Case Detail

FOIA Project Annotation: Judge Carl Nichols has ruled that U.S. Immigration and Customs Enforcement conducted an adequate search for an audio recording requested by documentary filmmaker Peter King, even though the agency was unable to find responsive records. King requested an audio recording described in a 2003 memo recorded by an ICE informant on August 5, 2003, documenting a murder related to an ICE investigation. The agency initially responded by issuing a Glomar response neither confirming nor denying the existence of records, indicating that the records, if they existed, would be protected by Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records). King appealed the Glomar response, arguing that ICE and the informant had already acknowledged its existence. The Department of Homeland Security upheld its Glomar defense and King filed suit. The agency tasked the El Paso field office with conducting the search. That search found no records, but a search of archival records indicated that the investigation had been concluded in 2005 and that the records should subsequently have been destroyed. King argued that since the record at issue was electronic, the agency had failed to show that it conducted an electronic search as well. However, Nichols noted that the agency's search was sufficient, pointing out that "they provided two declarations describing how ICE determined where the relevant records might be located and averred that there was 'no other investigations or matter likely to contain a copy of the recording.' And they have explained why it can no longer locate the audio recording King seeks: according to Homeland Security Investigations policy, the electronic record should have been destroyed five years after the conclusion of the relevant investigation."
Issues: Adequacy - Search

Date Filed	Doc #	Docket Text
2020-04-16	1	COMPLAINT against U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT ( Filing fee $ 400 receipt number ADCDC-7028693) filed by PETER KING. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Civil Cover Sheet, # 7 Summons)(Topic, Matthew) (Entered: 04/16/2020)
2020-04-16	2	NOTICE of Appearance by Matthew Topic on behalf of PETER KING (Topic, Matthew) (Entered: 04/16/2020)
2020-04-16		Case Assigned to Judge Carl J. Nichols. (adh, ) (Entered: 04/16/2020)
2020-04-16	3	SUMMONS (4) Issued Electronically as to U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 04/16/2020)
2020-05-01	4	NOTICE of Appearance by Alan Burch on behalf of All Defendants (Burch, Alan) (Entered: 05/01/2020)
2020-05-29	5	ANSWER to Complaint by U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT.(Burch, Alan) (Entered: 05/29/2020)
2020-06-02		MINUTE ORDER. Before the Court in this Freedom of Information Act case are a Complaint and an Answer. According to Local Civil Rule 16.3, the requirements of Federal Rule of Civil Procedure 26(f) are inapplicable. It is hereby ORDERED that the Parties shall confer and file a Joint Status Report by June 23, 2020. The Joint Status Report shall address: (1) the status of Plaintiff's FOIA request; (2) the anticipated number of documents responsive to Plaintiff's FOIA request; (3) the anticipated date(s) for release of the documents requested by Plaintiff; (4) whether a motion for stay is likely under Open America v. Watergate Special Prosecution Force , 547 F.2d 605 (D.C. Cir. 1976); (5) the possibility of prioritizing documents responsive to Plaintiff's request and any discussions regarding whether Plaintiff's request can be narrowed; and (6) whether the Parties anticipate summary judgment briefing and, if so, a proposed briefing schedule. Signed by Judge Carl J. Nichols on June 2, 2020. (lccjn2) (Entered: 06/02/2020)
2020-06-18	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF HOMELAND SECURITY served on 5/1/2020 (Topic, Matthew) (Entered: 06/18/2020)
2020-06-18	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. IMMIGRATION & CUSTOMS ENFORCEMENT served on 4/29/2020 (Topic, Matthew) (Entered: 06/18/2020)
2020-06-18	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 4/29/20. (Topic, Matthew) (Entered: 06/18/2020)
2020-06-18	9	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/29/2020. Answer due for ALL FEDERAL DEFENDANTS by 5/29/2020. (Topic, Matthew) (Entered: 06/18/2020)
2020-06-23	10	Joint STATUS REPORT by PETER KING. (Topic, Matthew) (Entered: 06/23/2020)
2020-06-23		MINUTE ORDER. Upon review of the Parties' 10 Joint Status Report, it is hereby ORDERED that Defendants shall file their Motion for Summary Judgment by August 5, 2020. Plaintiff shall file his Response and Cross-Motion for Summary Judgment by September 3, 2020. Defendants shall file their Reply and Response by September 17, 2020. Plaintiff shall file his reply by October 1, 2020. Signed by Judge Carl J. Nichols on June 23, 2020. (lccjn2) (Entered: 06/23/2020)
2020-06-23		Set/Reset Deadlines: Summary Judgment motions due by 8/5/2020. Cross Motions due by 9/3/2020. Response to Motion for Summary Judgment due by 9/3/2020. Response to Cross Motions due by 9/17/2020. Reply to Motion for Summary Judgment due by 9/17/2020. Reply to Cross Motions due by 10/1/2020. (zcal) (Entered: 06/24/2020)
