PAPERDOC,STANDARD
U.S. District Court District of Maine (Portland) CIVIL DOCKET FOR CASE #: 2:18−cv−00182−JDL

AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION et al v. US DEPARTMENT OF HOMELAND SECURITY et al Assigned to: JUDGE JON D. LEVY Referred to: MAGISTRATE JUDGE JOHN H. RICH III
related Case: 2:18−cv−00176−JDL
Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 05/08/2018 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION

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

GILLES BISSONNETTE AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE 18 LOW AVENUE CONCORD, NH 03301 603−224−5591 Email: gilles@aclu−nh.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

LIA ERNST AMERICAN CIVIL LIBERTIES UNION OF VERMONT P.O. BOX 277 MONTPELIER, VT 05601 802−223−6034 Email: lernst@acluvt.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

ZACHARY L. HEIDEN AMERICAN CIVIL LIBERTIES UNION OF MAINE 121 MIDDLE STREET SUITE 200 PORTLAND, ME 04101 207−774−5444 Fax: 207−774−1103 Email: zheiden@aclumaine.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION

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

Plaintiff AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT
V. Defendant US DEPARTMENT OF HOMELAND SECURITY
Defendant

GILLES BISSONNETTE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LIA ERNST (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY L. HEIDEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by EMMA EATON BOND (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GILLES BISSONNETTE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LIA ERNST (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ZACHARY L. HEIDEN (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JAMES D. CONCANNON U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE 100 MIDDLE STREET PLAZA PORTLAND, ME 04101 207−780−3257 Email: james.concannon@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW K. LIZOTTE U.S. ATTORNEY'S OFFICE DISTRICT OF MAINE 100 MIDDLE STREET PLAZA PORTLAND, ME 04101 (207) 771−3246 Fax: (207) 780−3304 Email: andrew.lizotte@usdoj.gov ATTORNEY TO BE NOTICED
represented by

US CUSTOMS AND BORDER PROTECTION
Defendant US IMMIGRATION AND CUSTOMS ENFORCEMENT

JAMES D. CONCANNON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW K. LIZOTTE (See above for address) ATTORNEY TO BE NOTICED
represented by JAMES D. CONCANNON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW K. LIZOTTE (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/08/2018
05/08/2018 05/08/2018 05/08/2018 05/08/2018 05/09/2018 05/15/2018

# Docket Text
1 COMPLAINT against US IMMIGRATION AND CUSTOMS ENFORCEMENT, 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 CMECF 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 NEW HAMPSHIRE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT. (Service of Process Deadline 8/6/2018) Fee due by 5/10/2018. (Attachments: # 1 Exhibit A 9/5/17 DHS FOIA request, # 2 Exhibit B acknowledgement, coditional grant, fee waiver, # 3 Exhibit C ICE FOIA request, # 4 Exhibit D 9/27/17 DHS release in full letter, # 5 Exhibit D1 9/27/17 DHS record production, # 6 Exhibit E 2/1/18 FOIA appeal, # 7 Exhibit F Acknowledgement, standard letter1)(bfa) (Entered: 05/08/2018)
2 CIVIL COVER SHEET. (bfa) (Entered: 05/08/2018)
Filing Fee Paid via Credit Card ( Filing fee $ 400 receipt number 0100−1837870.), filed by AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT.(BOND, EMMA) (Entered: 05/08/2018)
3 CERTIFICATION for Admission Pro Hac Vice of Gilles Bissonnette filed by EMMA EATON BOND on behalf of AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION (Total admission fee $ 100 receipt number 0100−1837874.) (BOND, EMMA) (Entered: 05/08/2018)
4 CERTIFICATION for Admission Pro Hac Vice of Lia Ernst filed by EMMA EATON BOND on behalf of AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION (Total admission fee $ 100 receipt number 0100−1837882.) (BOND, EMMA) (Entered: 05/08/2018)
Set Deadlines : Attorney Lia Ernst, Gilles Bissonnette shall register for the District of Maine's Electronic Case Filing (ECF) System by 5/16/2018. Registration Forms are available on the Court's website http://www.med.uscourts.gov/ecf−registration under the Electronic Case Files, ECF Registration Section. (bfa) (Entered: 05/09/2018)
5 NOTICE of Appearance by JAMES D. CONCANNON on behalf of US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND

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05/21/2018 05/22/2018 05/22/2018 06/18/2018 06/19/2018 07/03/2018 07/05/2018
07/05/2018 08/17/2018

BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY (CONCANNON, JAMES) (Entered: 05/15/2018)
6 NOTICE of Appearance by ANDREW K. LIZOTTE on behalf of All Defendants (LIZOTTE, ANDREW) (Entered: 05/16/2018)
7 Summons Issued as to US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, 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 − CBP, # 2 Summons − ICE)(akr) (Entered: 05/16/2018)
8 AFFIDAVIT of Service by AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT. All Defendants. (Attachments: # 1 Exhibit Return Receipt − Certified Mail)(BOND, EMMA) (Entered: 05/21/2018)
Set Answer Deadline for US DEPARTMENT OF HOMELAND SECURITY, US CUSTOMS AND BORDER PROTECTION, and US IMMIGRATION AND CUSTOMS ENFORCEMENT : Answer due by 7/17/2018. (akr) (Entered: 05/22/2018)
Reset Answer Deadline for US DEPARTMENT OF HOMELAND SECURITY, US CUSTOMS AND BORDER PROTECTION, and US IMMIGRATION AND CUSTOMS ENFORCEMENT : Answer due by 6/18/2018 pursuant to 5 U.S.C. § 552(a)(4)(C). (akr) (Entered: 05/22/2018)
9 ANSWER to 1 Complaint,,,, by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY.(CONCANNON, JAMES) (Entered: 06/18/2018)
10 SCHEDULING ORDER: Discovery due by 11/5/2018. Written Notice of Intent to File Summary Judgment Motion and Request for Pre−Filing Conference due by 11/13/2018. Motions due by 11/26/2018. Ready for Trial on 2/4/2019. By MAGISTRATE JUDGE JOHN H. RICH III. (mjlt) (Entered: 06/19/2018)
11 Joint MOTION to Amend Scheduling Order and Joint Report of 26(f) Conference by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 7/24/2018. (CONCANNON, JAMES) (Entered: 07/03/2018)
12 ORDER granting without objection 11 Motion to Amend Scheduling Order. Without objection, the parties are directed to file a written joint status report by August 17, 2018, 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: 07/05/2018)
Set Deadlines Pursuant to Order #12 entered on July 5, 2018: Status Report due by 8/17/2018−the parties are directed to file a written joint status report 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. (mtm) (Entered: 07/06/2018)
13 STATUS REPORT Submitted by Joint Agreement by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US

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10/15/2018 10/16/2018 10/22/2018 11/16/2018
11/16/2018
11/25/2018

DEPARTMENT OF HOMELAND SECURITY. (CONCANNON, JAMES) (Entered: 08/17/2018)
14 MOTION for Permission to File Second Joint Status Report (No PDF attached. See ECF #13) by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY (akr) (Entered: 08/17/2018)
15 ORDER granting without objection 14 Joint Motion for leave to file second joint status report. The parties shall file their second Joint Status Report, as requested, by October 12, 2018. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 08/19/2018)
Set Deadlines : Status Report due by 10/12/2018. (akr) (Entered: 08/20/2018)
16 STATUS REPORT and Joint Motion for Permission to File Third Joint Status Report by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (CONCANNON, JAMES) (Entered: 10/12/2018)
17 MOTION for Permission to File Third Joint Status Report (No PDF attached. See ECF #16) by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY (akr) (Entered: 10/15/2018)
18 ORDER granting without objection 17 Joint Motion for Leave to File Third Joint Status Report. The parties shall file their third Joint Status Report by November 16, 2018, addressing the parties' agreed−upon production schedule or, if the parties are unable to agree on a production schedule, each parties' position regarding a proposed production schedule. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 10/15/2018)
Set Deadlines : Status Report due by 11/16/2018. (akr) (Entered: 10/15/2018)
Set Deadlines : Per Local Rule 7.1 Notice of Interested Parties or Corporate Disclosure Statement due by 10/22/2018 as to AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION. (akr) (Entered: 10/16/2018)
19 NOTICE of Interested Parties by AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION (BOND, EMMA) (Entered: 10/22/2018)
20 STATUS REPORT (Joint) and Motion for the Court to Set Production Schedule by AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION. (BOND, EMMA) (Entered: 11/16/2018)
21 Joint MOTION for the Court to Set Production Schedule (No PDF attached − See ECF #20) by AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION (akr) (Entered: 11/19/2018)
22 ORDER granting 21 Joint Motion for the court to set production schedule. Upon careful consideration of the parties' Third Joint Status Report, the court sets the following production schedule for the release of records in the Defendants' possession: (1) without objection, by December 10, 2018, Defendants ICE and CBP will make a production of responsive, non−exempt records; by January 10, 2019, Defendants ICE and CBP will make an additional production of responsive, non−exempt records; and, by February 11, 2019 (February 10 being a Sunday), Defendants ICE and CBP will, respectively, complete processing the entirety of the priority search documents and produce to the Plaintiffs any responsive, non−exempt records identified pursuant to the priority search parameters; (2) regarding Defendant DHS, over objection and weighing the parties' competing interests set out in detail in the Third Joint Status Report, including Plaintiffs' contention that DHS should be subject to the same schedule as ICE and CBP and DHS's contention that it is only able to commit to reviewing 250

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05/22/2019 06/24/2019

pages of records per month beginning in January, I ORDER Defendant DHS to produce, beginning in January 2019, the 1,735 potentially responsive pages to the Plaintiffs at an average rate of 350 pages and a minimum rate of 250 pages per month, as follows: By January 10, 2019, Defendant DHS will make a production of at least 250 responsive, non−exempt records; by February 11, 2019, Defendant DHS will make an additional production of at least 250 responsive, non−exempt records; by March 11, 2019, Defendant DHS will make an additional production of at least 250 responsive, non−exempt records; by April 10, 2019, Defendant DHS will make an additional production of at least 250 responsive, non−exempt records; and by May 10, 2019, Defendant DHW will complete processing the entirety of the priority search documents and produce to the Plaintiffs any responsive, non−exempt records identified pursuant to the priority search parameters. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 11/25/2018)
23 Consent MOTION to Amend Production Schedule by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 1/30/2019. (CONCANNON, JAMES) (Entered: 01/09/2019)
24 ORDER granting without objection 23 Motion to Amend scheduling order. The court's November 25, 2018, production schedule, ECF No. 22, is amended to postpone defendants' January 10, 2019, production of responsive, non−exempt records until the next scheduled production date of February 11, 2019. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 01/14/2019)
25 Consent MOTION to Amend Production Schedule by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 3/4/2019. (CONCANNON, JAMES) (Entered: 02/11/2019)
26 ORDER granting without objection 25 Motion to Amend Production Schedule. The court's November 25, 2018, production schedule, ECF No. 22, as amended, ECF No. 24, is further amended to postpone defendants' February 11, 2019, production of responsive, non−exempt records until February 15, 2019. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 02/15/2019)
27 NOTICE of Hearing: Telephone Conference re Scheduling Order Deadlines set for 5/20/2019 at 01:00 PM before MAGISTRATE JUDGE JOHN H. RICH III. Counsel shall call chambers at the number provided once all parties are on the line.(slg) (Entered: 05/15/2019)
28 Minute Entry for proceedings held before MAGISTRATE JUDGE JOHN H. RICH III: Conference of Counsel held re: case status; docket order to follow. (Court Reporter: FTR) (RICH III, JOHN) (Entered: 05/20/2019)
29 ORDER re 27 Notice of Hearing. On May 20, 2019, I held a telephonic status conference with Attorneys Bond, Heiden, and Ernst for the plaintiffs and Attorney Concannon for the defendants to discuss the status of this matter following the expiration of the May 10 deadline for defendant DHS to complete processing its priority search documents, ECF No. 22, a date set prior to the last government partial shutdown. After discussion, the parties orally moved for an extension of DHS's deadline to June 10, 2019, and for leave to file a written status report by June 24, 2019. Accordingly, I ORDERED that DHS complete processing the entirety of the priority search documents and produce to the plaintiffs any responsive, non−exempt records by June 10, 2019, and that the parties file a written joint status report by June 24, 2019. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 05/22/2019)
Set Deadlines : Status Report pursuant to ECF #29 due by 6/24/2019. (akr) (Entered: 05/22/2019)
30 STATUS REPORT and Motion to Set Deadline for Fifth Status Report by AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION. (Attachments: # 1 Attachment A − Plaintiffs' Sample Redaction Concerns)(BOND, EMMA) (Entered: 06/24/2019)

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06/26/2019 06/26/2019 07/12/2019 07/12/2019 07/15/2019 07/18/2019 07/18/2019 09/17/2019
09/24/2019
09/24/2019 10/11/2019
10/15/2019

31 MOTION to Set Deadline for Fifth Status Report (No PDF attached to this entry. To view Motion see ECF #30). by AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION (tcs) (Entered: 06/25/2019)
32 ORDER granting without objection 31 Joint Motion for leave to file Fifth Status Report. The parties shall file their Fifth Status Report by July 12, 2019. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 06/26/2019)
Set Deadlines: Pursuant to ORDER at ECF #32, Fifth Status Report due by 7/12/2019. (tcs) (Entered: 06/26/2019)
33 STATUS REPORT and Motion for Additional Scheduling Order by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (CONCANNON, JAMES) (Entered: 07/12/2019)
34 MOTION for Additional Scheduling Order(No PDF attached; see ECF #33). by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY (akr) Modified on 7/15/2019 to correct title and date filed (akr). (Entered: 07/15/2019)
35 NOTICE of Docket Entry Modification regarding 34 MOTION for Additional Scheduling Order : This entry has been modified to replace "to Set Deadline for Sixth Status Report" with "for Additional Scheduling Order" (akr) (Entered: 07/15/2019)
36 SCHEDULING ORDER granting 34 Motion for Additional Scheduling Order By JUDGE JON D. LEVY. (akr) (Entered: 07/18/2019)
Reset Deadlines : Status Report due by 9/17/2019. (akr) (Entered: 07/18/2019)
37 Sixth Joint Status Report and Motion for Additional Scheduling Order by AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION Responses due by 10/8/2019. (BOND, EMMA) Modified on 9/17/2019 to clarify docket text (lrc). (Entered: 09/17/2019)
38 ORDER granting without objection 37 Joint Motion for Additional Scheduling Order. On the parties' joint motion and the showing made, U.S. Immigration and Customs Enforcement shall produce responsive documents from the Enforcement and Removal Operations folder in the shared drive by September 27, 2019, and the parties shall file a joint status report, with a proposed briefing schedule on the challenged redactions, by October 11, 2019. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 09/24/2019)
Set Deadlines : Status Report due by 10/11/2019. (akr) (Entered: 09/24/2019)
39 Seventh Joint Status Report and MOTION for Additional Scheduling Order by AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION Responses due by 11/1/2019. (BOND, EMMA) Modified on 10/11/2019 for consistency (akr). (Entered: 10/11/2019)
40 ORDER granting without objection 39 Joint Motion for Order setting briefing schedule on redaction disputes. The parties having filed a joint status report, with a proposed briefing schedule on the challenged redactions, as contemplated by the court's order dated September 24, 2019, the following briefing schedule to resolve redaction disputes is ORDERED: By October 23, 2019, the Plaintiffs shall file an appendix with all public documents containing redactions that Plaintiffs intend to challenge; by November 8, 2019, the Defendants shall file final Vaughn indices explaining the bases for the challenged redactions; by December 6, 2019, the Plaintiffs shall file a brief, no longer than 20 pages, challenging the legal bases for the redactions; by January 10, 2020, the Defendants shall file a responsive brief, no longer than 20 pages, in support of the redactions; and, by January 24, 2020, the Plaintiffs shall file a reply brief, no longer than 7 pages, in support of their challenges. By

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MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 10/15/2019)
Set Deadlines : Defendant shall file Vaughn indices by 11/8/2019. Plaintiffs' Brief (1) due by 12/6/2019. Defendants' Responsive Brief (2) due by 1/10/2020. Plaintiffs' Reply Brief (3) due by 1/24/2020. (akr) (Entered: 10/15/2019)
41 APPENDIX of Challenge to Redactions Under FOIA by AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION. (Attachments: # 1 Appendix)(HEIDEN, ZACHARY) Modified on 10/21/2019 to replace "Administrative Record" with "Appendix" (akr). (Entered: 10/18/2019)
42 STATUS REPORT by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A − ICE Vaughn Index, # 2 Exhibit B − CBP Vaughn Index)(CONCANNON, JAMES) (Entered: 11/12/2019)
43 Consent MOTION to Amend Scheduling Order for briefing on redaction disputes by AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION Responses due by 12/26/2019. (BOND, EMMA) (Entered: 12/05/2019)
44 ORDER granting without objection 43 Consent Motion to Amend Scheduling Order. By December 20, 2019, the Plaintiffs shall file a brief, no longer than 20 pages, challenging the legal bases for the redactions; by January 24, 2020, the Defendants shall file a responsive brief, no longer than 20 pages, in support of the redactions; and, by February 7, 2020, the Plaintiffs shall file a reply brief, no longer than 7 pages, in support of their challenges. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 12/09/2019)
Reset Deadlines : Plaintiffs' Brief Deadline (1) due by 12/20/2019. Defendants' Responsive Brief Deadline (2) due by 1/24/2020. Plaintiffs' Reply Brief Deadline (3) due by 2/7/2020. (akr) (Entered: 12/09/2019)
45 STATUS REPORT by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Exhibit A − ICE Vaughn Index, # 2 Exhibit B − CBP Vaughn Index)(CONCANNON, JAMES) (Entered: 12/20/2019)
46 OBJECTION to Redaction of Public Records by AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION. (BOND, EMMA) Modified on 1/8/2020 to modify docket entry per the court (nrg). (Entered: 12/20/2019)
SET Deadlines as to 46 OBJECTION pursuant to ECF No. 44: Responses due by 1/24/2020. Reply due by 2/7/2020. (nrg) (Entered: 01/08/2020)
47 Consent MOTION to Extend Time and to Amend Scheduling Order by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 2/12/2020. (CONCANNON, JAMES) (Entered: 01/22/2020)
48 ORDER granting without objection 47 Motion to Extend Time. By February 5, 2020, the Defendants shall file a responsive brief, no longer than 20 pages, in support of the redactions; and, by February 19, 2020, the Plaintiffs shall file a reply brief, no longer than 7 pages, in support of their challenges. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 01/23/2020)
***FILED IN ERROR*** Reset Deadlines : Defendants' Responsive Brief (2) due by 1/24/2020. Plaintiffs' Reply Brief (3) due by 2/7/2020. (akr) Modified on 1/27/2020 (akr). (Entered: 01/23/2020)
49 NOTICE of Docket Entry Modification regarding Set/Reset Deadlines : This entry has been marked "Filed in Error" and the deadlines have been terminated. (akr) (Entered: 01/27/2020)

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02/14/2020 02/19/2020
07/06/2020 07/06/2020

Reset Deadlines pursuant to the Order at ECF #48 as to 46 OBJECTION : Responses due by 2/5/2020. Reply due by 2/19/2020. (akr) Modified on 1/27/2020 (akr). (Entered: 01/27/2020)
50 NOTICE of Docket Entry Modification regarding Set/Reset Motion and R&R Deadlines/Hearings : This entry has been modified to add "pursuant to the Order at ECF #48." (akr) (Entered: 01/27/2020)
51 Consent MOTION for Enlargement of Page Limit by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY Responses due by 2/21/2020. (CONCANNON, JAMES) (Entered: 01/31/2020)
52 ORDER granting without objection 51 Motion for leave to file overlong brief. By February 5, 2020, the Defendants shall file a responsive brief, no longer than 25 pages, in support of the redactions. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 02/03/2020)
53 AFFIDAVIT of Justin A. Bristow , Acting FOIA Coordinator for CBP filed by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (CONCANNON, JAMES) (Entered: 02/05/2020)
54 RESPONSE to 46 OBJECTION to Redaction of Records filed by US IMMIGRATION AND CUSTOMS ENFORCEMENT, US CUSTOMS AND BORDER PROTECTION, US DEPARTMENT OF HOMELAND SECURITY. (CONCANNON, JAMES) (Entered: 02/05/2020)
55 Consent MOTION Enlargement of Page Limit in Reply by AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION Responses due by 3/4/2020. (BOND, EMMA) (Entered: 02/12/2020)
56 ORDER granting without objection 55 Motion for leave to file overlong brief. By MAGISTRATE JUDGE JOHN H. RICH III. (RICH III, JOHN) (Entered: 02/14/2020)
57 REPLY to Response to Motion re 46 OBJECTION Reply in Opposition to Redaction under FOIA filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION. (BOND, EMMA) (Entered: 02/19/2020)
58 MEMORANDUM DECISION AND ORDER ON OBJECTION TO PUBLIC RECORD REDACTIONS PURSUANT TO FOIA re 46 Objection to Redaction of Public Records. By MAGISTRATE JUDGE JOHN H. RICH III. (slg) Modified docket text per the court on 7/7/2020 (slg). (Entered: 07/06/2020)
Set Deadlines per Order #58: ICE and CBP to produce documents to the ACLU by 7/20/2020. (slg) (Entered: 07/06/2020)

 
 Case 2:18-cv-00182-JDL Document 1 Filed 05/08/18 Page 1 of 21 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE FOUNDATION, and AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VERMONT,
Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION, and U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
Defendants.

) Case No. ________ ) ) ) ) ) COMPLAINT FOR DECLARATORY ) AND INJUNCTIVE RELIEF FOR ) VIOLATION OF THE FREEDOM OF ) INFORMATION ACT, 5 U.S.C. § 552 ) et seq. ) ) ) ) ) ) ) ) )

INTRODUCTION 1. The American Civil Liberties Union of Maine Foundation, American Civil Liberties Union of New Hampshire Foundation, and American Civil Liberties Union Foundation of Vermont (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 U.S. Department of Homeland Security (“DHS”), U.S. Customs and Border Protection (“CBP”), and U.S. Immigration and Customs Enforcement (“ICE”) (collectively, “Defendants”) to respond to a FOIA request sent by Plaintiffs on September 5, 2017 (“Request”), and to promptly disclose the requested records. 2. The Request seeks records concerning Defendants’ local immigration enforcement in Maine, New Hampshire, and Vermont. Specifically, the Request seeks records regarding (1) Defendants’ immigration enforcement actions in Maine, New Hampshire, and Vermont, (2) their communications with local law enforcement, and (3) their communications with local businesses. A true and correct copy of the Request is attached as Exhibit A.

