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U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:18-cv-00247-JR

American Civil Liberties Union of Oregon v. U.S. Department of Homeland Security et al Assigned to: Magistrate Judge Jolie A. Russo Cause: 05:552 Freedom of Information Act

Date Filed: 02/07/2018 Date Terminated: 07/14/2020 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: Federal Question

Plaintiff
American Civil Liberties Union of Oregon

represented by Alicia J. LeDuc Davis Wright Tremaine, LLP 1300 SW Fifth Avenue Suite 2400 Portland, OR 97201-5630 503-778-5236 Fax: 503-778-5299 Email: alicialeduc@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek D. Green Davis Wright Tremaine, LLP 1300 SW Fifth Avenue Suite 2400 Portland, OR 97201-5630 (503) 778-5264 Fax: (503) 778-5299 Email: derekgreen@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leland Baxter-Neal American Civil Liberties of Oregon PO Box 40585 Portland, OR 97240 503-222-9019 Email: lbaxter-neal@aclu-or.org

V. Defendant U.S. Department of Homeland Security
Defendant U.S. Immigration and Customs Enforcement

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly K. Simon ACLU of Oregon P.O. Box 40585 Portland, OR 97240 503-444-7015 Email: ksimon@aclu-or.org TERMINATED: 09/04/2018
Mathew W. dos Santos ACLU of Oregon P.O. Box 40585 Portland, OR 97240 503-227-6928 Email: mdossantos@aclu-or.org TERMINATED: 10/03/2019
represented by Kevin C. Danielson US Attorney's Office 1000 S.W. Third Avenue Suite 600 Portland, OR 97204 503-727-1000 Fax: 503-727-1117 Email: kevin.c.danielson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kevin C. Danielson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

02/07/2018
02/07/2018 02/08/2018
02/08/2018 02/13/2018 03/14/2018 03/14/2018

1 Complaint. Filing fee in the amount of $400 collected. Agency Tracking ID: 0979-5305126 Filer is subject to the requirements of Fed. R. Civ. P. 7.1. Jury Trial Requested: No. Filed by American Civil Liberties Union of Oregon, Inc. against U.S. Department of Homeland Security, and U.S.
Immigration and Customs Enforcement (Attachments: # 1 Exhibit
1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5
Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8,
# 9 Exhibit 9, # 10 Exhibit 10, # 11 Civil Cover Sheet
Civil Cover Sheet, # 12 Proposed Summons USA DofO, USA DoJ, Dept of Homeland Security). (Green, Derek) Modified to correct parties in docket text on 2/7/2018 (sss). (Entered: 02/07/2018)
2 Corporate Disclosure Statement . Filed by American Civil Liberties Union of Oregon, Inc.. (Green, Derek) (Entered: 02/07/2018)
3 Notice of Case Assignment to Magistrate Judge Paul Papak and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. Discovery is to be completed by 6/8/2018. Joint Alternate Dispute Resolution Report is due by 7/9/2018. Pretrial Order is due by 7/9/2018. Ordered by Magistrate Judge Paul Papak. (jtj) (Entered: 02/08/2018)
4 Summons Issued Electronically as to U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of filing upon all named parties in accordance with Local Rule 3-5. (jtj) (Entered: 02/08/2018)
5 Amended Corporate Disclosure Statement . Filed by American Civil Liberties Union of Oregon, Inc.. (Green, Derek) (Entered: 02/13/2018)
6 Answer to 1 Complaint,, . Filed by U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security. (Danielson, Kevin) (Entered: 03/14/2018)
7 ORDER issued by Magistrate Judge Paul Papak: Rule 16 Conference set for 5/7/2018 at 1:30PM in Portland Chambers before Magistrate Judge Paul Papak. Local Rules 16-2(b) and 26-1 require that counsel confer prior to the conference. At the conference, counsel should be prepared to

discuss the status of the case, relevant dates and deadlines, and any other significant issues. If consents are going to be filed, it is helpful if they are filed prior to the time of the conference, particularly if a firm trial date is desired. (gm) (Entered: 03/14/2018)

05/04/2018 8 Joint Status Report . Filed by American Civil Liberties Union of Oregon, Inc.. (Green, Derek) (Entered: 05/04/2018)

05/04/2018 9 Fed. R. Civ. P. 26(a)(1) Agreement . Filed by American Civil Liberties Union of Oregon, Inc.. (Green, Derek) (Entered: 05/04/2018)

05/07/2018

10 MINUTES OF PROCEEDINGS before Magistrate Judge Paul Papak: Rule 16 Conference held 5/7/18. Order: All case deadlines are Stayed. Formal order to follow. Order: Setting a Telephonic Status Conference for 6/26/2018 at 10:00AM in Portland Chambers before Magistrate Judge Paul Papak. The parties shall call into the court's conference line (phone number to be provided via separate e-mail) five minutes prior to the scheduled conference time. The court will join the conference call at or shortly after the appointed time. Derek Green present as counsel for plaintiff(s). Kevin Danielson present as counsel for defendant(s). Court Reporter: (None). (gm) (Entered: 05/07/2018)

05/07/2018 11 ORDER regarding discovery issues. Signed on 5/7/18 by Magistrate Judge Paul Papak. (gm) (Entered: 05/08/2018)

06/26/2018

12 MINUTES OF PROCEEDINGS before Magistrate Judge Paul Papak: Telephonic Status Conference held 6/26/18. Order: All case deadlines remain Stayed. Formal order to follow. Order: Setting a further Telephonic Status Conference for 8/31/2018 at 10:00AM in Portland Chambers before Magistrate Judge Paul Papak. The parties shall call into the court's conference line (phone number to be provided via separate email) five minutes prior to the scheduled conference time. The court will join the conference call at or shortly after the appointed time. Derek Green; Alicia LeDuc; Kelly Simon present as counsel for plaintiff(s). Kevin Danielson present as counsel for defendant(s). Court Reporter: (None). (gm) (Entered: 06/27/2018)

06/26/2018 13 ORDER: Defendants are to produce 2,500 pages of records per month in July and in August 2018. Signed on 6/26/18 by Magistrate Judge Paul Papak. (gm) (Entered: 06/27/2018)

08/30/2018 14 Status Report by American Civil Liberties Union of Oregon, Inc.. Filed by American Civil Liberties Union of Oregon, Inc.. (Green, Derek) (Entered: 08/30/2018)

08/31/2018 16 MINUTES OF PROCEEDINGS before Magistrate Judge Paul Papak: Telephonic Status Conference held 8/31/18. Formal order to follow.

