Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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` Case No. 1:15-cv-00907 (CRC)
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`REBECCA TUSHNET,
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`Plaintiff,
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`v.
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`UNITED STATES IMMIGRATION AND
`CUSTOMS ENFORCEMENT,
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`Defendant.
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`MEMORANDUM OPINION
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`Does a t-shirt with “Yankees Suck” emblazoned over the team’s iconic logo violate federal
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`trademark law? An Immigration and Customs Enforcement (“ICE”) spokesman appeared to
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`suggest so in a press conference touting the agency’s crackdown on counterfeit sports apparel
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`before the 2015 Super Bowl. Begging to differ, Harvard Law School professor Rebecca Tushnet
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`explained to ICE that an irreverent parody of a recognized trademark does not infringe because it
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`creates no confusion over the item’s provenance. See, e.g., Louis Vuitton Malletier S.A. v. Haute
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`Diggity Dog, LLC, 507 F.3d 252, 269 (4th Cir. 2007) (holding “Chewy Vuiton” dog toys not to
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`infringe on the venerable handbag maker’s trademark). And when ICE’s response failed to satisfy
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`her that the agency was not confiscating lawful parody merchandise, Tushnet lodged a FOIA
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`request seeking descriptions and photographs of seized apparel as well as documents instructing
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`ICE agents on how to distinguish authentic goods from knock-offs.
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`Tushnet brought this action in June 2015 challenging ICE’s failure to release records in
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`response to her request.1 Since then, ICE has reviewed and released approximately 3,197
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`1 Tushnet was a professor at Georgetown University Law Center when she filed suit and
`was assisted by staff and students of the school’s Institute for Public Representation.
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`Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 2 of 19
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`photographs and 1,475 pages of responsive records. With production complete as of June 2016,
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`both parties now move for summary judgment. The motions present two remaining issues: (1) the
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`adequacy of ICE’s search for records, and (2) the applicability of FOIA’s law-enforcement
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`exemption to certain material redacted from the released records. The Court heard oral argument
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`on the motions on December 21, 2016. For the reasons explained below, the Court cannot conclude
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`that ICE’s original search was adequate because it failed to justify its decision not to search one of
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`its internal records systems and to support the scope of its searches across the agency’s 26 field
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`offices. The Court will therefore deny ICE’s motion for summary judgment and reserve judgment
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`on Tushnet’s motion with respect to the adequacy of ICE’s search. As for ICE’s reliance on
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`FOIA’s law-enforcement exemption, Tushnet has raised colorable but unresolved questions
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`concerning the appropriateness of the challenged redactions. As a result, the Court will deny both
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`motions for summary judgment on this issue and order ICE to review the redactions in light of this
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`ruling.
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`I.
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`Background
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`A. The FOIA Request
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`Prior to the 2015 Super Bowl, ICE held a press conference to publicize its efforts to seize
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`counterfeit sports-related apparel. Pl.’s Statement of Material Facts (“SMF”) ¶ 1; id., Ex. 1 (ICE’s
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`January 29, 2015 Press Release). As reported in the Boston Globe, ICE spokesman Daniel
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`Modricker announced that any item that “debas[es] a mascot—and really anything that denigrates a
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`team—is guaranteed to be contraband.” Id., Ex. 2 (Nestor Ramos, U.S. Agents Tackle Fake Super
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`Bowl Items, Boston Globe, Jan. 31, 2015). The Globe article highlighted a “Yankees Suck” t-shirt
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`as an example of a piece of clothing that likely constituted trademark infringement and therefore
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`could be lawfully seized by ICE agents. See id. After reading the article, Professor Tushnet
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`immediately wrote to Modricker seeking clarification of ICE’s position on parody merchandise.
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`2
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`Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 3 of 19
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`Pl.’s Mem. Supp. Cross-Mot. Summ. J. (“Cross-MSJ”) 3; see also id., Ex. 3. Modricker doubled
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`down in his reply: “if one logo [disparages] another logo than it would be infringement.” Id.
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`When pressed further on ICE’s legal basis for seizing parody items, Modricker looped in
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`attorney Joseph Liberta, Chief of the agency’s Criminal Law section. Id., Ex. 6 (email chain
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`between Modricker, Tushnet, and Liberta). And in a February 18, 2015 email, Liberta attempted to
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`assuage Tushnet’s concerns by noting that ICE, in consultation with agency and Department of
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`Justice attorneys, relies on “potential fair use provisions and federal circuit-specific case law” when
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`determining whether probable cause supports a seizure. Id., Ex. 7. He invited Tushnet to submit a
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`FOIA request to obtain more information about the number of counterfeit seizures ICE had made in
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`recent history. Id. Two weeks later, Tushnet took him up on his offer, submitting a request for:
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`(1) Images or descriptions of clothing seized by ICE as counterfeit from 2012 until present;
`(2) Training or guidance ICE agents receive on how to distinguish counterfeit goods,
`including explanations of legal doctrine and trademark-infringement defenses;
`(3) Records containing the words “disparagement,” “parody,” “distortion” or “tarnishment,”
`in connection with trademark rights holders’ requests;
`(4) Records indicating an item was seized because it disparaged, parodied, distorted or
`tarnished a trademark;
`(5) Documents used in connection with the news conference ICE held in January 2015; and
`(6) Records referencing spokesperson Modricker’s statements about contraband items.
