar with the February 2, 2017, and February 10, 2017, FOIA requests submitted by various affiliates of the American Civil Liberties Union (ACLU) to CBP.

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3. The statements I make in this declaration are based upon my pers_onal knowledge, which includes knowledge acquired through information furnished to me in the course of my official duties and agency files that I personally reviewed in the course of my official duties.
4. I submit this declaration pursuant to the Court's November 8, 2017 Order, ECF No. 36.
5. This declaration provides an overview of the FOIA Division's process for responding to FOIA requests, describes the FOIA Division's current workload and resource constraints, situates Plaintiffs' FOIA request (and other parallel requests submitted by other ACLU affiliates) in that context, and describes the agency's plan for completing its response to Plaintiffs' request.
CBP's Process for Responding to FOIA Requests, Resource Constraints, and Workload 6. CBP is a law enforcement agency comprised of more than 60,000 employees charged with enforcing hundreds of Federal statutes. Approximately 45,000 of those employees are armed law enforcement officers engaged in carrying out CBP' s expansive border security mission (U.S. Border Patrol Agents, CBP officers, and CBP Air and Marine Agents). 7. Broadly, the FOIA Division at CBP reviews FOIA requests, determines whether responsive records exist, and, if so, whether they can be released in accordance with the FOIA. In processing such requests, the FOIA Division consults vyith CBP personnel and, when appropriate, with other components in the Department of Homeland Security (DHS), as well as other Executive Branch agencies. 8. Despite the large size of CBP as an organization, the FOIA Division currently consists of only 25 full-time staff and four supervisory employees. Specifically, there are 25
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Government Information Specialists {GISs) who report to four Branch Chiefs who, in turn, report to the Privacy and Diversity Office. None of these employees is an attorney.
9. A GIS, sometimes referred to as a FOIA processor, is tasked with reviewing information and providing advice and assistance to managers and employees concerning FOIA issues, policies, and procedures. He or she is also responsible for processing FOIA requests for CBP records, a process that involves reviewing the content of records to make a determination regarding the proper disclosure under FOIA. A GIS is responsible for reviewing and preparing draft responses to requests for releases of information and in so doing must apply any relevant statute, regulation, agency rule and/or executive order as they pertain to FOIA requests. Additionally, a GIS must ensure compliance with OHS regulations, Department of Justice policies, and other applicable laws.
10. A Branch Chief in the FOIA Division is responsible for managing policy formulation, advising agency management, and ensuring compliance with federal laws governing the flow of information. Branch Chiefs oversee the release of CBP documents and information, assist with FOIA litigation matters, and oversee the processing of FOIA responses and adherence to federal laws and regulations.
11. The FOIA Division identifies incoming FOIA requests as either simple or complex. A simple request - also referred to as a traveler request - is one where a member of the traveling public requests records related to his or her travel. Examples of traveler requests include records of a person's entry into and exit from the United States, I-94 records, and records of inspections and interactions with CBP employees. The FOIA Division generally has access to CBP's travel database systems and is able to query the systems in order to quickly respond to simple FOIA requests.
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12. Complex FOIA requests - also referred to as non-traveler requests - are all other types of requests received. Examples of complex requests include requests from businesses for import and export records, requests for Office of Professional Responsibility (OPR) investigation files, and requests from media sources or special interest groups focused on a varfoty of matters not specific to an individual traveler. The FOIA Division rarely has direct access to records that are responsive to complex requests. Rather, the FOIA Division must first determine which CBP offices are likely to have responsive information and then work with those offices to gather any responsive records. Assessments of where responsive records are likely to be maintained are based on a review of the content of the request itself and the nature ofthe records sought, as well as the FOIA Division's familiarity with the types and location of records that each office maintains and discussions with knowledgeable agency personnel. Potentially responsive records may be located in one or multiple systems of records, email systems, computer hard drives, and/or hard copy (paper) files.
13. Based upon my experience, in a typical fiscal year, approximately 85% of the total volume ofFOIA requests will be simple requests and 15% of the total volume will be complex requests.
14. Plaintiffs' FOIA request is a complex request, as are the other related FOIA requests submitted by the various ACLU affiliates.
15. The FOIA Division's caseload, which was already onerous, has dramatically increased over Fiscal Year 2017. In Fiscal Year 2015 (October 1, 2014 - September 30, 2015), the FOIA Division received 52,290 FOIA requests. The FOIA Division received 66,742 FOIA requests in Fiscal Year 2016 (October 1, 2015 - September 30, 2016), which constituted a 28 percent increase over requests received in Fiscal Year 2015.
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16. The 2017 Annual FOIA Report will not be published for a number of months. However, based upon the raw data that has been supplied to me as of November 15, 2017, it appears that the initially repo1ied total FOIA requests received for Fiscal Year 2017 is 88,840. This number may change slightly before the Annual Report is published. Based upon this initial information, the number of FOIA requests received in Fiscal Year 2017 exceeds the number of requests received in Fiscal Year 2016 by 33 percent and exceeds the requests made in Fiscal Year 2015 by 70 percent.
17. This surge in the amount of FOIA requests submitted to the agency has put the FOIA Division under considerable stress as its limited FOIA processing staff and resources struggle to keep up with this increased workload.
Plaintiffs' FOIA Request and Others Seeking Records Relating to Executive Orders 13,769 and 13,780
18. The FOIA Division and other CBP offices have received over 100 FOIA requests since January 2017 related to Executive Order 13,769, dated January 27, 2017, and/or Executive Order 13,780, dated March 6, 2017, both entitled "Protecting the Nation from Foreign Terrorist Entry Into the United States." To my knowledge, more than 90 of those requests are still open and being processed, and there are 21 cases involving some of these requests in litigation in district courts across the country.
19. ACLU affiliates submitted 19 ofthe FOIA requests (18 directed to different CBP field offices and 1 directed to CBP headquarters) regarding Executive Order 13,769. Currently, there are 13 separate federal cases in active litigation based on 15 of these requests.
20. As of November 15, 2017, CBP is subject to four Court orders in the ACLU EO FOIA litigations. In the Southern District of California, case number 3:17-cv-00733, CBP has
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been ordered to process 1,000 pages of the records identified as potentially responsive by December 6, 2017, 1,000 more pages each month thereafter, and all documents (approximately 4,300 pages) by April 6, 2018. In the Western District of Washington, case number 2:17-cv00562, CBP has been ordered to process 1,000 pages by November 17, 2017, 1,000 more pages by December 18, 2017, and all remaining documents (approximately 4, 100 pages) from the specified Seattle document custodians by January 16, 2018. In the Eastern District of Michigan, case number 5: l 7-cv-11149, CBP has been ordered to process all of the documents from the specified Detroit field office document custodians within 5 months, at a rate of 820 pages per month. The first 820 pages must be processed and released by November 27, 2017. In the District of Oregon, case number 3: 17-cv-00575, CBP has been ordered to process all documents identified as potentially responsive (more than 5,200 pages) and produce all responsive documents not in controversy on or before May 31, 2018.
21. In addition to the dozens of requests related to Executive Order 13,769 and 13,780, as ofNovember 15, 2017, the FOIA Division has received 94 requests related to President Trump's plan to build a Border Wall. Thirty-five of those requests are in progress, 19 of those requests have documents that have been released or are awaiting redactions, and 40 requests are closed. Of the requests in progress, five are currently in litigation. In one of those five cases, CBP has agreed to produce 500 responsive, non-exempt pages per month.
22. The large number of these complex Executive Order- and Border Wall-related requests and the extensive litigation demands associated with them have put unusually high burdens on the agency's FOIA processing capabilities.
23. I note that in my experience, the only complex FOIA request that compares with the scope of the current ACLU EO FOIA requests is CBP-2015-023425. That FOIA request,
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Case 2:1C7-acsve-010:173-2c-vG-0Z1S30D9-oRcWumSenDt 3o6cu-5meFnitle3d71-12/0F8i/le1d7 1P1/a2g1e/1370 oPfa3g7e 8Poaf g1e5ID #: 286
seeking records regarding "alleged abuse of minors while in CBP custody," has been in active litigation in Tucson, Arizona since February 2015 - almost three years. Over 27 months, CBP has released approximately I4,500 responsive documents so far and there are still more documents to process.
CBP's Processing Capabilities for the ACLU Affiliates' FOIA Requests 24. As I noted above, normally the vast majority (85%) of FOIA requests that CBP receives are simple requests that seek one or more of certain categories of travel records related to an individual. Those records generally require minimal redactions due to their display format, and they typically involve routine redactions. 25. The email records sought by the ACLU affiliates, as well as other FOIA requests pertaining to Executive Order 13,769, are substantively different from the types of records CBP routinely processes, and more extensive efforts to review and redact these records are required. 26. For example, the records that CBP has identified thus far as potentially responsive to Plaintiffs' request include a large amount of privileged information, including attorney-client communications, attorney work product, and information protected bythe deliberative process privilege, as well as other sensitive information, including information compiled for law enforcement purposes and information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The records also contain information supplied by outside agencies such as the Department of State and other components of DHS, including United States Citizenship and Immigration Services (USCIS). Such information requires interand intra-agency consultation that further increases the time needed to process these FOIA requests.
7

Case 2:1C7-acsve-010:173-2c-vG-0Z1S30D9-oRcWumSenDt 3o6cu-5meFnitle3d71-12/0F8i/le1d7 1P1/a2g1e/1371 oPfa3g7e 9Poaf g1e5ID #: 287
27. This contrasts with the simple requests that typically constitute the vast majority of requests received by CBP, for which review and processing is more straightforward, involve fewer types of redactions, and do not generally require inter- and intra-agency consultation.
28. The complexity of the records at issue in this and the related actions also require a correspondingly more extensive and complex review process. CBP is employing a multi-office review process to ensure that all information that must be protected from release is properly withheld, and that all information that can be released is provided to requestors. Put succinctly, each page that CBP produces in this litigation, as well as for the other ACLU affiliate requests will be reviewed multiple times.
29. First, documents are uploaded into the processing system and divided into "batches" for review. A batch is then released or tasked to a first-level reviewer to review for responsiveness to the request and for application of initial, proposed redactions consistent with FOIA exemptions. Thereafter, a second-level reviewer reviews the batch for accuracy.
30. Because Plaintiffs' FOIA requests are in litigation, attorneys in the CBP Office of Chief Counsel are also involved. After the initial and secondary review by the FOIA Division, Office of Chief Counsel attorneys may conduct, or answer questions pertaining to, reviews for responsiveness and redactions for applicable FOIA exemptions. They may also assist with the identification of what, if any, outside agency equities exist in potentially responsive records.
31. No attorneys in the CBP Office of Chief Counsel are solely responsible for FOIA matters; rather, they all shoulder other responsibilities outside of the FOIA context. Therefore, these attorneys are unable to devote all of their time to this level of review.
32. In addition, agencies and individuals outside of CBP are also involved in the review. For example, if outside agency equities are identified, CBP consults with the relevant
8

Case 2:1C7a-scev-10:01173-2cv-G-0Z1S309D-oRcWumS enDto3c6u-m5 enFtile3d7-12/0F8ile/1d711P/2a1g/e1732 Poaf g3e7 10Poafg1e5ID #: 288
agency or agencies to ensure appropriate FOIA exemptions are applied. Additionally, because this and other requests are in litigation, the CBP Office of Chief Counsel must coordinate its review with the DHS Office of General Counsel and litigation counsel from the Department of Justice.
33. Only after all of these multiple levels ofreview are completed are the non-exempt responsive records provided to the FOIA Division to release, as appropriate, to Plaintiffs.
34. As the foregoing makes clear, there are significant differences between the records at issue in this case (and the nature of processing and review involved) and those that are typically sought in 85% of the FOIA requests submitted to CBP. Given the sheer number of FOIA requests seeking these and similar records regarding Executive Order 13,769, CBP's FOIA processing resources are already under tremendous strain. The entry of demanding production orders has a direct and serious impact on CBP's overall FOIA program, resulting in an increased backlog that raises the risk of additional litigation and, more importantly, prevents CBP from getting information to the people requesting it.
35. In an effort to provide Plaintiffs the records they seek in the most efficient and practicable timeframe possible, CBP is coordinating its processing of the ACLU affiliate FOIA requests concerning Executive Order 13,769 so that CBP avoids duplication of its processing efforts (collecting records, reviewing them for responsiveness and exemptions, etc.) in responding to the separate requests, which would only serve to delay the release of records. While the requests seek records from different field offices, there is significant overlap in the searches that will need to be completed in order to identify potentially responsive records, as well as in the documents that will ultimately need to be processed.
9