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3. There is significant public interest in these records, especially in light of Defendants’ aggressive enforcement actions under the administration of President Donald Trump—including arresting individuals in previously safe locations like courthouses. Disclosure of the requested records would facilitate the public’s understanding of how Defendants enforce the immigration laws in Maine, New Hampshire, and Vermont. Such information is critical to the public’s ability to hold the government accountable.
4. The requested records contain information of great public importance. For example, a recent court decision found violations of the federal and state constitutions based in part on collaboration between Defendant CBP and local law enforcement.1 That is precisely the type of information covered by the ACLU’s FOIA request. The public has a right to know about Defendants’ local enforcement operations, including collaboration and communications with local law enforcement.
5. This action is necessary because, months after receiving the Request and a subsequent appeal, Defendants have still failed to provide timely determinations as required by statute, and have otherwise failed to adequately respond to the Request.
JURISDICTION 6. 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 7. Venue in the District of Maine is proper under 5 U.S.C. § 552(a)(4)(B) because Plaintiff ACLU of Maine’s principal place of business is in the District of Maine and because a substantial portion of the withheld records relate to immigration enforcement and
1 New Hampshire v. McCarthy, Docket No. 469-2017-CR-01888 (Second Circuit District Division Plymouth, Grafton, May 1, 2018), available at https://www.aclunh.org/sites/default/files/field_documents/state_v._mccarthy_-_order_5-1-18.pdf.
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communications in the District of Maine. For the same reasons, venue also is proper under 28 U.S.C. § 1391(e).
PARTIES 8. Plaintiff American Civil Liberties Union of Maine Foundation (“ACLU of Maine”) is a non-profit 26 U.S.C. § 501(c)(3) organization that provides legal representation free of charge to individuals and organizations in civil rights and civil liberties cases and educates the public about civil rights and civil liberties issues across Maine. The ACLU of Maine is headquartered in Portland, Maine. 9. Plaintiff American Civil Liberties Union of New Hampshire Foundation (“ACLU of New Hampshire”) is a non-profit 26 U.S.C. § 501(c)(3) organization that provides legal representation free of charge to individuals and organizations in civil rights and civil liberties cases and educates the public about civil rights and civil liberties issues across New Hampshire. The ACLU of New Hampshire is headquartered in Concord, New Hampshire. 10. Plaintiff American Civil Liberties Union Foundation of Vermont (“ACLU of Vermont”) is a non-profit 26 U.S.C. § 501(c)(3) organization that provides legal representation free of charge to individuals and organizations in civil rights and civil liberties cases and educates the public about civil rights and civil liberties issues across Vermont. The ACLU of Vermont is headquartered in Montpelier, Vermont. 11. Defendant Department of Homeland Security (“DHS”) 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). 12. Defendant U.S. Customs and Border Protection (“CBP”) is a component of DHS and is a federal agency within the meaning of 5 U.S.C. § 552(f)(1). 13. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is a component of DHS and is a federal agency within the meaning of 5 U.S.C. § 552(f)(1). 14. Plaintiffs are informed and therefore believe that Defendants have possession, custody, or control of the requested records.
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FACTS I. Public Concern with Defendants’ Immigration Enforcement 15. The Request arises from widespread public interest in immigration enforcement in Maine, New Hampshire, and Vermont after the election of Donald Trump as President and in the early days of the Trump Administration. Since President Trump’s inauguration, Plaintiffs have seen harsh and unprecedented immigration enforcement in their states. These trends are particularly concerning given the ongoing and grave concerns with the lack of transparency and oversight in Defendants’ enforcement practices.2 16. In the first 100 days of the Trump administration, U.S. immigration officials arrested more than 41,000 suspected undocumented individuals—an increase of nearly 38 percent over the same period the previous year.3 The largest deportations have been among immigrants with no criminal records or minor non-violent offenses. The New England states, including Maine, New Hampshire, and Vermont, experienced an even larger percentage increase—up 58 percent from the same period from the previous year.4 In response, the immigrant communities in Maine, New Hampshire, and Vermont have been crippled by fear and anxiety. 17. Specific instances of enforcement in Maine, New Hampshire, and Vermont have caused particular public concern in those states. 18. For example, Maine has seen an unprecedented increase in aggressive actions taken by government officials towards immigrants residing in Maine. In one incident, ICE
2 See, e.g., James Lyall et al., Record of Abuse: Lawlessness and Impunity in Border Patrol’s Interior Enforcement Operations, ACLU of Arizona (Oct. 2015), available at https://www.acluaz.org/sites/default/files/documents/Record_of_Abuse_101515_0.pdf. 3 Mark Hayward, ICE Arrests of Illegal Immigrants Climb by 38 Percent, UNION LEADER, May 17, 2017, available at http://www.newhampshire.com/social-issues/ICE-arrests-of-illegalimmigrants-climb-38-percent-05172017. 4 Id. (stating that the New England states saw deportation numbers rise to 610 for the period).
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officers arrested Abdi Ali, a Somali asylum seeker, inside a Portland courthouse while he met privately with his lawyer about a pending case.5
19. The arrest was the first of its kind in Maine and prompted an outpouring of
criticism from Maine’s legal community. Maine Attorney General Janet Mills spoke out publicly
against the ICE action and addressed a letter to Homeland Security and the U.S. Attorney
warning that such actions would “have an unnecessary chilling effect on our efforts to obtain the cooperation of victims and our successful prosecution of crimes.”6 As Attorney General Mills
explained, “[i]n investigating matters of human trafficking, domestic violence and the like, it is
critical to us that all individuals have free and open access to Maine courts, regardless of their immigration status.”7
20. After the incident, the ACLU of Maine and 179 lawyers across Maine signed a
letter to U.S. Attorney General Jeff Sessions and Department of Homeland Security Secretary
John Kelly to express the contempt felt towards ICE’s actions at the Portland courthouse and to
demand that courthouses be treated as “sensitive locations” where ICE enforcement should be avoided.8 The letter further emphasized the “fundamental constitutional guarantee that all people have the right to seek redress from our system” regardless of immigration status.”9
5 Danielle Waugh, Ice Agents Make First Immigrant Arrest at Maine Courthouse, NEW ENGLAND CABLE NEWS, Apr. 7, 2017, available at https://www.necn.com/news/newengland/ICE-Agents-Make-First-Immigrant-Arrest-in-Maine-418674963.html; Jennifer Mitchell & Caroline Losneck, Immigrants fear for the future after series of ICE arrests in Maine, BANGOR DAILY NEWS, Apr. 16, 2017, available at http://bangordailynews.com/2017/04/16/politics/immigrants-fear-rough-waters-after-federalagents-arrest-maine-immigrants/. 6 Judy Harrison, Janet Mills warns ICE courthouse arrests could have a ‘chilling effect’ in Maine, BANGOR DAILY NEWS, Apr. 20, 2017, available at http://bangordailynews.com/2017/04/10/news/augusta/janet-mills-warns-ice-courthouse-arrestscould-have-a-chilling-effect-in-maine/. 7 Id. 8 Megan Doyle, Scores of Maine attorneys condemn immigration arrest at Portland courthouse, PORTLAND PRESS HERALD (Apr. 10, 2017), https://www.pressherald.com/2017/05/10/undocumented-maine-immigrant-in-u-s-for-20-yearsnow-close-to-deportation/. 9 Id.
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21. In another alarming incident, ICE detained Otto Morales-Caballeros, a Naples, Maine resident, “as part of the Trump administration’s move to tighten immigration enforcement.”10 Born in Guatemala, Morales-Caballeros had lived in the United States for approximately 20 years. He was detained while on his way to work, held at four different locations during his less-than-three-month detention, and deported to Guatemala. Mr. MoralesCaballeros says that Guatemala now feels foreign to him after 20 years in the United States.11
22. Not long after ICE detained Mr. Morales-Caballeros, the Maine State House voted down LD366, a bill that would have compelled “Maine cities to act as extensions of federal immigrations authorities.”12
23. New Hampshire has faced similar patterns of immigration enforcement. During the summer of 2017, ICE began the process of deporting more than 50 Indonesians living in the seacoast area of New Hampshire—including 17 married couples with children who are U.S. citizens or have DACA (“Deferred Action for Childhood Arrivals”) status—some of whom have serious medical conditions. All of the families have lived in the United States for years and were known to ICE because of their participation in a program enacted eight years earlier called “Operation Indonesian Surrender.” ICE had called this program “a humanitarian effort” meant to “bring folks out of the shadows” and send the message to Indonesian Christian community members that “we will work with you.” In exchange for identifying themselves, turning over their passports, and regularly checking in with immigration, these families were able to legally remain and work in the United States. However, in 2017, ICE ended the program and then tried
10 Megan Doyle, Undocumented Maine immigrant, in U.S. for 20 years, now close to deportation, PORTLAND PRESS HERALD, May 10, 2017, available at https://www.pressherald.com/2017/05/10/undocumented-maine-immigrant-in-u-s-for-20-yearsnow-close-to-deportation/. 11 Megan Doyle, “It’s not my world,” says Naples man deported to Guatemala, PORTLAND PRESS HERALD, June 25, 2017, available at https://www.pressherald.com/2017/06/25/its-not-myworld-says-naples-man-deported-to-guatemala/. 12 Steve Mistler, Maine House Rejects Anti-Sanctuary City Bill, MAINE PUBLIC, May 31, 2017, available at http://mainepublic.org/post/maine-house-rejects-anti-sanctuary-city-bill#stream/0.
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to deport the participants. ICE sought to deport these individuals even though ICE could easily have allowed these families sufficient time to find lawyers to seek to reopen cases based on the current conditions in Indonesia, ensuring that those who fear danger have the opportunity to go before a judge and make their case. Instead, ICE officials refused. The District of Massachusetts has since issued a preliminary injunction enjoining these immediate deportations. See Devitri v. Cronen, 290 F. Supp. 3d 86 (D. Mass. Nov. 27, 2017) (holding that federal court jurisdiction exists in class action lawsuit to halt the immediate deportation of Indonesian nationals residing in New Hampshire and who faced immediate removal to Indonesia where they are in danger of persecution); Devitri v. Cronen, 289 F. Supp. 3d 287 (D. Mass. Feb. 1, 2018) (issuing preliminary injunction preventing the immediate deportation).
24. Similarly, in June 2017, ICE raided a Mexican restaurant in New Boston, New Hampshire arresting some of the restaurant’s staff cooks and waiters.13 And in February 2017, the Strafford County Jail, which houses immigration detainees, saw an average of 106 immigration detainees each day, a 25 percent increase over the previous month.14
25. In response, several Granite State churches and community groups have started to organize a response to increased ICE enforcement.15 For example, in June 2017, religious leaders hosted an interfaith prayer vigil in front of the Norris Cotton Federal Building in Manchester to show support for immigrant families facing the threat of deportation.16
13 Emily Corwin, Mexican Restaurant in N.H. Shuts Down After Immigration Raid, NHPR, June 9, 2017, available at http://nhpr.org/post/mexican-restaurant-nh-shuts-down-after-immigrationraid#stream/0. 14 Emily Corwin, N.H.’s Immigration Detention Facility Saw Spike in February, NHPR, Mar. 21, 2017, available at http://nhpr.org/post/nhs-immigration-detention-facility-saw-spikefebruary#stream/0. 15 Mark Hayward, NH Churches, Community Groups Plan Response to ICE Efforts, UNION LEADER, Apr. 04, 2017, available at http://www.unionleader.com/social-issues/NH-churchescommunity-groups-plan-response-to-ICE-efforts-040520167. 16 Laura Montenegro, NH Vigil Planned Against Deportation of “Law-Abiding” Immigrants in U.S. Illegally, NH1, June 5, 2017, available at http://www.nh1.com/news/nh-vigil-plannedagainstdeportation-of-law-abiding-immigrants-in-u-s-illegally/.
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26. This increased enforcement has also included the use of CBP checkpoints deep in the interior of New Hampshire. On two separate occasions in August and September 2017, CBP instituted temporary immigration checkpoints on Interstate 93 (South) in Woodstock, New Hampshire. Woodstock is a small town (population 1,374) located in the White Mountains—a popular tourist attraction—that is approximately 90 driving miles from the Canadian border. As part of the checkpoints, CBP used suspicionless “dog sniffs” and collaborated with local law enforcement. When CBP allegedly found small amounts of drugs for personal use on 16 individuals as a result of these “dog sniff” searches, CBP then handed these individuals off to the Woodstock Police Department to be charged in state court.
27. On May 1, 2018, a New Hampshire state court ruled that these searches were unconstitutional under both State and federal law.17 As the court explained, suspicionless “dog sniff” searches violate the New Hampshire constitution (which applies in state court prosecutions), regardless of whether federal or state officers conduct the search. Furthermore, on the facts before it, the court found that CBP had collaborated with local law enforcement to facilitate the prosecution of state drug charges—which is unconstitutional.18
28. Vermont has also seen an increase in public concern over immigration enforcement. Just days into the Trump administration, Vermont’s attorney general announced the creation of an immigration task force to help address anxiety and fear arising from the administration’s immigration enforcement agenda.19
17 New Hampshire v. McCarthy, Docket No. 469-2017-CR-01888 (Second Circuit District Division Plymouth, Grafton, May 1, 2018), available at https://www.aclunh.org/sites/default/files/field_documents/state_v._mccarthy_-_order_5-1-18.pdf. 18 Id. at 10-12. 19 John Walters, With Fed Policy Unclear, Donovan Creates Immigrant Task Force, SEVEN DAYS, Jan. 25, 2017, available at https://www.sevendaysvt.com/OffMessage/archives/2017/01/25/walters-with-fed-policy-uncleardonovan-creates-immigrant-task-force; Peter Hirschfeld, Trump’s Executive Orders Create Uncertainty For Immigrants In Vermont, VT. PUBLIC RADIO, Jan. 25, 2017, available at http://digital.vpr.net/post/trumps-executive-orders-create-uncertainty-immigrantsvermont#stream/0.
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29. One month later, Vermont’s governor unveiled a bill aimed at limiting local law
enforcement involvement in enforcing federal immigration law; the bill garnered tri-partisan
support, was passed unanimously by the Senate and overwhelmingly by the House, and was signed into law in March.20
30. In May 2017, the Governor signed into law a bill requiring all Vermont law
enforcement agencies to adopt a revised Fair and Impartial Policing policy that, without
conflicting with federal law, strengthens existing limitations on their involvement in immigration enforcement.21
31. As another trigger for public outcry, ICE and CBP have arrested numerous
prominent members of Migrant Justice— a community-based organization made up of Vermont dairy farm workers and their families that advocates for human rights and food justice22—in
apparent retaliation for their outspoken advocacy for workers’ human, labor, and civil rights.
32. On August 1, 2017, CBP agents boarded a commercial bus as it arrived in White
River Junction at 2 a.m. and would not let anyone off the bus. The agents demanded to see
certain individuals’ identification and papers. One witness stated that the agents only made these requests of individuals who had accents or were not white.23
20 See Bill Status, S.79, An act relating to freedom from compulsory collection of personal information, available at http://legislature.vermont.gov/bill/status/2018/S.79; see also Cory Dawson, VT law counters Trump’s immigration orders, BURLINGTON FREE PRESS, Mar. 28, 2017, available at http://www.burlingtonfreepress.com/story/news/2017/03/28/vermontgovernor-signs-law-immigration/99754604/. 21 See Elizabeth Hewitt, House Advances Bills Promoting Racial Justice, VTDigger, Apr. 12, 2017, available at https://vtdigger.org/2017/04/12/house-advances-bills-promoting-racialjustice/; Elizabeth Hewitt, Senate Approves Racial Justice Oversight Board Bill, VTDigger, Apr. 20, 2017, available at https://vtdigger.org/2017/04/20/senate-approves-racial-justice-oversightboard-bill/; Peter Hirschfeld, Gov. Scott Signs Bill Establishing ‘Racial Justice Oversight Board, VT. PUB. RADIO, May 31, 2017, available at http://digital.vpr.net/post/gov-scott-signs-billestablishing-racial-justice-oversight-board#stream/0. 22 Migrant Justice, About Migrant Justice, https://migrantjustice.net/about. 23 John Gregg, Gregg: Border Patrol Checks IDs of Bus Passengers in White River Junction, VTDigger, Aug. 3, 2017, available at https://vtdigger.org/2017/08/03/gregg-border-patrolchecks-ids-bus-passengers-white-river-junction/ (originally published in the Valley News on August 2, 2017).
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33. Also in the summer of 2017, a Franklin County Sheriff’s Deputy stopped a vehicle and discovered that the driver did not speak English and did not have a Vermont driver’s license. The deputy requested by radio a “Romeo unit”—a reference to the U.S. Border Patrol station in Richmond, Vermont—and U.S. Border Patrol agents arrived within ten minutes. Video footage of the stop captured a Border Patrol agent saying “He’s a wet. He’s gonna be what we’re looking for”—“wet” being shorthand for the ethnic slur “wetback.” Later in the stop, an agent discusses whether a woman who had helped translate is “wet.”24’
II. Plaintiffs’ FOIA Request 34. On September 5, 2017 Plaintiffs sent the Request via electronic mail to DHS Headquarters in Washington, D.C., to foia@dhs.gov and foia@hq.dhs.gov. See 6 C.F.R. § 5.3 (stating that all DHS components “have the capability to receive requests electronically, either through email or a web portal”). Exh. A. 35. The Request seeks all records and communications relating to ICE’s and CBP’s immigration enforcement actions in the states of Maine, New Hampshire, and Vermont from January 1, 2017, until the date when DHS completes an adequate search for responsive records. Because no adequate search has yet been completed, the period covered by the Request is ongoing.
36. Specifically, the Request seeks “the disclosure of all records related to U.S. Immigration and Customs Enforcement (“ICE”) and U.S. Customs and Border Protection (“CBP”) enforcement operations in Vermont, New Hampshire, and Maine,” including:
A. All Records, including but not limited to data or statistics, mentioning, referencing, relating to, or referring to any immigration enforcement action, including but not limited to any investigations, arrests, or detentions of any individual in the states of Vermont, New Hampshire, or
24 Taylor Dobbs, Footage Show Feds Using Ethnic Slur During Traffic Stop, Seven Days, Dec. 8, 2017, available at https://www.sevendaysvt.com/OffMessage/archives/2017/12/08/footageshows-feds-using-ethnic-slur-during-traffic-stop; John Dillon, Traffic Stop of Migrant Workers Raises Questions About Policing Policy, Vt. Pub. Radio, Dec. 11, 2017, available at http://digital.vpr.net/post/traffic-stop-migrant-workers-raises-questions-about-policingpolicy#stream/0.
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Maine by DHS or its sub-agencies; any requests for automated license plate reader data; any boarding by DHS officials of any commercial bus or other form of public transportation to perform immigration checks; and any roadblock or checkpoint established by DHS officials. B. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local law enforcement agency—including but not limited to Departments of Motor Vehicles and Departments of Corrections— mentioning, referencing, or referring to immigration enforcement, or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications. C. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local government official mentioning, referencing, or referring to immigration enforcement, “sanctuary” policies, detainers, or “fair and impartial policing,” or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications. D. All communications relating to immigration enforcement with, to, or from any Vermont, New Hampshire, or Maine businesses or business owners, including but not limited to dairy farms and other agricultural operations, and all Records pertaining to any such communications. E. All records created, sent, received, referenced, and/or used in fulfilling and/or responding to any of the foregoing parts of this Request. Exh. A at 8.
37. The Request includes an application for expedited processing, on the grounds that there is a “compelling need” for the requested records under 5 U.S.C. § 552(a)(6)(E)(v)(II) because of the “urgency to inform the public concerning actual or alleged Federal Government activity.” Exh. A at 9–11. As set forth above, there is an urgent need for public transparency and information about how Defendants are carrying out their activities in Vermont, New Hampshire, and Maine.
38. Furthermore, the Request details 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 9.
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39. As explained in the Request, examples of the ACLU’s information-dissemination function include publishing blogs, newsletters, news briefings, “Know Your Rights” documents, and other educational and informational materials. Exh. A at 9.
40. The Request also includes 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., Defendants’ local enforcement of the immigration laws and communications with local law enforcement in Maine, New Hampshire, and Vermont. 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 13-14.
41. 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 ¶ 39 above. Exh. A at 12.
III. Agencies’ Responses A. DHS’s Response
42. Defendant DHS provided a wholly inadequate response to the Request, and, after Plaintiffs’ appealed that inadequate response, DHS failed to comply with the statutory timeline to make a determination with respect to the appeal.
43. Specifically, on September 15, 2017, the DHS FOIA office sent a letter acknowledging receipt of the Request. Exh. B. The letter stated that DHS had begun a search for the records requested in item 1 (regarding immigration enforcement actions), but stated that
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items 2 through 5 of the request had been transferred to Immigration and Customs Enforcement (“ICE”).
44. DHS’s letter also denied the request for expedited treatment, conditionally granted the request for a fee waiver, and invoked the statutory ten-day extension for unusual circumstances in processing the request, 6 C.F.R. § 5.5(c). See Exh. B.
45. Almost two weeks later, on September 27, 2017, DHS sent a purported “final response” to item one of the Request, attaching only one page of responsive records. Exhs. D, D1. The response contained a single page of statistics, despite the fact that the question one of the Request plainly extended to any and all records concerning immigration enforcement actions in Maine, New Hampshire, and Vermont. Exh. D-1.
46. The single-page response appears below, in full:
Exh. D-1. 47. DHS’s single-page response shows 5,155 total instances of apprehension, ICE
arrest, or determinations of inadmissibility, in Maine, New Hampshire, and Vermont. Among that number, there were almost 2,500 ICE arrests in Maine, New Hampshire, and Vermont in 2016 and 2017. Yet DHS failed to provide any records relating to those specific arrests, apprehensions, and determinations of inadmissibility.
48. Despite the Request’s express reference to records related to “U.S. Customs and Border Protection (“CBP”) enforcement operations,” Exh. A at 1, DHS did not search any CBP records or refer any portion of the Request to CBP.
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B. Plaintiffs’ Appeal to DHS 49. Plaintiffs submitted an appeal on February 1, 2018 (the “Appeal”), arguing that
DHS failed to fully respond to the Request or adequately search for responsive documents. See 5 U.S.C. § 552(a)(6); 6 C.F.R. § 5.8(a)(1). Exh. E.
50. As explained in the Appeal, DHS failed to provide information regarding “any immigration enforcement action,” as requested. Exh. E at 2-3. Indeed, “the one record DHS did produce reflects dozens of immigration enforcement actions in [Maine, New Hampshire, and Vermont] since January 1, 2017, yet DHS produced no records whatsoever related to these actions.” Exh. E at 2.
51. Nor did DHS produced any records regarding numerous high-profile instances of local immigration enforcement (including those detailed above), which plainly qualify as “immigration enforcement action” within the scope of the Request. See Exh. E at 3.
52. The Appeal requested that “DHS conduct an adequate search and disclose all responsive records in an expeditious manner.” Exh. E at 3.
53. Finally, the Appeal stated that pursuant to 5 U.S.C. § 552(a)(6)(A)(ii), DHS was required to respond within 20 working days. Exh. E at 3. C. DHS’s Response to the Appeal
54. Defendants have a legal duty to determine whether to comply with an appeal within 20 working days after receiving the appeal, and, if denying the appeal in whole or in part, to notify the requester of that determination and of the provisions for judicial review. 5 U.S.C. § 552(a)(6)(A)(ii).
55. As described below, Defendant DHS improperly failed to determine whether to comply with an appeal within 20 days of receipt.
56. DHS acknowledged receipt of the Appeal on February 8, 2018, in a letter sent by email. Exh. F. According to the acknowledgment letter, DHS received the Appeal on February 7, 2018, and queried the appropriate components of DHS for responsive records. DHS stated it would review any responsive records to determine releasability. Exh. F at 1.
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57. As of the date of this complaint—more than 20 working days since DHS received the Appeal—DHS has failed to make any determination with respect to the appeal.
58. Plaintiffs are deemed to have exhausted their administrative remedies with respect to Defendant DHS, 5 U.S.C. §§ 552(a)(6)(C), because DHS failed to respond to the Appeal within the 20 days required by statute, 5 U.S.C. § 552(a)(6)(A)(ii). D. ICE and CBP Responses
59. ICE and CBP likewise failed to comply with their statutory obligation to respond to the request.
60. Defendants have a legal duty under the 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. 5 U.S.C. § 552(a)(6)(A)(i).
61. In other words, “[t]he statute requires that, within the relevant time period, an agency must determine whether to comply with a request—that is, whether a requester will receive all the documents the requester seeks. It is not enough that, within the relevant time period, the agency simply decide to later decide.” Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 711 F.3d 180, 186 (D.C. Cir. 2013) (emphasis added).
62. As described below, Defendants ICE and CBP improperly failed to determine whether to comply with the Request within 20 business days after receiving the Request.
63. Specifically, on September 18, 2017, ICE acknowledged receipt of the Request for items two through four, but without mentioning item five and without making any “determination” whether to comply with the Request. Exh. C.
64. ICE stated that it granted the request for expedited processing and for a fee waiver. Exh. C. at 2. ICE further stated that it had “queried the appropriate program offices within ICE for responsive records,” and that ICE would respond to the request “as expeditiously as possible.” Exh. C. at 2.
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65. Despite its promise to provide expedited processing, ICE failed to provide a determination whether to comply with the request. ICE has also failed to produce any responsive records.
66. Accordingly, ICE improperly failed to provide a determination within the statutory deadline, 5 U.S.C. § 552(a)(6)(A)(i), and also failed to provide expedited processing as required by statute, 5 U.S.C. § 552(a)(6)(E)(iii).
67. As of the date of this Complaint, CBP has failed to respond, or to make any determination whatsoever, with respect to the Request. That is despite the fact that the Request explicitly requests “disclosure of records related to . . . U.S. Customs and Border Protection,” Exh. A at 1. Upon information and belief, CBP was or should have been contacted by DHS to search for and produce responsive records, yet CBP improperly failed to respond.
68. Plaintiffs are deemed to have exhausted their administrative remedies with respect to Defendants ICE and CBP, 5 U.S.C. §§ 552(a)(6)(C), because ICE and CBP failed to provide a response to the Request within the 20-business-day time limit required by statute, 5 U.S.C. § 552(a)(6)(A)(i).
IV. Ongoing Public Interest In Local Immigration Enforcement 69. Since the Request was filed in September 2017, there continues to be strong public interest in the requested records regarding local immigration enforcement. 70. For instance, there was public outcry in February 2018 over the Trump Administration’s detention and deportation of a long-time Maine resident, Lexius Saint Martin, a 35-year-old husband and father of two.25 ICE arrested Mr. Saint Martin on his way to work, detained him for an indefinite period of time, and ultimately deported him. His deportation triggered an outcry across Maine, and especially in Mr. Saint Martin’s hometown of Waterville.26 25 Callie Ferguson, Maine man whose arrest shocked family deported to Haiti, BANGOR DAILY NEWS (Feb. 21, 2018), bangordailynews.com/2018/02/21/news/mid-maine/maine-man-whosearrest-shocked-family-deported-to-haiti/. 26 Id.
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71. Upon information and belief, ICE has also continued to target and arrest people in previously safe locations like courthouses.
72. Additionally, the fight against anti-immigrant animus continues at the Maine legislature, with the Governor re-introducing the anti-sanctuary city bill in the 2017-2018 term. The bill was voted down by the legislature on April 17, 2018.27
73. ICE has also continued its aggressive enforcement actions in Vermont. For instance, on January 22, 2018, ICE raided a hotel in Colchester, Vermont, arresting fourteen migrant construction workers who were staying there. Vermont’s governor described his “great concern about the overreach of the federal government,” calling the action “unfortunate” and noting that “[w]e here in Vermont are desperate for workers.”28
74. On February 8, 2018, CBP arrested a migrant dairy worker after he left a dental appointment in Richford, Vermont. CBP agents pulled over the car in which the worker was a passenger as it drove back from the health clinic and then arrested the worker.29
75. In short, all available information paints a concerning picture of Defendants’ local immigration operations in Maine, New Hampshire, and Vermont. The public has the right to know the true scope of those operations.
27 Legislature Rejects Anti-Immigrant Bill, ACLU of Maine (Apr. 17, 2018), https://www.aclumaine.org/en/press-releases/legislature-rejects-anti-immigrant-bill. 28 Anne Galloway, UPDATED: ICE Raids Days Inn in Colchester, VTDIGGER, Jan. 22, 2018, available at https://vtdigger.org/2018/01/22/ice-raids-days-inn-colchester/. 29 Jess Aloe, Border Patrol, Migrant Justice Dispute Account of Arrest at ‘Sensitive Location, BURLINGTON FREE PRESS, Feb. 20, 2018 (updated Mar. 5, 2018), available at https://www.burlingtonfreepress.com/story/news/2018/02/20/border-patrol-migrant-justicedispute-account-arrest-sensitive-location/352478002/; Esther Yu His Lee, UPDATED: Detained Immigrant Dairy Worker Released After Public Pressure, THINKPROGRESS, Feb. 20, 2018 (updated Mar. 1, 2018), available at https://thinkprogress.org/border-agents-dairy-workerdentist-019cf18b4223/.
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FIRST CAUSE OF ACTION Violation of FOIA for Failure
to Provide a Determination Within 20 Business Days (DHS, ICE, CBP)
76. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 74 above, inclusive.
77. 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. 5 U.S.C. § 552(a)(6)(A)(i).
78. In violation of 5 U.S.C. § 552(a)(6)(A)(i), and applicable regulations promulgated thereunder, Defendants ICE and CBP failed to determine whether to comply with the Request within 20 business days after receiving the Request.
79. Defendants also have a legal duty to determine whether to comply with an appeal within 20 working days after receiving the appeal, and, if denying the appeal in whole or in part, to notify the requester of that determination and of the provisions for judicial review. 5 U.S.C. § 552(a)(6)(A)(ii).
80. In violation of 5 U.S.C. § 552(a)(6)(A)(ii), and applicable regulations promulgated thereunder, Defendant DHS failed to determine whether to grant or deny the Appeal within 20 business days after receiving the Appeal, and to notify Plaintiffs of that decision.
SECOND CAUSE OF ACTION Violation of FOIA for Failure To Make Records Promptly Available
(DHS, ICE, CBP) 81. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 74 above, inclusive. 82. Plaintiffs have a legal right under FOIA to obtain the specific agency records requested on September 5, 2017, and there exists no legal basis for Defendants’ failure to properly make the requested records available to Plaintiffs, their members, and the public.
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83. On information and belief, Defendants currently have possession, custody, or control of the requested records.
84. In violation of 5 U.S.C. § 552(a)(3)(A), Defendants failed to promptly make available the records sought in the Request.

THIRD CAUSE OF ACTION Violation of FOIA for Failing to Provide
Expedited Processing (DHS & ICE)

85. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through

74 above, inclusive.

86. Plaintiffs have a legal right under FOIA and agency regulations to expedited

processing because their Request involves “[a]n urgency to inform the public about an actual or

alleged federal government activity, if made by a person who is primarily engaged in

disseminating information.” 6 C.F.R. § 5.5(e)(1)(ii).

87. Despite conceding that Plaintiffs were eligible for expedited processing, and

stating that it granted such expedited processing, Defendant ICE failed to provide any

determination or response for months, in violation of FOIA and implementing regulations

regarding expedited processing. 5 U.S.C. § 552(a)(6)(E); 6 C.F.R. § 5.5(e).

88. 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.
FOURTH CAUSE OF ACTION Violation of FOIA for Denying Plaintiffs’
Request for Expedited Processing (DHS)

89.

Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through

74 above, inclusive.

90. Plaintiffs have a legal right under FOIA and agency regulations to expedited

processing because their Request involves “[a]n urgency to inform the public about an actual or

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alleged federal government activity, if made by a person who is primarily engaged in disseminating information.” 6 C.F.R. § 5.5(e)(1)(ii).
91. Defendant DHS improperly denied Plaintiffs’ request for expedited processing of the Request, in violation of FOIA and implementing regulations. 5 U.S.C. § 552(a)(6)(E); 6 C.F.R. § 5.5(e).
92. 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.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court award them the following relief: 1. Declare that Defendants ICE and CBP violated FOIA by failing to make a determination whether to comply with the Request within 20 business days; 2. Declare that Defendant DHS violated FOIA by failing to make a determination with respect to the Appeal within 20 business days; 3. Declare that Defendants violated FOIA by unlawfully withholding the requested records; 4. Declare that Defendants DHS and ICE violated FOIA by failing to provide expedited processing; 5. 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 under FOIA; 6. Award Plaintiffs their reasonable costs and attorneys’ fees; and 7. Grant such other relief as the Court may deem just and proper.
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DATED this 8th day of May, 2018.