Order: The parties shall file a formal Joint Status Report as specified at the conference by no later than 11/19/2018. Derek Green; Alicia LeDuc; Leland Baxter-Neal present as counsel for plaintiff(s). Kevin Danielson present as counsel for defendant(s). Court Reporter: (None). (gm) (Entered: 09/05/2018)

09/04/2018

15 Notice of Attorney Substitution:Attorney Leland Baxter-Neal is substituted as counsel of record in place of Attorney Kelly K. Simon Filed by American Civil Liberties Union of Oregon, Inc.. (Simon, Kelly) (Entered: 09/04/2018)

09/04/2018

17 ORDER: I order Defendants to produce in the month of September 2018 all documents in their possession that are subject to the seventeen (17) search terms provided by Plaintiff and related to the September 2017 incident. I order Defendants to produce 5,000 pages of records per month in October and November 2018 and to make a good faith effort to avoid producing duplicates in that document production. I order that the parties submit a formal Joint Status Report on or before November 19, 2018. Signed on 9/4/18 by Magistrate Judge Paul Papak. (gm) (Entered: 09/05/2018)

09/20/2018 18 Notice of Case Reassignment: This case has been reassigned from Magistrate Judge Paul Papak to Magistrate Judge Jolie A. Russo. (eo) (Entered: 09/20/2018)

11/19/2018

19 ORDER issued by Magistrate Judge Jolie A. Russo: Granting Defendants' unopposed E-mail Request dated 11/19/18 for a 2-day extension of time as follows: The parties shall file a formal Joint Status Report no later than 11/21/2018. (gm) (Entered: 11/19/2018)

11/21/2018 20 Joint Status Report . Filed by American Civil Liberties Union of Oregon, Inc.. (Attachments: # 1 Attachment Declaration of ICE Deputy FOIA Officer Toni Fuentes) (Green, Derek) (Entered: 11/21/2018)

11/27/2018

21 ORDER issued by Magistrate Judge Jolie A. Russo: Setting a Telephonic Scheduling Conference for 11/28/2018 at 3:00PM in Portland Chambers before Magistrate Judge Jolie A. Russo. (gm) (Entered: 11/27/2018)

11/28/2018

22 MINUTES of Proceedings: Telephone Status and Scheduling Conference held before Judge Russo. At the parties' request, the court held a telephone hearing to discuss plaintiff's FOIA Request and defendants' document production schedule. Defendants are ordered to produce all outstanding documents (approximately 18,000) by July 1, 2019. Defendants' production amount may fluctuate depending on agency resources each month. Production must be at a rate of at least 2,000 documents per month with a larger number as defendants'

resources allow. Any issues regarding document redaction will be decided upon completion of the document production. Plaintiff's request for discovery into defendants' resource allocation is denied. Plaintiff may return to the court with any additional information that may controvert defendants' declaration regarding ICE FOIA Office Workload and Resources, at which point the Court will reconsider plaintiff's request to increase production or engage in limited discovery relating to ICE's resources, technologies, and prioritization practices. Finally, the parties are ordered to file a Joint Status Report as well as a proposed case schedule by July 15, 2019. Derek Green, Mathew dos Santos, Alicia LeDuc, Leland Baxter-Neal present as counsel for plaintiff. Kevin Danielson present as counsel for defendant. Magistrate Judge Jolie A. Russo presiding. (peg) Modified on 11/30/2018 to correct names of counsel present for Plaintiff. NEF regenerated to the parties. (gm) (Entered: 11/29/2018)

12/27/2018 23 Unopposed Motion for Stay of Deadlines in Light of Lapse of Appropriations. Filed by All Defendants. (Danielson, Kevin) (Entered: 12/27/2018)

12/27/2018

24 ORDER issued by Magistrate Judge Jolie A. Russo: Granting the Federal Defendants' Unopposed Motion for Stay of Deadlines in Light of Lapse of Appropriations 23 . The deadlines in this case are Stayed until Department of Justice attorneys are permitted to resume their usual civil litigation functions. Counsel shall notify the Court as soon as Congress has appropriated funds for the Department and move to extend deadlines accordingly. (gm) (Entered: 12/27/2018)

01/30/2019

25 Notice re Order on motion for stay, 24 Filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Related document(s): Order on motion for stay, 24 .) (Danielson, Kevin) (Entered: 01/30/2019)

01/30/2019

26 ORDER issued by Magistrate Judge Jolie A. Russo: Based on the Federal Defendants' Notice of Restoration 25 , the Stay of this case due to appropriations issue is Lifted. This case shall proceed as directed in the court's earlier Order 22 . (gm) (Entered: 01/30/2019)

02/07/2019 27 Unopposed Motion to Modify the Scheduling Order. Filed by All Defendants. (Danielson, Kevin) (Entered: 02/07/2019)

02/08/2019

28 ORDER issued by Magistrate Judge Jolie A. Russo: Defendants' unopposed Motion to Modify the Scheduling Order 27 is Granted. By the end of February 2019, defendants shall produce a minimum of 2,000 pages of documents. Thereafter, defendants' production must be at a rate of at least 2,000 documents per month with a larger number as agency resources allow. All outstanding documents are due by August 1, 2019.

The parties are ordered to file a Joint Status Report as well as a proposed case schedule by August 15, 2019. (gm) (Entered: 02/08/2019)

08/13/2019 29 Joint Status Report . Filed by American Civil Liberties Union of Oregon, Inc.. (Green, Derek) (Entered: 08/13/2019)

08/13/2019

30 ORDER issued by Magistrate Judge Jolie A. Russo: Granting the parties' request as outlined in their Joint Status Report 29 for an extension of time to 9/16/2019 to submit their proposed case schedule. Counsel are also reminded to include the correct judge's initials 'JR' following the case number on all future pleadings. (gm) (Entered: 08/13/2019)

09/16/2019 31 Joint Status Report . Filed by American Civil Liberties Union of Oregon, Inc.. (LeDuc, Alicia) (Entered: 09/16/2019)

09/23/2019

32 ORDER issued by Magistrate Judge Jolie A. Russo: Upon review of the parties' Joint Status Report 31 , the Court sets the following schedule: The parties are to submit a proposed case schedule by 10/25/2019. Order: Setting a Telephonic Status Conference for 11/4/2019 at 2:00PM in Portland Chambers before Magistrate Judge Jolie A. Russo. (gm) (Entered: 09/23/2019)