Case 2:1C7a-scev-10:01173-2cv-G-0Z1S309D-oRcWumS enDto3c6u-m5 enFtile3d7-12/0F8ile/1d711P/2a1g/e1733 Poaf g3e7 11Poafg1e5ID #: 289
36. CBP currently estimates that it will be able to process approximately 6,500 pages per month across all of the records collected as potentially responsive to the ACLU affiliates' requests. Based on the nature of Plaintiffs' request and the limitations on CBP's resources, as discussed above, I do not believe CBP could currently achieve a faster processing rate.
37. CBP's estimated processing rate is, moreover, based on the agency's ability to coordinate processing of the records for all ACLU affiliate requests. Coordination of the agency's processing of these records will, I believe, result in economies of scale, thus leading to more expeditious completion of the agency's responses to the FOIA requests. Equally important, coordination will help the agency to ensure that it provides consistent responses and redactions of potentially sensitive information that is exempt from disclosure under the FOIA across all of these related FOIA requests.
38. If CBP were unable to coordinate its processing of these records due to divergent search and conflicting response obligations, CBP estimates that its total processing rate across all of the ACLU affiliate requests would fall below the approximately 6,500 pages per month figure. Based on the significant overlap in terms of the records sought and the content they contain, treating each request as separate and distinct would result in duplication of large portions of the agency's search and review process, as well as inefficient and unnecessary use of the agency's already limited resources, to the detriment of all parties with active FOIA requests with the agency.
39. For example, among the records responsive to Plaintiffs' request are communications between CBP personnel in Washington, D.C., and the group of Directors of Field Operations at CBP's Field Offices across the country. With respect to this category of record, if the agency processed each of the ACLU affiliate requests separately, it would likely be
10

Case 2:1C7a-scev-10:01173-2cv-G-0Z1S309D-oRcWumS enDto3c6u-m5 enFtile3d7-12/0F8ile/1d711P/2a1g/e1734 Poaf g3e7 12Poafg1e5ID #: 290
forced to review the same email over a dozen times as it processed each of the ACLU affiliate field office requests because each Director of Field Operations would have a copy of the same email in his or her account. By coordinating its processing of these requests, CBP is working to substantially reduce such duplicative review. Other categories of records present similar opportunities to avoid duplicative efforts.
40. In addition, many records from the various field offices raise similar issues regarding responsiveness and redactions. Based on my experience overseeing FOIA processing at CBP, I believe that coordinated review of such records will allow CBP to process such records more expediently and more consistently with the FOIA's statutory exemptions.
Efforts to Accelerate the Processing of This and Related Requests 41. CBP has recently made a number of changes in and to its FOIA program to respond to the influx ofFOIA requests relating to Executive Orders 13,769 and 13,780, and the planned Border Wall. The agency expects that these changes will provide additional capacity to expeditiously and efficiently respond to these requests. As a result, the agency anticipates that its current estimated processing rate for records potentially responsive to the ACLU affiliate FOIA requests regarding Executive Order 13,769 will increase over time. 42. First, the FOIA Division has dedicated certain personnel to work solely on FOIA requests seeking records relating to Executive Orders 13,769 and 13,780. 43. Second, the FOIA Division has recruited personnel from outside of its office to work on these requests. The FOIA Division solicited personnel to work for the FOIA Division on a full-time basis through what is known as the "temporary duty assignment" or "ternporary detail" program (TDY). A CBP employee may volunteer for or be directed to fill a TDY position with his or her supervisor's approval. A TDY position is for a finite period of time.
11

Case 2:1C7a-scev-10:01173-2cv-G-0Z1S309D-oRcWumS enDto3c6u-m5 enFtile3d7-12/0F8ile/1d711P/2a1g/e1735 Poaf g3e7 13Poafg1e5ID #: 291
44. These TDY personnel normally lack any background in FOIA processing or review and thus require training regarding the statute and the obligations and exemptions it prescribes, as well as the software associated with the review. Moreover, because of their inexperience, the records processed and redacted by the TDY personnel are subjected to additional scrutiny by their supervisors.
45. Third, CBP has been diligently exploring ways to make the review process more effective and implemented improvements in its software. CBP's existing processing systems and related software were not equipped to handle the magnitude or complexity of the results of the searches pursuant to ACLU affiliates' FOIA requests. Accordingly, CBP migrated all records identified to date as potentially responsive to the ACLU affiliate requests to new software, which I believe will enable us to more efficiently process records, avoid duplication of efforts, and ensure consistent responses and applications of exemptions across the FOIA requests.
46. While this shift in technology will be labor-saving over time, the implementation of, and training of our employees on, the new software initially slowed the review and processing of the documents. It is my expectation, however, that our use of and familiarity with the new technology will grow over time, allowing us to increase our processing rate for documents identified as potentially responsive to Plaintiffs' request.
47. Finally, the FOIA division has been proactively posting documents that have been released in conjunction withEO litigation in its on-line reading room under its Executive Orders on Travel Section as a way to boost public accessibility to these documents. See foiaar.cbp.gov.
12

Case 2:1C7a-scev-10:01173-2cv-G-0Z1S309D-oRcWumS enDto3c6u-m5 enFtile3d7-12/0F8ile/1d711P/2a1g/e1736 Poaf g3e7 14Poafg1e5ID #: 292
The Effect of a Court Ordered Processing Schedule on Other Requests Before CBP
48. CBP has a two-track system for processing expedited and non-expedited FOIA requests.
49. Ordinarily, CBP processes requests on a first-in, first-out basis within each track. 50. When CBP grants a request for expedition of a request, the effect is to move that request into the expedited queue, ahead of all non-expedited requests but behind earlier-filed expedited requests. 51. CBP granted Plaintiffs' request for expedition of their request, which moved their request ahead of thousands of FOIA requests pending with the agency in the non-expedited queue. 52. CBP is now processing Plaintiffs' request and the other ACLU affiliate requests as quickly as is practicable in light of this prioritization and the resource constraints described above. 53. A processing schedule that requires CBP to further prioritize Plaintiffs' records would necessarily require the agency to divert resources away from other requests, including earlier-filed requests. 54. Many of the requests that would be displaced by Plaintiffs' demand for additional ·priority concern Executive Order 13,769 and seek records from CBP Headquarters or records with national implications, as opposed to Plaintiffs' request for local records. 55. Individual case processing schedules like those entered in some of the other ACLU EO FOIA cases lower CBP's overall processing rate. Preparing document releases is time consuming, and each release requires roughly the same amount of time regardless of the volume of documents involved. Thus, the more scheduled releases, the less time and resources CBP has
13

Case 2:1C7a-scev-10:01173-2cv-G-0Z1S309D-oRcWumS enDto3c6u-m5 enFtile3d7-12/0F8ile/1d711P/2a1g/e1737 Poaf g3e7 15Poafg1e5ID #: 293
to devote to the review of documents and ensuring that the review is being conducted in the most efficient manner possible. I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge.
Patrick A. Howard
14

 
 Case 2:17-cv-00132-GZS Document 39 Filed 12/22/17 Page 1 of 5 PageID #: 310

The Honorable John H. Rich U.S. District Court, District of Maine Edward T. Gignoux U.S. Courthouse 156 Federal Street Portland, ME 04101

December 22, 2017

Re: American Civil Liberties Union of Maine, et al. v. United States Customs and Border Protection, et al., Case No. 17-132-GZS

Dear Judge Rich, The Plaintiffs respectfully submit this response to the government’s letter
brief. Notably, the government recently notified the Plaintiffs that it plans to adjust its position as a result of numerous scheduling orders in separate cases. See, e.g., C.D. Cal. Order, Attached as Exh. 1; N.D. Ga. Order, Attached as Exh. 2. The Plaintiffs agree that the recent orders undermine the government’s position. In light of these developments and for the reasons set forth below, the Court should reject the government’s position and order case-specific processing with a date certain for completing production.
I. Case-Specific Versus Nationwide Order The government argues against a case-specific order. There are three primary problems with its position. First, the government fails to acknowledge that a case-specific order is necessary to ensure prompt processing. Although the government argues against a case-specific order, it offers no authority for an order with nationwide scope—and there is no such authority. Pls. Br. at 2-5. In essence, the government asks the Court to issue no order at all, or to completely defer to the government’s discretion. See, e.g., Gov. Br. at 3 (arguing against “[a] specific production schedule here”). Neither option is consistent with the Freedom of Information Act (“FOIA”) statute’s requirement for “prompt” processing, 5 U.S.C. § 552(a)(3)(A), which is enforceable by courts. Id. § 552(a)(4)(B). The Court can (and should) issue an order requiring pre-trial production for the specific FOIA request underlying this litigation. See, e.g., Fed. R. Civ. P. 16(b); Local R. 16.2; see also Pls.

Because Freedom Can’t Protect Itself.

Case 2:17-cv-00132-GZS Document 39 Filed 12/22/17 Page 2 of 5 PageID #: 311
Br. at Exhs. 1-4, ECF Nos. 36-1, 36-2, 36-3, 36-4 (orders from Michigan, Washington, Illinois, and Southern California).1 The courts’ recent orders in Georgia and California confirm that case-specific orders are the preferred method to ensure prompt processing. See C.D. Cal. Order, Exh. 1; N.D. Ga. Order, Exh. 2.
Relatedly, the government confuses the applicable burdens, suggesting that case-specific scheduling orders are appropriate only where the plaintiff can prove “exceptional circumstances” or “harm.” Gov. Br. at 4 (citing, e.g., The Nation Magazine v. Dep’t of State, 805 F. Supp. 68, 74 (D.D.C. 1992); Elec. Privacy Info. Center (EPIC) v. Dep’t of J., 15 F. Supp. 3d 32, 44-47 (D.D.C. 2014)). That is also wrong. Both cases cited for that proposition, The Nation Magazine and EPIC, involved motions for preliminary injunctive relief and the accompanying burden on the party seeking such extraordinary relief. 805 F. Supp. at 74; 15 F. Supp. 3d 32, 44-47. This case, by contrast, seeks to impose a run-of-the-mill scheduling order, similar to those imposed in other cases. Howard Decl. ¶ 19, ECF No. 35-1; see also C.D. Cal. Order, Exh. 1; N.D. Ga. Order, Exh. 2. And in any event, the government, not the Plaintiffs, bears the burden in FOIA cases. 5 U.S.C. § 552(a)(4)(B).2
Second, the government confuses the “aggregation” doctrine of FOIA law. It states that it may aggregate numerous requests “for purposes of processing.” Gov. Br. at 2-3 (citing 5 U.S.C. § 552(a)(6)(B)(iv); 6 C.F.R. § 5.5(d)). Yet “aggregation” relates to preliminary procedures to exhaust administrative remedies. Specifically, the government can “aggregate” FOIA requests to show “unusual circumstances” to extend the typical 20-day deadline to respond. 5 U.S.C. § 552(a)(6)(B)(iv); 6 C.F.R. § 5.5(d). But aggregation does not authorize a court to order nationwide processing during litigation. Otherwise, there would have been no need to consolidate the cases in multi-district litigation—which the government sought and lost. MDL Order,
1 There is no dispute that the Court has authority to require case-specific production. See, e.g., Payne Enters., Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988).
2 The government’s argument regarding harm is also inconsistent with its grant of expedited processing, Gov. Decl. ¶ 51, because expedited processing is granted when the requester has demonstrated “a compelling need” or other standards. 5 U.S.C. § 552(6)(E)(i); 6 C.F.R. § 5.5(e); see also Elec. Privacy Info. Ctr. v. Dep’t of J., 416 F. Supp. 2d 30, 41 (D.D.C. 2006).
2

Case 2:17-cv-00132-GZS Document 39 Filed 12/22/17 Page 3 of 5 PageID #: 312
ECF No. 21 (Aug. 2, 2017). Third, the government makes a conclusory argument that a case-specific
order would be inefficient and undermine consistent processing. Gov. Br. at 3-4. But that argument relates to the appropriate processing rate. It does not support a nationwide scheduling order (which the Court lacks authority to enforce), nor does it support issuing no scheduling order at all. See Pls. Br. at 2-5; Seavey v. Dep’t of J., No. CV 15-1303, 2017 WL 3112816, at *4–5 (D.D.C. July 20, 2017) (rejecting similar arguments by the government). The government also argues that separate processing could undermine “consistent and accurate treatment of exempt information.” Gov. Br. at 4 (citing Daily Caller v. U.S. Dep’t of State, 152 F. Supp. 3d 1, 15 (D.D.C. 2015)). But the cited authority involved a motion for preliminary injunction seeking to force the government to produce records within 20 days. Daily Caller, 152 F. Supp. 3d at 3. That is far different than the Plaintiffs’ request, which seeks a multi-month production schedule for a request pending for almost one year.
In any event, even assuming that case-specific processing is marginally less efficient than nationwide processing, any inefficiency results from the MDL panel’s denial of the government’s motion to consolidate. MDL Order, ECF No. 21. As explained by the MDL panel, pretrial proceedings are not extensive in any of these FOIA cases. Id. Because each case progresses independently in separate districts, a case-specific order is appropriate.
II. Processing Rate The government should be able to process the modest quantity of responsive records by mid-January or, at the very least, at a rate of 820 pages per month with a hard deadline of November 2, 2018. Yet the government asks the Court to allow it to process Plaintiffs’ request “as swiftly as practicable”—which would amount to no scheduling order at all. Gov. Br. at 6. There are numerous flaws with these arguments.
First, the government maintains that potentially responsive documents contain privileged information, privacy information, and information compiled for law enforcement purposes. Gov. Br. at 5-6. But the same factors are true in other
3