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
/s/ Emma E. Bond Emma E. Bond American Civil Liberties Union of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04101 (207) 619-8687 ebond@aclumaine.org
/s/ Lia Ernst Lia Ernst* American Civil Liberties Union of Vermont P.O. Box 277 Montpelier, VT 05601 (802) 223-6304 lernst@acluvt.org
/s/ Gilles Bissonnette Gilles Bissonnette* American Civil Liberties Union of New Hampshire 18 Low Avenue Concord, NH 03301 (603) 224-5591 gilles@aclu-nh.org
Attorneys for Plaintiffs American Civil Liberties Union of Maine, American Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont
* Application for pro hac vice pending

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September 5, 2017 FOIA/PA The Privacy Office U.S. Department of Homeland Security 245 Murray Drive SW Stop – 0655 Washington, DC 20528-0655 Email: foia@dhs.gov; foia@hq.dhs.gov VIA ELECTRONIC MAIL
Re: Freedom of Information Act Request / Expedited Processing Requested
To Whom This May Concern: This letter is a request for records (“Request”) made pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552 et seq., and the relevant implementing regulations, see 6 C.F.R. § 5 et seq. (Department of Homeland Security, Disclosure of Records and Information). The Request is submitted by the American Civil Liberties Union Foundation of Vermont, the American Civil Liberties Union of New Hampshire Foundation, and the American Civil Liberties Union of Maine Foundation (collectively, “Requesters”).
Requesters seek the disclosure of records related to U.S Immigration and Customs Enforcement (“ICE”) and U.S. Customs and Border Protection (“CBP”) enforcement operations in Vermont, New Hampshire, and Maine.
BACKGROUND
In the lead-up to and early days of the Trump administration, immigration enforcement in Vermont, New Hampshire, and Maine has been the subject of intense public interest.
A. Vermont
Just days into the Trump administration, Vermont’s attorney general announced the creation of an immigration task force to help address the anxiety and fear Vermonters were

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experiencing in the face of the administration’s immigration enforcement agenda.1 One month later, Vermont’s governor unveiled a bill aimed at limiting local law enforcement involvement in enforcing federal immigration law; the bill garnered tri-partisan support, was passed unanimously by the Senate and overwhelmingly by the House, and was signed into law in March.2 In May, the Governor signed into law a bill requiring all Vermont law enforcement agencies to adopt a revised Fair and Impartial Policing policy that, without conflicting with federal law, strengthens existing limitations on their involvement in immigration enforcement.3
The law mandating the creation of a Fair and Impartial Policing policy was originally passed in 2014 in response to Vermont law enforcement agency collaboration with federal immigration authorities by alerting them to individuals suspected of being in the United States without authorization.4 In 2013, Vermont adopted a law allowing all people to obtain drivers’ privilege cards without regard to immigration status.5 Records obtained pursuant to public records requests demonstrated that Vermont Department of Motor Vehicles (“DMV”) investigators were in regular communication with ICE agents about individuals who applied for these cards—in some cases even setting up meetings under false pretenses so that ICE agents could arrest suspected unauthorized immigrants. Indeed, this very conduct was the genesis of a settlement entered into by the Vermont Human Rights Commission (“HRC”), the DMV, and ACLU-VT client Abd Rababah last summer after an HRC investigation found reasonable grounds to believe that the DMV had discriminated against Mr. Rababah.6
1 See John Walters, With Fed Policy Unclear, Donovan Creates Immigrant Task Force, SEVEN DAYS, Jan. 25, 2017, available at https://www.sevendaysvt.com/OffMessage/archives/2017/01/25/walters-with-fedpolicy-unclear-donovan-creates-immigrant-task-force; Peter Hirschfeld, Trump’s Executive Orders Create Uncertainty For Immigrants In Vermont, VT. PUB. RADIO, Jan. 25, 2017, available at http://digital.vpr.net/post/trumps-executive-orders-create-uncertainty-immigrants-vermont#stream/0.
2 See Bill Status, S.79, An act relating to freedom from compulsory collection of personal information, available at http://legislature.vermont.gov/bill/status/2018/S.79; see also Cory Dawson, VT law counters Trump’s immigration orders, BURLINGTON FREE PRESS, Mar. 28, 2017, available at http://www.burlingtonfreepress.com/story/news/2017/03/28/vermont-governor-signs-lawimmigration/99754604/.
3 See Elizabeth Hewitt, House Advances Bills Promoting Racial Justice, VTDIGGER, Apr. 12, 2017, available at https://vtdigger.org/2017/04/12/house-advances-bills-promoting-racial-justice/; Elizabeth Hewitt, Senate Approves Racial Justice Oversight Board Bill, VTDIGGER, Apr. 20, 2017, available at https://vtdigger.org/2017/04/20/senate-approves-racial-justice-oversight-board-bill/; Peter Hirschfeld, Gov. Scott Signs Bill Establishing ‘Racial Justice Oversight Board, VT. PUB. RADIO, May 31, 2017, available at http://digital.vpr.net/post/gov-scott-signs-bill-establishing-racial-justice-oversightboard#stream/0.
4 See Emily Corwin & Kathleen Masterson, Between VT And N.H., Police Reporting Of Unauthorized Immigrants Varies Dramatically, Vt. Pub. Radio, Apr. 3, 2017, available at http://digital.vpr.net/post/between-vt-and-nh-police-reporting-unauthorized-immigrants-variesdramatically#stream/0.
5 See 23 V.S.A. § 603(e).
6 See, e.g., Elizabeth Hewitt, DMV Accused of Discrimination in Jordanian Deportation Case, VTDIGGER, Dec. 21, 2015, available at https://vtdigger.org/2015/12/21/dmv-discrimination-claimed-against-
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Although this settlement required the DMV to adopt strict limitations on when and why its investigators would contact federal immigration authorities, records show that the DMV investigators continued to collaborate with ICE in apparent violation of those limitations, earning the ire of the legislators who passed the drivers privilege card law.7
In addition, since April of 2016, ICE and CBP have arrested at least seven prominent members of a Vermont human rights organization in what, to all appearances, is a campaign of retaliation for their outspoken advocacy for workers’ human, labor, and civil rights. Migrant Justice is a community-based organization made up of Vermont dairy farm workers and their families that advocates for human rights and food justice.8 One of Migrant Justice’s most prominent campaigns is “Milk with Dignity,” a program to improve conditions in the dairy industry through commitments from major food corporations to implement supply chain codes of conduct. 9 Ben & Jerry’s signed a commitment to join the Milk with Dignity program in 2015, but so far has not followed through on this commitment.10 On March 16, 2017, Migrant Justice announced a re-escalation of its Milk with Dignity campaign targeting Ben & Jerry’s, including a multi-state speaking tour and culminating in a March for Dignity on May Day.11 Two Migrant Justice leaders were arrested by ICE the next day.12 On June 17, 2017, Migrant Justice organized a thirteen-mile march
deported-jordanian/; Elizabeth Hewitt, DMV Changing Application Process After Discrimination Case, VTDIGGER, Aug. 29, 2016, available at https://vtdigger.org/2016/08/29/dmv-changing-applicationprocess-discrimination-case/; Mark Davis, DMV Settled Jordanian National’s Discrimination Complaint, SEVEN DAYS, Aug. 30, 2016, available at http://www.sevendaysvt.com/OffMessage/archives/2016/08/30/dmv-settles-jordanian-nationalsdiscrimination-complaint.
7 Paul Heintz, Vermont DMV, State Police Play Nice With ICE, SEVEN DAYS, Apr. 5, 2017, available at http://m.sevendaysvt.com/vermont/vermont-dmv-state-police-play-nice-withice/Content?oid=4953143; Elizabeth Hewitt, Senate Panel Presses DMV on ICE Contacts, VTDIGGER, Apr. 12, 2017, available at https://vtdigger.org/2017/04/12/dmv-contact-ice-ongoing-commissionersays/.
8 See Migrant Justice, About Migrant Justice, https://migrantjustice.net/about.
9 See Migrant Justice, Milk with Dignity!, https://migrantjustice.net/milk-with-dignity.
10 Id.
11 Migrant Justice, VT Dairy Workers Announce Northeast Milk with Dignity Speaking Tour, Mar. 16, 2017, https://migrantjustice.net/news/vt-dairy-workers-announce-northeast-milk-with-dignityspeaking-tour.
12 Morgan True, ICE Detains Two More Migrant Justice Activists, VTDIGGER, Mar. 17, 2017, available at https://vtdigger.org/2017/03/17/ice-detains-two-migrant-justice-activists/; Kathleen Masterson & Rebecca Sananes, Federal Judge Releases Two Vermont Migrant Activists, Third Remains Detained, VT. PUB. RADIO, Mar. 27, 2017, available at http://digital.vpr.net/post/federal-judge-releases-two-vermontmigrant-activists-third-remains-detained#stream/0; Milton J. Valencia, Vermont activists set to post bond on immigration charges, BOS. GLOBE, Mar. 28, 2107, available at https://www.bostonglobe.com/metro/2017/03/27/vermont-activists-set-post-bond-immigrationcharges/eIcbvNUSCoXJqI4SQDeU5I/story.html; Sarah Betancourt, In Boston, Federal Judge Holds One Vermont Immigrant Activist, Releases Two Others, LATINO USA, Mar. 28, 2017, available at http://latinousa.org/2017/03/28/boston-federal-judge-holds-vermont-immigrant-activist/; Yara Simón, Were These Vermont-Based Immigrants Detained by ICE as Retaliation for Their Activism?, REMEZCLA
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from the Vermont State House in Montpelier to the Ben & Jerry’s factory in Waterbury, calling on the company to follow through on its two-year-old commitment to join the Milk with Dignity program.13 Two active Migrant Justice members were arrested that night after they were stopped by CBP on their way home from participating in the march.14
B. New Hampshire
U.S. immigration officials arrested more than 41,000 suspected undocumented individuals during the first 100 days of the Donald Trump presidency, an increase of nearly 38 percent over the same period the previous year. New Hampshire and the other 5 New England states actually experienced a larger percentage increase during the benchmark period; 610 were detained, up 58 percent from the same period the previous year. This dramatic increase has caused a high level of anxiety in New Hampshire’s immigrant communities.15
These enforcement actions have had a real impact on families. In June 2017, a Mexican restaurant in New Boston was raided by ICE, including some of the restaurant’s staff cooks and waiters.16 And in February 2017, the Strafford County Jail, which houses immigration detainees, had an average of 106 immigration detainees each day, a 25 percent increase over the previous month.17
(Mar. 24, 2017), http://remezcla.com/culture/vermont-based-immigrants-detained-ice-retaliationactivism/
13 See Migrant Justice, Farmworkers and Allies March 13 Miles to Ben & Jerry’s Calling for Milk with Dignity, June 22, 2017, available at https://migrantjustice.net/news/farmworkers-and-allies-march-13miles-to-ben-jerry%E2%80%99s-calling-for-milk-with-dignity.
14 Alicia Freese, Border Patrol Arrests Two Mexican Farm Workers in Vermont, SEVEN DAYS, June 19, 2017, available at https://www.sevendaysvt.com/OffMessage/archives/2017/06/19/border-patrolarrests-two-mexican-farm-workers-in-vermont; Kathleen Masterson, Two Vermont Dairy Workers Arrested And Handed Over To Immigration, VT. PUB. RADIO, June 19, 2017, http://digital.vpr.net/post/two-vermont-dairy-workers-arrested-and-handed-overimmigration#stream/0; Tyler Dumont, Dairy workers detained following weekend protest, WCAX NEWS, June 19, 2017, available at http://www.wcax.com/story/35696687/dairy-workers-detainedfollowing-weekend-protest; Lisa Rathke, Immigrant farmworkers arrested after march, Associated Press, June 20, 2017, available at http://www.rutlandherald.com/articles/immigrant-farmworkersarrested-after-march/.
15 Mark Hayward, ICE Arrests of Illegal Immigrants Climb by 38 Percent, UNION LEADER, May 17, 2017, available at http://www.newhampshire.com/social-issues/ICE-arrests-of-illegal-immigrants-climb-38percent-05172017.
16 Emily Corwin, Mexican Restaurant in N.H. Shuts Down After Immigration Raid, NHPR, June 9, 2017, available at http://nhpr.org/post/mexican-restaurant-nh-shuts-down-after-immigration-raid#stream/0.
17 Emily Corwin, N.H.’s Immigration Detention Facility Saw Spike in February, NHPR, Mar. 21, 2017, available at http://nhpr.org/post/nhs-immigration-detention-facility-saw-spike-february#stream/0.
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In response, several Granite State churches and community groups are starting to organize a response to increased enforcement efforts by ICE.18 And in June 2017, religious leaders in the state hosted an interfaith prayer vigil in front of the Norris Cotton Federal Building in Manchester to show support for immigrant families who are facing the threat of deportation.19
C. Maine
Since the inauguration of the Trump administration, Maine has seen an unprecedented increase in aggressive actions taken by government officials towards immigrants who reside in our state. Most notably, ICE officers detained Abdi Ali, a Somali asylum seeker, inside a Portland courthouse while he met privately with his court-appointed lawyer regarding a charge of operating under the influence.20 The arrest was the first of its kind in Maine and has prompted an outpouring of criticism from Maine’s legal community. Maine Attorney General Janet Mills spoke out publicly against the ICE action, and addressed a letter to Homeland Security and the U.S. Attorney warning that such actions would “have an unnecessary chilling effect on our efforts to obtain the cooperation of victims and our successful prosecution of crimes.”21 Mills further emphasized the need to avoid such a chilling effect, because “[i]n investigating matters of human trafficking, domestic violence and the like, it is critical to us that all individuals have free and open access to Maine courts, regardless of their immigration status.”22 Additionally, the ACLU of Maine was joined by 179 lawyers from a range of practice areas across the Maine Bar in addressing a letter to U.S. Attorney General Jeff Sessions and Homeland Security Secretary John Kelly to express the contempt felt towards ICE’s actions and demand that courthouses be treated as “sensitive locations” where ICE enforcement should be avoided, and
18 Mark Hayward, NH Churches, Community Groups Plan Response to ICE Efforts, UNION LEADER, Apr. 04, 2017, available at http://www.unionleader.com/social-issues/NH-churches-community-groupsplan-response-to-ICE-efforts-040520167.
19 Laura Montenegro, NH Vigil Planned Against Deportation of “Law-Abiding” Immigrants in U.S. Illegally, NH1, June 5, 2017, available at http://www.nh1.com/news/nh-vigil-planned-againstdeportation-of-law-abiding-immigrants-in-u-s-illegally/.
20 Danielle Waugh, Ice Agents Make First Immigrant Arrest as Maine Courthouse, NEW ENGLAND CABLE NEWS, Apr. 7, 2017, available at http://www.necn.com/news/new-england/ICE -Agents-Make-FirstImmigrant-Arrest-In-Maine-41867493.html; Jennifer Mitchell & Caroline Losneck, Immigrants fear for the future after series of ICE arrests in Maine, BANGOR DAILY NEWS, Apr. 16, 2017, available at http://bangordailynews.com/2017/04/16/politics/immigrants-fear-rough-waters-after-federal-agentsarrest-maine-immigrants/.
21 Judy Harrison, Janet Mills warns ICE courthouse arrests could have a ‘chilling effect’ in Maine, BANGOR DAILY NEWS, Apr. 20, 2017, available at http://bangordailynews.com/2017/04/10/news/augusta/janet-mills-warns-ice-courthouse-arrestscould-have-a-chilling-effect-in-maine/.
22 Id.
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emphasizing the “fundamental constitutional guarantee that all people have the right to seek redress from our system” regardless of immigration status.23
Following this incident, ICE detained Otto Morales-Caballeros, a Naples, Maine, resident who has lived in the United States for approximately 20 years. Morales-Caballeros, who was born in Guatemala, was detained “as part of the Trump administration’s move to tighten immigration enforcement.”24 Morales-Caballeros was detained while on his way to work, and subsequently held at four different locations in less than three months while waiting to find out if he would be deported.25 Since being deported to Guatemala, a country that Morales-Caballeros says feels foreign to him after twenty years in the United States, the press has continued to cover his case and fear and anxiety continue to cripple immigrants throughout Maine’s communities.26
Such fear and anxiety is well warranted following these two arrests in Maine, and the overall impact of the Trump administration implementing broad and far-reaching initiatives for mass deportation. Nationwide, the largest increases in deportations have been among immigrants with no criminal records or minor non-violent offenses such as Ali and MoralesCaballeros.27 Meanwhile, these arrests and the Trump administration’s overarching theme of mass deportation has prompted anti-immigrant laws in Maine, fueling concerns about the safety and security of law-abiding immigrants in our communities. In May, state Senator Lawrence Lockman proposed LD366, a bill “compelling Maine cities to act as extensions of federal immigrations authorities,” essentially requiring local law enforcement officers to act as immigration officers.28 The bill further proposed that any communities not cooperating,
23 American Civil Liberties Union of Maine, Attorneys’ letter protesting ICE arrest, available at http://www.pressherald.com/2017/04/10/scores-of-maine-attorneys-condemn-ice-arrest-atcourthouse/document/.
24 Megan Doyle, Undocumented Maine immigrant, in U.S. for 20 years, now close to deportation, PORTLAND PRESS HERALD, May 10, 2017, available at http://www.pressherald.com/2017/05/10/undocumented-maine-immigrant-in-u-s-for-20-years-nowclose-to-deportation/.
25 Id.
26 Megan Doyle, “It’s not my world,” says Naples man deported to Guatemala, PORTLAND PRESS HERALD, June 25, 2017, available at http://www.pressherald.com/2017/06/25/its-not-my-world-says-naplesman-deported-to-guatemala/.
27 Maria Sacchetti, Arrests of immigrants jump 38% in Trump’s first 100 days, PORTLAND PRESS HERALD, May 17, 2017, available at http://www.pressherald.com/2017/05/17/feds-ramping-up-immigrantarrests/ (“[A]rrests of immigrants with no criminal records more than doubled [compared to the same period in 2016] to nearly 11,000, the fastest-growing category by far.”).
28 Steve Mistler, Maine House Rejects Anti-Sanctuary City Bill, MAINE PUBLIC, May 31, 2017, available at http://mainepublic.org/post/maine-house-rejects-anti-sanctuary-city-bill#stream/0.
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such as sanctuary cities, would lose state funds.29 The bill was voted down 77-59 by the House.30
REQUESTERS
The American Civil Liberties Union Foundation (“ACLU”) is a 26 U.S.C. § 501(c)(3) organization that provides legal representation free of charge to individuals and organizations in civil rights and civil liberties cases, educates the public about civil rights and civil liberties issues across the country, provides analyses of pending and proposed legislation, directly lobbies legislators, and mobilizes the ACLU’s members to lobby their legislators. The ACLU is dedicated to holding the government accountable to principles of due process and of the U.S. Constitution in general. The ACLU is a national, non-partisan organization of more than 1.6 million members, countless additional activists and supporters, and fifty-three affiliates nationwide. Requesters are the ACLU’s local affiliates based in Vermont, New Hampshire, and Maine, and have more than 7400, 8000, and 8000 members and supporters, respectively.
DEFINITIONS
“Records”—all records or communications preserved in electronic or written form, including but not limited to: text communications between phones or other electronic devices (including but not limited to communications sent via SMS or other text, Blackberry Messenger, iMessage, WhatsApp, Facebook, Signal, Gchat, Twitter direct message, or similar form of communication), including those sent through personal devices or accounts; e-mails (including those in personal accounts); images, video, and audio, including that recorded on cell phones; voicemail messages; social-media posts; minutes or notes of meetings and phone calls; faxes; documents; data; correspondence; letters; messages; notes; contracts or agreements; memoranda of understanding; files; forms, including but not limited to I-205 forms, I-213 forms, and I-247 or I-247-related forms; logs; records; guidance; guidelines; formal and informal presentations; evaluations; audits; investigations; reviews; studies; reports; critiques; analyses; internal memoranda; legal opinions; orders; directives; instructions; training materials; criteria; standards; specifications; rules; instructions; manuals; advisories; bulletins; alerts; updates; reports; protocols; procedures; policies; or other communications.
“DHS” includes any sub-agency within the Department of Homeland Security, including Immigration and Customs Enforcement (“ICE”), Customs and Border Protection (“CBP”), and U.S. Border Patrol.
RECORDS REQUESTED
Requesters seek disclosure of Records pertaining to DHS immigration enforcement actions in the state of Vermont from January 1, 2017, up to such time as an adequate search
29 Id.
30 Id.
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for responsive Records has been conducted, including any such Records held by ICE, CBP, Border Patrol, or any other DHS component agencies, to include:
1. All Records, including but not limited to data or statistics, mentioning, referencing, relating to, or referring to any immigration enforcement action, including but not limited to any investigations, arrests, or detentions of any individual in the states of Vermont, New Hampshire, or Maine by DHS or its sub-agencies; any requests for automated license plate reader data; any boarding by DHS officials of any commercial bus or other form of public transportation to perform immigration checks; and any roadblock or checkpoint established by DHS officials.
2. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local law enforcement agency—including but not limited to Departments of Motor Vehicles and Departments of Corrections—mentioning, referencing, or referring to immigration enforcement, or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications.
3. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local government official mentioning, referencing, or referring to immigration enforcement, “sanctuary” policies, detainers, or “fair and impartial policing,” or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications.
4. All communications relating to immigration enforcement with, to, or from any Vermont, New Hampshire, or Maine businesses or business owners, including but not limited to dairy farms and other agricultural operations, and all Records pertaining to any such communications.
5. All records created, sent, received, referenced, and/or used in fulfilling and/or responding to any of the foregoing parts of this Request.
Please search for responsive records regardless of format, medium, or physical characteristics, and including electronic records.
FORMAT OF PRODUCTION
With respect to the form of production, see 5 U.S.C. § 552(a)(3)(B), we request that responsive documents be provided electronically in native format (i.e. Excel spreadsheets in Excel). We request that any responsive documents for which native format production is impossible be provided electronically in text-searchable, static-image format (PDF), in the best image quality in the agencies’ possession. Please provide the requested documents in the following format:
 Saved on a CD, CD-ROM, or DVD;  Each record in a separately saved file;  Emails should include date and time stamps and author and recipient
information, including BCC and any other hidden fields, and “parent-child”
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relationships should be maintained, meaning that the requester must be able to identify the attachments with emails;  With any other metadata preserved.
REQUEST FOR EXPEDITED PROCESSING
Requesters seek Track 1 expedited processing for this FOIA request pursuant to 5 U.S.C. § 552(a)(6)(E)(i) (“Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records—(I) in cases in which the person requesting the records demonstrates a compelling need . . . .”). A “compelling need” exists when, “with respect to a request made by a person primarily engaged in disseminating information,” there is “urgency to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v)(II); 6 C.F.R. § 5.5 (d)(1)(ii).
Dissemination of information to the public about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. Specifically, the ACLU publishes a continuously updated blog, newsletters, news briefings, “Know Your Rights” documents, and other educational and informational materials that are broadly disseminated to the public.31 Such material is widely available to everyone, including individuals, tax-exempt organizations, not-for-profit groups, law students, and faculty, for no cost or for a nominal fee through the ACLU’s public education department and website.
The ACLU’s national website (www.aclu.org) and the sites run by the Requester affiliates (www.acluvt.org, https://www.aclumaine.org/, https://www.aclu-nh.org/) address civil rights and civil liberties issues in depth, provide features on civil rights and civil liberties issues in the news, and contain many thousands of documents relating to the issues on which the ACLU is focused. These websites also include features highlighting information obtained through the FOIA process.32
31 See, e.g., Dan Gillmor, In Praise of the Almost-Journalists, SLATE, Mar. 28, 2014, available at http://slate.me/1jg5YXx (describing ACLU’s efforts to broadly disseminate important civil-rights-related news stories).
32 For example, the ACLU’s “Predator Drones FOIA” webpage, https://www.aclu.org/nationalsecurity/predator-drones-foia, contains commentary about the ACLU’s FOIA request, press releases, analysis of the FOIA documents, numerous blog posts on the issue, documents related to litigation over the FOIA request, frequently asked questions about targeted killing, and links to the documents themselves. Similarly, the ACLU maintains an online “Torture Database,” https://www.thetorturedatabase.org, a compilation of over 100,000 pages of FOIA documents that allows researchers and the public to conduct sophisticated searches of FOIA documents relating to government policies on rendition, detention, and interrogation. See also, e.g., Targeted Killing FOIA Database, https://www.aclu.org/foia-collection/targeted-killing-foiadatabase?f[0]=field_related_content%3A50449; FBI Releases Details of ‘Zero-Day’ Exploit Decisionmaking Process, https://www.aclu.org/blog/free-future/fbi-releases-details-zero-day-exploitdecisionmaking-process; FBI Documents Reveal New Information on Baltimore Surveillance Flights, https://www.aclu.org/blog/free-future/fbi-documents-reveal-new-information-baltimore-surveillanceflights; ACLU v. DOJ – FOIA Case for Records Relating to Killing of Three U.S. Citizens, https://www.aclu.org/national-security/anwar-al-awlaki-foia-request; ACLU v. Department of Defense: Accountability for Torture, https://www.aclu.org/cases/aclu-v-department-defense; Mapping the FBI:
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In addition, the ACLU publishes a magazine at least twice a year that reports on and analyzes civil liberties-related current events; this publication is distributed to more than one million people. The ACLU also disseminates electronic civil liberties bulletins to more than 1.6 million subscribers (both ACLU members and non-members) by e-mail. Both of these newsletters often include descriptions and analyses of information obtained from the government through FOIA, as well as information about cases, governmental policies, pending legislation, abuses of constitutional rights, and polling data. Cf. Elec. Privacy Info. Ctr. v. Dep’t of Defense, 241 F. Supp. 2d 5, 13–14 (D.D.C. 2003) (finding the Electronic Privacy Information Center to be a representative of the news media under Department of Defense regulations because it published a “bi-weekly electronic newsletter that is distributed to over 15,000 readers” about “court cases and legal challenges, government policies, legislation, civil rights, surveys and polls, legislation, privacy abuses, international issues, and trends and technological advancements”).
The ACLU also regularly publishes books, “Know Your Rights” publications, fact sheets, and educational brochures and pamphlets designed to educate the public about civil liberties issues and governmental policies that implicate civil rights and liberties. These materials are specifically designed to be educational and widely disseminated to the public. See Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 11 (finding the Electronic Privacy Information Center to be a news-media requester because of its publication and distribution of seven books on privacy, technology, and civil liberties). The ACLU further disseminates information to the public via social media platforms such as Facebook and Twitter.
Depending on the results of this request, Requesters plan to disseminate the information they receive to the public through these kinds of publications in these kinds of channels. The ACLU is therefore an organization “primarily engaged in disseminating information” within the meaning of the statute and the relevant regulations—as has been previously recognized in FOIA litigation between the ACLU and the Department of Justice. See, e.g., ACLU v. Dep’t of Justice, 321 F. Supp. 2d 24, 30 n.5 (D.D.C. 2004) (finding that a non-profit, public-interest group that “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience” is “primarily engaged in disseminating information” (internal citation omitted)).
There is no question that ICE immigration enforcement actions constitute federal government activity, and there is an urgent need for public transparency and information about how ICE is carrying out its activities in Vermont, New Hampshire, and Maine. Without expedited disclosure of the requested records, ICE and other DHS sub-agencies may continue to undertake enforcement actions targeting individuals, including labor organizers, in these states based on their political beliefs and activities and collaborate with local law enforcement agencies or other state or local entities in unconstitutional seizures—
Uncovering Abusive Surveillance and Racial Profiling, https://www.aclu.org/mappingthefbi; Bagram FOIA, https://www.aclu.org/cases/bagram-foia; CSRT FOIA, https://www.aclu.org/nationalsecurity/csrt-foia; ACLU v. DOJ – Lawsuit to Enforce NSA Warrantless Surveillance FOIA Request, http://www.aclu.org/safefree/nsaspying/30022res20060207.html; PATRIOT FOIA, https://www.aclu.org/other/patriot-foia?redirect=patriot-foia; NSL Documents Released by DOD, https://www.aclu.org/nsl-documents-released-dod?redirect=cpredirect/32088.
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all without Requesters being able to inform the public about these violations. As demonstrated by the many press reports cited above,33 ICE’s enforcement actions and collaboration with law enforcement agencies in Vermont, New Hampshire, and Maine are matters of critical importance and current exigency to residents of those states. Additional evidence of the intense public interest in these immigration enforcement actions comes from the many hundreds of people who have attended marches, rallies, and vigils in support of those detained by ICE and against ICE’s tactics.34 People are extremely anxious about and fearful of DHS immigration enforcement activity in Vermont, New Hampshire, and Maine, and they—and their elected officials—have an urgent need to understand how that activity is being carried out and whether and how local law enforcement agencies have participated in it. There is thus a “compelling need” for the requested records.
For all of the foregoing reasons, expedited processing of this Request is warranted and should be granted.
Requesters hereby certify that the foregoing is true and correct to the best of their knowledge and belief. 5 U.S.C. § 552(a)(6)(E)(vi); 6 C.F.R. § 5.5(d)(3).
33 See supra nn. 1-30.
34 See Mark Johnson, Vermont Delegation, Protesters Decry Arrests of Undocumented Immigrants, VTDIGGER, Mar. 21, 2017, available at https://vtdigger.org/2017/03/21/vermonts-delegation-weighsarrests-undocumented-immigrants/ (describing March 18 rally in Burlington attended by “hundreds” and March 21 rally in Montpelier attended by “[m]ore than 150 Vermonters”); Claire Halverson, Letter: Rallying for Migrant Justice, BRATTLEBORO REFORMER, Apr. 19, 2017, available at http://www.reformer.com/stories/letter-rallying-for-migrant-justice,504816 (describing March 21 rally in Brattleboro attended by 200-250 people); Milton J. Valencia, Vermont activists set to post bond on immigration charges, BOS. GLOBE, Mar. 28, 2017, available at https://www.bostonglobe.com/metro/2017/03/27/vermont-activists-set-post-bond-immigrationcharges/eIcbvNUSCoXJqI4SQDeU5I/story.html (describing March 28 protest attended by “hundreds of protesters” outside Boston courthouse during arrestees’ bond hearings); Elizabeth Murray & Dan D’Ambrosio, Released Migrant Justice organizers speak out at BTV rally, BURLINGTON FREE PRESS, Mar. 28, 2017, available at http://www.burlingtonfreepress.com/story/news/local/2017/03/28/aclu-icearrests-jeff-sessions-defunding-threats-migrant-justice-rally-burlington/99704610/ (describing March 28 rally and candlelight vigil in Burlington); Masterson, supra note 14 (describing June 19 protests outside the facility where Hernández was being held and the ICE regional office in St. Albans, Vermont); Freese, supra note 14 (same); Abby Isaacs, Dozens rally for freedom of 2 dairy farmers detained by ICE, NBC5, June 23, 2017, available at http://www.mynbc5.com/article/dozens-rally-for-freedom-of-2-dairyfarmers-detained-by-ice/10216427 (describing June 23 rally at Vermont State House calling for release of Peche and Hernández); Montenegro, supra note 19 (describing plans for an “interfaith prayer vigil Tuesday morning in front of the Norris Cotton Federal Building in Manchester to show support for immigrant families who are facing the threat of deportation”); see also Katie Jickling, Migrant Justice Cases Spark Protest at Boston Immigration Court, SEVEN DAYS, Mar. 27, 2017, available at https://www.sevendaysvt.com/OffMessage/archives/2017/03/27/migrant-justice-cases-spark-protestat-boston-immigration-court (noting that more than 200 letters were written in support of arrestees); Johnson, supra (noting that “Vermont’s congressional delegation expressed “strong concerns” to federal immigration authorities over the recent arrests”); Valencia, supra (noting that more than 10,000 people signed a petition calling for arrestees’ release); Harrison, supra note 21 (describing Maine Attorney General’s letter calling on ICE to cease effecting arrests in and around courthouses); ACLU of Maine, supra note 23 (describing letter written by ACLU of Maine and signed by 179 Maine attorneys condemning ICE arrests at courthouses).
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REQUEST FOR A WAIVER OR LIMITATION OF SEARCH AND REVIEW FEES
Requesters further seek a waiver of processing (search and review) fees because disclosure of these records is in the public interest and because the ACLU qualifies as a “representative of the news media.” See 5 U.S.C. § 552(a)(4)(A)(iii) (“Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it 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.”); 6 C.F.R. § 5.11(d)(1) (search fees shall not be charged “for requests by educational institutions . . . or representatives of the news media”); id. § 5.11(k)(1) (“Records responsive to a request will be furnished without charge or at a charge reduced below that established under paragraph (c) of this section where a component determines, based on all available information, that the requester has demonstrated that (i) disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and (ii) disclosure of the information is not primarily in the commercial interest of the requester.”). As discussed below, federal agencies routinely grant such fee waivers for FOIA requests made by the ACLU for these reasons.
At a minimum, should a total fee waiver be denied, “fees should be limited to reasonable standard charges for document duplication” because the ACLU is a “representative of the news media” and the records are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II).
A. Disclosure of the requested records is in the public interest and is not in Requesters’ commercial interest.
A fee waiver is appropriate if the records requested will contribute significantly to public understanding of the government’s operations or activities and the requested disclosure is not primarily in the Requesters’ commercial interest. Under 6 C.F.R. § 5.11(k)(2), the following factors are to be considered in determining whether a disclosure is in the public interest: (i) whether the subject of the requested records concerns “the operations or activities of the government”; (ii) whether the disclosure is “likely to contribute” to an understanding of government operations or activities; (iii) whether disclosure of the requested information will contribute to “public understanding,” that is, “the understanding of a reasonably broad audience of persons interested in the subject”; and (iv) whether disclosure is likely to contribute “significantly” to public understanding of government operations or activities. See 6 C.F.R. § 5.11(k)(2)(i)–(iv). To determine whether disclosure of the requested information is in the requester’s commercial interest, agencies consider: (i) whether the requester has a commercial interest that would be furthered by the requested disclosure; and (ii) whether the public interest is greater than any identified commercial interest in disclosure. All six of these considerations are satisfied here.
First, the records requested pertain directly to the operations and activities of the federal government (specifically, DHS and its sub-agencies, including ICE, CBP, and Border Patrol).
Second, this Request is “likely to contribute” to an understanding of government operations or activities, specifically by helping the public determine the nature and extent of
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DHS immigration enforcement actions in Vermont, New Hampshire, and Maine; local law enforcement participation in those actions; and whether those actions are undertaken in a manner that comports with the U.S. Constitution and other federal laws. To the extent that agencies of the federal government are engaged in an effort to suppress the free speech of persons and organizations who advocate for fair and safe working conditions in agricultural industries, such information will be of great interest to the public. Finally, this information is not already in the public domain.
Third, disclosure of the requested information will contribute to “the understanding of a reasonably broad audience of persons interested in the subject” of how DHS is conducting immigration enforcement actions in Vermont, New Hampshire, and Maine. Among other things, Requesters intend to publish responsive records and analyze specific documents to raise public awareness of DHS activities in those states. In addition, as representatives of the news media,35 Requesters are entitled to the presumption that this consideration is satisfied. § 5.11(k)(2)(iii).
Fourth, disclosure will contribute “significantly” to the public understanding of DHS activities in Vermont, New Hampshire, and Maine. As explained at length above,36 immigration enforcement activity in Vermont, New Hampshire, and Maine has garnered significant and sustained public and media attention, yet much remains unknown about this critical human rights issue. To Requesters’ knowledge, the requested records are not already in the public domain. Requesters will ensure that disclosure will contribute significantly to the public understanding of these issues by reviewing and analyzing the records, and, depending on what the records reveal, synthesizing the information therein to make their import readily understandable to the public and making both the documents and the analyses publicly available on their web sites. In so doing, Requesters will help the public understand the nature and extent of ICE immigration enforcement actions in Vermont, New Hampshire, and Maine, and whether those actions are undertaken in a manner that comports with the U.S. Constitution and other federal laws. To the extent that agencies of the federal government are engaged in an effort to suppress the free speech of persons and organizations who advocate for fair and safe working conditions in agricultural industries, such information will be of great interest to the public.
Requesters have thus established, “with reasonable specificity[,] that [their] request pertains to operations of the government,” and “the informative value of a request depends not on there being certainty of what the documents will reveal, but rather on the requesting party having explained with reasonable specificity how those documents would increase public knowledge of the functions of the government.” Citizens for Responsibility & Ethics in Wash. v. Dep’t of Health & Human Servs., 481 F. Supp. 2d 99, 107–109 (D.D.C. 2006).
Fifth, disclosure of the information requested is not in the Requesters’ commercial interest. 6 C.F.R. § 5.11(k)(3)(i)–(ii). Requesters are non-profit organizations, and any information obtained as a result of this FOIA request will be made available to the public at
35 See infra Part C.
36 See supra notes 1-30, 34 and accompanying text.
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no cost. In addition, as representatives of the news media,37 Requesters are entitled to the presumption that this consideration is satisfied. § 5.11(b)(6) (“A request for records that supports the news-dissemination function of [a representative of the news media] shall not be considered to be for a commercial use.”).
Finally, because the requested disclosure would not further any commercial interest of the Requesters, the disclosure is, by definition, not primarily in their commercial interest. In addition, because Requesters have satisfied the public interest standard and are representatives of the news media, Requesters are entitled to the presumption that this factor is satisfied. See 6 C.F.R. § 5.11(k)(3)(ii).
For all these reasons, the Requesters are entitled to a fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k).
B. Requesters qualify as representatives of the news media.
Requesters meet the statutory and regulatory definitions of a “representative of the news media” because each is an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii)(II) (“[F]ees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by . . . a representative of the news media”); id. § 522(a)(4)(A)(iii) (“Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it 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.”); 6 C.F.R. § 5.11(d)(1) (search fees shall not be charged “for requests by . . . representatives of the news media”); see also, e.g., Nat’l Sec. Archive v. Dep’t of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989).
The ACLU is a “representative of the news media” for the same reasons that it is “primarily engaged in the dissemination of information.” See Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 10–15 (finding non-profit public interest group that disseminated an electronic newsletter and published books was a “representative of the news media” for FOIA purposes); ACLU v. Dep’t of Justice, 321 F. Supp. 2d 24, 30 n.5 (D.D.C. 2004) (finding nonprofit public interest group to be “primarily engaged in disseminating information”).38
37 See infra Part B.
38 On account of these factors, fees associated with responding to FOIA requests are regularly waived for the ACLU. In June 2011, the National Security Division of the Department of Justice granted a fee waiver to the ACLU with respect to a request for documents relating to the interpretation and implementation of a section of the PATRIOT Act. In October 2010, the Department of the Navy granted a fee waiver to the ACLU with respect to a request for documents regarding the deaths of detainees in U.S. custody. In January 2009, the CIA granted a fee waiver with respect to the same request. In March 2009, the State Department granted a fee waiver to the ACLU with regard to a FOIA request submitted in December 2008. The Department of Justice granted a fee waiver to the ACLU with regard to the same FOIA request. In November 2006, the Department of Health and Human Services granted a fee waiver to the ACLU with regard to a FOIA request submitted in November of 2006. In May 2005, the U.S. Department of Commerce granted a fee waiver to the ACLU with respect to its request for information regarding the radio-frequency identification chips in United States passports. In March 2005, the Department of State
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Various federal courts have held that the ACLU is a “representative of the news media.” See, e.g., Serv. Women’s Action Network v. Dep’t of Defense, No. 3:11CV1534 (MRK), 2012 WL 3683399, at *3 (D. Conn. May 14, 2012); ACLU of Wash. v. Dep’t of Justice, No. C09– 0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
For the foregoing reasons, a fee waiver or limitation should be granted. A fee waiver would also fulfill Congress’s legislative intent in amending FOIA, namely to ensure that the Act is liberally construed in favor of granting waivers for noncommercial requesters and to effectuate disclosure of documents of public importance. See Judicial Watch Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (“Congress amended FOIA to ensure that it be liberally construed in favor of waivers for noncommercial requesters.” (internal quotation marks and citation omitted)); OPEN Government Act of 2007, Pub. L. No. 110175, § 2, 121 Stat. 2524 (finding that “disclosure, not secrecy, is the dominant objective of the Act” (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1992))).
At a minimum, should a total waiver be denied, fees should be “limited to reasonable standard charges for document duplication” because the ACLU is a “representative of the news media” and the records are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II). 5 U.S.C. § 552(a)(4)(A)(ii)(II). In the event a fee waiver or reduction of costs is denied, please notify us in advance if the anticipated costs associated with this Request exceed $100.00.
***
Pursuant to the applicable statute and regulations, we expect a determination regarding expedited processing within ten (10) calendar days. See 5 U.S.C. § 552(a)(6)(E)(ii)(I); 6 C.F.R. § 5.5(d)(4).
We further expect your reply to the Request itself within twenty (20) business days, as required under 5 U.S.C. § 552(a)(6)(A)(i). If the Request is denied in whole or in part, we ask that you justify all withholdings by reference to specific exemptions to the FOIA. We also ask that you release all segregable portions of otherwise exempt material.
We reserve the right to appeal a decision to withhold any information or to deny expedited processing or a waiver of fees.
Please furnish all responsive records to:
granted a fee waiver to the ACLU with regard to a request regarding the use of immigration laws to exclude prominent non-citizen scholars and intellectuals from the country because of their political views, statements, or associations. In addition, the Department of Defense did not charge the ACLU fees associated with FOIA requests submitted by the ACLU in April 2007, June 2006, February 2006, and October 2003. The Department of Justice did not charge the ACLU fees associated with FOIA requests submitted by the ACLU in November 2007, December 2005, and December 2004. Finally, three separate agencies—the Federal Bureau of Investigation, the Office of Intelligence Policy and Review, and the Office of Information and Privacy in the Department of Justice—did not charge the ACLU fees associated with a FOIA request submitted by the ACLU in August 2002.
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Lia Ernst ACLU Foundation of Vermont PO Box 277 Montpelier, VT 05601 lernst@acluvt.org (802) 223-6304 Should you need to communicate with us regarding this request, please contact me by email at the address above. Thank you in advance for your assistance.
Sincerely,
Lia Ernst Staff Attorney ACLU Foundation of Vermont
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U.S. Department of Homeland Security Washington, DC 20528
Homeland Security
Privacy Office, Mail Stop 0655
September 15, 2017
SENT VIA E-MAIL TO: lernst@acluvt.org
Lia Ernst Staff Attorney ACLU Foundation of Vermont PO Box 277 Montpelier, VT 05601
Re: 2017-HQFO-01317
Dear Ms. Ernst:
This letter acknowledges receipt of your Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS), dated September 05, 2017, and to your request for expedited handling and a waiver of all assessable FOIA fees. Our office received your request on September 05, 2017. Specifically, you requested records pertaining to DHS immigration enforcement actions in the state of Vermont from January 1, 2017, up to such time as an adequate search for responsive records has been conducted, including any such Records held by ICE, CBP, Border Patrol, or any other DHS component agencies, to include: 1.All Records, including but not limited to data or statistics, mentioning, referencing, relating to, or referring to any immigration enforcement action, including but not limited to any investigations, arrests, or detentions of any individual in the states of Vermont, New Hampshire, or Maine by DHS or its sub-agencies; any requests for automated license plate reader data; any boarding by DHS officials of any commercial bus or other form of public transportation to perform immigration checks; and any roadblock or checkpoint established by DHS officials; 2. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local law enforcement agency—including but not limited to Departments of Motor Vehicles and Departments of Corrections—mentioning, referencing, or referring to immigration enforcement, or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications; 3. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local government official mentioning, referencing, or referring to immigration enforcement, “sanctuary” policies, detainers, or “fair and impartial policing,” or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications; 4. All communications relating to immigration enforcement with, to, or from any Vermont, New Hampshire, or Maine businesses or business owners, including but not limited to dairy farms and other agricultural operations, and all Records pertaining to any such communications; 5. All records created, sent, received, referenced, and/or used in fulfilling and/or responding to any of the foregoing parts of this Request.