2020-08-05	11	MOTION for Extension of Time to File Motion for Summary Judgment by U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Burch, Alan) (Entered: 08/05/2020)
2020-08-05	12	Amended MOTION for Extension of Time to File Motion for Summary Judgment by U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Burch, Alan) (Entered: 08/05/2020)
2020-08-06		MINUTE ORDER. Upon review of Defendants' 12 Amended Motion for Extension of Time to File Motion for Summary Judgment, it is hereby ORDERED that Plaintiff shall file his opposition to the Motion, if any, by 12:00 PM on August 7, 2020. It is further ORDERED that Defendant's 11 Motion for Extension of Time to File Motion for Summary Judgment is DENIED as moot. Signed by Judge Carl J. Nichols on August 6, 2020. (lccjn2) (Entered: 08/06/2020)
2020-08-06	13	RESPONSE re 12 Amended MOTION for Extension of Time to File Motion for Summary Judgment filed by PETER KING. (Topic, Matthew) (Entered: 08/06/2020)
2020-08-06		Set/Reset Deadlines: Response due by 8/7/2020. (zcal) (Entered: 08/06/2020)
2020-08-06		MINUTE ORDER. Upon review of Defendant's 12 Motion for Extension of Time and Plaintiff's 13 Response, it is hereby ORDERED that the Motion is GRANTED. Defendant shall file its Motion for Summary Judgment by September 18, 2020; Plaintiff shall file his Response by October 19, 2020; and Defendant shall file its Reply by November 2, 2020. Signed by Judge Carl J. Nichols on August 6, 2020. (lccjn2) (Entered: 08/06/2020)
2020-08-06		Set/Reset Deadlines: Summary Judgment motions due by 9/18/2020. Response to Motion for Summary Judgment due by 10/19/2020. Reply to Motion for Summary Judgment due by 11/2/2020. (zcal) (Entered: 08/07/2020)
2020-08-10	14	Unopposed MOTION to Amend/Correct Briefing Schedule by PETER KING (Attachments: # 1 Text of Proposed Order)(Topic, Matthew) (Entered: 08/10/2020)
2020-08-11		MINUTE ORDER. Upon review of Plaintiff's 14 Motion to Amend/Correct Briefing Schedule, it is hereby ORDERED that the Motion is GRANTED. It is further ORDERED that the Court's Minute Order of August 6, 2020 is AMENDED to add the following: Plaintiff shall file his Reply by November 16, 2020. Signed by Judge Carl J. Nichols on August 11, 2020. (lccjn2) (Entered: 08/11/2020)
2020-08-11		Set/Reset Deadlines: Replies due by 11/16/2020. (tj) (Entered: 08/11/2020)
2020-09-18	15	MOTION for Summary Judgment by U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Attachments: # 1 Declaration of Fernando Pineiro)(Burch, Alan) (Entered: 09/18/2020)
2020-09-30	16	NOTICE OF SUBSTITUTION OF COUNSEL by Jeremy S. Simon on behalf of U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT Substituting for attorney Alan Burch (Simon, Jeremy) (Entered: 09/30/2020)
2020-10-13	17	Unopposed MOTION for Extension of Time to Briefing Schedule by PETER KING (Attachments: # 1 Text of Proposed Order)(Topic, Matthew) (Entered: 10/13/2020)
2020-10-15		MINUTE ORDER. Upon review of Plaintiff's 17 Motion for Extension of Time, it is hereby ORDERED that the Motion is GRANTED. Plaintiff shall file his Response to Defendants' 15 Motion for Summary Judgment and Cross-Motion for Summary Judgment by October 30, 2020. Defendants shall file their Reply and Response by November 13, 2020. Plaintiff shall file his Reply by November 30, 2020. Signed by Judge Carl J. Nichols on October 15, 2020. (lccjn2) Modified on 10/15/2020 (lcjl). (Entered: 10/15/2020)
2020-10-15		Set/Reset Deadlines: Cross Motions due by 10/30/2020. Response to Motion for Summary Judgment due by 10/30/2020. Reply to Motion for Summary Judgment due by 11/13/2020. Response to Cross Motions due by 11/13/2020. Reply to Cross Motions due by 11/30/2020. (zcal) (Entered: 10/16/2020)
2020-10-30	18	Memorandum in opposition to re 15 MOTION for Summary Judgment filed by PETER KING. (Topic, Matthew) Modified docket event/text on 11/2/2020 (eg). (Entered: 10/30/2020)
2020-11-10	19	Consent MOTION for Extension of Time to File Reply in Support of Motion for Summary Judgment by U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 11/10/2020)
2020-11-14		MINUTE ORDER. Upon review of Defendant's 19 Motion for Extension of Time, it is hereby ORDERED that the Motion is GRANTED. Defendant shall file its Reply by November 20, 2020. Signed by Judge Carl J. Nichols on November 14, 2020. (lccjn2) (Entered: 11/14/2020)
2020-11-14		Set/Reset Deadlines: Defendant Reply due by 11/20/2020. (zcal) (Entered: 11/16/2020)
2020-11-19	20	REPLY to opposition to motion re 15 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Attachments: # 1 Supplemental Pineiro Declaration)(Simon, Jeremy) (Entered: 11/19/2020)
2021-08-16	21	MEMORANDUM AND OPINION. Signed by Judge Carl J. Nichols on August 16, 2021. (lccjn2) (Entered: 08/16/2021)
2021-08-16	22	ORDER. Signed by Judge Carl J. Nichols on August 16, 2021. (lccjn2) (Entered: 08/16/2021)
2021-08-25	23	Unopposed MOTION for Extension of Time to File Plaintiff's Petition for Attorneys' Fees by PETER KING. (Attachments: # 1 Text of Proposed Order)(Topic, Matthew) (Entered: 08/25/2021)
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