Case 2:17-cv-00132-GZS Document 39 Filed 12/22/17 Page 4 of 5 PageID #: 313
cases where courts have ordered even higher processing rates. Howard Decl. ¶ 19, ECF No. 35-1 (citing cases requiring 1,000 pages per month); see also C.D. Cal. Order, Exh. 1 (ordering a hard deadline of February 28, 2018); N.D. Ga. Order, Exh. 2 (ordering 1,000 pages per month with hard deadline of June 17, 2018). The government also contends that processing documents for discovery differs from processing documents for FOIA. Gov. Br. at 6. The Plaintiffs’ requested rate, however, already takes into account any differences between discovery and FOIA. As described, Maine attorneys can process 9,000 documents per week, totaling approximately 36,000 documents per month—a rate that is factors higher than the Plaintiffs’ suggested FOIA-processing rate of 820 pages per month.
The government also argues that its obligations in this case should be balanced against its obligations in separate FOIA cases. By statute, however, the routine business of processing FOIA requests is generally no excuse to delay the statutory “promptness” requirement. 5 U.S.C. §§ 552(a)(3)(A), (a)(6)(C)(ii) (unless the government “demonstrates reasonable progress,” which it has not shown here). That makes sense because the agency possesses the authority to remedy personnel or resource shortages causing backlogs in routine processing. Id. § 552(j)(2). For instance, the agency’s Chief FOIA Officer has authority to “recommend to the head of the agency such adjustments to agency practices, policies, personnel, and funding as may be necessary to improve its implementation of [the FOIA.]” Id. To the extent that there was an increase in FOIA filings in the past year, it may be reasonable to take that increase into account when determining the appropriate rate.3 But a rate of 820 pages per month is sufficiently gentle even under that standard.
Finally, the government’s position is particularly unpersuasive because, until now, it proffered no case-specific processing rate at all. The Plaintiffs, by contrast, have been consistent in proposing a reasonable, case-specific processing rate that is even slower than the rate already ordered by other courts in similar cases. Contrary to the government’s argument, a rate of at least 820 pages per month is the very least the government can do to ensure the FOIA request is processed promptly.
3 Backlogs from two years ago should have been remedied by now.
4

Case 2:17-cv-00132-GZS Document 39 Filed 12/22/17 Page 5 of 5 PageID #: 314
Very truly yours, /s/Zachary L. Heiden Zachary L. Heiden Emma E. Bond American Civil Liberties Union of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04101 (207) 619-6224 heiden@aclumaine.org Jennifer A. Archer Kelly, Remmel & Zimmerman 53 Exchange Street P.O. Box 597 Portland, Maine 04112 (207) 420-3859 jarcher@krz.com
5

CCaassee22:1:177-c-cvv-0-020717382-R-GHZWS-ADSocDuomceunmt e3n79t-2161 FiFleilded121/212/421/31/717 PaPgaege1 1ofo5f 5 PPaaggeeIDID#:#23:4914859

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9

10 AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN
11 CALIFORNIA, et al.
12 Plaintiffs,
13 v.
14 U.S. DEPARTMENT OF
15 HOMELAND SECURITY, et al.,

Case No. 2:17-cv-2778-RHW ORDER SETTING PRODUCTION SCHEDULE

16 Defendants.
17 On November 13, 2017, the parties filed a Joint Status Report. ECF No. 42.
18 A status conference occurred before this Court on December 1, 2017. ECF No. 49.
19 At that time, the Court found there was insufficient factual evidence before it to
20 determine the production capacity of Defendants and requested supplemental
21 briefing. Id. In particular, the Court requested factual affidavits to address the
22 production capability of the approximately 9,000 pages of documents identified to
23 be specific to the Los Angeles Field Office. Both parties filed supplemental
24 briefing (ECF Nos. 52, 53), and the Court heard argument on the matter on
25 December 11, 2017. ECF No. 57.
26 Defendants provided a Declaration from Patrick A. Howard, Branch Chief
27 within the Freedom of Information Act (“FOIA”) Division of the United States
28
ORDER SETTING PRODUCTION ORDER * 1

CCaassee22:1:177-c-cvv-0-020717382-R-GHZWS-ADSocDuomceunmt e3n79t-2161 FiFleilded121/212/421/31/717 PaPgaege2 2ofo5f 5 PPaaggeeIDID#:#23:4915960

1 Customs and Border Protection (“CBP”) of the United States Department of

2 Homeland Security. ECF No. 52-1. Mr. Howard verified that CBP has identified

3 approximately 3,000 documents totaling approximately 9,200 pages as potentially

4 responsive to Plaintiffs’ request. Id. at ¶ 5. 1,400 of these pages have been

5 processed, id., and Defendants noted at argument that only approximately 300 of

6 those 1,400 were provided to Plaintiffs, either due to being non-responsive or

7 protected by a FOIA exemption.

8

Plaintiffs initially requested that the Court issue an order requiring

9 production of the remaining approximately 7,800 pages by December 22, 2017.

10 Mr. Howard’s Declaration and argument by Defendants both asserted that this

11 would be impossible. Mr. Howard explained that FOIA requests of this nature

12 require multiple levels of review, as well as possible consultation with outside

13 agencies. ECF No. 52-1 at ¶¶ 33-36. Currently, CBP estimates that it can process

14 6,500 pages per month on average across all affiliates. Id. at ¶ 40.

15

Contrary to the Court’s request, Defendants did not provide, either in

16 argument or in Mr. Howard’s Declaration, an estimate of how many pages could

17 be processed monthly that are specifically responsive to Plaintiffs’ request in this

18 district. Rather, Mr. Howard asserted that based on the nature of the request and

19 limitations of resources, CBP could not achieve a faster national monthly

20 processing rate. Id. at ¶ 41. Nothing in the supplemental briefing provided by

21 Defendants provided the Court with a factual basis on which to determine the

22 output capability for this specific request.

23

Five other courts have issued production orders for requests in similar FOIA

24 cases. See ACLU of San Diego and Imperial Counties v. U.S. Dept. of Homeland

25 Security, et al., 17-cv-0733-L-JLB; ACLU of Michigan v. U.S. Dept. of Homeland

26 Security and U.S. Customs and Border Protection, 17-cv-11149-JEL-EAS; ACLU

27 of Washington, et al. v. U.S. Dept. of Homeland Security, et al., 17-cv-00562-MJP;

28 ACLU of Oregon, et al. v. U.S. Dept. of Homeland Security, et al., 17-cv-00575ORDER SETTING PRODUCTION ORDER * 2

CCaassee22:1:177-c-cvv-0-020717382-R-GHZWS-ADSocDuomceunmt e3n79t-2161 FiFleilded121/212/421/31/717 PaPgaege3 3ofo5f 5 PPaaggeeIDID#:#3:4015071

1 HZ; ACLU of Illinois et al. v. U.S. Dept. of Homeland Security, et al., 17-cv-

2 02768. These orders each generally require production of roughly 800 to 1000

3 pages per month, although the Western District of Washington requires a larger

4 production in the third month (see ACLU of Washington, et al. v. U.S. Dept. of

5 Homeland Security, et al., 17-cv-00562-MJP), and the District of Oregon has set a

6 time deadline rather than a monthly production requirement (see ACLU of Oregon,

7 et al. v. U.S. Dept. of Homeland Security, et al., 17-cv-00575-HZ).

8

Defendants argue that they do not believe a production order is appropriate,

9 but if they Court intends to issue one, they request it be 800 to 1,000 pages, similar

10 to the output in five other court orders. Plaintiffs respond that production averaging

11 2,000-3,000 pages would be more appropriate, particularly given the length of time

12 that has elapsed since their request. The request was sent on February 2, 2017. ECF

13 No. 42 at 2.

14

The Court has reviewed the record in each of these cases and cannot

15 determine the reasoning behind the number or the timeline on which it arrived. The

16 Court seeks to avoid an arbitrary production order. In calculating the following

17 production schedule, the Court has taken in account numerous factors and seeks to

18 reach a balance between the public interest need in Plaintiffs’ request and

19 statements made by Defendants regarding the government’s production abilities.

20

The Court notes that Defendants stated in argument that they would not

21 oppose a production schedule of 1,000 pages per month. In the month of January,

22 however, this would exceed their alleged 6,500 page maximum production

23 capacity. The Court reaches this conclusion by adding 1,000 pages to the

24 following: 820 pages in the Eastern District of Michigan, 867 pages in the District 25 of Oregon,1 950 pages in the Northern District of Illinois, 1,000 pages in the

26 Southern District of California, and 2,700 pages in the Western District of

27 1 The court order in the District of Oregon does not require an exact monthly production, however, it does require 28 all production by May 31, 2018. The Court arrived at 867 as an average number for production by this date.
ORDER SETTING PRODUCTION ORDER * 3

CCaassee22:1:177-c-cvv-0-020717382-R-GHZWS-ADSocDuomceunmt e3n79t-2161 FiFleilded121/212/421/31/717 PaPgaege4 4ofo5f 5 PPaaggeeIDID#:#3:4015182

1 Washington, the bulk remaining after two months of 1,000-page monthly

2 production. This total is 6,337. If Defendants can produce 1,000 pages in this

3 district monthly as presented to the Court in argument, this means the government

4 has a higher capacity than 6,500 pages by 837. Thus, the Court finds it reasonable

5 to conclude that the total monthly capability for production is 7,337 pages per

6 month at this time, but based on representations by Defendant will increase by

7 January.

8

The Court next calculated the total required production across the five

9 existing court orders and subtracted these figures from 7,337 for each month. The

10 Court arrives at the following production numbers: (1) December: 4,637 pages 11 across all orders, resulting in a remaining capacity of 2,700 pages2; (2) January:

12 6,337 pages across all orders, resulting in a remaining capacity of 1,000 pages; and

13 (3) February: 3,637 pages across all orders, with production in the instant case of

14 all remaining documents that have not been turned over. The Court notes that the

15 February output will be higher than the projected monthly capacity; however,

16 Defendants represented to the Court that the government is actively increasing its

17 production capacity, and the Court finds it reasonable to expect these enhanced

18 procedures should be in place by February. Further, February 2018 will be one full

19 year since Plaintiffs’ requests. The Court finds this timeline of roughly 90 days

20 since the December 1, 2017, status conference to be in the interest of justice.

21

Accordingly, IT IS HEREBY ORDERED:

22

1. By January 2, 2018, Defendants shall have reviewed for responsiveness

23

and exemption under FOIA and then produced to Plaintiffs the first 2,700

24

pages of documents identified as potentially responsive to Plaintiff’s

25

26
2 The Court notes that this order is being issued on December 12, 2017; however, the parties were put on notice at
27 the December 1, 2017, status conference that the Court was inclined to issue a full production order by December 28 22, 2017, and thus Defendants should have been preparing accordingly.
ORDER SETTING PRODUCTION ORDER * 4

CCaassee22:1:177-c-cvv-0-020717382-R-GHZWS-ADSocDuomceunmt e3n79t-2161 FiFleilded121/212/421/31/717 PaPgaege5 5ofo5f 5 PPaaggeeIDID#:#3:4015293

1

FOIA request, based on searches of records of the custodians in the CBP

2

Los Angeles Field Office.

3

2. By no later than January 31, 2018, Defendants shall have reviewed for

4

responsiveness and exemption under FOIA and then produced to

5

Plaintiffs the next 1,000 pages of documents identified as potentially

6

responsive to Plaintiff’s FOIA request, based on searches of records of

7

the custodians in the CBP Los Angeles Field Office.

8

3. By no later than February 28, 2018, Defendants shall have reviewed for

9

responsiveness and exemption under FOIA and then produced to

10

Plaintiffs all remaining documents identified as potentially responsive to

11

Plaintiff’s FOIA request, based on searches of records of the custodians

12

in the CBP Los Angeles Field Office.