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Your request for expedited treatment is hereby denied.
Under the DHS FOIA regulations, expedited processing of a FOIA request is warranted if the request involves “circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual,” 6 C.F.R. Part 5 § 5.5(e)(1)(i); “an urgency to inform the public about an actual or alleged federal government activity, if made by a person who is primarily engaged in disseminating information,” 6 C.F.R. Part 5 § 5.5(e)(1)(ii); “the loss of substantial due process rights,” 6 C.F.R. Part 5 § 5.5(e)(1)(iii); or “a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence,” 6 C.F.R. Part 5 § 5.5(e)(1)(iv). Requesters seeking expedited processing must submit a statement explaining in detail the basis for the request, and that statement must be certified by the requester to be true and correct pursuant to 6 C.F.R. Part 5 § 5.5(e)(3).
Your request for expedited processing is denied because you do not qualify under any category pursuant to 6 C.F.R. Part 5 § 5.5(e)(1). You have not established that lack of expedited treatment in this case will pose an imminent threat to the life or physical safety of an individual. You have not established the loss of substantial due process rights. While you may be primarily engaged in the dissemination of information, you have not detailed with specificity why you feel there is an urgency to inform the public about the subject matter of the request. Qualifying urgency would need to exceed the public’s right to know about government activity generally. You also did not offer sufficient supporting evidence of an interest of the public greater than the public’s general interest in the subject matter of the request. Finally, you did not establish this is a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence. Your letter was conclusory in nature and did not present any facts to justify a grant of expedited processing under the applicable standards.
You have requested a fee waiver. The DHS FOIA regulations at 6 C.F.R. Part 5 § 5.11(k) set forth six factors DHS must evaluate to determine whether the applicable legal standard for a fee waiver has been met: (1) Whether the subject of the requested records concerns “the operations or activities of the government,” (2) Whether the disclosure is “likely to contribute” to an understanding of government operations or activities, (3) Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understanding of the requester or a narrow segment of interested persons, (4) Whether the contribution to public understanding of government operations or activities will be “significant,” (5) Whether the requester has a commercial interest that would be furthered by the requested disclosure, and (6) Whether the magnitude of any identified commercial interest to the requester is sufficiently large in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requester.
Upon review of the subject matter of your request, and an evaluation of the six factors identified above, DHS has determined that it will conditionally grant your request for a fee waiver. The fee waiver determination will be based upon a sampling of the responsive documents received from the various DHS program offices as a result of the searches conducted in response to your FOIA request. DHS will, pursuant to DHS FOIA regulations applicable to non-commercial requesters, provide two hours of search time and process the first 100 pages at no charge to you. If upon

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review of these documents, DHS determines that the disclosure of the information contained in those documents does not meet the factors permitting DHS to waive the fees, then DHS will at that time either deny your request for a fee waiver entirely, or will allow for a percentage reduction in the amount of the fees corresponding to the amount of relevant material found that meets the factors allowing for a fee waiver. In either case, DHS will promptly notify you of its final decision regarding your request for a fee waiver and provide you with the responsive records as required by applicable law.
In the event that your fee waiver is denied, and you determine that you still want the records, provisions of the FOIA allow us to recover part of the cost of complying with your request. We shall charge you for records in accordance with the DHS FOIA regulations as they apply to noncommercial requesters. As a non-commercial requester you will be charged for any search time and duplication beyond the free two hours and 100 pages mentioned in the previous paragraph. You will be charged 10 cents per page for duplication and search time at the per quarter-hour rate ($4.00 for clerical personnel, $7.00 for professional personnel, $10.25 for managerial personnel) of the searcher. In the event that your fee waiver is denied, we will construe the submission of your request as an agreement to pay up to $25.00. This office will contact you before accruing any additional fees.
Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Consistent with 6 C.F.R. Part 5 § 5.5(a) of the DHS FOIA regulations, the Department processes FOIA requests according to their order of receipt. Although DHS’ goal is to respond within 20 business days of receipt of your request, FOIA does permit a 10-day extension of this time period in certain circumstances under 6 C.F.R. Part 5 § 5.5(c). As your request seeks documents that will require a thorough and wide-ranging search, DHS will invoke a 10-day extension for your request pursuant to 6 C.F.R. Part 5 § 5.5(c). If you would like to narrow the scope of your request, please contact our office. We will make every effort to comply with your request in a timely manner.
We have queried the appropriate component(s) of DHS for responsive records for item 1 of your request. If any responsive records are located, they will be reviewed for determination of releasability. Please be assured that one of the analysts in our office will respond to your request as expeditiously as possible. We appreciate your patience as we proceed with your request.
Our office transferred your request to ICE for items 2-5 of your request. Their contact information is:
Freedom of Information Act Office 500 12th Street, SW, Stop 5009 Washington, D.C. 20536-5009 FOIA Officer: Catrina Pavlik-Keenan FOIA Requester Service Center Contact: Fernando Pineiro Phone: 866-633-1182 Fax: 202-732-4265 E-mail: ice-foia@dhs.gov ICE Website

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Your request has been assigned reference number 2017-HQFO-01317. Please refer to this identifier in any future correspondence. The status of your FOIA request is now available online and can be accessed at: https://www.dhs.gov/foia-status, by using this FOIA request number. Status information is updated daily. Alternatively, you can download the DHS eFOIA Mobile App, the free app is available for all Apple and Android devices. With the DHS eFOIA Mobile App, you can submit FOIA requests or check the status of requests, access all of the content on the FOIA website, and receive updates anyplace, anytime. If you have any questions, or would like to discuss this matter, please feel free to contact this office at 1-866-431-0486 or 202-343-1743.
Sincerely, /s/
Maura Busch FOIA Program Specialist

Case 2:18-cv-00182-JDL Document 1-3 Filed 05/08/18 Page 1 of 2 PageID #: 42
From: ice-foia@dhs.gov Subject: ICE FOIA Request 2017-ICFO-46635
Date: September 18, 2017 at 2:17 PM To: lernst@acluvt.org
September 18, 2017
VIA EMAIL lernst@acluvt.org
Lia Ernst ACLU Foundation of Vermont PO Box 277 Montpelier, VT 05601
RE: ICE FOIA Case Number 2017-ICFO-46635
Dear Lia Ernst:
This acknowledges receipt of your Freedom of Information Act (FOIA) request to U.S. Immigration and Customs Enforcement (ICE), dated September 15, 2017, and to your request for expedited treatment and a waiver of all assessable FOIA fees. Your request was received in this ofﬁce on September 15, 2017. Speciﬁcally, you requested all documents pertaining to 2. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local law enforcement agency—including but not limited to Departments of Motor Vehicles and Departments of Corrections—mentioning, referencing, or referring to immigration enforcement, or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications. 3. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local government ofﬁcial mentioning, referencing, or referring to immigration enforcement, “sanctuary” policies, detainers, or “fair and impartial policing,” or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications. 4. All communications relating to immigration enforcement with, to, or from any Vermont, New Hampshire, or Maine businesses or business owners, including but not limited to dairy farms and other agricultural operations, and all Records pertaining to any such communications..
Your request for expedited treatment is hereby granted.
As it pertains to your request for a fee waiver, ICE evaluates fee waiver requests under the legal standard set forth above and the fee waiver policy guidance issued by the Department of Justice on April 2, 1987, as incorporated into the Department of Homeland Security’s Freedom of Information Act regulations[1]. These regulations set forth six factors to examine in determining whether the applicable legal standard for fee waiver has been met. I have considered the following factors in my evaluation of your request for a fee waiver:
(1) Whether the subject of the requested records concerns “the operations or activities of the government”;
(2) Whether the disclosure is “likely to contribute” to an understanding of government operations or activities;
(3) Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understanding of the requestor or a narrow segment of interested persons;
(4) Whether the contribution to public understanding of government operations or activities will be "signiﬁcant";
(5) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and
(6) Whether the magnitude of any identiﬁed commercial interest to the requestor is sufﬁciently large in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requestor.
Upon review of your request and a careful consideration of the factors listed above, I have determined to grant your request for a fee waiver.
ICE has queried the appropriate program ofﬁces within ICE for responsive records. If any responsive

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ICE has queried the appropriate program ofﬁces within ICE for responsive records. If any responsive records are located, they will be reviewed for determination of releasability. Please be assured that one of the processors in our ofﬁce will respond to your request as expeditiously as possible. We appreciate your patience as we proceed with your request.
If you have any questions or wish to discuss reformulation or an alternative time frame for the processing of your request, please contact FOIA ofﬁce. You may send an e-mail to ice-foia@ice.dhs.gov, call free (866) 6331182, or you may contact our FOIA Public Liaison, Fernando Pineiro, in the same manner. Additionally, you have a right to seek dispute resolution services from the Ofﬁce of Government Information Services (OGIS) which mediates disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. If you are requesting access to your own records (which is considered a Privacy Act request), you should know that OGIS does not have the authority to handle requests made under the Privacy Act of 1974. You may contact OGIS as follows: Ofﬁce of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road-OGIS, College Park, Maryland 20740-6001, e-mail at ogis@nara.gov; telephone at 202-741-5770; toll free at 1-877-684-6448; or facsimile at 202-741-5769.
Your request has been assigned reference number 2017-ICFO-46635. Please refer to this identiﬁer in any future correspondence. To check the status of an ICE FOIA/PA request, please visit http://www.dhs.gov/foia-status. Please note that to check the status of a request, you must enter the 2017-ICFO-XXXXX tracking number.
Regards,
ICE FOIA Ofﬁce Immigration and Customs Enforcement Freedom of Information Act Ofﬁce 500 12th Street, S.W., Stop 5009 Washington, D.C. 20536-5009 Telephone: 1-866-633-1182 Visit our FOIA website at www.ice.gov/foia
[1] 6 CFR § 5.11(k).

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U.S. Department of Homeland Security Washington, DC 20528

September 27, 2017

Homeland Security

SENT VIA E-MAIL TO: lernst@acluvt.org
Lia Ernst Staff Attorney ACLU Foundation of Vermont PO Box 277 Montpelier, VT 05601
Re: 2017-HQFO-01317
Dear Ms. Ernst:
This is the electronic final response to your September 5, 2017, Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS) for records pertaining to DHS immigration enforcement actions in the state of Vermont from January 1, 2017, up to such time as an adequate search for responsive records has been conducted, including any such records held by ICE, CBP, Border Patrol, or any other DHS component agencies, to include: 1. All records, including but not limited to data or statistics, mentioning, referencing, relating to, or referring to any immigration enforcement action, including but not limited to any investigations, arrests, or detentions of any individual in the states of Vermont, New Hampshire, or Maine by DHS or its sub-agencies; any requests for automated license plate reader data; any boarding by DHS officials of any commercial bus or other form of public transportation to perform immigration checks; and any roadblock or checkpoint established by DHS officials; 2. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local law enforcement agency including but not limited to Departments of Motor Vehicles and Departments of Corrections mentioning, referencing, or referring to immigration enforcement, or to the investigation, arrest, or detention of any individual, and all records pertaining to any such communications; 3. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local government official mentioning, referencing, or referring to immigration enforcement, “sanctuary” policies, detainers, or “fair and impartial policing,” or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications; 4. All communications relating to immigration enforcement with, to, or from any Vermont, New Hampshire, or Maine businesses or business owners, including but not limited to dairy farms and other agricultural operations, and all records pertaining to any such communications; and 5. All records created, sent, received, referenced, and/or used in fulfilling and/or responding to any of the foregoing parts of this request. This office received your request on September 5, 2017.