10/03/2019 33 Notice of Attorney Withdrawal: Mathew W. dos Santos Filed by American Civil Liberties Union of Oregon, Inc.. (dos Santos, Mathew) (Entered: 10/03/2019)

10/25/2019 34 Proposed Joint Case Management Schedule . Filed by American Civil Liberties Union of Oregon, Inc.. (Green, Derek) (Entered: 10/25/2019)

11/04/2019

35 MINUTES OF PROCEEDINGS before Magistrate Judge Jolie A. Russo: Telephonic Status Conference held 11/4/19. Order: Setting a further Telephonic Status Conference re: case management/discovery issues for 11/13/2019 at 2:00PM in Portland Chambers before Magistrate Judge Jolie A. Russo. Alicia LeDuc; Derek Green; Leland Baxter-Neal present as counsel for plaintiff(s). Kevin Danielson present as counsel for defendant(s). Court Reporter: (None). (gm) (Entered: 11/04/2019)

11/13/2019

36 MINUTES OF PROCEEDINGS before Magistrate Judge Jolie A. Russo: Telephonic Status Conference held 11/13/19. Order: Resetting the following deadlines: Defendants' Dispositive motion due by 1/15/2020. Plaintiff's Response to dispositive motion and cross-motion due by 2/21/2020. Defendants' Reply to response to dispositive motion and response to cross-motion due by 3/20/2020. Plaintiff's Reply to cross-motion due by 4/17/2020. All other case management deadlines are Stayed at this time. Defendants shall submit a declaration within 30 days of the date of this order if they are unable to comply; the

declaration must detail why the current 90 day production schedule is unfeasible and include a proposed compliance date. Order: Setting a further Telephonic Status Conference for 2/10/2020 at 1:30PM in Portland Chambers before Magistrate Judge Jolie A. Russo. Alicia LeDuc; Derek Green; Leland Baxter-Neal present as counsel for plaintiff(s). Kevin Danielson present as counsel for defendant(s). Court Reporter: (None). (gm) (Entered: 11/13/2019)

12/13/2019 37 Unopposed Motion to Modify the Scheduling Order. Filed by All Defendants. (Danielson, Kevin) (Entered: 12/13/2019)

12/13/2019 38 Declaration of Toni Fuentes . Filed by All Defendants. (Related document(s): Motion - Miscellaneous 37 .) (Danielson, Kevin) (Entered: 12/13/2019)

12/16/2019

39 ORDER issued by Magistrate Judge Jolie A. Russo: Granting Defendants' Unopposed Motion to Modify the Scheduling Order (Motion for Extension of Time) 37 as follows: ICE will submit a detailed declaration explaining the reason it needs more time and ask until 3/27/2020, to provide the documents with the domain names unredacted. Consistent with the above, ICE will apply good faith efforts to make rolling monthly productions of documents with the domain names unredacted to ACLU of Oregon, with production of such records to be complete in all events by 3/27/2020. ICE will provide to Plaintiff a summary of its search by 1/10/2020, that will provide the categories of employees who conducted the search, the data bases that were searched, and the search terms. Plaintiff agrees to identify by 1/20/2020: (i) specific records by BATES number being challenged, (ii) an additional sample set of produced records challenged on exemption grounds, (iii) whether Plaintiff challenges the adequacy of the search, and (iv) any additional outstanding issues for summary judgment. Defendants' Dispositive motion due by 3/2/2020. Plaintiff's Response to dispositive motion and cross-motion due by 4/6/2020. Defendants' Reply to response to dispositive motion and response to cross-motion due by 5/4/2020. Plaintiff's Reply to cross-motion due by 6/1/2020. (gm) (Entered: 12/16/2019)

12/16/2019

40 ORDER issued by Magistrate Judge Jolie A. Russo: Resetting the Telephonic Status Conference from 2/10/2020 at 1:30PM to 3/30/2020 at 1:30PM in Portland Chambers before Magistrate Judge Jolie A. Russo. (gm) (Entered: 12/16/2019)

02/28/2020 41 Unopposed Motion for Extension of Time . Filed by All Defendants. (Danielson, Kevin) (Entered: 02/28/2020)

02/28/2020 42 ORDER issued by Magistrate Judge Jolie A. Russo: Granting Defendant's Unopposed Motion for Extension of Time 41 as follows:

Defendants' Dispositive motion due by 3/6/2020. Plaintiff's Response to dispositive motion and cross-motion due by 4/13/2020. Defendants' Reply to response to dispositive motion and response to cross-motion due by 5/11/2020. Plaintiff's Reply to cross-motion due by 6/8/2020. (gm) (Entered: 02/28/2020)

03/06/2020 43 Motion for Extension of Time . Filed by U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. (Danielson, Kevin) (Entered: 03/06/2020)

03/09/2020 44 Response in Opposition to Motion for Extension of Time 43 . Filed by American Civil Liberties Union of Oregon, Inc.. (Green, Derek) (Entered: 03/09/2020)

03/12/2020 45 Reply in Support to Motion for Extension of Time 43 . Filed by All Defendants. (Danielson, Kevin) (Entered: 03/12/2020)

03/12/2020

46 ORDER issued by Magistrate Judge Jolie A. Russo: Defendant's Motion for Extension of Time 43 is Granted. Defendant represents both that the information contained in its pending motion came directly from ICE's counsel and there are no further details to add via a declaration, and that ICE is on track to produce the remaining domain-name documents prior to the current deadline. In addition, defendant represents that the erroneous Vaughn index is a draft document that was not finalized, but nonetheless a finalized and corrected version will be produced pursuant to defendant's motion for summary judgment. Finally, defendant has agreed to produce a complete set of documents as soon as the corrected Vaughn index is finished; until that time, the complete set of documents to be re-released cannot be determined. Accordingly, none of the conditions requested by plaintiff in regard to defendant's proposed extension, which they do not oppose, appear warranted. Any remaining issues regarding production or the Vaughn index can be raised at the Telephone Status Conference scheduled for 3/30/2020. The dispositive motion briefing schedule is extended as follows: Defendants' Dispositive motion due by 4/3/2020. Plaintiff's Response to dispositive motion and cross-motion due by 5/11/2020. Defendants' Reply to response to dispositive motion and response to cross-motion due by 6/8/2020. Plaintiff's Reply to cross-motion due by 7/6/2020. (gm) (Entered: 03/12/2020)