13

4. By March 14, 2018, the parties shall submit a joint status report and

14

proposed case schedule to the Court, including but not limited to the

15

status of the case and a proposed briefing scheduled for motions.

16

IT IS SO ORDERED. The District Court Executive is directed to enter this

17 Order and forward copies to counsel.

18

DATED this 12th day of December, 2017.

19

20

s/Robert H. Whaley

ROBERT H. WHALEY

21

Senior United States District Judge

22

23

24

25

26

27

28 ORDER SETTING PRODUCTION ORDER * 5

Case 2:17C-acsve-010:11372-c-Gv-Z0S130D9o-RcuWmSentD3o79c-u32meFnilte3d912F/12il42e/d1712/P13a/g1e71 Pofa7ge 1Poafg7eID #: 30230

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

AMERICAN CIVIL LIBERTIES :

UNION OF GEORGIA, INC.,

:

AMERICAN CIVIL LIBERTIES :

UNION OF NORTH CAROLINA, :

INC., AMERICAN CIVIL

: CIVIL ACTION NO.

LIBERTIES UNION OF SOUTH : 1:17-CV-1309-RWS

CAROLINA, INC., and

:

AMERICAN CIVIL LIBERTIES :

UNION OF WEST VIRGINIA,

:

INC.,

:

:

Plaintiffs,

:

:

v.

:

:

U.S. DEPARTMENT OF

:

HOMELAND SECURITY and

:

U.S. CUSTOMS AND BORDER :

PROTECTION,

:

:

Defendants.

:

:

ORDER

This case comes before the Court on Defendants’ Proposed Production

Schedule [37] and Plaintiffs’ Response in Opposition [38]. After reviewing the

record and considering the parties’ arguments in their briefs, the Court enters

the following Order.

AO 72A (Rev.8/82)

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Background On February 2, 2017, Plaintiffs sent Defendants a Freedom of Information Act (“FOIA”) request, seeking records concerning local implementation of President Trump’s January 27, 2017 Executive Order titled “Protecting the Nation From Foreign Terrorists Entry Into the United States” and any related judicial or executive order. (Compl., Dkt. [1] ¶¶ 1–2.) On April 12, 2017, Plaintiffs filed this action alleging that Defendants violated FOIA by (1) failing to timely determine whether they would comply with Plaintiffs’ request; (2) failing to make the requested records available; and (3) failing to timely determine whether they would expedite the processing of Plaintiffs’ request. On June 30, 2017, pursuant to the Court’s Order [23], this action was stayed pending a decision from the Judicial Panel on Multidistrict Litigation (“JPLM”) as to whether this case would be consolidated with twelve other related cases. On August 2, 2017, the JPML issued an order denying transfer of this action (see Dkt. [25]), and the Court lifted its stay shortly thereafter (see Dkt. [26]). On November 3, 2017, the Parties filed a Joint Status Report [35] in
2
AO 72A (Rev.8/82)

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which Defendants described their process of obtaining, reviewing, and producing documents responsive to Plaintiff’s request. The Court permitted Defendants to continue with this process, but deemed it appropriate to established a timetable for production. (See Dkt. [36].)
Pursuant to the Court’s Order, Defendants submitted the Proposed Production Schedule [37] currently before the Court. In it, Defendants stress the time- and resource-intensive nature of processing Plaintiffs’ request, especially in the context of seventeen similar requests filed by the American Civil Liberties Union (“ACLU”) and its affiliates, which Defendants have consolidated to identify records responsive to all of the requests and avoid duplicating efforts. Through this process, Defendants have identified approximately 275,000 pages spanning 103,000 records and 25,000 emails that are potentially responsive to the ACLU requests. Of those, approximately 17,131 pages are responsive to Plaintiffs’ request, in particular.
To date, Defendants have released approximately 1,276 pages of responsive records, total–that is, to Plaintiffs and the other ACLU affiliates. Moving forward, Defendants estimate that they can process and produce approximately 6,500 pages per month, total, some of which, presumably, will
3
AO 72A (Rev.8/82)

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be responsive to Plaintiffs’ request. Defendants now ask the Court to enter an order permitting them to produce documents at a rate commensurate with those projections.
In their response [38], Plaintiffs assert that they “and the public have an urgent need for the records at issue so that its members, media organizations, community groups, and ordinary citizens can have the information necessary to participate in the ongoing debate over the Orders at a time when they can still influence public policy.” (Resp. [38] at 11.) They note that “]c]ourts consistently require expedited disclosure in cases like this one that involve requests for documents about matters that are subjects of intense media scrutiny and ongoing public debate.” (Id. at 10.) They request that the Court set February 2, 2018, as the date by which all documents must be produced.
Discussion FOIA requires a federal agency, upon a request for records that reasonably describes documents held by that agency, to make those documents promptly available to any person unless the information within the records is protected from disclosure by a statutory exemption. See 5 U.S.C. § 552(a)(3), (b); see also Allen v. EEOC, 366 F. App’x 972, 973 (11th Cir. 2010). After
4
AO 72A (Rev.8/82)

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suit is filed against the agency, “[t]he Court then has the authority to oversee and supervise the agency’s progress in responding to the request. Seavey v. Dep’t of Justice, No. CV 15-1303, 2017 WL 3112816, at *2 (D.D.C. July 20, 2017). Exactly how much time is required to respond to a FOIA request is context dependent; however, at least one court of appeals has indicated that it should “typically be within days or a few weeks of” the agency’s initial determination, “not months or years.” Id. (quoting Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm’n, 711 F.3d 180 (D.C. Cir. 2013)) (internal quotations omitted).
Here, Plaintiff’s request was made on February 2, 2017. Since then, Defendants have identified 17,131 pages of potentially responsive documents. Yet–rapidly approaching the one-year anniversary of Plaintiff’s request–Defendants have produced only 1,276 pages across all eighteen ACLU requests. Even assuming Defendants quintuple that total and continue at the requested rate, there is still no guarantee that Plaintiffs’ request will be completed in a timely fashion. The Court, therefore, finds Defendants’ Proposed Production Schedule [37] inadequate. Instead, the Court ORDERS the following:
5
AO 72A (Rev.8/82)

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1. By no later than January 16, 2018, Defendants shall process no less than 1,000 pages of the records identified as potentially responsive to Plaintiffs’ FOIA request and (i) produce to Plaintiff all responsive, non-exempt records identified in this review and (ii) identify any asserted exemptions.
2. Each month thereafter, Defendants shall repeat this process, processing no less than 1,000 pages of the records identified as potentially responsive to Plaintiffs’ FOIA request and, by the 16th of each month, (i) produce to Plaintiff all responsive, non-exempt records identified in this review and (ii) identify any asserted exemptions.
3. By no later than June 17, 2018, Defendants shall have fully responded to Plaintiff’s request, having reviewed all records identified as potentially responsive to Plaintiffs’ FOIA request and (i) produced to Plaintiff all responsive, non-exempt records identified and (ii) identified any asserted exemptions.
4. By June 17, 2018, the Parties shall submit a joint status report and proposed case schedule to the Court, addressing: (i) the status of Defendants’ response to Plaintiffs’ FOIA request; and (ii) a proposed briefing schedule for dispositive motions, if appropriate.
6
AO 72A (Rev.8/82)

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SO ORDERED, this 13th day of December, 2017. ________________________________ RICHARD W. STORY United States District Judge
7
AO 72A (Rev.8/82)

 
 Case 2:17-cv-00132-GZS Document 40 Filed 12/22/17 Page 1 of 4 PageID #: 327

U.S. Department of Justice
Civil Division Federal Programs Branch

Mailing Address

Overnight Delivery Address

P.O. Box 883

20 Massachusetts Ave., N.W.

Washington, D.C. 20044 Washington, D.C. 20530

December 22, 2017

Tel: (202) 514-4505 Fax: (202) 616-8470 Michael.L.Drezner@usdoj.gov

By ECF Filing

The Honorable Magistrate Judge John H. Rich III U.S. District Court, District of Maine Edward T. Gignoux U.S. Courthouse 156 Federal Street Portland, ME 04101

Dear Magistrate Judge Rich III,

Pursuant to the Court’s Order of November 24, 2017, and the Court’s Order of December 14, 2017, Defendants respectfully submit the following letter brief in response to Plaintiffs’ submission of December 8, 2017. ECF No. 36.

Since the parties’ submissions on December 8, significant developments occurred concerning the related ACLU-affiliate cases. In ACLU of Southern California, et al. v. DHS, et al. (C.D. Cal. 17cv-2778), the local ACLU affiliate moved for the processing of approximately 7,800 pages in a matter of weeks, or by December 22, 2017. In response, on December 13, 2017, the District Court for the Central District of California ordered that by January 2, 2018 Defendants process “the first 2,700 pages of documents identified as potentially responsive to Plaintiffs’ FOIA request . . . .” See Defs’ Ex. A at 4, ECF No. 37-2. The Court further ordered that Defendants process 1,000 pages by the end of January, and complete production of all remaining documents by the end of February. Id. at 5. The Court arrived at these requirements by explicitly calculating what it believed to be Defendants’ total processing capacity, and subtracting the total processing requirements ordered in other related ACLUaffiliate cases. Id. at 3-4. The Court then allocated all of the remaining processing capacity of the agency solely to the Central District of California ACLU affiliate case. Id. at 4-5 (recognizing that its production order would likely use up the remainder of the agency’s “total monthly capability” for processing through February 28).

On that same day, following a request for further briefing, the District Court for the Northern District of Georgia ordered in ACLU of Georgia, et. al. v. DHS, et al. (N.D. Ga 17-cv-1309) that by January 16, 2018, “Defendants shall process no less than 1,000 pages of the records identified as potentially responsive to Plaintiffs’ FOIA request . . . .” See Defs’ Ex. B at 6, ECF No. 37-3. The order imposes additional monthly processing requirements, and states that by June 17, 2018,

Case 2:17-cv-00132-GZS Document 40 Filed 12/22/17 Page 2 of 4 PageID #: 328
“Defendants shall have fully responded to Plaintiff’s request.” Id.1 Thus, on top of the order from the Central District of California, which purported to consume the entirety of CBP’s processing capacity, the District Court for the Northern District of Georgia imposed on Defendants additional burdensome processing requirements.
Upon review of the two December 13 court orders, and in consideration of the five additional orders previously issued in the ACLU affiliate cases, CBP has determined that it “can no longer attempt to coordinate processing of the ACLU affiliate FOIA requests, i.e., process documents across all the ACLU cases at one time.” Supp. Dec. of Patrick Howard ¶ 15, attached as Exhibit A. As Defendants explained in their initial letter-brief, CBP had reasonably determined that such an effort would have been the most efficient and equitable method to address all 18 of the ACLU affiliate requests. Id.; accord ECF No. 35 at 3-4. However, as a result of the ACLU affiliates’ haphazard approach, filing 13 federal district court cases based on nearly identical FOIA requests, onerous, casespecific processing requirements have been imposed in more than half of these related cases, reducing the agency’s ability to efficiently and equitably process the requests in all such cases. Supp. Dec. ¶ 15.
As to the appropriate processing rate in this case, this Court should take into account the two December 13 court orders, as well as the five other district court orders in related cases. Id. ¶¶ 11-12. Collectively, these orders have put enormous strain on CBP, causing it to devote much of its processing capacity solely to a handful of ACLU cases in which affiliates have sought and obtained specific processing orders. Id. ¶14. Indeed, the agency has had to divert resources from other mission objectives in order to process the FOIA requests concerning Executive Orders 13,769 and 13,780, including ACLU EO affiliate requests. Id. ¶ 7. Further, given the recent issuance of multiple orders which require the rapid processing of large quantities of documents, the agency will be especially burdened in the next few months. Id. ¶¶ 14, 17. In light of the above facts, the agency respectfully proposes that it process 200 pages of records identified as potentially responsive to the instant request by February 28, 2018, and then process pages at a greater rate in anticipation of a further production on April 30, 2018, and every two months thereafter, until production is completed. Id. ¶ 16.
The agency anticipates a later increase in processing because, by March 2018, the agency expects to have completed processing the records covered by the orders in the Western District of Washington and Central District of California. Assuming no additional orders imposing burdensome processing obligations with deadlines before early March 2018 are entered, CBP should then be able to devote more of its resources to processing records in the instant case. Given the significant strain posed by the orders currently in place in the other ACLU affiliates’ cases, and processing obligations in other related cases, it would be difficult if not impossible for CBP to satisfy an order in excess of that proposed above. Id. ¶ 17.2
1 Undersigned counsel concedes that the previous order from the Northern District of Georgia left this issue unresolved. To the extent that undersigned counsel stated anything differently on the conference call with the Court, undersigned counsel regrets any misunderstanding and a copy of the Order is attached as Exhibit B of Defendants’ initial letter brief. ECF No. 35-2. 2 Undersigned counsel conferred with Plaintiffs’, through counsel, to inform them of Defendants’ position. Plaintiffs indicated that they would not agree to Defendants’ proposal set forth above.
2