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In responding to a FOIA request, DHS will search for responsive documents in its control on the date the search began. We began our search for records for item one of your request on September 15, 2017. A search of the Office of Policy (PLCY) Office of Immigration Statistics for documents responsive to your request produced one page of responsive records. In our letter to you dated September 15, 2017, we advised that we transferred items 2 through 5 of your request to ICE for review and direct response to you.
We are granting your request under FOIA, 5 U.S.C. § 552, and DHS FOIA regulations at 6 C.F.R. Part 5. After carefully reviewing the responsive document, I determined that it is appropriate for public release. The document is enclosed in its entirety; DHS has claimed no deletions or exemptions.
Provisions of FOIA allow DHS to charge for processing fees, up to $25, unless you seek a waiver of fees. In this instance, because the cost is below the $25 minimum, there is no charge.
If you need any further assistance or would like to discuss any aspect of your request, please contact the analyst below who processed your request and refer to 2017-HQFO-01317. You may send an e-mail to foia@hq.dhs.gov, call 202-343-1743 or toll free 1-866-431-0486, or you may contact our FOIA Public Liaison in the same manner.
Sincerely, /s/

Enclosure(s): one excel sheet

Maura Busch Government Information Specialist

Case 2:18-cv-00182-JDL Document 1-5 Filed 05/08/18 Page 1 of 1 PageID #: 46

ICE Arrests, BP Apprehensions, and 0E0 Inadmissible Actions Table

Corepanson of January 1-June 30th, 2017 and January 1 -June 30th, 2016 Time Period

Area of Responsibility*

Event

BOSTON** Fiscal Year

ME Fiscal Year

Slate NH
Fiscal Year

VT Fiscal Year

2016

1017

2016 2017

USBP Apprehension

No Removal or Return Record Removed or Returned

2

7

4

ICE Arrest

No Removal or Return Record Removed or Returned

570 361

1,211 325

Determination of

No Removal or Return Record

548 316

Inadmissibility

Removed or Returned

281 359

Total

931

1,536 838 683

NOTE None of these individuals had a book in or book out record

*ERO-ICE Apprehensions are noted by Area of Responsibilities which cannot be b oken down i to states

**Boston Area of Responsibility includes Maine, New Hampshire and Vermont

1016

2017 3

2016 12 13

248

24

9 264

24 12 537

2017 19 6
85 483 594

Total 36 30
4786 686
1497 4420 5,155

Case 2:18-cv-00182-JDL Document 1-6 Filed 05/08/18 Page 1 of 32 PageID #: 47
February 1, 2018
Privacy Office Attn: FOIA Appeals U.S. Department of Homeland Security 245 Murray Lane, SW, Mail Stop 0655 Washington, D.C. 20528-0655
Re: FOIA Appeal Request 2017-HQFO-01317 American Civil Liberties Union Foundation of Vermont, the American Civil Liberties Union of New Hampshire Foundation, and the American Civil Liberties Union of Maine Foundation
To whom it may concern:
Pursuant to 5 U.S.C. § 552(a)(6) and 6 C.F.R. § 5.8(a)(1), this letter appeals the September 27, 2017, response of U.S. Department of Homeland Security (“DHS”) to Freedom of Information Act (“FOIA”) request No. 2017-HQFO-01317. Copies of the original request and related correspondence are attached to this letter. As required by 6 C.F.R. § 5.8(a)(1), this appeal is postmarked within 90 working days of DHS’s response and is therefore timely.
The American Civil Liberties Union Foundation of Vermont, the American Civil Liberties Union of New Hampshire Foundation, and the American Civil Liberties Union of Maine Foundation (collectively, “Requesters”) submitted the FOIA request on September 5, 2017, via electronic mail. See Ex. A (“FOIA Request”). This FOIA Request sought records from January 1, 2017, up to such time as an adequate search is performed, pertaining to DHS and its components’ immigration enforcement actions in the states of Vermont, New Hampshire, and Maine including, in summary: (1) records, including but not limited to data and statistics, relating to any immigration enforcement action in the three states; (2) communications with any of state or local law enforcement agency relating to immigration enforcement; (3) communications with any state or local government official relating to immigration enforcement or certain specified terms; (4) communications relating to immigration enforcement with businesses or business owners; and (5) records related to the processing of the FOIA Request. Please see the attached FOIA Request for a detailed description of the requested records. See Ex. A, at p. 8.
On September 15, 2017, Requesters received by email a letter from the DHS FOIA office acknowledging receipt of the Request, denying the request for expedited treatment, conditionally

Case 2:18-cv-00182-JDL Document 1-6 Filed 05/08/18 Page 2 of 32 PageID #: 48
granting the request for a fee waiver, invoking the statutory ten-day extension for unusual circumstances in 6 C.F.R. § 5.5(c), indicating that items 2-5 of the Request had been transferred to Immigration and Customs Enforcement (“ICE”), and stating that the appropriate component(s) of DHS had been queried with respect to item 1. See Ex. B.
On September 27, 2017, Requesters received a notice purporting to be a “final response” from DHS via email stating that a search of the Office of Policy (PLCY) Office of Immigration Statistics resulted in one page of responsive records, which was produced without exemption or redaction. See Ex. C. Requesters appeal DHS’s response as inadequate because DHS has failed to meet its burden to show that it fully responded to the request or adequately searched for responsive documents. See 6 C.F.R. § 5.8(a)(1).
The FOIA Request contained five separate parts. As noted above, DHS indicated that it had transferred parts 2-5 of our Request to ICE. DHS gave no explanation for its apparent determination that all responsive documents would be in ICE’s possession alone. At minimum, responsive records are almost certainly within the possession of Customs and Border Protection (“CBP”), particularly but not exclusively as it relates to item 2 of the Request. In addition, DHS failed to produce the records created in fulfilling this request, including any correspondence with ICE or the Office of Immigration Statistics.
DHS also failed to demonstrate that it conducted an adequate search in response to the one item in the FOIA Request to which it did respond. “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Valencia-Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (citation and internal quotation marks omitted). “‘[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.’” 21 F. Supp. 3d 60, 70 (D.D.C. 2014) (quoting Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). An “agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
DHS searched only within the Office of Immigration Statistics and produced a single page of statistics, despite the fact that the Request for records relating to any immigration enforcement action in Vermont, New Hampshire, or Maine made clear that it was “not limited to data or statistics.” DHS has not discharged its obligation to “demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Valencia-Lucena, 180 F.3d at 325. Its search was plainly inadequate; indeed, the one record DHS did produce reflects dozens of immigration enforcement actions in these states since January 1, 2017, yet DHS produced no records whatsoever related to these actions.
In addition, although there have been multiple reports of DHS officials boarding commercial buses to conduct immigration checks, DHS produced no records whatsoever reflecting those activities. And we know from a recent report by the Vermont Department of Public Safety that DHS components made multiple requests in 2017 to query the automated license plate reader (“ALPR”) system in Vermont alone, but, again, DHS produced no records
2

Case 2:18-cv-00182-JDL Document 1-6 Filed 05/08/18 Page 3 of 32 PageID #: 49
reflecting those activities.1 These records plainly fall within the request for records relating to any immigration enforcement action, but Item 1 of the Request specifically requested records related to bus boardings and requests for ALPR data.
DHS must reevaluate what offices, databases, and files it chose to search, conduct a thorough search within each office, and disclose responsive records it subsequently finds.
Requesters respectfully request that DHS conduct an adequate search and disclose all responsive records in an expeditious manner. In the event that DHS reaches an adverse determination regarding the FOIA Request or this appeal, Requesters request a complete list of documents covered by the FOIA Request and a specific indication of and a justification of any records withheld.
Requesters expect a response to this appeal within 20 working days, as required by 5 U.S.C. § 552(a)(6)(A)(ii).
Please contact Lia Ernst, by email at lernst@acluvt.org or phone at (802) 223-6304, on behalf of Requesters if you require any further information or if you have any questions related to this matter.
Sincerely,
Lia Ernst Staff Attorney ACLU Foundation of Vermont
1 See Vermont Dep’t of Public Safety, Division of State Police, 2017 Annual Report to the Vermont Senate and House Committees on Judiciary and Transportation as required by: 23 V.S.A. § 1607 AUTOMATED LICENSE PLATE READER SYSTEMS, p. 17, available at https://legislature.vermont.gov/assets/Legislative-Reports/2017ALPR-Report.pdf.
3

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Exhibit A FOIA Request

Case 2:18-cv-00182-JDL Document 1-6 Filed 05/08/18 Page 5 of 32 PageID #: 51

lernst@acluvt.org
From: Sent: To: Subject: Attachments:

lernst@acluvt.org Tuesday, September 05, 2017 13:37 'foia@dhs.gov'; 'US DHS Privacy Office' FOIA request 2017-09-05 DHS FOIA request ACLU VT NH ME.pdf

To whom it may concern:
Please find attached a FOIA request on behalf of the ACLU Foundation of Vermont, the ACLU of Maine Foundation, and the ACLU of NH Foundation.
We look forward to receiving your response.
Sincerely,
Lia Ernst Staff Attorney ACLU of Vermont P.O. Box 277 Montpelier, VT 05601 802‐223‐6304 x112

1

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September 5, 2017 FOIA/PA The Privacy Office U.S. Department of Homeland Security 245 Murray Drive SW Stop – 0655 Washington, DC 20528-0655 Email: foia@dhs.gov; foia@hq.dhs.gov VIA ELECTRONIC MAIL
Re: Freedom of Information Act Request / Expedited Processing Requested
To Whom This May Concern: This letter is a request for records (“Request”) made pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552 et seq., and the relevant implementing regulations, see 6 C.F.R. § 5 et seq. (Department of Homeland Security, Disclosure of Records and Information). The Request is submitted by the American Civil Liberties Union Foundation of Vermont, the American Civil Liberties Union of New Hampshire Foundation, and the American Civil Liberties Union of Maine Foundation (collectively, “Requesters”).
Requesters seek the disclosure of records related to U.S Immigration and Customs Enforcement (“ICE”) and U.S. Customs and Border Protection (“CBP”) enforcement operations in Vermont, New Hampshire, and Maine.
BACKGROUND
In the lead-up to and early days of the Trump administration, immigration enforcement in Vermont, New Hampshire, and Maine has been the subject of intense public interest.
A. Vermont
Just days into the Trump administration, Vermont’s attorney general announced the creation of an immigration task force to help address the anxiety and fear Vermonters were

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experiencing in the face of the administration’s immigration enforcement agenda.1 One month later, Vermont’s governor unveiled a bill aimed at limiting local law enforcement involvement in enforcing federal immigration law; the bill garnered tri-partisan support, was passed unanimously by the Senate and overwhelmingly by the House, and was signed into law in March.2 In May, the Governor signed into law a bill requiring all Vermont law enforcement agencies to adopt a revised Fair and Impartial Policing policy that, without conflicting with federal law, strengthens existing limitations on their involvement in immigration enforcement.3
The law mandating the creation of a Fair and Impartial Policing policy was originally passed in 2014 in response to Vermont law enforcement agency collaboration with federal immigration authorities by alerting them to individuals suspected of being in the United States without authorization.4 In 2013, Vermont adopted a law allowing all people to obtain drivers’ privilege cards without regard to immigration status.5 Records obtained pursuant to public records requests demonstrated that Vermont Department of Motor Vehicles (“DMV”) investigators were in regular communication with ICE agents about individuals who applied for these cards—in some cases even setting up meetings under false pretenses so that ICE agents could arrest suspected unauthorized immigrants. Indeed, this very conduct was the genesis of a settlement entered into by the Vermont Human Rights Commission (“HRC”), the DMV, and ACLU-VT client Abd Rababah last summer after an HRC investigation found reasonable grounds to believe that the DMV had discriminated against Mr. Rababah.6
1 See John Walters, With Fed Policy Unclear, Donovan Creates Immigrant Task Force, SEVEN DAYS, Jan. 25, 2017, available at https://www.sevendaysvt.com/OffMessage/archives/2017/01/25/walters-with-fedpolicy-unclear-donovan-creates-immigrant-task-force; Peter Hirschfeld, Trump’s Executive Orders Create Uncertainty For Immigrants In Vermont, VT. PUB. RADIO, Jan. 25, 2017, available at http://digital.vpr.net/post/trumps-executive-orders-create-uncertainty-immigrants-vermont#stream/0.
2 See Bill Status, S.79, An act relating to freedom from compulsory collection of personal information, available at http://legislature.vermont.gov/bill/status/2018/S.79; see also Cory Dawson, VT law counters Trump’s immigration orders, BURLINGTON FREE PRESS, Mar. 28, 2017, available at http://www.burlingtonfreepress.com/story/news/2017/03/28/vermont-governor-signs-lawimmigration/99754604/.
3 See Elizabeth Hewitt, House Advances Bills Promoting Racial Justice, VTDIGGER, Apr. 12, 2017, available at https://vtdigger.org/2017/04/12/house-advances-bills-promoting-racial-justice/; Elizabeth Hewitt, Senate Approves Racial Justice Oversight Board Bill, VTDIGGER, Apr. 20, 2017, available at https://vtdigger.org/2017/04/20/senate-approves-racial-justice-oversight-board-bill/; Peter Hirschfeld, Gov. Scott Signs Bill Establishing ‘Racial Justice Oversight Board, VT. PUB. RADIO, May 31, 2017, available at http://digital.vpr.net/post/gov-scott-signs-bill-establishing-racial-justice-oversightboard#stream/0.
4 See Emily Corwin & Kathleen Masterson, Between VT And N.H., Police Reporting Of Unauthorized Immigrants Varies Dramatically, Vt. Pub. Radio, Apr. 3, 2017, available at http://digital.vpr.net/post/between-vt-and-nh-police-reporting-unauthorized-immigrants-variesdramatically#stream/0.
5 See 23 V.S.A. § 603(e).
6 See, e.g., Elizabeth Hewitt, DMV Accused of Discrimination in Jordanian Deportation Case, VTDIGGER, Dec. 21, 2015, available at https://vtdigger.org/2015/12/21/dmv-discrimination-claimed-against-
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Although this settlement required the DMV to adopt strict limitations on when and why its investigators would contact federal immigration authorities, records show that the DMV investigators continued to collaborate with ICE in apparent violation of those limitations, earning the ire of the legislators who passed the drivers privilege card law.7
In addition, since April of 2016, ICE and CBP have arrested at least seven prominent members of a Vermont human rights organization in what, to all appearances, is a campaign of retaliation for their outspoken advocacy for workers’ human, labor, and civil rights. Migrant Justice is a community-based organization made up of Vermont dairy farm workers and their families that advocates for human rights and food justice.8 One of Migrant Justice’s most prominent campaigns is “Milk with Dignity,” a program to improve conditions in the dairy industry through commitments from major food corporations to implement supply chain codes of conduct. 9 Ben & Jerry’s signed a commitment to join the Milk with Dignity program in 2015, but so far has not followed through on this commitment.10 On March 16, 2017, Migrant Justice announced a re-escalation of its Milk with Dignity campaign targeting Ben & Jerry’s, including a multi-state speaking tour and culminating in a March for Dignity on May Day.11 Two Migrant Justice leaders were arrested by ICE the next day.12 On June 17, 2017, Migrant Justice organized a thirteen-mile march
deported-jordanian/; Elizabeth Hewitt, DMV Changing Application Process After Discrimination Case, VTDIGGER, Aug. 29, 2016, available at https://vtdigger.org/2016/08/29/dmv-changing-applicationprocess-discrimination-case/; Mark Davis, DMV Settled Jordanian National’s Discrimination Complaint, SEVEN DAYS, Aug. 30, 2016, available at http://www.sevendaysvt.com/OffMessage/archives/2016/08/30/dmv-settles-jordanian-nationalsdiscrimination-complaint.
7 Paul Heintz, Vermont DMV, State Police Play Nice With ICE, SEVEN DAYS, Apr. 5, 2017, available at http://m.sevendaysvt.com/vermont/vermont-dmv-state-police-play-nice-withice/Content?oid=4953143; Elizabeth Hewitt, Senate Panel Presses DMV on ICE Contacts, VTDIGGER, Apr. 12, 2017, available at https://vtdigger.org/2017/04/12/dmv-contact-ice-ongoing-commissionersays/.
8 See Migrant Justice, About Migrant Justice, https://migrantjustice.net/about.
9 See Migrant Justice, Milk with Dignity!, https://migrantjustice.net/milk-with-dignity.
10 Id.
11 Migrant Justice, VT Dairy Workers Announce Northeast Milk with Dignity Speaking Tour, Mar. 16, 2017, https://migrantjustice.net/news/vt-dairy-workers-announce-northeast-milk-with-dignityspeaking-tour.
12 Morgan True, ICE Detains Two More Migrant Justice Activists, VTDIGGER, Mar. 17, 2017, available at https://vtdigger.org/2017/03/17/ice-detains-two-migrant-justice-activists/; Kathleen Masterson & Rebecca Sananes, Federal Judge Releases Two Vermont Migrant Activists, Third Remains Detained, VT. PUB. RADIO, Mar. 27, 2017, available at http://digital.vpr.net/post/federal-judge-releases-two-vermontmigrant-activists-third-remains-detained#stream/0; Milton J. Valencia, Vermont activists set to post bond on immigration charges, BOS. GLOBE, Mar. 28, 2107, available at https://www.bostonglobe.com/metro/2017/03/27/vermont-activists-set-post-bond-immigrationcharges/eIcbvNUSCoXJqI4SQDeU5I/story.html; Sarah Betancourt, In Boston, Federal Judge Holds One Vermont Immigrant Activist, Releases Two Others, LATINO USA, Mar. 28, 2017, available at http://latinousa.org/2017/03/28/boston-federal-judge-holds-vermont-immigrant-activist/; Yara Simón, Were These Vermont-Based Immigrants Detained by ICE as Retaliation for Their Activism?, REMEZCLA
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from the Vermont State House in Montpelier to the Ben & Jerry’s factory in Waterbury, calling on the company to follow through on its two-year-old commitment to join the Milk with Dignity program.13 Two active Migrant Justice members were arrested that night after they were stopped by CBP on their way home from participating in the march.14
B. New Hampshire
U.S. immigration officials arrested more than 41,000 suspected undocumented individuals during the first 100 days of the Donald Trump presidency, an increase of nearly 38 percent over the same period the previous year. New Hampshire and the other 5 New England states actually experienced a larger percentage increase during the benchmark period; 610 were detained, up 58 percent from the same period the previous year. This dramatic increase has caused a high level of anxiety in New Hampshire’s immigrant communities.15
These enforcement actions have had a real impact on families. In June 2017, a Mexican restaurant in New Boston was raided by ICE, including some of the restaurant’s staff cooks and waiters.16 And in February 2017, the Strafford County Jail, which houses immigration detainees, had an average of 106 immigration detainees each day, a 25 percent increase over the previous month.17
(Mar. 24, 2017), http://remezcla.com/culture/vermont-based-immigrants-detained-ice-retaliationactivism/
13 See Migrant Justice, Farmworkers and Allies March 13 Miles to Ben & Jerry’s Calling for Milk with Dignity, June 22, 2017, available at https://migrantjustice.net/news/farmworkers-and-allies-march-13miles-to-ben-jerry%E2%80%99s-calling-for-milk-with-dignity.
14 Alicia Freese, Border Patrol Arrests Two Mexican Farm Workers in Vermont, SEVEN DAYS, June 19, 2017, available at https://www.sevendaysvt.com/OffMessage/archives/2017/06/19/border-patrolarrests-two-mexican-farm-workers-in-vermont; Kathleen Masterson, Two Vermont Dairy Workers Arrested And Handed Over To Immigration, VT. PUB. RADIO, June 19, 2017, http://digital.vpr.net/post/two-vermont-dairy-workers-arrested-and-handed-overimmigration#stream/0; Tyler Dumont, Dairy workers detained following weekend protest, WCAX NEWS, June 19, 2017, available at http://www.wcax.com/story/35696687/dairy-workers-detainedfollowing-weekend-protest; Lisa Rathke, Immigrant farmworkers arrested after march, Associated Press, June 20, 2017, available at http://www.rutlandherald.com/articles/immigrant-farmworkersarrested-after-march/.
15 Mark Hayward, ICE Arrests of Illegal Immigrants Climb by 38 Percent, UNION LEADER, May 17, 2017, available at http://www.newhampshire.com/social-issues/ICE-arrests-of-illegal-immigrants-climb-38percent-05172017.
16 Emily Corwin, Mexican Restaurant in N.H. Shuts Down After Immigration Raid, NHPR, June 9, 2017, available at http://nhpr.org/post/mexican-restaurant-nh-shuts-down-after-immigration-raid#stream/0.
17 Emily Corwin, N.H.’s Immigration Detention Facility Saw Spike in February, NHPR, Mar. 21, 2017, available at http://nhpr.org/post/nhs-immigration-detention-facility-saw-spike-february#stream/0.
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In response, several Granite State churches and community groups are starting to organize a response to increased enforcement efforts by ICE.18 And in June 2017, religious leaders in the state hosted an interfaith prayer vigil in front of the Norris Cotton Federal Building in Manchester to show support for immigrant families who are facing the threat of deportation.19
C. Maine
Since the inauguration of the Trump administration, Maine has seen an unprecedented increase in aggressive actions taken by government officials towards immigrants who reside in our state. Most notably, ICE officers detained Abdi Ali, a Somali asylum seeker, inside a Portland courthouse while he met privately with his court-appointed lawyer regarding a charge of operating under the influence.20 The arrest was the first of its kind in Maine and has prompted an outpouring of criticism from Maine’s legal community. Maine Attorney General Janet Mills spoke out publicly against the ICE action, and addressed a letter to Homeland Security and the U.S. Attorney warning that such actions would “have an unnecessary chilling effect on our efforts to obtain the cooperation of victims and our successful prosecution of crimes.”21 Mills further emphasized the need to avoid such a chilling effect, because “[i]n investigating matters of human trafficking, domestic violence and the like, it is critical to us that all individuals have free and open access to Maine courts, regardless of their immigration status.”22 Additionally, the ACLU of Maine was joined by 179 lawyers from a range of practice areas across the Maine Bar in addressing a letter to U.S. Attorney General Jeff Sessions and Homeland Security Secretary John Kelly to express the contempt felt towards ICE’s actions and demand that courthouses be treated as “sensitive locations” where ICE enforcement should be avoided, and
18 Mark Hayward, NH Churches, Community Groups Plan Response to ICE Efforts, UNION LEADER, Apr. 04, 2017, available at http://www.unionleader.com/social-issues/NH-churches-community-groupsplan-response-to-ICE-efforts-040520167.
19 Laura Montenegro, NH Vigil Planned Against Deportation of “Law-Abiding” Immigrants in U.S. Illegally, NH1, June 5, 2017, available at http://www.nh1.com/news/nh-vigil-planned-againstdeportation-of-law-abiding-immigrants-in-u-s-illegally/.
20 Danielle Waugh, Ice Agents Make First Immigrant Arrest as Maine Courthouse, NEW ENGLAND CABLE NEWS, Apr. 7, 2017, available at http://www.necn.com/news/new-england/ICE -Agents-Make-FirstImmigrant-Arrest-In-Maine-41867493.html; Jennifer Mitchell & Caroline Losneck, Immigrants fear for the future after series of ICE arrests in Maine, BANGOR DAILY NEWS, Apr. 16, 2017, available at http://bangordailynews.com/2017/04/16/politics/immigrants-fear-rough-waters-after-federal-agentsarrest-maine-immigrants/.
21 Judy Harrison, Janet Mills warns ICE courthouse arrests could have a ‘chilling effect’ in Maine, BANGOR DAILY NEWS, Apr. 20, 2017, available at http://bangordailynews.com/2017/04/10/news/augusta/janet-mills-warns-ice-courthouse-arrestscould-have-a-chilling-effect-in-maine/.
22 Id.
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emphasizing the “fundamental constitutional guarantee that all people have the right to seek redress from our system” regardless of immigration status.23
Following this incident, ICE detained Otto Morales-Caballeros, a Naples, Maine, resident who has lived in the United States for approximately 20 years. Morales-Caballeros, who was born in Guatemala, was detained “as part of the Trump administration’s move to tighten immigration enforcement.”24 Morales-Caballeros was detained while on his way to work, and subsequently held at four different locations in less than three months while waiting to find out if he would be deported.25 Since being deported to Guatemala, a country that Morales-Caballeros says feels foreign to him after twenty years in the United States, the press has continued to cover his case and fear and anxiety continue to cripple immigrants throughout Maine’s communities.26
Such fear and anxiety is well warranted following these two arrests in Maine, and the overall impact of the Trump administration implementing broad and far-reaching initiatives for mass deportation. Nationwide, the largest increases in deportations have been among immigrants with no criminal records or minor non-violent offenses such as Ali and MoralesCaballeros.27 Meanwhile, these arrests and the Trump administration’s overarching theme of mass deportation has prompted anti-immigrant laws in Maine, fueling concerns about the safety and security of law-abiding immigrants in our communities. In May, state Senator Lawrence Lockman proposed LD366, a bill “compelling Maine cities to act as extensions of federal immigrations authorities,” essentially requiring local law enforcement officers to act as immigration officers.28 The bill further proposed that any communities not cooperating,
23 American Civil Liberties Union of Maine, Attorneys’ letter protesting ICE arrest, available at http://www.pressherald.com/2017/04/10/scores-of-maine-attorneys-condemn-ice-arrest-atcourthouse/document/.
24 Megan Doyle, Undocumented Maine immigrant, in U.S. for 20 years, now close to deportation, PORTLAND PRESS HERALD, May 10, 2017, available at http://www.pressherald.com/2017/05/10/undocumented-maine-immigrant-in-u-s-for-20-years-nowclose-to-deportation/.
25 Id.
26 Megan Doyle, “It’s not my world,” says Naples man deported to Guatemala, PORTLAND PRESS HERALD, June 25, 2017, available at http://www.pressherald.com/2017/06/25/its-not-my-world-says-naplesman-deported-to-guatemala/.
27 Maria Sacchetti, Arrests of immigrants jump 38% in Trump’s first 100 days, PORTLAND PRESS HERALD, May 17, 2017, available at http://www.pressherald.com/2017/05/17/feds-ramping-up-immigrantarrests/ (“[A]rrests of immigrants with no criminal records more than doubled [compared to the same period in 2016] to nearly 11,000, the fastest-growing category by far.”).
28 Steve Mistler, Maine House Rejects Anti-Sanctuary City Bill, MAINE PUBLIC, May 31, 2017, available at http://mainepublic.org/post/maine-house-rejects-anti-sanctuary-city-bill#stream/0.
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such as sanctuary cities, would lose state funds.29 The bill was voted down 77-59 by the House.30
REQUESTERS
The American Civil Liberties Union Foundation (“ACLU”) is a 26 U.S.C. § 501(c)(3) organization that provides legal representation free of charge to individuals and organizations in civil rights and civil liberties cases, educates the public about civil rights and civil liberties issues across the country, provides analyses of pending and proposed legislation, directly lobbies legislators, and mobilizes the ACLU’s members to lobby their legislators. The ACLU is dedicated to holding the government accountable to principles of due process and of the U.S. Constitution in general. The ACLU is a national, non-partisan organization of more than 1.6 million members, countless additional activists and supporters, and fifty-three affiliates nationwide. Requesters are the ACLU’s local affiliates based in Vermont, New Hampshire, and Maine, and have more than 7400, 8000, and 8000 members and supporters, respectively.
DEFINITIONS
“Records”—all records or communications preserved in electronic or written form, including but not limited to: text communications between phones or other electronic devices (including but not limited to communications sent via SMS or other text, Blackberry Messenger, iMessage, WhatsApp, Facebook, Signal, Gchat, Twitter direct message, or similar form of communication), including those sent through personal devices or accounts; e-mails (including those in personal accounts); images, video, and audio, including that recorded on cell phones; voicemail messages; social-media posts; minutes or notes of meetings and phone calls; faxes; documents; data; correspondence; letters; messages; notes; contracts or agreements; memoranda of understanding; files; forms, including but not limited to I-205 forms, I-213 forms, and I-247 or I-247-related forms; logs; records; guidance; guidelines; formal and informal presentations; evaluations; audits; investigations; reviews; studies; reports; critiques; analyses; internal memoranda; legal opinions; orders; directives; instructions; training materials; criteria; standards; specifications; rules; instructions; manuals; advisories; bulletins; alerts; updates; reports; protocols; procedures; policies; or other communications.
“DHS” includes any sub-agency within the Department of Homeland Security, including Immigration and Customs Enforcement (“ICE”), Customs and Border Protection (“CBP”), and U.S. Border Patrol.
RECORDS REQUESTED
Requesters seek disclosure of Records pertaining to DHS immigration enforcement actions in the state of Vermont from January 1, 2017, up to such time as an adequate search
29 Id.
30 Id.
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for responsive Records has been conducted, including any such Records held by ICE, CBP, Border Patrol, or any other DHS component agencies, to include:
1. All Records, including but not limited to data or statistics, mentioning, referencing, relating to, or referring to any immigration enforcement action, including but not limited to any investigations, arrests, or detentions of any individual in the states of Vermont, New Hampshire, or Maine by DHS or its sub-agencies; any requests for automated license plate reader data; any boarding by DHS officials of any commercial bus or other form of public transportation to perform immigration checks; and any roadblock or checkpoint established by DHS officials.
2. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local law enforcement agency—including but not limited to Departments of Motor Vehicles and Departments of Corrections—mentioning, referencing, or referring to immigration enforcement, or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications.
3. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local government official mentioning, referencing, or referring to immigration enforcement, “sanctuary” policies, detainers, or “fair and impartial policing,” or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications.
4. All communications relating to immigration enforcement with, to, or from any Vermont, New Hampshire, or Maine businesses or business owners, including but not limited to dairy farms and other agricultural operations, and all Records pertaining to any such communications.
5. All records created, sent, received, referenced, and/or used in fulfilling and/or responding to any of the foregoing parts of this Request.
Please search for responsive records regardless of format, medium, or physical characteristics, and including electronic records.
FORMAT OF PRODUCTION
With respect to the form of production, see 5 U.S.C. § 552(a)(3)(B), we request that responsive documents be provided electronically in native format (i.e. Excel spreadsheets in Excel). We request that any responsive documents for which native format production is impossible be provided electronically in text-searchable, static-image format (PDF), in the best image quality in the agencies’ possession. Please provide the requested documents in the following format:
 Saved on a CD, CD-ROM, or DVD;  Each record in a separately saved file;  Emails should include date and time stamps and author and recipient
information, including BCC and any other hidden fields, and “parent-child”
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relationships should be maintained, meaning that the requester must be able to identify the attachments with emails;  With any other metadata preserved.
REQUEST FOR EXPEDITED PROCESSING
Requesters seek Track 1 expedited processing for this FOIA request pursuant to 5 U.S.C. § 552(a)(6)(E)(i) (“Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records—(I) in cases in which the person requesting the records demonstrates a compelling need . . . .”). A “compelling need” exists when, “with respect to a request made by a person primarily engaged in disseminating information,” there is “urgency to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v)(II); 6 C.F.R. § 5.5 (d)(1)(ii).
Dissemination of information to the public about actual or alleged government activity is a critical and substantial component of the ACLU’s mission and work. Specifically, the ACLU publishes a continuously updated blog, newsletters, news briefings, “Know Your Rights” documents, and other educational and informational materials that are broadly disseminated to the public.31 Such material is widely available to everyone, including individuals, tax-exempt organizations, not-for-profit groups, law students, and faculty, for no cost or for a nominal fee through the ACLU’s public education department and website.
The ACLU’s national website (www.aclu.org) and the sites run by the Requester affiliates (www.acluvt.org, https://www.aclumaine.org/, https://www.aclu-nh.org/) address civil rights and civil liberties issues in depth, provide features on civil rights and civil liberties issues in the news, and contain many thousands of documents relating to the issues on which the ACLU is focused. These websites also include features highlighting information obtained through the FOIA process.32
31 See, e.g., Dan Gillmor, In Praise of the Almost-Journalists, SLATE, Mar. 28, 2014, available at http://slate.me/1jg5YXx (describing ACLU’s efforts to broadly disseminate important civil-rights-related news stories).
32 For example, the ACLU’s “Predator Drones FOIA” webpage, https://www.aclu.org/nationalsecurity/predator-drones-foia, contains commentary about the ACLU’s FOIA request, press releases, analysis of the FOIA documents, numerous blog posts on the issue, documents related to litigation over the FOIA request, frequently asked questions about targeted killing, and links to the documents themselves. Similarly, the ACLU maintains an online “Torture Database,” https://www.thetorturedatabase.org, a compilation of over 100,000 pages of FOIA documents that allows researchers and the public to conduct sophisticated searches of FOIA documents relating to government policies on rendition, detention, and interrogation. See also, e.g., Targeted Killing FOIA Database, https://www.aclu.org/foia-collection/targeted-killing-foiadatabase?f[0]=field_related_content%3A50449; FBI Releases Details of ‘Zero-Day’ Exploit Decisionmaking Process, https://www.aclu.org/blog/free-future/fbi-releases-details-zero-day-exploitdecisionmaking-process; FBI Documents Reveal New Information on Baltimore Surveillance Flights, https://www.aclu.org/blog/free-future/fbi-documents-reveal-new-information-baltimore-surveillanceflights; ACLU v. DOJ – FOIA Case for Records Relating to Killing of Three U.S. Citizens, https://www.aclu.org/national-security/anwar-al-awlaki-foia-request; ACLU v. Department of Defense: Accountability for Torture, https://www.aclu.org/cases/aclu-v-department-defense; Mapping the FBI:
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In addition, the ACLU publishes a magazine at least twice a year that reports on and analyzes civil liberties-related current events; this publication is distributed to more than one million people. The ACLU also disseminates electronic civil liberties bulletins to more than 1.6 million subscribers (both ACLU members and non-members) by e-mail. Both of these newsletters often include descriptions and analyses of information obtained from the government through FOIA, as well as information about cases, governmental policies, pending legislation, abuses of constitutional rights, and polling data. Cf. Elec. Privacy Info. Ctr. v. Dep’t of Defense, 241 F. Supp. 2d 5, 13–14 (D.D.C. 2003) (finding the Electronic Privacy Information Center to be a representative of the news media under Department of Defense regulations because it published a “bi-weekly electronic newsletter that is distributed to over 15,000 readers” about “court cases and legal challenges, government policies, legislation, civil rights, surveys and polls, legislation, privacy abuses, international issues, and trends and technological advancements”).
The ACLU also regularly publishes books, “Know Your Rights” publications, fact sheets, and educational brochures and pamphlets designed to educate the public about civil liberties issues and governmental policies that implicate civil rights and liberties. These materials are specifically designed to be educational and widely disseminated to the public. See Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 11 (finding the Electronic Privacy Information Center to be a news-media requester because of its publication and distribution of seven books on privacy, technology, and civil liberties). The ACLU further disseminates information to the public via social media platforms such as Facebook and Twitter.
Depending on the results of this request, Requesters plan to disseminate the information they receive to the public through these kinds of publications in these kinds of channels. The ACLU is therefore an organization “primarily engaged in disseminating information” within the meaning of the statute and the relevant regulations—as has been previously recognized in FOIA litigation between the ACLU and the Department of Justice. See, e.g., ACLU v. Dep’t of Justice, 321 F. Supp. 2d 24, 30 n.5 (D.D.C. 2004) (finding that a non-profit, public-interest group that “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience” is “primarily engaged in disseminating information” (internal citation omitted)).
There is no question that ICE immigration enforcement actions constitute federal government activity, and there is an urgent need for public transparency and information about how ICE is carrying out its activities in Vermont, New Hampshire, and Maine. Without expedited disclosure of the requested records, ICE and other DHS sub-agencies may continue to undertake enforcement actions targeting individuals, including labor organizers, in these states based on their political beliefs and activities and collaborate with local law enforcement agencies or other state or local entities in unconstitutional seizures—
Uncovering Abusive Surveillance and Racial Profiling, https://www.aclu.org/mappingthefbi; Bagram FOIA, https://www.aclu.org/cases/bagram-foia; CSRT FOIA, https://www.aclu.org/nationalsecurity/csrt-foia; ACLU v. DOJ – Lawsuit to Enforce NSA Warrantless Surveillance FOIA Request, http://www.aclu.org/safefree/nsaspying/30022res20060207.html; PATRIOT FOIA, https://www.aclu.org/other/patriot-foia?redirect=patriot-foia; NSL Documents Released by DOD, https://www.aclu.org/nsl-documents-released-dod?redirect=cpredirect/32088.
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all without Requesters being able to inform the public about these violations. As demonstrated by the many press reports cited above,33 ICE’s enforcement actions and collaboration with law enforcement agencies in Vermont, New Hampshire, and Maine are matters of critical importance and current exigency to residents of those states. Additional evidence of the intense public interest in these immigration enforcement actions comes from the many hundreds of people who have attended marches, rallies, and vigils in support of those detained by ICE and against ICE’s tactics.34 People are extremely anxious about and fearful of DHS immigration enforcement activity in Vermont, New Hampshire, and Maine, and they—and their elected officials—have an urgent need to understand how that activity is being carried out and whether and how local law enforcement agencies have participated in it. There is thus a “compelling need” for the requested records.
For all of the foregoing reasons, expedited processing of this Request is warranted and should be granted.
Requesters hereby certify that the foregoing is true and correct to the best of their knowledge and belief. 5 U.S.C. § 552(a)(6)(E)(vi); 6 C.F.R. § 5.5(d)(3).
33 See supra nn. 1-30.
34 See Mark Johnson, Vermont Delegation, Protesters Decry Arrests of Undocumented Immigrants, VTDIGGER, Mar. 21, 2017, available at https://vtdigger.org/2017/03/21/vermonts-delegation-weighsarrests-undocumented-immigrants/ (describing March 18 rally in Burlington attended by “hundreds” and March 21 rally in Montpelier attended by “[m]ore than 150 Vermonters”); Claire Halverson, Letter: Rallying for Migrant Justice, BRATTLEBORO REFORMER, Apr. 19, 2017, available at http://www.reformer.com/stories/letter-rallying-for-migrant-justice,504816 (describing March 21 rally in Brattleboro attended by 200-250 people); Milton J. Valencia, Vermont activists set to post bond on immigration charges, BOS. GLOBE, Mar. 28, 2017, available at https://www.bostonglobe.com/metro/2017/03/27/vermont-activists-set-post-bond-immigrationcharges/eIcbvNUSCoXJqI4SQDeU5I/story.html (describing March 28 protest attended by “hundreds of protesters” outside Boston courthouse during arrestees’ bond hearings); Elizabeth Murray & Dan D’Ambrosio, Released Migrant Justice organizers speak out at BTV rally, BURLINGTON FREE PRESS, Mar. 28, 2017, available at http://www.burlingtonfreepress.com/story/news/local/2017/03/28/aclu-icearrests-jeff-sessions-defunding-threats-migrant-justice-rally-burlington/99704610/ (describing March 28 rally and candlelight vigil in Burlington); Masterson, supra note 14 (describing June 19 protests outside the facility where Hernández was being held and the ICE regional office in St. Albans, Vermont); Freese, supra note 14 (same); Abby Isaacs, Dozens rally for freedom of 2 dairy farmers detained by ICE, NBC5, June 23, 2017, available at http://www.mynbc5.com/article/dozens-rally-for-freedom-of-2-dairyfarmers-detained-by-ice/10216427 (describing June 23 rally at Vermont State House calling for release of Peche and Hernández); Montenegro, supra note 19 (describing plans for an “interfaith prayer vigil Tuesday morning in front of the Norris Cotton Federal Building in Manchester to show support for immigrant families who are facing the threat of deportation”); see also Katie Jickling, Migrant Justice Cases Spark Protest at Boston Immigration Court, SEVEN DAYS, Mar. 27, 2017, available at https://www.sevendaysvt.com/OffMessage/archives/2017/03/27/migrant-justice-cases-spark-protestat-boston-immigration-court (noting that more than 200 letters were written in support of arrestees); Johnson, supra (noting that “Vermont’s congressional delegation expressed “strong concerns” to federal immigration authorities over the recent arrests”); Valencia, supra (noting that more than 10,000 people signed a petition calling for arrestees’ release); Harrison, supra note 21 (describing Maine Attorney General’s letter calling on ICE to cease effecting arrests in and around courthouses); ACLU of Maine, supra note 23 (describing letter written by ACLU of Maine and signed by 179 Maine attorneys condemning ICE arrests at courthouses).
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REQUEST FOR A WAIVER OR LIMITATION OF SEARCH AND REVIEW FEES
Requesters further seek a waiver of processing (search and review) fees because disclosure of these records is in the public interest and because the ACLU qualifies as a “representative of the news media.” See 5 U.S.C. § 552(a)(4)(A)(iii) (“Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it 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.”); 6 C.F.R. § 5.11(d)(1) (search fees shall not be charged “for requests by educational institutions . . . or representatives of the news media”); id. § 5.11(k)(1) (“Records responsive to a request will be furnished without charge or at a charge reduced below that established under paragraph (c) of this section where a component determines, based on all available information, that the requester has demonstrated that (i) disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and (ii) disclosure of the information is not primarily in the commercial interest of the requester.”). As discussed below, federal agencies routinely grant such fee waivers for FOIA requests made by the ACLU for these reasons.
At a minimum, should a total fee waiver be denied, “fees should be limited to reasonable standard charges for document duplication” because the ACLU is a “representative of the news media” and the records are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II).
A. Disclosure of the requested records is in the public interest and is not in Requesters’ commercial interest.
A fee waiver is appropriate if the records requested will contribute significantly to public understanding of the government’s operations or activities and the requested disclosure is not primarily in the Requesters’ commercial interest. Under 6 C.F.R. § 5.11(k)(2), the following factors are to be considered in determining whether a disclosure is in the public interest: (i) whether the subject of the requested records concerns “the operations or activities of the government”; (ii) whether the disclosure is “likely to contribute” to an understanding of government operations or activities; (iii) whether disclosure of the requested information will contribute to “public understanding,” that is, “the understanding of a reasonably broad audience of persons interested in the subject”; and (iv) whether disclosure is likely to contribute “significantly” to public understanding of government operations or activities. See 6 C.F.R. § 5.11(k)(2)(i)–(iv). To determine whether disclosure of the requested information is in the requester’s commercial interest, agencies consider: (i) whether the requester has a commercial interest that would be furthered by the requested disclosure; and (ii) whether the public interest is greater than any identified commercial interest in disclosure. All six of these considerations are satisfied here.
First, the records requested pertain directly to the operations and activities of the federal government (specifically, DHS and its sub-agencies, including ICE, CBP, and Border Patrol).
Second, this Request is “likely to contribute” to an understanding of government operations or activities, specifically by helping the public determine the nature and extent of
12