03/30/2020

47 MINUTES OF PROCEEDINGS before Magistrate Judge Jolie A. Russo: Telephonic Status Conference held 3/30/20. Order: ICE to produce the renumbered and corrected domain-name documents to plaintiffs by 4/6/2020. The dispositive motion briefing schedule is extended as follows: Defendants' Dispositive motion due by 4/7/2020. Plaintiff's Response to dispositive motion and cross-motion due by

5/15/2020. Defendants' Reply to response to dispositive motion and response to cross-motion due by 6/12/2020. Plaintiff's Reply to crossmotion due by 7/10/2020. Alicia LeDuc; Leland Baxter-Neal present as counsel for plaintiff(s). Kevin Danielson present as counsel for defendant(s). Court Reporter: (None). (gm) (Entered: 03/30/2020)

04/07/2020 48 Motion for Summary Judgment . Filed by All Defendants. (Danielson, Kevin) (Entered: 04/07/2020)

04/07/2020

49 Declaration of Fernando Pineiro . Filed by All Defendants. (Related document(s): Motion for Summary Judgment 48 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Danielson, Kevin) (Entered: 04/07/2020)

04/07/2020 50 ORDER issued by Magistrate Judge Jolie A. Russo: Setting Defendants' Motion for Summary Judgment 48 on the under advisement calendar of 7/13/2020. (gm) (Entered: 04/07/2020)

05/12/2020

51 Unopposed Motion for Extension of Time to File a Response/Reply Plaintiff's Motion to Modify Scheduling Order to Motion for Summary Judgment 48 . Filed by American Civil Liberties Union of Oregon, Inc.. (Green, Derek) (Entered: 05/12/2020)

05/12/2020

52 ORDER issued by Magistrate Judge Jolie A. Russo: Granting Plaintiff's Unopposed Motion for Extension of Time 51 as follows: Plaintiff's Response to dispositive motion and cross-motion due by 6/15/2020. Defendants' Reply to response to dispositive motion and response to cross-motion due by 7/13/2020. Plaintiff's Reply to cross-motion due by 8/10/2020. Order: Resetting Defendants' Motion for Summary Judgment 48 from 7/13/2020 to the under advisement calendar of 8/17/2020. (gm) (Entered: 05/12/2020)

06/11/2020 53 Unopposed Motion for Extension of Time Unopposed Motion to Modify Scheduling Order. Filed by American Civil Liberties Union of Oregon, Inc.. (Green, Derek) (Entered: 06/11/2020)

06/15/2020

54 ORDER issued by Magistrate Judge Jolie A. Russo: Granting Plaintiff's Unopposed Second Motion for Extension of Time 53 as follows: Plaintiff's Response to dispositive motion and cross-motion due by 7/15/2020. Defendants' Reply to response to dispositive motion and response to cross-motion due by 8/12/2020. Plaintiff's Reply to crossmotion due by 9/9/2020. Order: Resetting Defendants' Motion for Summary Judgment 48 from 8/17/2020 to the under advisement calendar of 9/14/2020. (gm) (Entered: 06/15/2020)

07/14/2020 55 ORDER issued by Magistrate Judge Jolie A. Russo: As this case is reported tentatively settled, the parties shall submit Final Papers on or

before 7/24/2020. All pending motions are Denied as Moot with leave to revisit if the settlement is not consummated. (gm) (Entered: 07/14/2020)

07/14/2020

56 Stipulation of Dismissal with Prejudice by American Civil Liberties Union of Oregon, Inc.. Filed by American Civil Liberties Union of Oregon, Inc.. (Green, Derek) (Entered: 07/14/2020)

07/15/2020

57 ORDER OF DISMISSAL: Based on the parties' Stipulation of Dismissal 56 , it is Ordered that this action is Dismissed with prejudice and without an award of costs or fees to any party. Pending motions, if any, are Denied as Moot. Signed on 7/15/20 by Magistrate Judge Jolie A. Russo. (gm) (Entered: 07/15/2020)

PACER Service Center Transaction Receipt

04/11/2021 06:37:30

PACER Login:

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3:18-cv-00247-JR Start date: 1/1/1980 End date: 4/12/2021

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7

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 Case 3:18-cv-00247-PK Document 1 Filed 02/07/18 Page 1 of 11

DEREK D. GREEN, OSB #042960 Email: derekgreen@dwt.com ALICIA J. LEDUC, OSB #173963 Email: alicialeduc@dwt.com DAVIS WRIGHT TREMAINE LLP 1300 SW Fifth Avenue, Suite 2400 Portland, Oregon 97201 Telephone: (503) 241-2300 Facsimile: (503) 778-5299
MATHEW W. DOS SANTOS, OSB #155766 E-mail: mdossantos@aclu-or.org KELLY K. SIMON, OSB #154213 E-mail: ksimon@aclu-or.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON P. O. Box 40585 Portland, Oregon 97240 Telephone: (503) 227-6928
Attorneys for Plaintiff American Civil Liberties Union of Oregon

UNITED STATES DISTRICT COURT DISTRICT OF OREGON AT PORTLAND

AMERICAN CIVIL LIBERTIES UNION OF OREGON,
PLAINTIFF,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; 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 Oregon (“Plaintiff” or “ACLU of
Oregon”) brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et
seq., as amended, to obtain injunctive and other appropriate relief requiring Defendants U.S.
Page 1 – COMPLAINT FOR DEC. & INJ. RELIEF FOR VIOLATION OF FOIA 5 U.S.C. § 552 et seq.
DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax