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By contrast, Plaintiffs claim that Defendants “should be able to complete processing in a matter of weeks,” or, in the alternative, Plaintiffs request that Defendants process “820 pages per month, with a hard deadline of November 2, 2018.” ECF No. 36 at 5. Plaintiffs again claim that the thousands of pages at issue here can be reviewed quickly because “reviewing 9,000 documents in a week is standard fare for a Maine attorney.” Id. at 6. While Defendants do not quibble with the reviewing abilities of a Maine attorney, the review process for government documents in FOIA litigation is significantly different than in private, civil discovery. See Stonehill v. IRS, 558 F.3d 534, 539-40 (D.C. Cir. 2009) (holding that, at least in certain respects, “the stakes of disclosure [to the public at large] are greater in the FOIA context.”). As Patrick Howard explained in his prior declaration, review of the documents for the related ACLU requests requires a process whereby multiple reviewers examine the documents for issues such as responsiveness, redactions, and the existence of outside agency equities. Howard Decl. ¶¶ 28-29, ECF 35-1. A comparison between the instant FOIA production and civil discovery is strained at best. Accordingly, Plaintiffs have no support for their request that all responsive documents should be produced “within a matter of weeks.”3
In the alternative, Plaintiffs argue that the Court should order Defendants to process 820 pages per month, “with a deadline of November 2, 2018, to complete all processing.” ECF No. 36 at 6. Plaintiffs urge that this deadline “is necessary to comply with FOIA’s requirement for prompt and open disclosure.” Id. at 7. Of course, the FOIA “does not assign any particular time frame to release of the records sought.” Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270, 275 (D.D.C. 2012). Rather, the statute mandates simply that expedited requests be processed “as soon as practicable.” 5 U.S.C. § 552(a)(6)(E)(iii). Plaintiffs provide no legal or factual basis which would support an arbitrary production deadline of November 2, 2018. The Court should therefore defer to CBP’s understanding of its resources and limitations, and adopt CBP’s proposal set forth above.
Finally, Plaintiffs now request that any document production by CBP include two additional pieces of information: “(1) the number of hours spent in processing, and (2) a Vaughn index listing the reason for any claimed exemption for withheld documents.” ECF No. 36 at 6. Plaintiffs provide no justification for either requirement, and on that ground alone the Court should reject this request. As to the hourly reporting requirement, it appears that this request was inspired by the order issued by the District Court of the Northern District of Illinois in ACLU of Illinois, et al. v. DHS, et al. (N.D. Il. 17cv-2768), where the court ordered that Defendants provide reports detailing, among other things: “(1) the number of full−time employees at both the Level 1 and Level 2 review levels who have worked on the FOIA request as to the Executive Order itself over the preceding month; (2) the number of hours that the OCC attorneys worked on the project during the preceding month . . . .” See Pl’s Ex. 4, ECF No. 36-4.
3 Plaintiffs claim that Defendants have produced only “approximately 10 pages” of records “related to the Boston field office.” ECF No. 36 at 5. In fact, as stated in Defendants’ interim production letters, Defendants have produced approximately 271 pages of records responsive to Plaintiffs’ request. Plaintiffs apparently discount many of these pages because they are responsive to all field office requests, rather than simply Boston alone. Plaintiffs provide no argument as to why such documents are non-responsive to their instant request.
3

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To the extent Plaintiffs are requesting the same information, they are welcome to review CBP’s submissions in ACLU of Illinois to avoid duplicative agency effort. To the extent Plaintiffs seek information as to the number of hours worked on only the Boston Field Office request, such a demand would be difficult if not impossible to satisfy. Many documents are responsive to more than one ACLU affiliate request, and such a reporting obligation would likely require CBP reviewers to keep detailed logs to track their time spent only on this request. There is no legal basis for such a request, and indeed imposing such a timekeeping requirement would likely delay the processing and production of responsive documents to these Plaintiffs and all Plaintiffs across the ACLU affiliate cases.
Additionally, Plaintiffs’ request for a Vaughn index in this case would be both premature and burdensome at this stage. “To provide for the broadest possible disclosure and further the adversary process, courts often require the withholding agency to provide a ‘Vaughn’ index. Generally, a Vaughn index provides a broad description of the requested material or information, and the agency’s reason for withholding each document or portion of a document.” Carpenter v. U.S. Dep’t of Justice, 470 F.3d 434, 442 (1st Cir. 2006) (internal citations omitted). However, the First Circuit has held that a Vaughn index is not necessarily required in all FOIA litigation. For instance, if a requester does not challenge the adequacy of claimed exemptions, a Vaughn index is “unwarranted . . . .” Maynard v. C.I.A., 986 F.2d 547, 558 (1st Cir. 1993). Plaintiffs here have not yet challenged any exemptions cited in response to their request. Therefore, the need for a Vaughn index is unclear.
Indeed, even if Plaintiffs eventually challenge CBP’s claimed exemptions, any request for a Vaughn index at this time is premature. “Generally, agencies should be given the opportunity to file dispositive motions and produce affidavits regarding claimed exemptions before they are ordered to produce Vaughn indices.” Ioane v. Comm’r of Internal Revenue, No. 3:09-CV-00243-RCJ- (RAM), 2010 WL 2600689, at * (D. Nev. Mar. 11, 2010). In addition, Defendants expect to meet and confer with Plaintiffs prior to the filing of dispositive motions in an effort to narrow the issues of dispute regarding claimed exemptions. Plaintiffs’ demand that the agency prepare a Vaughn index justifying each agency withholding, while simultaneously processing thousands of pages of documents, would impose a substantial and unnecessary burden on the agency, especially given the likelihood that the parties may agree that only a subset of the agency’s withholdings are in dispute.
For the foregoing reasons, Defendants request that this Court enter an order stating that CBP should process 200 pages of records identified as potentially responsive to the instant request by February 28, 2018, and then process pages at a greater rate, to be determined by CBP, in anticipation of a further production on April 30, 2018, and every two months thereafter, until production is completed. Id. ¶ 16. Defendants propose that the parties submit joint status reports every 60 days, updating the Court as to the status of processing and production.
Sincerely,
/s/ Michael Drezner Michael Drezner
4

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION OF )

MAINE, et al.,

) )

)

Plaintiffs,

) )

v.

) Civil No. 2:17-cv-132-GZS )

U.S. CUSTOMS AND BORDER PROTECTION, et al.,

) ) )

Defendants.

) )

SUPPLEMENTAL DECLARATION OF PATRICK HOWARD

I, Patrick A. Howard, declare the following to be true and correct:

1. I am a Branch Chief within the Freedom of Information Act Division (FOIA

Division) at U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security

(DHS). I have been a Branch Chief in the FOIA Division since February 8, 2015. In this

capacity, I oversee a staff of Government Information Specialists (GIS), the processing of

requests for records submitted to CBP pursuant to FOIA, 5 U.S.C. § 552, the Privacy Act (PA), 5

U.S.C. § 552a, and other activities conducted pursuant to applicable records access provisions.

2. I am familiar with CBP’s procedures for responding to FOIA requests. I provide

technical and administrative supervision and direction to a group of FOIA specialists in

processing FOIA requests and assist with FOIA/PA litigation matters, and I am personally

familiar with the processing of FOIA/PA responses, including, at times, by directly reviewing for

adequacy and compliance to federal laws and regulations. I am familiar with the February 2,

2017, and February 10, 2017, FOIA requests submitted by Plaintiffs and various affiliates of the

American Civil Liberties Union (ACLU) to CBP.

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3. The statements I make in this declaration are based upon my personal knowledge, which includes knowledge acquired through information furnished to me in the course of my official duties and agency files that I personally reviewed in the course of my official duties.
4. The purpose of this declaration is to supplement my December 5, 2017 declaration (“Howard Decl.”), ECF No. 35-1, and further explain the FOIA Division’s processing capabilities in light of resource constraints, the time it takes to process records, and court orders entered in other ACLU Executive Order FOIA litigations.
CBP’s Processing Capabilities for the ACLU Affiliates’ FOIA Requests 5. As explained in my December 5, 2017 declaration, CBP recently made a number of changes to its FOIA program to improve its capacity to expeditiously and effectively respond to the ACLU Executive Order FOIA requests. This includes migrating all records identified as potentially responsive to a new processing platform and dedicating certain personnel to work solely on certain FOIA requests seeking records relating to Executive Order 13,769 and 13,780 (EO FOIAs) which include the related ACLU affiliate requests. Further, CBP has recruited and secured CBP personnel from outside the FOIA Division to assist in the processing of records, which has required removing them from their normal CBP mission responsibilities. Howard Decl. ¶ 41 – 46. 6. Specifically, with regard to personnel, despite the fact that the agency received approximately 88,840 FOIA requests in Fiscal Year 2017, and nationwide, has only twenty-five GIS-level employees, the FOIA Division has dedicated three GIS-level employees to work exclusively on the EO FOIAs on a full-time basis. 7. In addition, the FOIA division has obtained personnel to assist in processing records related to the EO FOIAs through what is known as a “temporary duty assignment” or
1

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“temporary detail” program (TDY). As this assignment or detail is temporary, the exact number of personnel is subject to change, but as of the date of this declaration, the equivalent of over thirty full time personnel have been removed from their normal CBP mission responsibilities to work exclusively on the processing of records for litigation regarding the EO FOIAs.
8. While the improved processing platform and number of personnel assigned to the EO FOIAs has increased the number of pages the agency is able to review at one time, all such pages are subject to a multi-level review process. See Howard Decl. ¶¶ 27 – 32. This review process takes time, but is necessary to ensure the agency protects privileged and sensitive information and consults with the appropriate third parties. Howard Decl. ¶ 25.
9. Taking into account the complexity of the records requested, the new processing platform, the number of personnel currently assigned to work on the EO FOIAs, the time associated with training those personnel, as well as the multi-level review process, as explained in my December 5, 2017 declaration, CBP had estimated it would be able to process, on average, approximately 6,500 pages per month across all ACLU EO affiliate FOIA cases. Howard Decl. ¶ 35. This was an estimate only and, as explained in my December 5, 2017 declaration, the number could vary as a result of several factors. Howard Decl. ¶ 35.
Impact of ACLU EO FOIA Court Orders 10. As of December 18, 2017, CBP is subject to seven Court orders in the ACLU EO FOIA litigations, each requiring the agency to process a certain number of records at certain intervals. 11. In the Southern District of California, case number 3:17-cv-00733, CBP was ordered to process 1,000 pages of the records identified as potentially responsive by December 6, 2017, 1,000 more pages each month thereafter, and all documents by April 6, 2018. In the
2

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Western District of Washington, case number 2:17-cv-00562, CBP was ordered to process 1,000 pages by November 18, 2017, 1,000 more pages by December 18, 2017, and all remaining documents by January 16, 2018. In the Eastern District of Michigan, case number 5:17-cv11149, CBP has been ordered to process all of the documents from the specified Detroit field office document custodians within five months at a rate of 820 pages per month, beginning November 27, 2017. In the District of Oregon, case number 3:17-cv-00575, CBP has been ordered to process all documents identified as potentially responsive and produce all responsive documents not in controversy on or before May 31, 2018, with a “significant amount” of these documents processed by March 1, 2018. In the Northern District of Illinois, case number 1:17cv-02768, CBP has been ordered to process 950 pages per month, beginning December 31, 2017. In the Northern District of Georgia, case number 1:17-cv-01309, CBP was ordered on December 13, 2017 to process 1,000 pages of records by January 16, 2018, and at least 1,000 pages each month thereafter, with all responsive non-exempt documents produced by June 17, 2018. In the Central District of California, case number 2:17-cv-02778, CBP was ordered on December 13, 2017 to process the first 2,700 pages of potentially responsive documents for the Central District of California custodians by January 2, 2018, and the next 1,000 pages of documents by January 31, 2018, and to produce all responsive non-exempt documents by February 28, 2018.
12. Collectively, these court orders require CBP to process over 9,000 pages of records in January 2018 and over 8,000 pages of records in February 2018.
13. These orders exceed CBP’s previous estimate, reported in my December 5, 2017 declaration, of the number of pages it would be able to process per month across all of the ACLU affiliates’ requests.
3