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DHS immigration enforcement actions in Vermont, New Hampshire, and Maine; local law enforcement participation in those actions; and whether those actions are undertaken in a manner that comports with the U.S. Constitution and other federal laws. To the extent that agencies of the federal government are engaged in an effort to suppress the free speech of persons and organizations who advocate for fair and safe working conditions in agricultural industries, such information will be of great interest to the public. Finally, this information is not already in the public domain.
Third, disclosure of the requested information will contribute to “the understanding of a reasonably broad audience of persons interested in the subject” of how DHS is conducting immigration enforcement actions in Vermont, New Hampshire, and Maine. Among other things, Requesters intend to publish responsive records and analyze specific documents to raise public awareness of DHS activities in those states. In addition, as representatives of the news media,35 Requesters are entitled to the presumption that this consideration is satisfied. § 5.11(k)(2)(iii).
Fourth, disclosure will contribute “significantly” to the public understanding of DHS activities in Vermont, New Hampshire, and Maine. As explained at length above,36 immigration enforcement activity in Vermont, New Hampshire, and Maine has garnered significant and sustained public and media attention, yet much remains unknown about this critical human rights issue. To Requesters’ knowledge, the requested records are not already in the public domain. Requesters will ensure that disclosure will contribute significantly to the public understanding of these issues by reviewing and analyzing the records, and, depending on what the records reveal, synthesizing the information therein to make their import readily understandable to the public and making both the documents and the analyses publicly available on their web sites. In so doing, Requesters will help the public understand the nature and extent of ICE immigration enforcement actions in Vermont, New Hampshire, and Maine, and whether those actions are undertaken in a manner that comports with the U.S. Constitution and other federal laws. To the extent that agencies of the federal government are engaged in an effort to suppress the free speech of persons and organizations who advocate for fair and safe working conditions in agricultural industries, such information will be of great interest to the public.
Requesters have thus established, “with reasonable specificity[,] that [their] request pertains to operations of the government,” and “the informative value of a request depends not on there being certainty of what the documents will reveal, but rather on the requesting party having explained with reasonable specificity how those documents would increase public knowledge of the functions of the government.” Citizens for Responsibility & Ethics in Wash. v. Dep’t of Health & Human Servs., 481 F. Supp. 2d 99, 107–109 (D.D.C. 2006).
Fifth, disclosure of the information requested is not in the Requesters’ commercial interest. 6 C.F.R. § 5.11(k)(3)(i)–(ii). Requesters are non-profit organizations, and any information obtained as a result of this FOIA request will be made available to the public at
35 See infra Part C.
36 See supra notes 1-30, 34 and accompanying text.
13

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no cost. In addition, as representatives of the news media,37 Requesters are entitled to the presumption that this consideration is satisfied. § 5.11(b)(6) (“A request for records that supports the news-dissemination function of [a representative of the news media] shall not be considered to be for a commercial use.”).
Finally, because the requested disclosure would not further any commercial interest of the Requesters, the disclosure is, by definition, not primarily in their commercial interest. In addition, because Requesters have satisfied the public interest standard and are representatives of the news media, Requesters are entitled to the presumption that this factor is satisfied. See 6 C.F.R. § 5.11(k)(3)(ii).
For all these reasons, the Requesters are entitled to a fee waiver under 5 U.S.C. § 552(a)(4)(A)(iii) and 6 C.F.R. § 5.11(k).
B. Requesters qualify as representatives of the news media.
Requesters meet the statutory and regulatory definitions of a “representative of the news media” because each is an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii)(II) (“[F]ees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by . . . a representative of the news media”); id. § 522(a)(4)(A)(iii) (“Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it 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.”); 6 C.F.R. § 5.11(d)(1) (search fees shall not be charged “for requests by . . . representatives of the news media”); see also, e.g., Nat’l Sec. Archive v. Dep’t of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989).
The ACLU is a “representative of the news media” for the same reasons that it is “primarily engaged in the dissemination of information.” See Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 10–15 (finding non-profit public interest group that disseminated an electronic newsletter and published books was a “representative of the news media” for FOIA purposes); ACLU v. Dep’t of Justice, 321 F. Supp. 2d 24, 30 n.5 (D.D.C. 2004) (finding nonprofit public interest group to be “primarily engaged in disseminating information”).38
37 See infra Part B.
38 On account of these factors, fees associated with responding to FOIA requests are regularly waived for the ACLU. In June 2011, the National Security Division of the Department of Justice granted a fee waiver to the ACLU with respect to a request for documents relating to the interpretation and implementation of a section of the PATRIOT Act. In October 2010, the Department of the Navy granted a fee waiver to the ACLU with respect to a request for documents regarding the deaths of detainees in U.S. custody. In January 2009, the CIA granted a fee waiver with respect to the same request. In March 2009, the State Department granted a fee waiver to the ACLU with regard to a FOIA request submitted in December 2008. The Department of Justice granted a fee waiver to the ACLU with regard to the same FOIA request. In November 2006, the Department of Health and Human Services granted a fee waiver to the ACLU with regard to a FOIA request submitted in November of 2006. In May 2005, the U.S. Department of Commerce granted a fee waiver to the ACLU with respect to its request for information regarding the radio-frequency identification chips in United States passports. In March 2005, the Department of State
14

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Various federal courts have held that the ACLU is a “representative of the news media.” See, e.g., Serv. Women’s Action Network v. Dep’t of Defense, No. 3:11CV1534 (MRK), 2012 WL 3683399, at *3 (D. Conn. May 14, 2012); ACLU of Wash. v. Dep’t of Justice, No. C09– 0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a “representative of the news media”), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011).
For the foregoing reasons, a fee waiver or limitation should be granted. A fee waiver would also fulfill Congress’s legislative intent in amending FOIA, namely to ensure that the Act is liberally construed in favor of granting waivers for noncommercial requesters and to effectuate disclosure of documents of public importance. See Judicial Watch Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (“Congress amended FOIA to ensure that it be liberally construed in favor of waivers for noncommercial requesters.” (internal quotation marks and citation omitted)); OPEN Government Act of 2007, Pub. L. No. 110175, § 2, 121 Stat. 2524 (finding that “disclosure, not secrecy, is the dominant objective of the Act” (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1992))).
At a minimum, should a total waiver be denied, fees should be “limited to reasonable standard charges for document duplication” because the ACLU is a “representative of the news media” and the records are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II). 5 U.S.C. § 552(a)(4)(A)(ii)(II). In the event a fee waiver or reduction of costs is denied, please notify us in advance if the anticipated costs associated with this Request exceed $100.00.
***
Pursuant to the applicable statute and regulations, we expect a determination regarding expedited processing within ten (10) calendar days. See 5 U.S.C. § 552(a)(6)(E)(ii)(I); 6 C.F.R. § 5.5(d)(4).
We further expect your reply to the Request itself within twenty (20) business days, as required under 5 U.S.C. § 552(a)(6)(A)(i). If the Request is denied in whole or in part, we ask that you justify all withholdings by reference to specific exemptions to the FOIA. We also ask that you release all segregable portions of otherwise exempt material.
We reserve the right to appeal a decision to withhold any information or to deny expedited processing or a waiver of fees.
Please furnish all responsive records to:
granted a fee waiver to the ACLU with regard to a request regarding the use of immigration laws to exclude prominent non-citizen scholars and intellectuals from the country because of their political views, statements, or associations. In addition, the Department of Defense did not charge the ACLU fees associated with FOIA requests submitted by the ACLU in April 2007, June 2006, February 2006, and October 2003. The Department of Justice did not charge the ACLU fees associated with FOIA requests submitted by the ACLU in November 2007, December 2005, and December 2004. Finally, three separate agencies—the Federal Bureau of Investigation, the Office of Intelligence Policy and Review, and the Office of Information and Privacy in the Department of Justice—did not charge the ACLU fees associated with a FOIA request submitted by the ACLU in August 2002.
15

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Lia Ernst ACLU Foundation of Vermont PO Box 277 Montpelier, VT 05601 lernst@acluvt.org (802) 223-6304 Should you need to communicate with us regarding this request, please contact me by email at the address above. Thank you in advance for your assistance.
Sincerely,
Lia Ernst Staff Attorney ACLU Foundation of Vermont
16

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Exhibit B September 15, 2017, Correspondence from DHS

Case 2:18-cv-00182-JDL Document 1-6 Filed 05/08/18 Page 23 of 32 PageID #: 69

lernst@acluvt.org
From: Sent: To: Subject: Attachments:

foia@hq.dhs.gov Friday, September 15, 2017 11:04 lernst@acluvt.org Department of Homeland Security FOIA 2017-HQFO-01317 Acknowledgment Ack - Conditional Grant - Fee Waiver (Other Non-Commercial)1.Docx

Good Morning,
Attached is our acknowledgment of your DHS FOIA request. If you need to contact this office again concerning your request, please provide the DHS reference number. This will enable us to quickly retrieve the information you are seeking and reduce our response time. This office can be reached at 866-431-0486.
Regards,
DHS Privacy Office Disclosure & FOIA Program STOP 0655 Department of Homeland Security 245 Murray Drive, SW Washington, DC 20528-0655 Telephone: 1-866-431-0486 or 202-343-1743 Fax: 202-343-4011 Visit our FOIA website

1

Case 2:18-cv-00182-JDL Document 1-6 Filed 05/08/18 Page 24 of 32 PageID #: 70
U.S. Department of Homeland Security Washington, DC 20528

September 15, 2017

Homeland Security
Privacy Office, Mail Stop 0655

SENT VIA E-MAIL TO: lernst@acluvt.org

Lia Ernst Staff Attorney ACLU Foundation of Vermont PO Box 277 Montpelier, VT 05601

Re: 2017-HQFO-01317

Dear Ms. Ernst:

This letter acknowledges receipt of your Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS), dated September 05, 2017, and to your request for expedited handling and a waiver of all assessable FOIA fees. Our office received your request on September 05, 2017. Specifically, you requested records pertaining to DHS immigration enforcement actions in the state of Vermont from January 1, 2017, up to such time as an adequate search for responsive records has been conducted, including any such Records held by ICE, CBP, Border Patrol, or any other DHS component agencies, to include: 1.All Records, including but not limited to data or statistics, mentioning, referencing, relating to, or referring to any immigration enforcement action, including but not limited to any investigations, arrests, or detentions of any individual in the states of Vermont, New Hampshire, or Maine by DHS or its sub-agencies; any requests for automated license plate reader data; any boarding by DHS officials of any commercial bus or other form of public transportation to perform immigration checks; and any roadblock or checkpoint established by DHS officials; 2. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local law enforcement agency—including but not limited to Departments of Motor Vehicles and Departments of Corrections—mentioning, referencing, or referring to immigration enforcement, or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications; 3. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local government official mentioning, referencing, or referring to immigration enforcement, “sanctuary” policies, detainers, or “fair and impartial policing,” or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications; 4. All communications relating to immigration enforcement with, to, or from any Vermont, New Hampshire, or Maine businesses or business owners, including but not limited to dairy farms and other agricultural operations, and all Records pertaining to any such communications; 5. All records created, sent, received, referenced, and/or used in fulfilling and/or responding to any of the foregoing parts of this Request.