Case 3:18-cv-00247-PK Document 1 Filed 02/07/18 Page 2 of 11
Department of Homeland Security (“DHS”) and U.S. Immigration and Customs Enforcement (“ICE”) (collectively, “Defendants”) to respond to a FOIA request submitted by Plaintiff on October 10, 2017 (“Request”), and to promptly disclose the requested records. A true and correct copy of the Request is attached as Exhibit 1.
2. As described therein, the Request seeks records concerning ICE practices of monitoring, detaining and arresting individuals on suspicion of immigration violations at and around state courthouses within Oregon. It also seeks records related to ICE surveillance of people exercising their First Amendment rights as legal observers filming federal immigration agents or as participants in rallies, protests and vigils in the vicinity of courthouses in Oregon during the relevant time periods specified in the Request.
3. ACLU of Oregon issued the Request in response to troubling public accounts of ICE practices and enforcement actions under the current federal Administration at and around state courthouses. On January 30, 2017, ICE confirmed to the media that agents were making arrests at courthouses in Oregon.1 Eyewitness accounts related that ICE agents were undercover, in plainclothes and unmarked vehicles, and were stopping and questioning individuals based on their race.2
4. Through legal observers, media coverage and individual complaints to the ACLU of Oregon, Plaintiff and the public have become increasingly aware of and concerned about the detrimental effects of ICE enforcement actions in and around Oregon courthouses. In response, the ACLU of Oregon has dispatched ICE Legal Observers to various courthouses to document such activities.
5. In one particular instance on September 18, 2017, a group of interfaith leaders
1 Conrad Wilson & Phoebe Flanigan, ICE Confirms Portland Officials’ Fears About Immigration Arrests At Courthouse, OPB (Jan. 30, 2017), http://www.opb.org/news/article/portland-ice-immigration-arrests-multnomahcounty-courthouse/ 2 Id. Page 2 – COMPLAINT FOR DEC. & INJ. RELIEF FOR VIOLATION OF FOIA 5 U.S.C. § 552 et seq.
DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax

Case 3:18-cv-00247-PK Document 1 Filed 02/07/18 Page 3 of 11
held a vigil outside of the Washington County courthouse in Hillsboro, Oregon, where they declared that ICE’s presence at the courthouse is hurting their community. ACLU of Oregon staff and volunteers were present at the vigil. ACLU of Oregon’s ICE Legal Observers were also present in and around the courthouse, as they had been for months prior.
6. While the vigil was occurring nearby, multiple agents in plain clothes and unmarked vehicles surrounded two individuals, both United States citizens, and – while refusing to announce the agents’ identities or agency affiliation – insisted that the individuals identify themselves. The agents showed the two individuals a photograph of a person and asserted that it was a picture of the man being stopped. According to the man detained for interrogation, the only element he had in common with the man in the photograph was the color of his skin.
7. That same day, ACLU of Oregon representatives witnessed those same ICE agents photographing and surveilling people attending the vigil at the courthouse, a “sensitive location” according to ICE policy memoranda.3
8. Oregon, as well as communities throughout the United States, took serious interest in the events on September 18, 2017. Local news outlets, a number of whom were present during the vigil, began reporting on the issue that same day. Soon thereafter, local and national media outlets were sharing the video that ACLU of Oregon disseminated of the events. 4 Oregon’s congressional representatives called upon ICE to investigate its officers and apologize
3 U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, OFFICE OF THE DIRECTOR, POLICY NO. 10029.2, ENFORCEMENT ACTIONS AT OR FOCUSED ON SENSITIVE LOCATIONS (Oct. 24, 2011), https://www.ice.gov/doclib/erooutreach/pdf/10029.2-policy.pdf. 4 See, e.g., Everton Bailey Jr., ICE Agents Mistakenly Try to Grab Latino County Worker Near Courthouse, THE OREGONIAN (Sept. 19, 2017), http://www.oregonlive.com/hillsboro/index.ssf/2017/09/ice_mistakenly_tries_to_grab_l.html; FOX 12 Staff, OR Lawmakers Call on ICE to Investigate Questioning of Hispanic Man Outside Courthouse, KPTV (Sept. 20, 2017), http://www.kptv.com/story/36415316/or-lawmakers-call-on-ice-to-investigate-questioning-of-hispanic-man-outsidecourthouse; Suzanne Gamboa, U.S. Citizen Questioned by ICE Blames ‘Hatred to Latinos,’ NBC NEWS (Sept. 21, 2017), https://www.nbcnews.com/news/latino/u-s-citizen-questioned-ice-blames-hatred-latinos-n803511; NOW THIS NEWS (SEPT. 22, 2017), https://www.facebook.com/NowThisNews/videos/1714759568555526/ (receiving 6.3 million views on its Facebook post of ACLU of Oregon’s video).
Page 3 – COMPLAINT FOR DEC. & INJ. RELIEF FOR VIOLATION OF FOIA 5 U.S.C. § 552 et seq.
DAVIS WRIGHT TREMAINE LLP
1300 S.W. Fifth Avenue, Suite 2400 Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax