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14. While CBP will make every effort to comply with these court orders, by virtue of these orders, seven ACLU FOIA cases have effectively monopolized the FOIA Division’s processing resources available to all of the EO FOIAs, including the ACLU EO affiliate requests (resources that CBP has very substantially increased in recent months, see supra ¶¶ 5, 7) through the end of February 2018. As such, the agency is concerned that it may not be able to comply with an additional court order that imposes a significant processing burden on CBP prior to March 2018.
15. Upon review of these orders, CBP has also determined that it can no longer attempt to coordinate processing of the ACLU affiliate FOIA requests, i.e., process documents from custodians across all the ACLU cases at one time. CBP determined that such an effort would have been the most efficient and equitable method to address all 18 of the ACLU affiliate requests. However, the agency’s ability to efficiently and equitably process records across all ACLU cases has been undermined by the burdensome court orders that have been imposed in more than half of the related ACLU cases.
16. Accordingly, CBP can commit to processing 200 pages of records identified as potentially responsive to the ACLU Maine request by February 28, 2018. The agency expects that this processing rate should significantly increase after that date, in anticipation of a production date of April 30, 2018, and every two months thereafter, until the agency processes all responsive, non-exempt records concerning the instant request.1
1 As of the date of this declaration, CBP also can commit to processing 200 pages of potentially responsive records for two other ACLU affiliates’ request—those at issue in ACLU of Maine v. DHS, case no. 2:17-cv-00132 filed in the District of Maine, and ACLU of Arizona v. DHS, case no. 2:17-cv-01083 filed in the District of Arizona—by February 28, 2018, with the expectation that the processing rates for these two other requests will similarly significantly increase after that date.
4

Case 2:17-cv-00132-GZS Document 40-1 Filed 12/22/17 Page 6 of 7 PageID #: 336
17. Specifically, because CBP expects that by February 28, 2018, it will have satisfied, or substantially satisfied, the onerous production obligations imposed by the court orders currently in place from the Western District of Washington and the Central District of California, CBP anticipates that after this date it likely would be able to process pages potentially responsive to the ACLU Maine request, as well as for the other related pending ACLU affiliate requests, at a greater rate. However, given the burdensome production orders imposed on CBP through the end of February, and the number of other requests in this group of ACLU affiliate requests that CBP intends to process concurrently, I believe it would be difficult if not impossible for CBP to satisfy any court ordered processing obligation in excess of that proposed above.
18. Additionally, the agency anticipates that by April 30, 2018 it will have satisfied, or substantially satisfied, the onerous production obligations imposed by the court orders currently in place in the Southern District of California and the Eastern District of Michigan. Therefore, CBP anticipates that after this date it likely would be able to further increase the rate at which it is able to process pages potentially responsive to the ACLU Maine request, as well as the other related pending ACLU affiliate requests.
19. CBP notes, however, that for the reasons explained in my December 5, 2017 declaration, several factors, including but not limited to court orders, could result in the agency’s processing rate increasing or decreasing over time or for a given time period. The agency believes that it can best keep the Court apprised of any changes in expected processing rates through the filing of periodic joint status reports.
5

Case 2:17-cv-00132-GZS Document 40-1 Filed 12/22/17 Page 7 of 7 PageID #: 337 I declare under penalty of perjury that the forgoing is true and correct to the best of my knowledge.
Executed on this the 21st day of December, Washington, D.C.
__/s_/___P_a__t_r_i_c_k___A___H__o_w___a_r_d_____
Patrick A. Howard
6

 
 Case 2:17-cv-00132-GZS Document 43 Filed 03/30/18 Page 1 of 4 PageID #: 346

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION OF )

MAINE, et al.,

)

)

)

Plaintiffs,

)

)

v.

) Civil No. 2:17-cv-132-GZS

)

U.S. CUSTOMS AND BORDER

)

PROTECTION, et al.,

)

)

Defendants.

)

)

JOINT STATUS REPORT

Pursuant to the Court’s January 26, 2018 Order (“Order”), Plaintiffs, American Civil Liberties Union of Maine, American Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont, American Civil Liberties Union of Massachusetts, American Civil Liberties Union of Connecticut, and American Civil Liberties Union of Rhode Island (collectively, “Plaintiffs”), and Defendants, U.S. Customs and Border Protection and U.S. Department of Homeland Security (collectively, “the Government”), hereby file this Joint Status Report documenting the Government’s compliance with its production obligations.
BACKGROUND This lawsuit arises from a Freedom of Information Act (“FOIA”) request that Plaintiffs submitted on February 2, 2017, seeking records relating to the local implementation of Executive Order 13,769 in New England. Nationwide, other ACLU affiliates submitted additional FOIA requests relating to implementation of Executive Order 13,769 in their respective regions. Since the lawsuit was filed, the Government has produced, in aggregate, a total of 16 productions

Case 2:17-cv-00132-GZS Document 43 Filed 03/30/18 Page 2 of 4 PageID #: 347

responding to those FOIA requests. Seven productions involved at least some records responsive

to Plaintiffs’ FOIA request in this case. These include the 2nd, 4th, 9th, 10th, 11th, 13th, and

14th productions.

In the 2nd production, on July 26, 2017, the Government produced four responsive pages.

The 4th production, on October 27, 2017, included eight responsive pages. In addition, it is the

Government’s position that, through the 4th production, the Government produced

approximately 261 pages of records responsive to all ACLU field offices’ requests, including

Plaintiffs’ instant request.

In later productions, the Government attached cover letters stating the number of pages in

the production relating to specific FOIA requests. According to the cover letters, the Government

processed or produced the following number of pages for this case:

•

January 2, 2018 (9th production): 53 pages (all produced)

•

January 16, 2018 (10th production): 275 pages (all produced)

•

January 19, 2018 (11th production): 31 pages (all produced)

•

February 27, 2018 (13th production): 503 pages (all produced)

•

February 28, 2018 (14th production): 17 spreadsheets (processed only, none

produced).

It is the Plaintiffs’ position that the cover letters do not provide specific Bates numbers

for the records corresponding to each FOIA request and that the records are heavily redacted,

making it difficult to determine which records correspond to Plaintiffs’ FOIA request.

2

Case 2:17-cv-00132-GZS Document 43 Filed 03/30/18 Page 3 of 4 PageID #: 348
STATUS UPDATE The Order requires the Government, by February 28, 2018, to process at least a total of 200 pages of potentially responsive records and to produce to Plaintiffs any responsive, nonexempt records. Order at 2, ECF No. 42 (Jan. 26, 2018). The parties agree that the Government has complied with this deadline. By agreeing, Plaintiffs do not waive any right to later challenge the Government’s compliance with its substantive FOIA obligations, including the scope of the collection effort to identify potentially responsive records and the review and production of those records. Dated: March 30, 2018 Respectfully submitted,
3

Case 2:17-cv-00132-GZS Document 43 Filed 03/30/18 Page 4 of 4 PageID #: 349

CHAD A. READLER Acting Assistant Attorney General
ELIZABETH J. SHAPIRO  Deputy Director, Federal Programs Branch
/s/ Michael Drezner________ MICHAEL L. DREZNER (VA Bar No. 83836) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 Tel.: (202) 514-4505 Fax: (202) 616-8470 Email: Michael.L.Drezner@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

/s/ Zachary L. Heiden Zachary L. Heiden Emma E. Bond ACLU of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04103 Tel: (207) 619-6224 zheiden@aclumaine.org
Jennifer A. Archer Kelly, Remmel & Zimmerman 53 Exchange Street P.O. Box 597 Portland, Maine 04112 (207) 420-3859 jarcher@krz.com
Attorney for Plaintiffs American Civil Liberties Union of Maine, American Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont, American Civil Liberties Union of Massachusetts, American Civil Liberties Union of Rhode Island, and American Civil Liberties Union of Connecticut

4

 
 Case 2:17-cv-00132-GZS Document 49 Filed 12/17/18 Page 1 of 5 PageID #: 370

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION OF )

MAINE, et al.,

)

)

)

Plaintiffs,

)

)

v.

) Civil No. 2:17-cv-132-GZS

)

U.S. CUSTOMS AND BORDER

)

PROTECTION, et al.,

)

)

Defendants.

)

)

JOINT STATUS REPORT AND MOTION FOR BRIEFING SCHEDULE FOR PETITION FOR ATTORNEY FEES AND LITIGATION COSTS
Pursuant to the Court’s January 26, 2018 Order (“scheduling order”) and Rule 7(b) of the

Federal Rules of Civil Procedure, Plaintiffs, American Civil Liberties Union of Maine, American

Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont, American

Civil Liberties Union of Massachusetts, American Civil Liberties Union of Connecticut, and

American Civil Liberties Union of Rhode Island (collectively, “Plaintiffs”), and Defendants,

U.S. Customs and Border Protection and U.S. Department of Homeland Security (collectively,

“the Government”), hereby file this Joint Status Report and Motion for Briefing Schedule for

Attorney Fees and Litigation Costs, documenting the Government’s compliance with its

production deadlines and requesting a briefing schedule for the Plaintiff’s attorney fee petition.

STATUS UPDATE

This is the sixth joint status report filed in this case regarding the Government’s

compliance with the scheduling order. The scheduling order required that, by November 30,

2018, the Government must “complete processing all potentially responsive email messages and

Case 2:17-cv-00132-GZS Document 49 Filed 12/17/18 Page 2 of 5 PageID #: 371
attachments from the files of relevant custodians in the Boston Field Office and [release] all responsive, non-exempt such records to plaintiffs.” Order at 2, ECF No. 42 (Jan. 26, 2018). The parties agree that the Government has satisfied its production obligations under the scheduling order. Furthermore, the Plaintiffs do not intend to challenge the adequacy of the Government’s search or the validity of the claimed exemptions in this lawsuit under the Freedom of Information Act.
Regarding future proceedings, the Plaintiffs intend to request reasonable attorney fees and litigation expenses pursuant to 5 U.S.C. § 552(a)(4)(E). The parties agree to attempt to reach an agreement regarding attorney fees and litigation expenses. However, if the parties are unable to resolve the matter, the Plaintiffs respectfully request a deadline of February 22, 2019, to file their motion for attorney fee and expenses, to accommodate the upcoming holidays and a fiveday Federal Court hearing in early February, which will require substantial preparation and time by the undersigned Plaintiffs’ counsel Zachary Heiden and Emma Bond. The parties jointly propose the following schedule for proceedings regarding attorney fees and costs:
• The parties shall attempt to come to an agreement regarding attorney fees and expenses no later than January 31, 2019;
• If the parties are unable to reach a resolution, the Plaintiffs shall file their motion for attorney fees and litigation expenses no later than February 22, 2019;
• The Government shall file its opposition to the Plaintiff’s motion for attorney fees and litigation expenses no later than March 22, 2019;
2

Case 2:17-cv-00132-GZS Document 49 Filed 12/17/18 Page 3 of 5 PageID #: 372 • The Plaintiffs shall file their reply in support of their motion for attorney fees and litigation expenses no later than April 1, 2019.
For these reasons, the Plaintiffs and the Government respectfully request that the Court grant the parties’ proposed briefing schedule for the Plaintiff’s motion for attorney fees and litigation expenses.
3

Case 2:17-cv-00132-GZS Document 49 Filed 12/17/18 Page 4 of 5 PageID #: 373

Dated: December 17, 2018
Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General
ELIZABETH J. SHAPIRO  Deputy Director, Federal Programs Branch
/s/ Michael Drezner MICHAEL L. DREZNER (VA Bar No. 83836) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 Tel.: (202) 514-4505 Fax: (202) 616-8470 Email: Michael.L.Drezner@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

/s/ Zachary L. Heiden Zachary L. Heiden ACLU of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04103 Tel: (207) 619-6224 zheiden@aclumaine.org
/s/ Emma E. Bond Emma E. Bond ACLU of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04103 Tel: (207) 619-8687 ebond@aclumaine.org
Jennifer A. Archer Kelly, Remmel & Zimmerman 53 Exchange Street P.O. Box 597 Portland, Maine 04112 (207) 420-3859 jarcher@krz.com
Attorney for Plaintiffs American Civil Liberties Union of Maine, American Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont, American Civil Liberties Union of Massachusetts, American Civil Liberties Union of Rhode Island, and American Civil Liberties Union of Connecticut

4

Case 2:17-cv-00132-GZS Document 49 Filed 12/17/18 Page 5 of 5 PageID #: 374
CERTIFICATE OF SERVICE I hereby certify that on December 17, 2018, I electronically filed the Joint Status Report with the Clerk of Court using the CM/ECF system which will send notification of such filings to all counsel of record.
/s/ Emma E. Bond Emma E. Bond ACLU of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04103 Tel: (207) 619-8687 ebond@aclumaine.org
5

 
 Case 2:17-cv-00132-GZS Document 58 Filed 03/29/19 Page 1 of 3 PageID #: 382

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION OF )

MAINE, et al.,

)

)

)

Plaintiffs,

)

)

v.