Case 2:18-cv-00182-JDL Document 1-6 Filed 05/08/18 Page 25 of 32 PageID #: 71
Your request for expedited treatment is hereby denied.
Under the DHS FOIA regulations, expedited processing of a FOIA request is warranted if the request involves “circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual,” 6 C.F.R. Part 5 § 5.5(e)(1)(i); “an urgency to inform the public about an actual or alleged federal government activity, if made by a person who is primarily engaged in disseminating information,” 6 C.F.R. Part 5 § 5.5(e)(1)(ii); “the loss of substantial due process rights,” 6 C.F.R. Part 5 § 5.5(e)(1)(iii); or “a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence,” 6 C.F.R. Part 5 § 5.5(e)(1)(iv). Requesters seeking expedited processing must submit a statement explaining in detail the basis for the request, and that statement must be certified by the requester to be true and correct pursuant to 6 C.F.R. Part 5 § 5.5(e)(3).
Your request for expedited processing is denied because you do not qualify under any category pursuant to 6 C.F.R. Part 5 § 5.5(e)(1). You have not established that lack of expedited treatment in this case will pose an imminent threat to the life or physical safety of an individual. You have not established the loss of substantial due process rights. While you may be primarily engaged in the dissemination of information, you have not detailed with specificity why you feel there is an urgency to inform the public about the subject matter of the request. Qualifying urgency would need to exceed the public’s right to know about government activity generally. You also did not offer sufficient supporting evidence of an interest of the public greater than the public’s general interest in the subject matter of the request. Finally, you did not establish this is a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence. Your letter was conclusory in nature and did not present any facts to justify a grant of expedited processing under the applicable standards.
You have requested a fee waiver. The DHS FOIA regulations at 6 C.F.R. Part 5 § 5.11(k) set forth six factors DHS must evaluate to determine whether the applicable legal standard for a fee waiver has been met: (1) Whether the subject of the requested records concerns “the operations or activities of the government,” (2) Whether the disclosure is “likely to contribute” to an understanding of government operations or activities, (3) Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understanding of the requester or a narrow segment of interested persons, (4) Whether the contribution to public understanding of government operations or activities will be “significant,” (5) Whether the requester has a commercial interest that would be furthered by the requested disclosure, and (6) Whether the magnitude of any identified commercial interest to the requester is sufficiently large in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requester.
Upon review of the subject matter of your request, and an evaluation of the six factors identified above, DHS has determined that it will conditionally grant your request for a fee waiver. The fee waiver determination will be based upon a sampling of the responsive documents received from the various DHS program offices as a result of the searches conducted in response to your FOIA request. DHS will, pursuant to DHS FOIA regulations applicable to non-commercial requesters, provide two hours of search time and process the first 100 pages at no charge to you. If upon

Case 2:18-cv-00182-JDL Document 1-6 Filed 05/08/18 Page 26 of 32 PageID #: 72
review of these documents, DHS determines that the disclosure of the information contained in those documents does not meet the factors permitting DHS to waive the fees, then DHS will at that time either deny your request for a fee waiver entirely, or will allow for a percentage reduction in the amount of the fees corresponding to the amount of relevant material found that meets the factors allowing for a fee waiver. In either case, DHS will promptly notify you of its final decision regarding your request for a fee waiver and provide you with the responsive records as required by applicable law.
In the event that your fee waiver is denied, and you determine that you still want the records, provisions of the FOIA allow us to recover part of the cost of complying with your request. We shall charge you for records in accordance with the DHS FOIA regulations as they apply to noncommercial requesters. As a non-commercial requester you will be charged for any search time and duplication beyond the free two hours and 100 pages mentioned in the previous paragraph. You will be charged 10 cents per page for duplication and search time at the per quarter-hour rate ($4.00 for clerical personnel, $7.00 for professional personnel, $10.25 for managerial personnel) of the searcher. In the event that your fee waiver is denied, we will construe the submission of your request as an agreement to pay up to $25.00. This office will contact you before accruing any additional fees.
Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Consistent with 6 C.F.R. Part 5 § 5.5(a) of the DHS FOIA regulations, the Department processes FOIA requests according to their order of receipt. Although DHS’ goal is to respond within 20 business days of receipt of your request, FOIA does permit a 10-day extension of this time period in certain circumstances under 6 C.F.R. Part 5 § 5.5(c). As your request seeks documents that will require a thorough and wide-ranging search, DHS will invoke a 10-day extension for your request pursuant to 6 C.F.R. Part 5 § 5.5(c). If you would like to narrow the scope of your request, please contact our office. We will make every effort to comply with your request in a timely manner.
We have queried the appropriate component(s) of DHS for responsive records for item 1 of your request. If any responsive records are located, they will be reviewed for determination of releasability. Please be assured that one of the analysts in our office will respond to your request as expeditiously as possible. We appreciate your patience as we proceed with your request.
Our office transferred your request to ICE for items 2-5 of your request. Their contact information is:
Freedom of Information Act Office 500 12th Street, SW, Stop 5009 Washington, D.C. 20536-5009 FOIA Officer: Catrina Pavlik-Keenan FOIA Requester Service Center Contact: Fernando Pineiro Phone: 866-633-1182 Fax: 202-732-4265 E-mail: ice-foia@dhs.gov ICE Website

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Your request has been assigned reference number 2017-HQFO-01317. Please refer to this identifier in any future correspondence. The status of your FOIA request is now available online and can be accessed at: https://www.dhs.gov/foia-status, by using this FOIA request number. Status information is updated daily. Alternatively, you can download the DHS eFOIA Mobile App, the free app is available for all Apple and Android devices. With the DHS eFOIA Mobile App, you can submit FOIA requests or check the status of requests, access all of the content on the FOIA website, and receive updates anyplace, anytime. If you have any questions, or would like to discuss this matter, please feel free to contact this office at 1-866-431-0486 or 202-343-1743.
Sincerely, /s/
Maura Busch FOIA Program Specialist

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Exhibit C September 27, 2017, Correspondence from DHS

Case 2:18-cv-00182-JDL Document 1-6 Filed 05/08/18 Page 29 of 32 PageID #: 75

lernst@acluvt.org
From: Sent: To: Subject: Attachments:

foia@hq.dhs.gov Wednesday, September 27, 2017 13:19 lernst@acluvt.org Department of Homeland Security FOIA 2017-HQFO-01317 Final Response 2017-HQFO-01317.zip

Good Morning,
Attached is our final response to your request. If you need to contact this office again concerning your request, please provide the DHS reference number. This will enable us to quickly retrieve the information you are seeking and reduce our response time. This office can be reached at 866-4310486.
Regards,
DHS Privacy Office Disclosure & FOIA Program STOP 0655 Department of Homeland Security 245 Murray Drive, SW Washington, DC 20528-0655 Telephone: 1-866-431-0486 or 202-343-1743 Fax: 202-343-4011
Visit our FOIA website

1

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U.S. Department of Homeland Security Washington, DC 20528

September 27, 2017

Homeland Security

SENT VIA E-MAIL TO: lernst@acluvt.org
Lia Ernst Staff Attorney ACLU Foundation of Vermont PO Box 277 Montpelier, VT 05601
Re: 2017-HQFO-01317
Dear Ms. Ernst:
This is the electronic final response to your September 5, 2017, Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS) for records pertaining to DHS immigration enforcement actions in the state of Vermont from January 1, 2017, up to such time as an adequate search for responsive records has been conducted, including any such records held by ICE, CBP, Border Patrol, or any other DHS component agencies, to include: 1. All records, including but not limited to data or statistics, mentioning, referencing, relating to, or referring to any immigration enforcement action, including but not limited to any investigations, arrests, or detentions of any individual in the states of Vermont, New Hampshire, or Maine by DHS or its sub-agencies; any requests for automated license plate reader data; any boarding by DHS officials of any commercial bus or other form of public transportation to perform immigration checks; and any roadblock or checkpoint established by DHS officials; 2. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local law enforcement agency including but not limited to Departments of Motor Vehicles and Departments of Corrections mentioning, referencing, or referring to immigration enforcement, or to the investigation, arrest, or detention of any individual, and all records pertaining to any such communications; 3. All communications with, to, or from any Vermont, New Hampshire, or Maine state or local government official mentioning, referencing, or referring to immigration enforcement, “sanctuary” policies, detainers, or “fair and impartial policing,” or to the investigation, arrest, or detention of any individual, and all Records pertaining to any such communications; 4. All communications relating to immigration enforcement with, to, or from any Vermont, New Hampshire, or Maine businesses or business owners, including but not limited to dairy farms and other agricultural operations, and all records pertaining to any such communications; and 5. All records created, sent, received, referenced, and/or used in fulfilling and/or responding to any of the foregoing parts of this request. This office received your request on September 5, 2017.

Case 2:18-cv-00182-JDL Document 1-6 Filed 05/08/18 Page 31 of 32 PageID #: 77

In responding to a FOIA request, DHS will search for responsive documents in its control on the date the search began. We began our search for records for item one of your request on September 15, 2017. A search of the Office of Policy (PLCY) Office of Immigration Statistics for documents responsive to your request produced one page of responsive records. In our letter to you dated September 15, 2017, we advised that we transferred items 2 through 5 of your request to ICE for review and direct response to you.
We are granting your request under FOIA, 5 U.S.C. § 552, and DHS FOIA regulations at 6 C.F.R. Part 5. After carefully reviewing the responsive document, I determined that it is appropriate for public release. The document is enclosed in its entirety; DHS has claimed no deletions or exemptions.
Provisions of FOIA allow DHS to charge for processing fees, up to $25, unless you seek a waiver of fees. In this instance, because the cost is below the $25 minimum, there is no charge.
If you need any further assistance or would like to discuss any aspect of your request, please contact the analyst below who processed your request and refer to 2017-HQFO-01317. You may send an e-mail to foia@hq.dhs.gov, call 202-343-1743 or toll free 1-866-431-0486, or you may contact our FOIA Public Liaison in the same manner.
Sincerely, /s/

Enclosure(s): one excel sheet

Maura Busch Government Information Specialist

Case 2:18-cv-00182-JDL Document 1-6 Filed 05/08/18 Page 32 of 32 PageID #: 78

ICE Arrests, BP Apprehensions, and 0E0 Inadmissible Actions Table

Corepanson of January 1-June 30th, 2017 and January 1 -June 30th, 2016 Time Period

Area of Responsibility*

Event

BOSTON** Fiscal Year

ME Fiscal Year

Slate NH
Fiscal Year

VT Fiscal Year

2016

1017

2016 2017

USBP Apprehension

No Removal or Return Record Removed or Returned

2

7

4

ICE Arrest

No Removal or Return Record Removed or Returned

570 361

1,211 325

Determination of

No Removal or Return Record

548 316

Inadmissibility

Removed or Returned

281 359

Total

931

1,536 838 683

NOTE None of these individuals had a book in or book out record

*ERO-ICE Apprehensions are noted by Area of Responsibilities which cannot be b oken down i to states

**Boston Area of Responsibility includes Maine, New Hampshire and Vermont

1016

2017 3

2016 12 13

248

24

9 264

24 12 537

2017 19 6
85 483 594

Total 36 30
4786 686
1497 4420 5,155

Case 2:18-cv-00182-JDL Document 1-7 Filed 05/08/18 Page 1 of 2 PageID #: 79
U.S. Department of Homeland Security Washington, DC 20528
Homeland Security
February 8, 2018
SENT VIA E-MAIL TO: lernst@acluvt.org
Lia Ernst Staff Attorney ACLU Foundation of Vermont PO Box 277 Montpelier, VT 05601
Re: 2018-HQAP-00161
Dear Ms. Ernst:
This letter acknowledges receipt of your February 01, 2018, Freedom of Information Act (FOIA) request to the Department of Homeland Security (DHS), appealing DHS's response as inadequate, for request 2017-HQFO-01317. This office received your request on February 7, 2018.
Due to the increasing number of FOIA requests received by this office, we may encounter some delay in processing your request. Consistent with 6 C.F.R. Part 5 § 5.5(a) of the DHS FOIA regulations, the Department processes FOIA requests according to their order of receipt. Although DHS’ goal is to respond within 20 business days of receipt of your request, FOIA does permit a 10-day extension of this time period in certain circumstances pursuant to 6 C.F.R. Part 5 § 5.5(c). As your request seeks documents that will require a thorough and wide-ranging search, DHS will invoke a 10-day extension for your request pursuant to 6 C.F.R. Part 5 § 5.5(c). If you would like to narrow the scope of your request, please contact our office. We will make every effort to comply with your request in a timely manner.
Provisions of the FOIA allow us to recover part of the cost of complying with your request. We shall charge you for records in accordance with the DHS FOIA regulations as they apply to noncommercial requesters. As a non-commercial requester, you will be charged 10 cents per page for duplication; the first 100 pages are free, as are the first two hours of search time, after which you will pay the per quarter-hour rate ($4.00 for clerical personnel, $7.00 for professional personnel, $10.25 for managerial personnel) of the searcher. We will construe the submission of your request as an agreement to pay up to $25.00. This office will contact you before accruing any further fees.
We have queried the appropriate component(s) of DHS for responsive records. If any responsive records are located, they will be reviewed for determination of releasability. Please be assured that one of the analysts in our office will respond to your request as expeditiously as possible. We appreciate your patience as we proceed with your request.

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Your request has been assigned reference number 2018-HQAP-00161. Please refer to this identifier in any future correspondence. The status of your FOIA request is now available online and can be accessed at: https://www.dhs.gov/foia-status, by using this FOIA request number. Status information is updated daily. Alternatively, you can download the DHS eFOIA Mobile App, the free app is available for all Apple and Android devices. With the DHS eFOIA Mobile App, you can submit FOIA requests or check the status of requests, access all of the content on the FOIA website, and receive updates anyplace, anytime. If you have any questions, or would like to discuss this matter, please feel free to contact this office at 1-866-431-0486 or 202-343-1743.
Sincerely,
Kevin L. Tyrrell Department of Homeland Security Director FOIA Appeals & Litigation

 
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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

AMERICAN CIVIL LIBERTIES

)

UNION OF MAINE FOUNDATION, )

et al.,

)

)

Plaintiffs

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY, et al.,

)

)

Defendants

)

No. 2:18-cv-00182-JDL

MEMORANDUM DECISION AND ORDER ON OBJECTION TO PUBLIC RECORD REDACTIONS PURSUANT TO FOIA
In this litigation as narrowed by agreements of the parties, Plaintiffs American Civil Liberties Union of Maine Foundation, American Civil Liberties Union of New Hampshire Foundation, and American Civil Liberties Union Foundation of Vermont (collectively, the “ACLU”) object to redactions made by defendant U.S. Customs and Border Protection (“CBP”) in response to the ACLU’s request pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., for public records bearing on immigration enforcement in Maine, New Hampshire, and Vermont. See Complaint for Declaratory and Injunctive Relief for Violation of the Freedom of Information Act, 5 U.S.C. § 552 et seq. (“Complaint”) (ECF No. 1) ¶ 2; Objection to Redaction of Public Records (“Objection”) (ECF No. 46) at 1-4, 18-19; Defendants’ Response to Plaintiff’s Objection to Redaction of Records (“Response”) (ECF No. 54) at 2 n.1; Reply in Opposition to Defendants’ Redaction of Public Records (“Reply”) (ECF No. 57) at 1 n.1, 2 n.2.1