Case 3:18-cv-00247-PK Document 1 Filed 02/07/18 Page 4 of 11
to the man and his wife who were wrongly suspected of violating immigration laws. Representatives from other states followed suit.
9. Disclosure of the records Plaintiff seeks through this action will help facilitate the public’s understanding of how Defendants have implemented and enforced federal policy. It will also aid the public’s understanding of how public officials are conducting themselves, in order to assess whether such conduct is consistent with the values and laws of the Constitution.
10. This action is necessary because Defendants have not provided the requested records to which Plaintiff and the public are entitled.
JURISDICTION 11. 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 12. Venue in the District of Oregon is proper under 5 U.S.C. § 552(a)(4)(B) as the requested agency records are, upon information and belief, situated within this District at ICE facilities at or near the ICE Portland Sub-Office, 1220 SW Third Avenue, Suite 300, Portland, Oregon, 97204, and Plaintiff’s principal place of business is in the District of Oregon. For the same reasons, venue also is proper under 28 U.S.C. § 1391(e). 13. Assignment to the Portland Division is proper under District of Oregon LR 3-2 Divisions of Court because the ICE Portland Sub-Office, DHS, and the ACLU are all located in Multnomah County, which falls within the divisional venue of the Portland Division.
PARTIES 14. Plaintiff is a nonprofit, 501(c)(4) membership organization that educates the public about the civil liberties implications of government practices and proposed local, state and federal policies and legislation, provides analysis of such practices and policies, directly lobbies elected officials, and mobilizes its members and supporters to lobby their elected officials.
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Plaintiff regularly disseminates information about the impact of government practices and policies on constitutional rights to over 43,000 members and supporters.
15. Defendant U.S. 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).
16. 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).
17. Plaintiff is informed and believes that Defendants have possession, custody or control of the requested records.
FACTS 18. On October 10, 2017, Plaintiff sent the Request to ICE’s Portland Sub-Office and to ICE’s FOIA Office at ICE Headquarters. 19. The Request sought copies of records concerning ICE enforcement actions in and near Oregon’s courthouses, in addition to specific records related to events near the Washington County courthouse in Hillsboro, Oregon on September 18, 2017. The Request expressly noted that “ICE has an obligation to search all field offices and sub-offices that are reasonably expected to produce any relevant information.”5 Exhibit 1 at 6. 20. Specifically, the Request sought the following:
1) Records created or received in the Seattle Field Office or any ICE offices or suboffices in Oregon on or after January 20, 2017, regarding immigration enforcement actions in or near Oregon courthouses. 2) Records concerning the number of individuals who have been detained, arrested or otherwise subject to questioning by ICE agents or any officials working in cooperation with ICE in or near
5 Citing Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Marks v. U.S. Dep’t of Justice, 578 F.2d 261, 263 (9th Cir. 1978) (agency not required to search all of its field offices because request did not ask for a search beyond the agency’s central files); Am. Immigration Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 230 (D.D.C. 2013).
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an Oregon courthouse dating back to January 1, 2017.
3) Records concerning policies, guidelines, and standards of conduct for officers conducting enforcement actions at or near courthouses, including but not limited to policies about selection of enforcement targets, clothing worn by agents during arrests, in particular, uniforms, display of name and/or badges, providing identification, production of warrants, presence of warrants, use of vehicles and responding to questions raised by those being detained, questioned, arrested and/or witnesses thereto.
4) Records concerning policies, guidelines, and standards of conduct related to discrimination, race-based or otherwise, for officers conducting enforcement actions.
5) All records regarding compliance with 8 U.S.C. § 1229(e), including internal policies.
6) Communications—from January 1, 2017, through the date of fulfilling this request—between any public employee(s) working in an Oregon county’s district attorney’s office and any ICE employee(s) working in (physically or virtually) Oregon.
7) Communications—from January 1, 2017, through the date of fulfilling this request—between any public employee(s) working in Oregon’s judicial branch and any ICE employees(s) working in (physically or virtually) Oregon.
8) Communications—from January 1, 2017, through the date of fulfilling this request—between any public employees working for an Oregon law enforcement agency and any ICE employee(s) working in Oregon.
9) All records concerning activities and enforcement action(s) of ICE agents or officials working in Hillsboro, Oregon on September 18, 2017.
10) All records created by ICE agents or officials that were deployed to, worked in, present in Hillsboro, Oregon on September 18, 2017, including, but not limited to, photographs, videos, reports, notes, documents, etc., including but not limited to, records relating to both the questioning of the two United States citizens stopped by ICE agents as well as the video surveillance of ACLU ICE Legal Observers and the vigil.
11) All communications with or records sent from any ICE official
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to any other federal government agency or official with information from, about or related to events or persons at the Washington County courthouse(s) and/or in Hillsboro, Oregon on September 18, 2017. Exhibit 1 at 5-6. 21. The Request included an application for expedited processing, on the grounds that there is a “compelling need” for these records under 5 U.S.C. § 552(a)(6)(E)(v)(II) because the information requested is “urgent[ly]” needed by an organization primarily engaged in disseminating information “to inform the public concerning actual or alleged Federal Government activity.” Exhibit 1 at 7. 22. The Request provided detail showing that the ACLU of Oregon 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 of Oregon’s mission is to obtain information about government activity, analyze that information, and publish and disseminate that information widely to the press and public. Exhibit 1 at 7-9. The Request also included examples of the ACLU of Oregon’s information-dissemination function. Exhibit 1 at 9-10. 23. The Request further included an application for a fee waiver or limitation under 5 U.S.C. § 552(a)(4)(A)(iii), and a waiver of search fees under 5 U.S.C. § 552(a)(4)(A)(ii)(II). Exhibit 1 at 9-11. 24. ICE received the Request on October 10, 2017. See Exhibit 2. 25. ICE provided a preliminary response on October 23, 2017, assigning the Request reference number 2018-ICFO-03359. See Exhibit 3. 26. In the preliminary response, ICE conditionally granted Plaintiff’s fee waiver request and confirmed that ICE had “queried the appropriate program offices within ICE for responsive records.” ICE also invoked a 10-day extension to the Request, citing 5 U.S.C. § 552(a)(6)(B). See Exhibit 3.
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27. ICE’s preliminary response denied Plaintiff’s request for expedited processing. See Exhibit 3. Four days later, however, on October 27, 2017, ICE sent Plaintiff a follow-up communication notifying Plaintiff that the request for expedited processing was granted. See Exhibit 4.
28. ICE’s October 27, 2017 communication again confirmed that “ICE has queried the appropriate program offices within ICE for responsive records. . . . Please be assured that one of the processors in our office will respond to your request as expeditiously as possible.” See Exhibit 4.
29. On November 14, 2017, ICE issued a “Clarification Request” to Plaintiff. The ICE communication stated:
In conducting a search for responsive records, the ICE FOIA office has determined that further clarification is needed regarding your request. During the search for responsive records, the program office found that the communication requests are too broad. Specifically, what type of communications are you requesting and please identify the subject of the communication. Please provide the ICE FOIA office with a response as soon as possible to avoid further delay in the processing of your request. If a response is not received within 30 days, your request will be administratively closed. See Exhibit 5.
30. Plaintiff responded to ICE’s communication on November 17, 2017, disagreeing with ICE’s conclusion that the portion of the Request related to certain communications was “too broad.” See Exhibit 6. Plaintiff’s response further indicated that it construed ICE’s actions to be a denial of the Request, and that the ACLU of Oregon was, accordingly, administratively appealing that decision. Plaintiff’s response stated: “While we appreciate ICE FOIA’s reversal of its denial of expedited processing, the ACLU also notes that ICE FOIA’s deadline for providing responsive documents under a non-expedited schedule was November 9, 2017. As such, please consider this letter to be an appeal of the denial of the ACLU’s request and untimely
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response thereto.” See Exhibit 6. 31. Plaintiff further requested that “[p]er 8 C.F.R. § 5.8, please provide to the ACLU
within 20 working days, i.e. by December 15, 2017, responsive documents or a denial of this appeal. Failure to respond will necessitate court review.” See Exhibit 6.
32. ICE received Plaintiff’s response to the clarification request and administrative appeal on November 17, 2017. See Exhibit 7.
33. After receiving no reply from ICE to Plaintiff’s November 17, 2017 appeal, in a further good faith attempt to obtain records without resorting to litigation, Plaintiff again wrote to ICE inquiring about the Request’s status on January 2, 2018:
I am writing on behalf of the ACLU of Oregon to inquire as to the status of case number 2018-ICFO-03359. The ACLU of Oregon submitted its original request on October 10, 2017, which I understand created a non-expedited deadline of November 9, 2017, to provide responsive documents. ICE did not meet that deadline despite granting the ACLU of Oregon’s request for expedited processing. On November 17, 2017, the ACLU of Oregon submitted an appeal. I understand that ICE’s timeline for responding to administrative appeals is 20 working days. Given that that deadline has also passed, the ACLU of Oregon respectfully requests to be provided with an estimate as to when responsive documents or a response to the appeal can be expected.
See Exhibit 8. 34. ICE received Plaintiff’s communication on January 2, 2018. See Exhibit 9. 35. Despite having granted expedited processing for Plaintiff’s Request, on February
7, 2018, ICE responded to Plaintiff’s January communication stating that Plaintiff’s Request “is currently in the queue to be processed,” but that cases are processed “on a first in, first out basis” and that the process is taking longer than normal. See Exhibit 10.
36. As of the filing date of this Complaint, Defendants have not provided a substantive response to Plaintiff’s Request or administrative appeal, and have not produced any documents.
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37. As of February 7, 2018, more than 20 days (excepting Saturdays, Sundays and legal public holidays) have elapsed since ICE received the original Request, and more than 20 days (excepting Saturdays, Sundays and legal public holidays) have elapsed since Plaintiff submitted its November 17, 2017 administrative appeal.
38. Because Defendants failed to comply with the provisions of FOIA, 5 U.S.C. §§ 552(a)(6)(A)(i) and (ii), Plaintiff is deemed to have exhausted its administrative remedies with respect to the Request under 5 U.S.C. § 552(a)(6)(C)(i).
CLAIM FOR RELIEF Violation of FOIA for Failure to Make Records Available 39. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 38 above, inclusive. 40. Plaintiff has a legal right under FOIA to obtain the specific agency records requested on October 10, 2017, and there exists no legal basis for Defendants’ failure to promptly make the requested records available to Plaintiff, its members, and the public. 41. Defendants’ failure to promptly make available the records sought by the Request violates FOIA, 5 U.S.C. § 552(a)(3)(A), and applicable regulations promulgated thereunder. 42. On information and belief, Defendants currently have possession, custody, or control of the requested records. WHEREFORE, Plaintiff requests that the Court award them the following relief: A. Declare that Defendants violated FOIA by unlawfully withholding the requested records; B. Order Defendants to immediately disclose the requested records to the public and make copies immediately available to Plaintiff without charge for any search or duplication fees, or, in the alternative, provide for expedited proceedings to adjudicate Plaintiff’s rights under FOIA; C. Award Plaintiff its reasonable costs and attorneys’ fees; and
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D. Grant such other relief as the Court may deem just and proper. DATED this 7th day of February, 2018.
DAVIS WRIGHT TREMAINE LLP
By:s/DEREK D. GREEN Derek D. Green, OSB #042960 Email: derekgreen@dwt.com Telephone: (503) 778-5264 Alicia J. LeDuc, OSB #173963 Email: alicialeduc@dwt.com Telephone: (503) 778-5236 Facsimile: (503) 778-5299 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON Mathew W. dos Santos, OSB #155766 Email: mdossantos@aclu-or.org Telephone: (503) 552-2105 Kelly Simon, OSB #154213 Email: ksimon@aclu-or.org Telephone: (503) 444-7015
Attorneys for Plaintiff American Civil Liberties Union of Oregon
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UNITED STATES DISTRICT COURT DISTRICT OF OREGON AT PORTLAND

