Long v. U.S. Immigration & Customs Enforcement

MEMORANDUM DECISION AND ORDER I. INTRODUCTION Plaintiffs Susan B. Long and David Burnham brought this action under 5 U.S.C. §552(a)(4)(B) against Defendant United States Immigration and Customs Enforcement (“ICE”) seeking to compel production of certain agency records pursuant to the Freedom of Information Act, 5 U.S.C. §§551-559 (“FOIA”). The Court denied the parties’ cross-motions for summary judgment on September 27, 2018. (Dkt. No. 32). ICE filed a supplemental declaration on April 29, 2019, (Dkt. No. 58-1), and moved for reconsideration of its motion for summary judgment. (Dkt. No. 58). Plaintiffs responded on May 16, 2019; citing to alleged contradictions and inconsistencies in the information ICE has provided, Plaintiffs sought an evidentiary hearing. (Dkt. No. 59). The Court granted that request, and held an evidentiary hearing on August 15, 2019. (Dkt. No. 66). Both parties have submitted final letter briefs, and the Court heard oral argument on September 23, 2020. (Dkt. Nos. 90-92). Having carefully considered the testimony presented at the evidentiary hearing, as well as the parties’ arguments and all of the submissions in this case, the Court denies ICE’s renewed motion for summary judgment without prejudice to renewal. II. BACKGROUND¹ Plaintiffs are the co-founders and co-directors of the Transactional Records Access Clearinghouse (“TRAC”), a data gathering, data research and data distribution center sponsored by the Whitman School of Management and the Newhouse School at Syracuse University. (Dkt. No. 19-11, 73). TRAC gathers a significant amount of immigration enforcement data from ICE through FOIA requests, and makes the information available to the public in online databases. (Dkt. No. 19-11,

76-78). In the two FOIA requests at issue here, Plaintiffs seek information relating to ICE’s use of detainers and notices of release, i.e., ICE’s “requests to maintain custody of an individual for up to 48 hours beyond when he or she would have otherwise been released,” and ICE’s requests for notice from a law enforcement agency “of the pending release from custody of a suspected priority removable individual at least 48 hours prior to release, if possible.” (Dkt. No. 19-1, 9; Dkt. No. 15-1,