) Civil No. 2:17-cv-132-GZS

)

U.S. CUSTOMS AND BORDER

)

PROTECTION, et al.,

)

)

Defendants.

)

)

STIPULATION OF DISMISSAL UNDER RULE 41(a)(1)(A)(ii)

Pursuant to a settlement agreement executed by the parties on March 27, 2019, it is

hereby stipulated and agreed by and between the parties and their respective counsel that the

above-captioned case is voluntarily dismissed, with prejudice, against the Defendants, U.S.

Customs and Border Protection, et al., pursuant to the Federal Rule of Civil Procedure

41(a)(1)(A)(ii).

SO STIPULATED AND AGREED THIS 29th Day of March 2019.

/s/ Zachary L. Heiden Zachary L. Heiden /s/ Emma E. Bond Emma Bond ACLU of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04103 Tel: (207) 619-6224
(207) 619-8687 zheiden@aclumaine.org ebond@aclumaine.org

/s/ Michael Drezner Michael Drezner Trial Attorney (Virginia Bar No. 83836) United States Department of Justice Civil Division, Federal Programs Branch Tel.: (202) 514-4505 Fax: (202) 616-8470 Email: Michael.L.Drezner@usdoj.gov

1

Case 2:17-cv-00132-GZS Document 58 Filed 03/29/19 Page 2 of 3 PageID #: 383

Jennifer A. Archer Kelly, RemmAsesli&staZnitmAmtteorrmneaynGeneral 53 Exchange Street P.O. Box 597 Portland, Maine 04112 (207) 420-3859 jarcher@krz.com
Attorneys for Plaintiffs American Civil Liberties Union of Maine, American Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont, American Civil Liberties Union of Massachusetts, American Civil Liberties Union of Rhode Island, and American Civil Liberties Union of Connecticut

JOSEPH H. HUNT Assistant Attorney General
ELIZABETH J. SHAPIRO Deputy Branch Director
Attorneys for Defendants

2

Case 2:17-cv-00132-GZS Document 58 Filed 03/29/19 Page 3 of 3 PageID #: 384
CERTIFICATE OF SERVICE I hereby certify that on March 29, 2019, I electronically filed the STIPULATION OF DISMISSAL UNDER RULE 41(a)(1)(A)(ii) with the Clerk of Court using the CM/ECF system which will send notification of such filings to all counsel of record.
/s/ Emma E. Bond Emma E. Bond ACLU of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04103 Tel: (207) 619-8687 ebond@aclumaine.org
3

 
 CLOSED,STANDARD
U.S. District Court District of Maine (Portland) CIVIL DOCKET FOR CASE #: 2:17−cv−00132−GZS

AMERICAN CIVIL LIBERTIES UNION OF MAINE et al v. US CUSTOMS AND BORDER PROTECTION et al Assigned to: JUDGE GEORGE Z. SINGAL Referred to: MAGISTRATE JUDGE JOHN H. RICH III Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 04/12/2017 Date Terminated: 03/29/2019 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

AMERICAN CIVIL LIBERTIES UNION OF MAINE

represented by ZACHARY L. HEIDEN AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION 121 MIDDLE STREET SUITE 303 PORTLAND, ME 04103 207−774−5444 Fax: 207−774−1103 Email: zheiden@aclumaine.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

EMMA EATON BOND AMERICAN CIVIL LIBERTIES UNION OF MAINE 121 MIDDLE STREET SUITE 200 PORTLAND, ME 04101 207−619−8687 Email: ebond@aclumaine.org ATTORNEY TO BE NOTICED

JENNIFER A. ARCHER KELLY, REMMEL & ZIMMERMAN 53 EXCHANGE STREET PO BOX 597 PORTLAND, ME 04112−0597 207−775−1020 Email: jarcher@krz.com ATTORNEY TO BE NOTICED

Plaintiff
AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE

represented by ZACHARY L. HEIDEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

EMMA EATON BOND (See above for address) ATTORNEY TO BE NOTICED

JENNIFER A. ARCHER (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
AMERICAN CIVIL LIBERTIES UNION OF VERMONT

represented by ZACHARY L. HEIDEN (See above for address) LEAD ATTORNEY

Plaintiff AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS
Plaintiff AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT
Plaintiff AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND
V. Defendant US CUSTOMS AND BORDER PROTECTION

ATTORNEY TO BE NOTICED
EMMA EATON BOND (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A. ARCHER (See above for address) ATTORNEY TO BE NOTICED
represented by ZACHARY L. HEIDEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
EMMA EATON BOND (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A. ARCHER (See above for address) ATTORNEY TO BE NOTICED
represented by ZACHARY L. HEIDEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
EMMA EATON BOND (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A. ARCHER (See above for address) ATTORNEY TO BE NOTICED
represented by ZACHARY L. HEIDEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
EMMA EATON BOND (See above for address) ATTORNEY TO BE NOTICED
JENNIFER A. ARCHER (See above for address) ATTORNEY TO BE NOTICED
represented by MATT BERNS UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH 20 MASSACHUSETTS AVENUE, NW WASHINGTON, DC 20530

Defendant US DEPARTMENT OF HOMELAND SECURITY
Date Filed # Docket Text

202−616−8016 Email: matthew.j.berns@usdoj.gov TERMINATED: 09/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL L. DREZNER U.S. DEPARTMENT OF JUSTICE FEDERAL PROGRAMS BRANCH, CIVIL DIVISION 1100 L STREET, NW ROOM 122010 WASHINGTON, DC 20005 202−514−4505 Email: michael.l.drezner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
SHEILA W. SAWYER U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE 100 MIDDLE STREET PLAZA PORTLAND, ME 04101 207−780−3257 Email: sheila.sawyer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
CHETAN A. PATIL U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX NO. 883 BEN FRANKLIN STATION WASHINGTON, DC 20044 202−305−4968 Email: chetan.patil@usdoj.gov TERMINATED: 09/27/2017 ATTORNEY TO BE NOTICED
represented by MATT BERNS (See above for address) TERMINATED: 09/27/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL L. DREZNER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SHEILA W. SAWYER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CHETAN A. PATIL (See above for address) TERMINATED: 09/27/2017 ATTORNEY TO BE NOTICED

04/12/2017
04/12/2017 04/12/2017 04/14/2017
05/02/2017 05/02/2017 05/03/2017 05/08/2017 05/08/2017

1 COMPLAINT against US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY PAYMENT OF FILING FEE DUE
WITHIN 48 HOURS. IF FILING FEE IS BEING PAID WITH A CREDIT CARD, COUNSEL ARE INSTRUCTED TO LOGIN TO CM/ECF AND DOCKET Case Opening Filing Fee Paid FOUND IN THE Complaints and Other Initiating Documents CATEGORY. CHECK PAYMENTS
DUE WITHIN 48 HOURS. , filed by AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF VERMONT. Fee due by 4/14/2017. (Service of Process Deadline 7/11/2017)(bfa) (Additional attachment(s) added on 4/12/2017: # 1 Exhibit A Executive Orders, # 2 Exhibit B United States Postal Service tracking information) (bfa). (Entered: 04/12/2017)
2 CIVIL COVER SHEET. (bfa) (Entered: 04/12/2017)
Filing Fee Paid via Credit Card ( Filing fee $ 400 receipt number 0100−1675943.), filed by AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF VERMONT.(HEIDEN, ZACHARY) (Entered: 04/12/2017)
3 Summons Issued as to US CUSTOMS AND BORDER PROTECTION and US DEPARTMENT OF HOMELAND SECURITY.
Counsel shall print the embossed summons and effect service in the manner in accordance with Fed.R.Civ.P.4.
Note−If you are using Version 6 of Adobe Acrobat, be sure the PRINT WHAT field is set to DOCUMENTS AND COMMENTS (Click File, then Print to check this setting).
(Attachments: # 1 Summons− U.S. Department of Homeland Security)(jgd) (Entered: 04/14/2017)
4 NOTICE of Appearance by JENNIFER A. ARCHER on behalf of AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT (ARCHER, JENNIFER) (Entered: 05/02/2017)
5 **FILED IN ERROR**SUMMONS Returned Executed by AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF VERMONT. All Defendants. (ARCHER, JENNIFER) Modified on 5/3/2017 to reflect that this filing was made in error and will be re−filed (lrc). (Entered: 05/02/2017)
6 NOTICE of Docket Entry Modification regarding 5 Summons Returned Executed− this docket entry was modified to reflect that it was filed in error and will be re−filed. (lrc) (Entered: 05/03/2017)
7 NOTICE of Appearance by MATT BERNS on behalf of All Defendants (BERNS, MATT) (Entered: 05/08/2017)
8 NOTICE/CORRESPONDENCE Re: Motion filed with the JPML to Transfer Action Pursuant to 28 U.S.C. 1407 by All Defendants (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Transfer Motion, # 3 Exhibit 2 − Supporting Memorandum, # 4 Exhibit 3 − Schedule of Actions)(BERNS, MATT) (Entered: 05/08/2017)

05/09/2017 05/09/2017 05/09/2017 05/10/2017 05/11/2017 05/11/2017 05/11/2017 05/19/2017 05/31/2017
05/31/2017
06/06/2017 06/08/2017
06/14/2017 06/19/2017

9 SUMMONS Returned Executed by all Plaintiffs. US CUSTOMS AND BORDER PROTECTION served on 4/25/2017 (ARCHER, JENNIFER) Modified on 5/9/2017 to clean up docket text (lrc). (Entered: 05/09/2017)
10 SUMMONS Returned Executed by all Plaintiffs. US DEPARTMENT OF HOMELAND SECURITY served on 4/25/2017 (ARCHER, JENNIFER) Modified on 5/9/2017 to clean up docket text(lrc). (Entered: 05/09/2017)
Set Answer Deadline for US CUSTOMS AND BORDER PROTECTION and US DEPARTMENT OF HOMELAND SECURITY− per Summons Returned Executed filed on 5/9/2017: Answers due by 6/26/2017. (lrc) (Entered: 05/09/2017)
11 Unopposed MOTION to Extend Time to File Answer re 1 Complaint,,, by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 5/31/2017. (BERNS, MATT) (Entered: 05/10/2017)
12 ORDER granting 11 Motion for Extension of Time to Answer By JUDGE GEORGE Z. SINGAL. (lrc) (Entered: 05/11/2017)
Reset Answer Deadline for US CUSTOMS AND BORDER PROTECTION and US DEPARTMENT OF HOMELAND SECURITY per Order No. 12 entered on 5/11/2017: Answer due by 7/9/2017. (lrc) (Entered: 05/11/2017)
13 MOTION to Stay Proceedings Pending Decision on Motion to Transfer by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 6/1/2017. (BERNS, MATT) (Entered: 05/11/2017)
14 NOTICE of Appearance by CHETAN A. PATIL on behalf of US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY (PATIL, CHETAN) (Entered: 05/19/2017)
15 RESPONSE in Opposition re 13 MOTION to Stay Proceedings Pending Decision on Motion to Transfer filed by AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT. Reply due by 6/14/2017. (ARCHER, JENNIFER) (Entered: 05/31/2017)
16 NOTICE/CORRESPONDENCE Re: Memorandum Filed with the United States Judicial Panel on Multidistrict Litigation in Opposition to Defendants' Motion for Transfer by AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT (Attachments: # 1 Exhibit A)(ARCHER, JENNIFER) (Entered: 05/31/2017)
17 NOTICE/CORRESPONDENCE Re: Filing of JPML Reply Brief by All Defendants (Attachments: # 1 JPML Reply Brief)(BERNS, MATT) (Entered: 06/06/2017)
18 NOTICE/CORRESPONDENCE Re: Supplemental Authority by AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT (Attachments: # 1 Exhibit A)(ARCHER, JENNIFER) (Entered: 06/08/2017)
19 REPLY to Response to Motion re 13 MOTION to Stay Proceedings Pending Decision on Motion to Transfer filed by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (PATIL, CHETAN) (Entered: 06/14/2017)
20 ORDER granting 13 Motion to Stay. After consideration of the case−specific factors, see Good v. Altria Grp., Inc., 624 F. Supp. 2d 132, 134 (D. Me. 2009), and for the reasons articulated by the Defendants, the Courts GRANTS Defendants Motion to

06/19/2017 08/02/2017 08/03/2017 08/03/2017 08/24/2017 08/24/2017 08/25/2017
09/13/2017 09/15/2017
09/15/2017 09/27/2017 09/27/2017 11/01/2017