AMERICAN CIVIL LIBERTIES UNION OF OREGON,
PLAINTIFF,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY; and IMMIGRATION AND CUSTOMS ENFORCEMENT,
DEFENDANTS.

Case No. 3:18-cv-00247-PK JOINT STATUS REPORT

The parties, by and through their undersigned counsel, respectfully submit this Joint Status Report. The parties provide separate statements with respect to Part IV below, captioned “Proposed Scheduling.”

I. Background and Procedural History This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Per its

Complaint, Plaintiff seeks to compel the release of records relating to Immigration and Customs

Enforcement (“ICE”) practices concerning the monitoring, detaining and arrest of individuals on

suspicion of immigration violations in and around state courthouses within Oregon, as well as

records of ICE surveillance of other individuals engaged in lawful activities within the same

vicinity.
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Plaintiff submitted its FOIA request (“Request”) on October 10, 2017. ICE ultimately granted the Request expedited status, but did not produce documents or provide a subsequent substantive response to the Request or Plaintiff’s administrative appeal. Thereafter, Plaintiff filed its Complaint in this Court on February 7, 2018. (ECF No. 1.) Defendants answered the Complaint on March 14, 2018. (ECF No. 6.)
ICE made its first, and so far only, production of responsive records on April 23, 2018, producing approximately 1,375 pages of records which pertained to ongoing investigations. All but four of the pages produced were redacted in full under FOIA Exemption 7(A). ICE has informed Plaintiff that ICE intends to produce 500 pages each month going forward due to resource constraints.
Counsel for the parties have conferred on this matter on multiple occasions between February and the date of this report, and have agreed to submit this Joint Status Report for the Court’s review.
II. Stipulated Matters 1. The parties stipulate that initial disclosures are not necessary in this case. Contemporaneously with this Joint Status Report, and pursuant to Local Rule 26-2, the parties are filing a “Fed. R. Civ. P. 26(a)(1) Discovery Agreement.” 2. Without waiving any claim for future discovery, the parties agree that discovery in FOIA litigation is rare and is not anticipated to be necessary in this case, based on current information. The parties therefore stipulate that a discovery schedule is not appropriate at this juncture.

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3. While settlement of this matter may be possible, settlement is unlikely for the foreseeable future, and the parties therefore stipulate that they are not seeking ADR or a settlement conference at this time. 4. Because this dispute will likely be resolved on cross-motions for summary judgment, the parties stipulate, pursuant to Local Rule 16-5(a) and subject to Court approval, that no pretrial order need be filed either now or in the foreseeable future. 5. As addressed below, the parties agree that the primary issue before this Court at this stage of the proceedings is the establishment of a production schedule by ICE for documents to be produced in response to the FOIA request. The parties stipulate that all current discovery and pretrial deadlines should be stayed pending determination of that production schedule.
III. Scope of Search and Production On February 21, 2018, the parties participated in a teleconference discussing a potential production schedule and the types of documents identified in ICE’s initial search of records conducted pursuant to Plaintiff’s Request. ICE advised it had conducted a search for records pursuant to Plaintiff’s Request, which had yielded approximately 28,000 pages of records. ICE further advised that it has an agency policy of producing 500 pages of records per case, per month, due to resource constraints. The parties have attempted to explore potential options for expediting, and possibly narrowing, the search. However, the parties have been unable to reach a resolution of this matter. Accordingly, the parties each submit their own proposals below.