1 The ACLU did not seek the disclosure of material redacted by co-defendant U.S. Department of Homeland Security. See Objection at 1. Prior to the filing of the ACLU’s Objection, the parties agreed to the release of email domain names in all records produced by CBP and co-defendant U.S. Immigration and Customs Enforcement (“ICE”) in this
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Remaining disputed redactions implicate the application of 5 U.S.C. § 552(b)(7)(E), commonly referred to as FOIA “Exemption 7(E),” to information regarding the location, method of operation, and purpose of checkpoints, see Reply at 1-2. After reviewing the parties’ briefs and supplemental materials and conducting an in camera review of the unredacted disputed materials, I overrule the ACLU’s objection to the redaction of most, but not all, of those materials, and with respect to materials as to which the objection is sustained, order CBP to produce, no later than July 20, 2020, versions of those documents consistent with my rulings, below. I further order that CBP and ICE produce, by the same date, versions of the documents consistent with their voluntary agreements to release certain material they had previously redacted, as detailed below.
I. Applicable Legal Standard “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). As a result, FOIA requires federal agencies to promptly release records in response to a request for production, see 5 U.S.C. § 552(a)(3)(A), and authorizes federal courts “to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant[,]” id. § 552(a)(4)(B). However, to “safeguard[ ] the efficient administration of the government, the FOIA provides that certain categories of materials are exempted from the general requirements of disclosure.” Carpenter v. U.S. Dep’t of Justice, 470 F.3d 434, 438 (1st Cir. 2006). The agency bears the burden of proving that the withheld materials fall within an enumerated
lawsuit, see Objection at 18-19, and prior to the filing of the defendants’ response, without admitting that any of its redactions were improper, ICE agreed to release all remaining material that it had previously redacted, leaving CBP the agency responsible for the sole remaining disputed redactions, see Response at 2 & n.1; Reply at 1 n.1. In CBP’s response, without admitting that any of its redactions were improper, CBP consented to the release of additional material, further narrowing the scope of the dispute. See Response at 4 n.4, 5 n.7, 6 n.9, 7 n.10, 10 nn.13-14,13 n.15, 16 n.16, 17 n.17, 18 n.18, 19 n.19, 20 n.20, 22 n.21, 24 n.22.
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exemption. See 15 U.S.C. § 552(a)(4)(B). FOIA exemptions are construed narrowly, and any doubts are resolved in favor of disclosure. See Carpenter, 470 F.3d at 438 (citing U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)).
CBP asserts that all remaining contested redactions are subject to Exemption 7(E), which shields from disclosure:
records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law[.] 15 U.S.C. § 552(b)(7)(E). Exemption 7(E) “sets a relatively low bar for [an] agency to justify withholding, requiring only that the agency demonstrate logically how the release of the requested information might create a risk of circumvention of the law.” Widi v. McNeil, 2:12-cv-00188-JAW, 2016 WL 4394724, at *28 (D. Me. Aug. 16, 2016) (citations and internal quotation marks omitted), recon. granted in part on other grounds, 2017 WL 1906601 (D. Me. May 8, 2017); see also Am. Civil Liberties Union of Me. Found. v. U.S. Dep’t of Homeland Sec. (“ACLU of Me.”), 2:18-cv-00176JDL, 2019 WL 2028512, at *4 (D. Me. May 8, 2019) (concluding that techniques and procedures “bear[ing] on continuing law enforcement activities” were properly redacted under Exemption 7(E) (citing Families for Freedom v. U.S. Customs & Border Prot., 837 F. Supp. 2d 287, 299 (S.D.N.Y. 2011))). “[T]he exemption looks not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just
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for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk.” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011) (citation and internal quotation marks omitted).2
Implicit in this analysis is that “law enforcement techniques or procedures that are universally known to the public cannot be shielded from disclosure under the Act.” Broward Bulldog, 939 F.3d at 1191; see also ACLU of Me., 2019 WL 2028512, at *2. “But even for wellknown techniques or procedures, Exemption 7(E) protects information that would reveal facts about such techniques or their usefulness that are not generally known to the public, as well as other information when disclosure could reduce the effectiveness of such techniques.” Broward Bulldog, 939 F.3d at 1191 (noting, for example, that “while the public is generally aware of the Bureau’s National Crime Information Center databases, details of their use and whether individuals are mentioned in them is not known to the public”) (citing Vazquez v. U.S. Dep’t of Justice, 887 F. Supp. 2d 114, 116-17 (D.D.C. 2012)); see also Am. Civil Liberties Union Found. of Ariz. v. United States Dep’t of Homeland Sec. (“ACLU of Ariz.”), No. CV-14-02052-TUC-RM (BPV), 2017 WL 8895339, *26 (D. Ariz. Jan. 26, 2017) (rec. dec., dismissed by stip. of parties, Feb. 15, 2018) (“in general, the government is not required to disclose all details concerning law enforcement techniques simply because some aspect of it is known to the public”).
To establish their entitlement to a FOIA exemption, agencies typically submit a so-called “Vaughn index” – “[a] comprehensive list of all documents that the government wants to shield from disclosure in . . . [FOIA] litigation, each document being accompanied by a statement of
2 There is a split among the circuit courts of appeals as to whether the showing that “disclosure could reasonably be expected to risk circumvention of the law” must be made solely with respect to guidelines or with respect to both guidelines and techniques and procedures. See Broward Bulldog, Inc. v. U.S. Dep’t of Justice, 939 F.3d 1164, 1194 (11th Cir. 2019) (summarizing circuit court split but concluding that it “need not take a side here” because “[e]ven if this [circumvention of law] provision applies to “techniques and procedures[,]” the [defendant] has met that burden”). Insofar as appears, the First Circuit has not had occasion to rule on the issue. However, as noted above, this court has construed Exemption 7(E) to require that the showing be made with respect to both. See Widi, 2016 WL 4394724, at *28; see also ACLU of Me., 2019 WL 2028512, at *1 (same).
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justification for nondisclosure[.]” N.H. Right to Life v. U.S. Dep’t of Health & Human Servs., 778 F.3d 43, 48 n.3 (1st Cir. 2015) (citation and internal quotation marks omitted). However, in instances in which a Vaughn index is inadequate, “the court has various options for proceeding[:] [i]t could choose to permit discovery limited to specified documents, it could conduct an in camera review of selected documents, it could order release of some documents, or it could direct a combination of these procedures.” Church of Scientology Int’l v. U.S. Dep’t of Justice, 30 F.3d 224, 240 (1st Cir. 1994) (footnote omitted).
In this case, CBP both submitted a Vaughn index to accompany a redacted appendix of disputed material and provided the court with an unredacted version of the appendix for in camera review. See [CBP] Vaughn Index, Exh. B (ECF No. 45-2) to Status Report (ECF No. 45); see also [Redacted] Appendix (“Appendix”) (ECF No. 41-1), attached to Appendix [Cover Sheet] (ECF No. 41). The ACLU challenged the adequacy of CBP’s Vaughn index and argued that CBP’s submission of documents for in camera review did not rectify the deficiency. See Objection at 11 & n.5. CBP then, in conjunction with its response, filed the detailed declaration of Justin A. Bristow, the acting FOIA Coordinator and Deputy Chief of Staff for the U.S. Border Patrol. See Declaration of Justin A. Bristow (“Bristow Decl.”) (ECF No. 53). The ACLU did not renew its objection to the deficiency of CBP’s Vaughn index, focusing on the merits of the application of Exemption 7(E). See generally Reply.
“The district court must make a de novo determination as to the validity of [an] agency’s exemption claim[,]” Providence Journal Co. v. U.S. Dep’t of Army, 981 F.2d 552, 556-57 (1st Cir. 1992), but is required to give “substantial weight” to agency declarations, which “must describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemptions, and show that the justifications
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are not controverted by contrary evidence in the record or by evidence of [agency] bad faith[,]” Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992). “If the affidavits contain reasonably detailed descriptions of the documents and allege facts sufficient to establish an exemption, the district court need look no further.” Citizens Comm’n on Human Rights v. FDA, 45 F.3d 1325, 1329 (9th Cir. 1995) (citation and internal quotation marks omitted). An agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or plausible. See, e.g., Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 774 (9th Cir. 2015).
II. Discussion A. ACLU Arguments Overruled The ACLU devotes a significant portion of its argument against continued redaction of the disputed material to issues irrelevant to the analysis of whether CBP meets its burden to show the propriety of its redactions pursuant to Exemption 7(E). First, it contends that, because checkpoint operations are invasive procedures subject to Fourth Amendment review for reasonableness, the release of such information is crucial to furthering “the basic purpose of the FOIA”: “to ensure an informed citizenry . . . needed to check against corruption and to hold the governors accountable to the governed[.]” Reply at 1 (citation and internal quotation marks omitted); see also id. at 1, 711; Objection at 13. Yet, were this the standard to gauge the appropriateness of redactions pursuant to Exemption 7(E), the rule would swallow the exception crafted by Congress. While “the statute manifests an overall policy of broad disclosure of government documents to ensure an informed citizenry[,] . . . that mandate, though sweeping, is far from absolute.” Irons v. FBI, 811 F.2d 681, 685 (1st Cir. 1987) (citation and internal quotation marks omitted). “[T]o preserve certain vital government interests and to protect individuals where necessary, Congress promulgated a series
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of explicit exemptions from the revelatory norm.” Id. (citing 5 U.S.C. § 552(b)(1)-(9), the “exemptions”). Accordingly, the FOIA directs that “[a]n agency shall . . . withhold information. . . if . . . the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b) . . . [or] disclosure is prohibited by law[.]” 5 U.S.C. § 552(a)(8)(A)(i) (emphasis added) (referencing subsection 552(b)).
Next, the ACLU contends that, because the defendants previously have released information to justify their use of border checkpoints, both in court and “in the court of public opinion” through press releases, they cannot “use public records as both a sword and a shield” and seek protection of checkpoint information in this case. Objection at 3-4; see also id. at 7; Reply at 9. For this proposition, the ACLU cites United States v. Martinez-Fuerte, 428 U.S. 543 (1976), Rosenfeld v. Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995), and ACLU of Ariz., 2017 WL 8895339, at *6. Yet, none of these authorities stands for the stated proposition.3
Finally, the ACLU contends that the information sought to be shielded – checkpoint locations, methods of operation, and purposes – either is inherently public because in open view (for example, location), see Objection at 7 (citing ACLU of Ariz., 2017 WL 8895339, at *8) or “has historically been public[,]” id. at 8, 10 (citing Martinez-Fuerte, 428 U.S. at 553 & n.15, 56566); see also Reply at 2-7 (citing Martinez-Fuerte, 428 U.S. at 554 n.10, 565-66; United States v. Pollack, 895 F.2d 686, 687 (10th Cir. 1990); ACLU of Me., 2019 WL 2028512, at *3; United States v. Ruiz-Hernandez, No. CR 16-511-TUC-CKJ, 2017 WL 1047236, at *3 (D. Ariz. Mar. 17, 2017),
3 Martinez-Fuerte concerned not the application of the FOIA but, rather, the reasonableness pursuant to the Fourth Amendment of stops made at permanent immigration checkpoints in California and Texas, see Martinez-Fuerte, 428 U.S. at 545-50, Rosenfeld held that Exemption 7(E) did not shield a reference to the well-known enforcement technique of a pretext phone call merely because of its application to a specific individual, see Rosenfeld, 57 F.3d at 815, and ACLU of Ariz. observed that the government had failed to establish that “the location of checkpoints nationwide” qualified for “exemption under 7(E)[,]” creating “substantial doubt as to the reasonableness” of its “decision not to search for responsive records[,]” ACLU of Ariz., 2017 WL 8895339, at *6-8.
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aff’d 751 F. App’x 1022 (9th Cir. 2019); ACLU of Ariz., 2017 WL 8895339, at *8, *27-28; United
States v. Ruiz, No. CR 16-121-TUC-CKJ, 2016 WL 6828197, at *3 (D. Ariz. Nov. 18, 2016)). Yet,
these cases do not stand for the proposition that the subject matter of any of the disputed redactions
should be deemed public as a matter of law for purposes of analysis of whether CBP has met its
Exemption 7(E) burden.4
To the extent that the ACLU invokes these arguments in opposition to specific redactions,
its objection on these bases is overruled.
B. Remaining Disputed Redactions
Turning next to the specific redactions at issue, with the benefit of Bristow’s declaration
and in camera review of the documents at issue, I rule as follows.5
1. Checkpoint Details in Emails, Charts, Appendix at 002, 004-05, 007, 009, 045-46
The first set of disputed redactions concerns CBP’s removal from (i) identical emails titled
“Checkpoints[,]” Appendix at 002, 007, of the number of agents required to be at a checkpoint,
the number of agents assigned to a Border Patrol station, the station name, a particular area of
operation, and the number of K-9 assets assigned to a checkpoint operation, see Response at 4, (ii)
4 Martinez-Fuerte, Pollack, Ruiz-Hernandez, and Ruiz are not FOIA cases. See Martinez-Hernandez, 428 U.S. at 54550; Pollack, 895 F.2d at 687; Ruiz-Hernandez, 2017 WL 1047236, at *1; Ruiz, 2016 WL 6828197, at *1. While the remaining cases are FOIA cases, Rosenfeld did not concern whether border checkpoint information is widely known, see Rosenfeld, 57 F.3d at 815, the cited passage of ACLU of Me. addressed the question of whether U.S. Border Protection guidance on how to interact with passengers qualified for protection pursuant to Exemption 7(E), concluding after in camera review of the unredacted version that it did not because the information “relate[d] to the Supreme Court’s holding in United States v. Drayton, 536 U.S. 194 (2002),” and, thus, did not implicate investigative techniques not generally known to the public, see ACLU of Me., 2019 WL 2028512, at *2, and, while the court in ACLU of Ariz. did state that, “[i]n this day and age, with the use of cell phones, other electronic means, and even drones, the location of a checkpoint can hardly be secret[,]” ACLU of Ariz., 2017 WL 8895339, at *8, it did so in the context of rejecting the government’s position that it need not have even searched for national checkpoint data because such records are “categorically exempt from disclosure[,]” id. at *7, directing the government “to search for the requested data with regard to checkpoint locations and either disclose it or produce a Vaughan index and accompanying affidavits, raising whatever exemptions it contends may be appropriate[,]” id. at *8. 5 I have grouped sets of disputed redactions in the same manner as did the ACLU in its reply brief, see Reply at 2-11, except that I have grouped the materials on pages 045-46 of the Appendix with those on pages 002, 004-05, 007, and 009, the materials on page 035 and the first two bullet points on page 047 with the materials on pages 038-39, and the fourth bullet point on page 047 with the materials on pages 040-44.
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identical emails titled “Checkpoint[,]” Appendix at 004-05, of a checkpoint location and the number of agents who would be present there, see id. at 5, and (iii) an email titled “FW: How is this?[,]” Appendix at 009, of a checkpoint location, see id. at 5-6, as well as CBP’s redaction of all but the titles of two charts, Appendix at 045-46, that contain “precise coordinates for checkpoints and checkpoint-related locations, list law enforcement assets that are appropriate for deployment at the various listed locations, and list times during which law enforcement assets will be deployed at th[ose] locations[,]” id. at 16. For the reasons that follow, I sustain the ACLU’s objections in part, with respect to two redactions from the body of the “FW: How is this?” email, and otherwise overrule them.
As concerns the “FW: How is this?” email, Bristow states that the redacted portions disclose “locations for immigration checkpoint operations within Swanton Sector” that CBP considers sensitive as it “will be conducting future temporary checkpoint operations in the same locations described in the email[,]” asserting that “[d]isclosure of this information would aid those seeking to evade detection or apprehension by Border Patrol by avoiding the location(s) identified in the map.” Bristow Decl. ¶ 8. However, while the location described in the signature block is specific, the location redacted twice from the body of the email is a route upon which checkpoints take place that spans hundreds of miles, undercutting the plausibility of Bristow’s conclusion that its disclosure “could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E). CBP, hence, carries its burden to demonstrate the necessity of the redaction of the location from the signature block but not of the location mentioned twice in the body of the email.
As concerns the “Checkpoints” and “Checkpoint” emails, Bristow explains that the redacted information is “especially sensitive because it represents locations where Border Patrol is present and conducts its concentrated patrolling and enforcement activities[,]” asserting that
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“revealing staffing allocations at a particular checkpoint location would reveal the techniques and procedures of how Border Patrol conducts its enforcement activities because operational details and staffing levels are likely to remain the same for future checkpoint operations.” Bristow Decl. ¶ 7. Bristow plausibly concludes that “[d]isclosure of such information would expose the Swanton Sector’s enforcement capabilities, providing an advantage to those seeking to avoid encounters with Border Patrol; aid individuals who seek to cross the border illegally, or who seek to remain in the country illegally, to develop countermeasures to evade detection, inspection and examination; and reveal the locations and concentrations of Border Patrol agents, which could expose them to individuals who wish to bring them harm.” Id. ¶ 7. CBP, hence, carries its burden to demonstrate that the redacted material contains “techniques and procedures for law enforcement investigations[,]” the disclosure of which “could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E); see also, e.g., ACLU of Me., 2019 WL 2028512, at *2 (upholding the government’s redactions under Exemption 7(E) of shift logs “contain[ing] information covering . . . staffing levels, shift hours, zone assignments, [and] zone boundaries” that the government indicated had “continuing relevance to its present patrolling and enforcement activities”) (citation and internal quotation marks omitted).
As concerns the charts on pages 045-46 of the Appendix, Bristow correctly notes that the redacted information “includes exact geographic coordinates for checkpoints and checkpointrelated locations, details on staffing levels and enforcement assets/resources deployed at those locations, and information concerning when specific Border Patrol enforcement assets will be deployed at those locations.” Bristow Decl. ¶ 11(d). He represents that “[t]his information remains relevant to ongoing Border Patrol operations as similar staffing levels and allocation of law enforcement assets will likely apply to future checkpoint operations given Houlton Sector’s limited
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enforcement resources.” Id. He plausibly concludes that “[d]isclosing this information to the public would provide an outline of the Houlton Sector’s enforcement capabilities and therefore could be used to circumvent the law and create concern for agents’ safety while conducting checkpoint operations.” Id. CBP, hence, carries its burden to show that the redacted material contains “techniques and procedures for law enforcement investigations[,]” the disclosure of which “could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E); see also, e.g., ACLU of Me., 2019 WL 2028512, at *2.6
2. Checkpoint Location Maps, Appendix at 021, 030, 033-34, 052 This set of disputed redactions involves maps that CBP redacts to prevent revelation of “precise” locations of checkpoints, checkpoint-related sites and boundaries, personnel, and/or operations. Response at 6-12, 19-20; Appendix at 021 (“100 Air Mile Zone”), 030 (“[REDACTED] Immigration Checkpoint”) (duplicated at Appendix at 052; nearly identical to Appendix at 033), 034 (map redacted in its entirety). For the reasons that follow, I overrule the ACLU’s objections to the redaction of these documents. While the underlying maps themselves are no secret, information has been added to them and/or noted beneath them that Bristow represents is nonpublic and of relevance to continuing operations. See Bristow Decl. ¶ 9 (100 Air Mile Zone map “illustrates the location in which the U.S. Border Patrol’s current and future enforcement and patrol operations will take place”), id. ¶ 10 (Immigration Checkpoint map details “precise location of an immigration checkpoint within Houlton Sector” and “identifies certain locations and sites related to checkpoint operations referred to as ‘choke points’ at which adversaries may attempt to circumvent the checkpoint”; the Border
6 As concerns the disputed redactions on pages 045-46 of the Appendix, the ACLU asserts that CBP has not satisfied its burden to show that this information, “much” of which it claims is relevant despite conceding that it is two years old, remains relevant to current operations. Reply at 8 (quoting Response at 16). However, as discussed above, Bristow’s declaration suffices to carry CBP’s burden on this point. See Bristow Decl. ¶ 11(d).
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Patrol “will likely utilize the same location for future checkpoint operations and deploy resources at the choke point”); id. ¶ 11(a) (map on page 034 of Appendix “identifies locations of Border Patrol stations and forward operating bases along with other details regarding the locations of law enforcement personnel and assets that are used to support checkpoint operations, which are not known to the public[,]” such as “specific areas where checkpoint and choke point locations will be supported by aerial surveillance”; “[i]t is highly likely that Border Patrol will conduct future enforcement operations at the areas reflected on this map and the locations of Border Patrol facilities and assets will remain in place”).
Bristow plausibly concludes that the above information could aid those seeking to avoid encounters with the Border Patrol to develop countermeasures to evade detection, inspection, and examination and reveal the locations of Border Patrol agents, exposing them to individuals who intend to cause them harm. Id. ¶¶ 9, 10, 11(a). CBP, hence, demonstrates that the redacted material contains “techniques and procedures for law enforcement investigations[,]” the disclosure of which “could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E); see also, e.g., ACLU of Me., 2019 WL 2028512, at *2.
3. Units within Border Patrol, Appendix 031, 050 This set of disputed redactions pertains to “the name of a certain unit within U.S. Border Patrol” in the documents titled “Houlton Sector” and “Contact Information[,]” see Response at 10 (citing Bristow Decl. ¶ 11(a); Appendix at 031), 19 (citing Bristow Decl. ¶ 11(e); Appendix at 050). I sustain the ACLU’s objection to the redaction of these materials, see Reply at 5-6, concluding that CBP fails to carry its burden to demonstrate that the mere name of a unit qualifies
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as a technique or procedure of law enforcement or that its disclosure “could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E).7
CBP asserts that the name constitutes a technique or procedure for law enforcement investigations but fails to explain why. See Response at 10, 19. Nor is the matter self-evident. Bristow represents that “[d]isclosing this information in this context would reveal the level of focus and resources that the Agency devotes to its enforcement operations [and] would provide insight to individuals seeking to circumvent the law with the knowledge as to how the Border Patrol focuses its resources.” Bristow Decl. ¶¶ 11(a), 11(e). However, he, too, offers no explanation as to why the revelation of a unit name would reveal the level of focus and resources devoted to enforcement operations, see id., and this, too, is not self-evident. 4. Weather, Traffic Pattern Analyses, Appendix at 035, 038-39, & 047 (1st, 2d bullet points)
The next set of disputed redactions concerns the redaction of weather and traffic “conditions in which checkpoint operations can take place.” Response at 12-14, 16-17 (citing Bristow Decl. ¶¶ 11(a) (weather), 11(b) (traffic), 11(e) (weather and traffic)). CBP redacts from the “Weekly Weather Forecast” document, Appendix at 035, the location of a checkpoint operation and checkpoint-related locations as well as conditions in which checkpoint operations can take place. See id. at 12. It redacts the traffic pattern documents, Appendix at 038-39, which “identify particular traffic patterns that are relevant to a determination of the proper conditions for checkpoint operations[,]” in their entirety. Id. at 13. Finally, it redacts the first bullet point and part of the second bullet point, Appendix at 047, which also concern traffic patterns and weather in which operations can take place. See id. at 16-17; Bristow Decl. ¶ 11(e).
7 “[T]he phrase ‘techniques and procedures[]’ . . . refers to how law enforcement officials go about investigating a crime.” Allard K. Lowenstein Int’l Human Rights Project v. Dep’t of Homeland Sec., 626 F.3d 678, 682 (2d Cir. 2010) (observing that a “‘technique’” is defined as “‘a technical method of accomplishing a desired aim’” and a “‘procedure’ as ‘a particular way of doing or of going about the accomplishment of something’”).
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For the reasons that follow, I overrule the ACLU’s objections to this set, concluding that CBP carries its burden to show that the redacted material contains “techniques and procedures for law enforcement investigations[,]” the disclosure of which “could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E); see also, e.g., ACLU of Me., 2019 WL 2028512, at *2.
As in the case of maps, weather conditions and traffic patterns are not in themselves nonpublic or protectible. However, as Bristow represents, the documents at issue reveal strategies for determining the weather conditions and traffic patterns in which checkpoint operations can occur. See Bristow Decl. ¶¶ 11(a), 11(b), 11(e). Bristow plausibly concludes that disclosure of these operational strategies could aid those seeking to avoid encounters with the Border Patrol to develop countermeasures to evade detection. See id. CBP, hence, carries its burden to demonstrate the propriety of these redactions.
5. TTP, Collection Worksheet Documents, Appendix at 040-44 & 047 (4th bullet point) This set of disputed redactions pertains to documents concerning techniques, tactics, and
procedures (“TTP”) used by individuals to evade the law as well as to certain law enforcement procedures to counter such operations. See Response at 14-15 (TTP, Appendix at 040-43), 15 (countermeasures, Appendix at 044), 17 (TTP, Appendix at 047, fourth bullet point). For the reasons that follow, I overrule the ACLU’s objections to this set, concluding that CBP carries its burden to show that the redacted material contains “techniques and procedures for law enforcement investigations[,]” the disclosure of which “could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E); see also, e.g., ACLU of Me., 2019 WL 2028512, at *2.
Four of the TTP documents “relate to T[T]Ps encountered by law enforcement related to the concealment of narcotics and weapons[,]” Response at 14, 17 (citing Appendix at 040-42, 047
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(fourth bullet point)), and the fifth “describes T[T]Ps encountered by law enforcement regarding the production of counterfeit prescription medicine[,]” id. at 14 (citing Appendix at 043). The final document, titled “Collection Worksheet[,]” contains “detailed information regarding law enforcement procedures, including known indicators of terrorist activity and methods of concealment of contraband . . . [and] specific law enforcement assets to be employed to counter smuggling and terrorist operations.” Id. at 15 (citing Appendix at 044). CBP redacted all but titles or portions thereof from the documents at Appendix at 040-44 and, as relevant to this set of disputed redactions, the fourth bullet point from the document at Appendix at 047.
Bristow plausibly concludes that (i) disclosure of the TTP material “would assist individuals in circumventing the law to employ other smuggling tactics and methods, making it more difficult for law enforcement to interdict contraband during future operations[,]” Bristow Decl. ¶ 11(c), and (ii) disclosure of law enforcement tactics and procedures used to counter terrorist and smuggling activity “would be used to circumvent the law in that individuals would discover the techniques and assets that Border Patrol employs to identify and thwart the activities of criminal organizations[,]” id. ¶ 11(d). CBP, hence, carries its burden to demonstrate the propriety of these redactions.8 6. “Assessments & Judgments” and “Sources,” Appendix at 047 (3rd, 5th, 7th bullet points) and
048 (2nd, 4th-8th bullet points) This set of disputed redactions concerns CBP’s redactions of the third, fifth, and seventh bullet points in an “Assessments & Judgments” document, see Appendix at 047, and the second and fourth through eighth bullet points in a “Sources” document, see id. at 048. See Response at
8 The ACLU contends that the large blocks of redactions on pages 040-044 of the Appendix indicate that CBP has failed to comply with its mandate to isolate material eligible to be redacted pursuant to Exemption 7(E) from other reasonably segregable portions of the record. See Reply at 8. I disagree, concluding that CBP has properly redacted the entirety of those documents.
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16-19; Reply at 8-10. For the reasons that follow, I sustain the ACLU’s objections in part, with respect to the third bullet point on page 047 of the Appendix, which contains data on criminal violations encountered that cannot fairly be characterized as a “technique” or “procedure,” and otherwise overrule them, concluding that CBP carries its burden to show that the remainder of the material redacted from these documents contains “techniques and procedures for law enforcement investigations[,]” the disclosure of which “could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E); see also, e.g., ACLU of Me., 2019 WL 2028512, at *2.
a. “Assessments & Judgments” Document Bristow explains that the third bullet point on page 047 of the Appendix “concerns the type and frequency of criminal violations encountered during checkpoint operations.” Bristow Decl. ¶ 11(e). CBP asserts that this information constitutes a technique and procedure of law enforcement, see Response at 17, but neither CBP nor Bristow explains how this data constitutes a technique or procedure, and the matter is not self-evident. CBP, hence, fails to carry its burden to show that this material qualifies for protection pursuant to Exemption 7(E). See, e.g., Am. Civil Liberties Union Found. of Mass. v. FBI, Civil Action No. 14-cv-11759, 2016 WL 4411492, at *6 (D. Mass. Aug. 17, 2016) (denying protection to “[t]he total number of open investigations” under Exemption 7(E) as “too generic to constitute a technique or procedure of law enforcement; it does not disclose how the FBI’s Boston Field Office investigates crimes or disclose any investigative trends”). I reach a different conclusion with respect to the material in the fifth and seventh bullet points, which Bristow notes “lay out future enforcement recommendations for interdicting smuggling and narcotics trafficking operations.” Bristow Decl. ¶ 11(e). He plausibly concludes that disclosure of this information “would reveal the tools and techniques that law enforcement employs and allow individuals to adapt their activities accordingly to avoid detection by law
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enforcement.” Id. CBP, thus, carries its burden to demonstrate the appropriateness of the redaction
of this material pursuant to Exemption 7(E). See, e.g., Yagman v. U.S. Dep’t of Justice, No. CV
13-0354 PA (Ex), 2014 WL 1245305, at *10 (C.D. Cal. Mar. 22, 2014) (FBI properly withheld
information pursuant to Exemption 7(E) that included “numerous non-public investigative
techniques and procedures utilized by the FBI to pursue its law enforcement and intelligence
gathering missions, and also non-public details about procedures that are otherwise known to the
public”), aff’d sub nom. Yagman v. U.S. Bureau of Prisons, 605 F. App’x 666 (9th Cir. 2015).
b. “Sources” Document
Bristow explains that the second, fourth, fifth, sixth, seventh, and eighth bullet points in
the Sources document on page 048 of the Appendix “identify the materials that Border Patrol
utilized to gather the law enforcement sensitive information” in the Assessments & Judgments
document. Bristow Decl. ¶ 11(e). The sources, thus, are part and parcel of the law enforcement
techniques and procedures derived therefrom, with CBP’s choice of those sources itself revealing
strategic choices. CBP plausibly contends that, “[b]y learning what inputs agencies utilize (and
what information agencies may not consider) in their decision making processes, . . . individuals would be able to tailor their efforts to circumvent law enforcement accordingly.” Response at 18.9
9 The ACLU protests that (i) CBP improperly relies on Exemption 7(E) because “‘sources’” “do not qualify as ‘techniques’ or ‘procedures’” but are, instead, protected by Exemption 7(D), 5 U.S.C. § 552(b)(7)(D), which CBP does not invoke, and (ii) it is unclear from the Response and the Bristow Declaration whether these sources are otherwise public. Reply at 9-10. While CBP terms the underlying materials on which it relies “Sources,” they are not “confidential sources” in the sense meant by Exemption 7(D). See 5 U.S.C. § 552(b)(7)(D) (protecting “records or information compiled for law enforcement purposes” that “could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source”). One can infer from the Bristow Declaration that the sources are either nonpublic or that this is a nonpublic use of publicly known information. See Bristow Decl. ¶ 11(e) (noting that the sources include “a link that reveals the geographic coordinates of an area where Border Patrol will likely conduct future patrol and enforcement operations that, if disclosed, would give an advantage to those seeking to avoid encounters with Border Patrol” or place agents in harm’s way; asserting, as to the sources material generally, “Making this information publicly available would allow individuals seeking to circumvent law enforcement to
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CBP, thus, carries its burden to demonstrate the appropriateness of the redaction of this material pursuant to Exemption 7(E).
7. Checkpoint Procedures, Frequency, and Database, Appendix at 053-54 This set of disputed redactions pertains to a May 2018 memorandum titled “Checkpoint Operational Strategies and Requirements” on pages 053-54 of the Appendix that contains four substantive paragraphs, the bulk of which is redacted. See Response at 20-22. For the reasons that follow, I overrule the ACLU’s objections to this set of redactions, concluding that CBP carries its burden to show that the redacted information bears on “techniques and procedures for law enforcement investigations[,]” the disclosure of which “could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E); see also, e.g., ACLU of Me., 2019 WL 2028512, at *2. Bristow explains that the (i) the paragraph titled “Checkpoint Internal Operating Procedure” contains “details regarding the implementation and use of certain technologies employed by the Border Patrol to collect information during checkpoint operations[,]” (ii) the paragraph titled “Checkpoint Status in the [REDACTED] . . . outlines the frequency of checkpoint operations and contains details regarding a database in which checkpoint activity is maintained[,]” and (iii) the paragraph titled “Deployment and Training of [REDACTED] at U.S. Border Patrol Checkpoints” “includes details regarding the implementation and use of certain technologies, which are designed to detect materials that could be used in a terrorist attack or could pose a threat to the safety of the agents working the checkpoint.” Bristow Decl. ¶ 13.10 He avers that all of
discern the ‘raw materials’ and information that Border Patrol uses to develop its enforcement procedures, strategies, and tactics.”). 10 The redacted material under the third heading technically consists of two paragraphs. However, it is clear from my in camera review that Bristow refers to both of those paragraphs in describing the detail contained therein and the impact of its release.
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these procedures and techniques “are likely to be employed during future Border Patrol operations.” Id.
Bristow reasonably concludes that (i) release of the information redacted from the first paragraph “would reveal details regarding the implementation and use of certain technologies employed by the Border Patrol to collect information during checkpoint operations[,]” enabling individuals to “use this information to circumvent the law by tailoring or adapting their activities, knowing the specific information Border Patrol uses to develop [its] enforcement strategies[,]” (ii) release of the information redacted from the second paragraph “would reveal . . . how the Border Patrol collects and analyzes information during checkpoint operations[,]” enabling individuals seeking to avoid detection to “learn information regarding the likelihood that checkpoint operations were taking place at a given time[,]” and (iii) disclosure of the information redacted from the third paragraph “could hamper Border Patrol’s enforcement activities by revealing details on the implementation and use of [the described] technology,” enabling adversaries “to circumvent it” and placing Border Patrol agents at risk through the disclosure of “details about the technologies and devices that are used to ensure the safety of agents during checkpoint operations.” Id.
CBP, thus, carries its burden to demonstrate the appropriateness of the redaction of this material pursuant to Exemption 7(E).
8. Data Collected, Reports Generated during Checkpoint Operations, Appendix at 055 This set of disputed redactions concerns the memorandum titled “[REDACTED]
Temporary Checkpoint Operations Collection Emphasis” at page 055 of the Appendix, which “relates to temporary checkpoint operations that took place in the Houlton Sector.” Response at 22. For the reasons that follow, I overrule the ACLU’s objections to these redactions, concluding that CBP carries its burden to show that the redacted information bears on “techniques and
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procedures for law enforcement investigations[,]” the disclosure of which “could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E); see also, e.g., ACLU of Me., 2019 WL 2028512, at *2.
Bristow notes that “the document references internal details regarding information gathering procedures and methods, including discussion of non-public systems and reports, during checkpoint operations[,]” for example, highlighting “in detail certain categories of ‘priority’ information that Border Patrol seeks to collect during checkpoint operations.” Bristow Decl. ¶ 14. He avers that, although the document references two prior checkpoint operations, “similar collection techniques and procedures are likely to be employed at future checkpoint operations.” Id. He plausibly concludes that “[t]his information would reveal the methods in which Border Patrol collects and analyzes information regarding illegal activity[,]” which “would make known the focus of Border Patrol in conducting checkpoint operations, which adversaries could use to evade apprehension.” Id. CBP, thus, carries its burden to demonstrate the appropriateness of the redaction of this material pursuant to Exemption 7(E).
9. “Information for Illegal Immigration,” Appendix at 056-58 The final set of disputed redactions concerns a document titled “Information for Illegal Immigration [REDACTED] pulled from: (U//FOUO) Houlton Sector Outbound Travel Patterns and Illicit Movement of People [REDACTED]” on pages 056-58 of the Appendix that CBP asserts “contains sensitive, non-public reports of law enforcement activities in Houlton Sector.” Response at 24 (citing Bristow Decl. ¶ 15). For the reasons that follow, I sustain the ACLU’s objections in part, with respect to CBP’s redaction of the substance and dates of criminal activity previously observed, and otherwise overrule them, concluding that, as to the remainder of the redactions, CBP carries its burden to show that the redacted information bears on “techniques and procedures for
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law enforcement investigations[,]” the disclosure of which “could reasonably be expected to risk circumvention of the law[.]” 5 U.S.C. § 552(b)(7)(E); see also, e.g., ACLU of Me., 2019 WL 2028512, at *2.
As Bristow notes, “the withheld information . . . concern[s] specific internal incident numbers, event codes, and details regarding apprehensions.” Bristow Decl. ¶ 15. However, to the extent that the redacted information describes encounters with, or arrests of, certain individuals on specific dates, neither CBP nor Bristow explains how this information constitutes a technique or procedure of law enforcement, see Response at 23-25; Bristow Decl. ¶ 15, and it is not self-evident that it does. CBP, hence, fails to carry its burden to show that this material qualifies for protection pursuant to Exemption 7(E). See, e.g., Am. Civil Liberties Union, 2016 WL 4411492, at *6.
However, with respect to all redacted information other than the substance and dates of arrests, I overrule the ACLU’s objections. Bristow plausibly concludes that the release of this information, which includes “specific internal incident numbers” and “event codes,” “could assist unauthorized users who gain improper access to law enforcement databases in deciphering the meaning of the internal incident numbers and codes.” Bristow Decl. ¶ 15. He explains that the information has “continuing relevance to Houlton Sector’s patrol and enforcement operations” because CBP maintains it “as investigative data that allows Border Patrol to identify and prevent future illegal border activity.” Id. This information consists of (i) the bolded text immediately preceding the colons (“:”) in all numbered paragraphs and (ii) the internal codes in parentheticals in the first, and third through sixth, paragraphs of pages 056-57 of the Appendix and the first through fifth and eighth paragraphs on pages 057-58. CBP carries its burden to demonstrate the appropriateness of the redaction of this data. See, e.g., Parker v. U.S. Immigration & Customs Enforcement, 283 F. Supp. 3d 89, 100 (D.D.C. 2017) (ICE properly withheld “sensitive database
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and event codes, identification numbers, law enforcements URLs, internal website links, record identification numbers, event numbers, category codes . . . file numbers . . . status codes, internal agency codes, case numbers . . . and system codes” under Exemption 7(E) (citation and internal quotation marks omitted)).
III. Conclusion For the foregoing reasons, I SUSTAIN in part and otherwise OVERRULE the ACLU’s objections to the still-disputed redactions made by CBP and ORDER that, no later than July 20, 2020, ICE and CBP produce to the ACLU documents with the following previously-redacted information unredacted:
A. Agreed-Upon Disclosures 1. By agreement of the parties, and in the discretion of ICE and CBP without admitting that the redaction of such information was improper, domain names in email addresses (for example, @cbp.gov, @ice.gov, @maine.gov, @nhgov, or @vermont.gov), throughout ICE’s and CBP’s entire production, see Objection at 18-19; Response at 2; 2. By agreement of ICE, in its discretion and without admitting that any of the challenged redactions are improper pursuant to Exemptions 5 and 7(E), all of the material in the Appendix that it previously redacted, see Response at 2 nn. 1-2, 5 nn. 5-6, 6 n.8; 3. By agreement of CBP, in its discretion and without admitting that any of the challenged redactions are improper pursuant to Exemption 7(E):
a. The material in the first and second sentences of the paragraph beginning with the word “Gents” on pages 002 and 007 of the Appendix 002, see Response at 4 n.4;
b. The material preceding the words “Border Patrol Station” on pages 004 and 005 of the Appendix, see id. at 5 n.7;
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c. The material on pages 016 and 017 of the Appendix, see id. at 6 n.9; d. The material immediately preceding the words “Immigration Checkpoint” at the top of page 030 of the Appendix, see id. at 7 n.10; e. The material immediately preceding the words “CHECKPOINT COLLECTION STRATEGY” on page 031 of the Appendix, see id. at 10 n.13; f. The material on page 032 of the Appendix, see id. at 10 n.14; g. The material on pages 036-37 of the Appendix, see id. at 13 n.15; h. The material immediately preceding the words “Synchronization Matrix” at the top of page 046 of the Appendix, see id. at 16 n.16; i. The material in the sixth bullet point on page 047 of the Appendix, see id. at 17 n.17; j. The material in the first bullet point on page 048 of the Appendix, see id. at 18 n.18; k. The material immediately preceding the words “Immigration Checkpoint” at the top of page 052 of the Appendix, see id. at 19 n.19; l. The material in the second full paragraph of page 053 of the Appendix immediately preceding the words “Chief Patrol Agents will ensure[,]” see id. at 20 n.20; m. The material immediately preceding the words “Temporary Checkpoint Operations Collections Emphasis” and the entirety of the paragraph containing the words “will conduct temporary checkpoint operations on” on page 055 of the Appendix, see id. at 22 n.21; and n. The material immediately preceding the words “pulled from” and immediately following the words “Movement of People” on page 056 of the Appendix, as
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well as the material directly below the URL link to the pressherald.com article on page 058 of the Appendix, see id. at 24 n.22.
B. Disputed Disclosures 1. Two references in the body of the email “FW: How is this?” on page 009 of the Appendix to a route upon which checkpoints take place that spans hundreds of miles; 2. The “name of a certain unit within U.S. Border Patrol” in the documents titled “Houlton Sector” and “Contact Information” on pages 031 and 050 of the Appendix; 3. The third bullet point on page 047 of the Appendix; 4. Descriptions on pages 056-58 of the Appendix of the substance and dates of criminal activity in 2017, with the proviso that (i) the bolded text immediately preceding the colons (“:”) in all numbered paragraphs and (ii) the internal codes in parentheticals in the first, and third through sixth, paragraphs of pages 056-57 of the Appendix and the first through fifth and eighth paragraphs on pages 057-58 of the Appendix remain redacted.
NOTICE

In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file an objection to this order within fourteen (14) days after being served with a copy thereof.

Failure to file a timely objection shall constitute a waiver of the right to review by the district court and to any further appeal of this order.

Dated this 6th day of July, 2020.

/s/ John H. Rich III John H. Rich III United States Magistrate Judge

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