Stay Proceedings Pending Decision on Motion to Transfer and ORDERS that this matter be STAYED for sixty (60) days, at which point counsel shall file a status report and the Court will evaluate whether any further stay is appropriate. SO ORDERED. By JUDGE GEORGE Z. SINGAL. (lrc) (Entered: 06/19/2017)
Set Deadlines pursuant to the Order entered on 6/19/2017: Status Report due by 8/18/2017. (lrc) (Entered: 06/19/2017)
21 MDL ORDER re: Denying Transfer (mjlt) (Entered: 08/02/2017)
22 ORDER: In light of the Judicial Panel on Multidistrict Litigations Order Denying Transfer at ECF No. 21 ,the stay in this matter is lifted. Defendants shall answer the Complaint within 21 days of todays date. SO ORDERED. By JUDGE GEORGE Z. SINGAL. (ccs) (Entered: 08/03/2017)
Set Answer Deadline for US CUSTOMS AND BORDER PROTECTION and US DEPARTMENT OF HOMELAND SECURITY: Per Order at ECF No. 22: Answer due by 8/24/2017. (ccs) (Entered: 08/03/2017)
23 NOTICE of Appearance by MICHAEL L. DREZNER on behalf of All Defendants (DREZNER, MICHAEL) (Entered: 08/24/2017)
24 ANSWER to 1 Complaint,,, by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY.(DREZNER, MICHAEL) (Entered: 08/24/2017)
25 **VACATED− SEE ORDER NO. 27**SCHEDULING ORDER: Discovery due by 1/11/2018. Written Notice of Intent to File Summary Judgment Motion and Request for Pre−Filing Conference due by 1/18/2018. Motions due by 2/1/2018. Ready for Trial on 4/2/2018. By MAGISTRATE JUDGE JOHN H. RICH III. (dfr) Modified on 9/15/2017 to reflect that this order has been vacated per order no. 27(lrc). (Entered: 08/25/2017)
26 Joint MOTION to Amend Scheduling Order and Joint Report of 26(f) Conference by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 10/4/2017. (DREZNER, MICHAEL) (Entered: 09/13/2017)
27 ORDER granting without objection 26 Joint Motion to Amend Scheduling Order. For the reasons set forth in the parties' joint motion, the court's scheduling order, ECF No. 25, is hereby VACATED. Without objection, the parties are directed to file a written joint status report by November 1, 2017, addressing the status of defendants' search for and production of records responsive to the FOIA request at issue herein, the status of any negotiation on the scope and timing of future productions, and the parties' proposed schedule for future proceedings herein. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 09/15/2017)
Set Deadlines − per Order No. 27: Joint Status Report and proposed schedule for future proceedings due by 11/1/2017. (lrc) (Entered: 09/15/2017)
28 MOTION by Attorney Matthew J. Berns and Chetan A. Patil to Withdraw as Attorney by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 10/18/2017. (DREZNER, MICHAEL) (Entered: 09/27/2017)
29 ORDER granting 28 Motion to Withdraw as Attorney. Attorneys Berns and Patil's representation of the defendants is hereby terminated; the defendants continue to be represented by Attorneys Drezner and Sawyer. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 09/27/2017)
30 STATUS REPORT (JOINT) by AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT. (Attachments: # 1 Exhibit Core Search Terms for Field Office Records in ACLU Requests)(HEIDEN, ZACHARY) (Entered: 11/01/2017)

11/14/2017 11/15/2017 11/21/2017 11/24/2017
11/24/2017 12/08/2017 12/08/2017 12/14/2017 12/14/2017 12/15/2017 12/22/2017 12/22/2017

31 NOTICE of Hearing: Telephone Conference re Discovery set for 11/21/2017 10:00 AM with MAGISTRATE JUDGE JOHN H. RICH III. Counsel shall coordinate the call and contact chambers once both sides are on the phone. (nrg) (Entered: 11/14/2017)
32 NOTICE of Appearance by EMMA EATON BOND on behalf of All Plaintiffs (BOND, EMMA) (Entered: 11/15/2017)
33 Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H. RICH III: Discovery Hearing held; docket order to follow. (Court Reporter: FTR) (RICH III, JOHN) (Entered: 11/21/2017)
34 ORDER re 30 Status Report, filed by AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE. On November 21, 2017, I held a telephonic discovery hearing with Attorneys Zachary Heiden, Jennifer Archer, and Emma Bond for the plaintiffs and Attorneys Michael Drezner and Sheila Sawyer for the defendants to discuss the parties' dispute over the schedule and pace of the defendants' production of documents responsive to the plaintiffs' FOIA request as described in their status report (ECF No. 30). Following argument, I ORDERED, without objection, that the parties file on the docket by December 8, 2017, using the CM−ECF Correspondence function, simultaneous letter−briefs, not to exceed 7 pages single−spaced, exclusive of any attachment(s), addressing (1) whether document production by the defendants should be specific to this case or permitted to proceed in a manner that coordinates the defendants' responses in the other related cases pending nationally, and (2) in either event, the appropriate pace at which the court should order the defendants to process responsive documents and serve them on the plaintiffs. Simultaneous responsive letter−briefs, not to exceed 4 pages single−spaced, exclusive of attachment(s), shall be filed by December 15, 2017. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 11/24/2017)
Set Deadlines per Order No. 34 entered on 11/24/2017: Simultaneous briefs due by 12/8/2017; simultaneous responsive briefs due by 12/15/2017. (lrc) (Entered: 11/24/2017)
35 NOTICE/CORRESPONDENCE Re: Order of November 24, 2017 by All Defendants (Attachments: # 1 Exhibit A− Declaration, # 2 Exhibit B− Court Order)(DREZNER, MICHAEL) (Entered: 12/08/2017)
36 NOTICE/CORRESPONDENCE Re: November 24, 2017 Order by All Plaintiffs (Attachments: # 1 Exhibit Washington Scheduling Order, # 2 Exhibit Michigan Scheduling Order, # 3 Exhibit So. Cal. Scheduling Order, # 4 Exhibit Illinois Scheduling Order, # 5 Exhibit Government Proposal in Georgia)(BOND, EMMA) (Entered: 12/08/2017)
37 MOTION to Amend , Consent MOTION to Extend Time ( Responses due by 1/4/2018.) by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B)(DREZNER, MICHAEL) (Entered: 12/14/2017)
38 ORDER granting without objection 37 Motion for extension of time. Simultaneous responsive letter−briefs, not to exceed 4 pages single−spaced, exclusive of attachment(s), shall be filed by December 22, 2017. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 12/14/2017)
Reset Deadlines Per Order at ECF No. 38: simultaneous responsive briefs due by 12/22/2017. (ccs) Modified on 12/15/2017 to reference correct docket number of order (ccs). (Entered: 12/15/2017)
39 NOTICE/CORRESPONDENCE Re: Reply to Government's Letter Brief by All Plaintiffs (Attachments: # 1 Exhibit C.D. Cal. Order, # 2 Exhibit Ga. Order)(BOND, EMMA) (Entered: 12/22/2017)
40 NOTICE/CORRESPONDENCE Re: Reply to Plaintiffs' Letter Brief by All Defendants (Attachments: # 1 Exhibit A − Supplemental Declaration)(DREZNER,

01/22/2018
01/26/2018 01/26/2018 03/30/2018
03/30/2018 05/29/2018
05/29/2018 07/30/2018
09/28/2018 10/01/2018 11/27/2018
12/17/2018

MICHAEL) (Entered: 12/22/2017)
41 Joint MOTION to Amend Scheduling Order by AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT Responses due by 2/12/2018. (Attachments: # 1 Text of Proposed Order Proposed Scheduling Order)(BOND, EMMA) (Entered: 01/22/2018)
42 ORDER granting 41 Motion to Amend Scheduling Order By MAGISTRATE JUDGE JOHN H. RICH III. (mjlt) (Entered: 01/26/2018)
Set Deadlines In accordance with the Order entered on 1/26/18: Parties to file a status report on March 30, 2018; On 12/17/18, parties to file a joint status report and proposed case schedule to the Court, updating the Court as to the status of the case and including a proposed briefing schedule for motions. (mjlt) (Entered: 01/26/2018)
43 STATUS REPORT Joint by AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT. (BOND, EMMA) (Entered: 03/30/2018)
Set Deadlines in accordance with Order No. 42 entered on 1/26/2018: Next Status Report due by 5/29/2018. (lrc) (Entered: 03/30/2018)
44 STATUS REPORT Joint by AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT. (BOND, EMMA) (Entered: 05/29/2018)
Set Deadlines Per Order No. 42 entered on 1/26/2018: Next Status Report due by 10/1/2018. (lrc) (Entered: 05/30/2018)
45 STATUS REPORT Joint by AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT. (BOND, EMMA) (Entered: 07/30/2018)
46 STATUS REPORT (Joint) by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (DREZNER, MICHAEL) (Entered: 09/28/2018)
47 STATUS REPORT by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (DREZNER, MICHAEL) (Entered: 10/01/2018)
48 STATUS REPORT Joint by AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT. (BOND, EMMA) (Entered: 11/27/2018)
49 STATUS REPORT Joint, and Motion for Attorney Fee Briefing Schedule by AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT. (BOND, EMMA) (Entered: 12/17/2018)

12/17/2018
01/07/2019
01/07/2019 01/16/2019 01/22/2019 01/29/2019 01/29/2019 01/29/2019 02/25/2019 02/26/2019
02/26/2019 03/29/2019

50 JOINT MOTION for Briefing Schedule by AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT. No PDF document is attached to this docket entry. To view the motion, see ECF No. 49. (lrc) (Entered: 12/17/2018)
51 ORDER granting without objection 50 Joint Motion for agreed−to briefing schedule for petition for attorney fees and costs. The parties shall attempt to come to an agreement regarding attorney fees and costs no later than January 31, 2019; if the parties are unable to reach a resolution, the plaintiffs shall file their motion for attorney fees and costs no later than February 22, 2019; the government shall file its opposition to the plaintiffs' motion for attorney fees and costs no later than March 22, 2019; the plaintiffs shall file their reply in support of their motion for attorney fees and costs no later than April 1, 2019. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 01/07/2019)
Set Deadlines per Order No. 51 entered on 1/7/2019: If no agreement is reached, then Motion for Attorney Fees and Costs shall be filed by 2/22/2019. Response to Motion due by 3/22/2019. Reply due by 4/1/2019. (lrc) (Entered: 01/07/2019)
52 Consent MOTION to Stay by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 2/6/2019. (DREZNER, MICHAEL) (Entered: 01/16/2019)
53 ORDER granting 52 Motion to Stay. GRANTED WITHOUT OBJECTION. All deadlines are hereby stayed. Counsel shall notify the Court upon resuming regular operations and propose modified deadlines for resolving the attorney's fees and costs. SO ORDERED. By JUDGE GEORGE Z. SINGAL. (lrc) (Entered: 01/22/2019)
54 NOTICE/CORRESPONDENCE Re: Restoration of Appropriations by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY (DREZNER, MICHAEL) (Entered: 01/29/2019)
55 Order Approving 54 Notice to the Court of Restoration of Appropriations. By JUDGE GEORGE Z. SINGAL. (lrc) (Entered: 01/29/2019)
Set Deadlines in accordance with the Order entered on 1/29/2019: Absent a joint resolution by the parties, Motion for Attorney Fees due by 3/29/2019; response due by 4/26/2019; reply due by 5/10/2019. (lrc) (Entered: 01/29/2019)
56 Joint MOTION to Extend Time by US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 3/18/2019. (Attachments: # 1 Text of Proposed Order)(DREZNER, MICHAEL) (Entered: 02/25/2019)
57 ORDER granting 56 Motion to Extend Time. The Court grants an extension of time in which to reach a final agreement on the issue of attorney fees and costs in this matter. The parties are permitted to seek a joint resolution of this issue until March 29, 2019. If the parties cannot reach a final agreement, Plaintiffs' Motion for Attorney Fees would be due by April 26, 2019; Defendants' Response would be due by May 31, 2019; and Plaintiffs' Reply would be due by June 14, 2019. By JUDGE GEORGE Z. SINGAL. (akr) (Entered: 02/26/2019)
Reset Deadlines : Plaintiffs' Motion for Attorney Fees due by 4/26/2019. (akr) Modified on 2/26/2019 to replace "Motions" with "Plaintiffs' Motion for Attorney Fees" (akr). (Entered: 02/26/2019)
58 STIPULATION of Dismissal under Rule 41(a)(1)(A)(ii) by AMERICAN CIVIL LIBERTIES UNION OF CONNECTICUT, AMERICAN CIVIL LIBERTIES UNION OF MAINE, AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE, AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, AMERICAN CIVIL LIBERTIES UNION OF VERMONT. (BOND, EMMA) (Entered: 03/29/2019)