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IV. Proposed Scheduling A. Plaintiff’s Position Plaintiff requests that this Court order ICE to complete its production by October 10, 2018 – which is one year from the date Plaintiff submitted its FOIA Request. Plaintiff further requests that this Court order ICE to complete 1/3 of that production by June 10; 1/3 of that production by August 10, and the remainder by October 10. Plaintiff submits that its proposed production schedule is more than reasonable. Plaintiff filed the original records request more than seven months ago. It did not receive any documents until April 23, 2018, and to date, it has received a total of only 4 pages of records that were not redacted in their entirety. As Plaintiff has emphasized to ICE, disclosure of the requested public records is a time sensitive issue. Plaintiff seeks records that will help inform an ongoing public debate on an issue of nationwide significance. The more dated the information becomes, the less relevant it becomes as well. Timely access to these public records is essential to allow the public to understand the actions that are taken by its government, on the public’s behalf. Plaintiff reiterates that this case concerns records from only one year, and only in regards to specific ICE actions in a single state, Oregon. Moreover, Plaintiff has expressed its willingness to work collaboratively with ICE to identify and prioritize the types of documents to be produced. The parties discussed potential options to allow Plaintiff to provide feedback on a sample set of documents in order to determine if there are certain categories or types of documents that can be narrowed from the review. Unfortunately, no solution was found – and time continues to pass. ICE counsel has explained that ICE’s technology constraints limit its ability to categorize and group the documents to be reviewed, and limit the ability to provide Plaintiff with additional information about the documents themselves. ICE has agreed to provide on an expedited basis

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aggregate data about its enforcement actions within Oregon, and to evaluate options for prioritizing the review of records related to a specific incident identified in the FOIA Request. Plaintiff appreciates these steps from ICE. But absent additional information about the set of records at issue in the FOIA Request, Plaintiff is not in a position to even evaluate whether any narrowing of the production is feasible. That information has not been provided, and based on the parties’ conferrals to date, it is Plaintiff’s understanding that such information will not be available for months, if then. Plaintiff submits that further delays in establishing a production completion date will prejudice Plaintiff’s ability to obtain the requested records in a timely fashion.
B. Defendants’ Position The ICE FOIA Office has an increasingly heavy workload. Accordingly, ICE FOIA has adopted the court-sanctioned practice of generally handling backlogged requests on a “first-in, first-out basis.” The ICE FOIA Office receives requests for ICE records directly from myriad requesters including, but not limited to, individuals, media outlets, nonprofit organizations, and researchers. The ICE FOIA Office also receives a high volume of FOIA requests referred to ICE by U.S. Citizenship and Immigration Services (USCIS) FOIA Office. The ICE FOIA Office is responsible for processing these referred requests, which typically consist of ICE documents from an individual’s Alien File (A- file), and then responding directly to the requester. By January 31, 2018, over the first four months of year Fiscal Year (FY) 2018, ICE had received 54,651 new FOIA requests, and also had a backlog of approximately 27,024 FOIA requests (meaning that the requests were pending for more than 20 business days). These numbers represent a substantial increase in the number of FOIA requests received by ICE in

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previous years. As of January 2018, ICE has 55,186 FOIA requests (54,651 new requests plus a backlog of 535 old requests). ICE has received approximately 10,000 more FOIA requests in the first four months of FY 2018 than it received in the entire FY 2015.
The dramatic increase in the ICE FOIA Office’s workload over the course of three years is mainly due to an increase in the number of referrals received from USCIS. In addition to the increase in USCIS referrals of documents contained in A-Files, ICE has also experienced an increase in the number and complexity of FOIA requests, such as Plaintiffs' request, which seek documents other than those typically found in an A-File. These FOIA requests take considerably longer to process due to the extensive search that is usually required and the intricacies of the documents or data produced.
The ICE FOIA litigation processing unit consists of three individuals, all three of whom are occasionally required to assist other units within ICE FOIA on the processing of incoming FOIA requests, congressional inquiries and other projects at any given time. Each team member can process on average 100-300 pages per day, depending on the complexity of the documents.
Since January 31, 2018, the ICE FOIA litigation processing unit has been working on 54 active FOIA litigations. The ICE FOIA Office is currently processing documents for rolling production in 17 of those cases with an additional 3 cases that are scheduled to be added shortly. The current total average monthly litigation production page count is between 9,000 to 10,500 pages per month. The additional three cases are expected to contribute a combined total of 2,500 pages per month. This will put the total workload for litigation unit in ICE FOIA at reviewing and processing between 10,500 to 13,000 per month.

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In order to meet its obligations for all cases in litigation with the resources that the office currently has, the ICE FOIA Office typically cannot process more than 500 pages per month for each case, including the case at issue here.
ICE requests that the Plaintiff review the next additional 1,000 pages of documents that are produced and then work with ICE to determine if the search can be narrowed to a smaller universe of documents.
DATED this 4th day of May, 2018. Respectfully submitted, DAVIS WRIGHT TREMAINE LLP

By s/ Derek D. Green Derek D. Green, OSB #042960 Email: derekgreen@dwt.com Telephone: (503) 778-5264 Alicia J. LeDuc, OSB #173963 Email: alicialeduc@dwt.com Telephone: (503) 778-5236 Facsimile: (503) 778-5299
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF OREGON
Mathew W. dos Santos, OSB #155766 Email: mdossantos@aclu-or.org Telephone: (503) 552-2105 Kelly Simon, OSB #154213 Email: ksimon@aclu-or.org Telephone: (503) 444-7015

By s/ Kevin Danielson (with consent) Billy J. Williams, OSB #901366 United States Attorney , District of Oregon Kevin Danielson, OSB #065860 Assistant United States Attorney kevin.c.danielson@usdoj.gov 1000 SW Third Avenue, Suite 600 Portland, OR 97204-2902 Telephone: (503) 727-1000 Facsimile: (503) 727-1117
Attorneys for Defendants Immigration and Customs Enforcement, and U.S. Department of Homeland Security

Attorneys for Plaintiff American Civil Liberties Union of Oregon

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