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`See id., Ex. 8 (“FOIA Request”).2
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`B. ICE’s Search for Responsive Records
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`In a series of declarations, Fernando Pineiro, the ICE official responsible for handling all
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`FOIA requests submitted to the agency, detailed ICE’s search for responsive records. See Jan. 14,
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`2016 Decl. of Fernando Pineiro (“First Pineiro Decl.”) ¶¶ 1–3; Feb. 15, 2016 Decl. of Fernando
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`Pineiro (“Second Pineiro Decl.”) ¶ 1; April 29, 2016 Decl. of Fernando Pineiro (“Third Pineiro
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` 2
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` The Court will use this numbering when referring to the different components of Tushnet’s
`request. In the original request, item 2 was further divided into five sub-parts (numbered (a)-(e)),
`which are summarized here for simplicity’s sake. See FOIA Request.
`3
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`Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 4 of 19
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`Decl.”) ¶ 1; June 30, 2016 Decl. of Fernando Pineiro (“Fourth Pineiro Decl.”) ¶ 1. For the portion
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`of request 1 related to descriptions of seized counterfeit items, ICE’s FOIA office delegated the
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`search to the agency’s Office of Homeland Security Investigations (“HSI”), which it determined
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`was most likely to have responsive records. First Pineiro Decl. ¶ 14. HSI in turn focused its search
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`on the Seized Asset and Case Tracking System (“SEACATS”), a database that tracks all property
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`seized by ICE from the time of the initial seizure. Id. at ¶¶ 17–18. Within SEACATS, every
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`“seizure incident”—which could include multiple seized items—is assigned a unique identifier and
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`a property category. The database also contains a summary of the circumstances surrounding the
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`seizure and a brief (under 40 character) description of the seized items. Id. at ¶¶ 19–21, 31. HSI
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`queried SEACATS and produced a 511-page table of all clothing seized by ICE as counterfeit
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`goods between 2012 and March 2015. Id. at ¶¶ 25, 27. This summary reveals approximately 5,564
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`seizure incidents within that time period. Id. at ¶ 31. And these incidents correspond to
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`approximately 1,085 investigative case files created by ICE agents. These case files are maintained
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`in a separate case management system, called TECS, which is used to store investigation reports
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`and other investigative records. Second Pineiro Decl. ¶¶ 11–13.3 Because ICE apparently has no
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`way of estimating how many pages of records are contained in these 1,085 TECS case files and is
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`incapable of isolating records that contain item descriptions, it decided not to manually review the
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`files to determine if they contained additional descriptions of seized items beyond those found in
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`the SEACATS database. Id. at ¶ 13.
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` 3
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` TECS, which stood for the Treasury Enforcement Communication System, was originally
`managed by U.S. Customs and Border Protection. It has since migrated to the Department of
`Homeland Security and is no longer considered an acronym but is simply known as TECS. Second
`Pineiro Decl. at 4 n.1.
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`4
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`Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 5 of 19
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`For the remaining parts of Tushnet’s request, ICE identified several internal offices—
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`including the Office of Training and Development, the Office of the Principal Legal Advisor, the
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`Office of Public Affairs, and HIS—as likely locations of responsive records and tasked these
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`offices with conducting searches “based on their knowledge of the manner in which they routinely
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`keep records[.]” Third Pineiro Decl. ¶ 21. An ICE training office official searched shared
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`computer files and email records using the terms “disparagement,” “distortion,” “tarnishment,”
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`“parody,” “dist,” “dip,” “tarn,” and “Modricker.” Id. at ¶ 30. He also manually reviewed paper
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`files for any relevant documents. Id. The Chief of the Criminal Law section conducted a similar
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`search, using the search terms “Superbowl,” “trademark seizures,” “OPA,” “Modricker,” “Boston
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`Globe,” and “Tushnet.” Id. at ¶¶ 34–35. The Public Affairs office searched computer files and
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`email records using the terms “counterfeit,” “trademarks,” “distortion,” “disparagement,” “parody,”
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`and “Daniel Modricker.” Id. at ¶ 38. Lastly, an HSI unit chief searched hard drives, shared
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`network drives, and emails using the terms “Tushnet,” “Modricker,” and “counterfeit guides.” Id.
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`at ¶ 40. In addition to conducting these central-office searches, HSI provided Tushnet’s FOIA
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`request to its twenty-six regional field offices, which oversee sub-offices and supervise
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`investigations into intellectual-property-rights violations, so that they could craft searches based on
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`their documentation practices and local databases. Each field office employed its own search
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`methods, with some offices using just one or two search terms and others up to twenty four. See
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`Fourth Pineiro Decl. ¶¶ 11–12.4
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` 4
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` For example, the Boston field office only used the search terms “counterfeit” and “IPR,”
`whereas the Houston office performed a broader search using the following terms: “jerseys,”
`“NFL,” “shamrock,” “Baltimore,” “pong,” “hoodies,” “Steelers,” “trademark,” “sucks,” “hat,”
`“soccer,” “jersey,” “disparagement,” “parody,” “tarnishment,” “distortion,” “Rockets,” “Texans,”
`“ball caps,” “Nike,” “Adidas,” “sports,” “counterfeit,” and “IPR.”
`5
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`Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 6 of 19
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`Based on the results of these searches, ICE made “five rolling productions of material
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`totaling 4,539 pages, consisting of 1,457 pages of text documents and 3,082 photographs of seized
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`items.” Pl.’s SMF ¶ 9. In response to request 1, which sought images or descriptions of seized
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`items, ICE produced the 511-page table of item descriptions and 3,082 photographs. Id. at ¶ 17.
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`Tushnet’s counsel represented at oral argument though that the majority of these photographs were
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`multiple images of the same item taken from different angles, so that the number of unique items
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`shown in the photographs totaled a few hundred. In response to request 2(a), which sought training
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`materials on how ICE agents could distinguish counterfeits, ICE produced 24 guides provided to
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`ICE by various sports leagues and companies in the sports apparel industry, totaling 503 pages. Id.
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`at ¶ 20. None of the documents produced were responsive to request numbers 2(b)-(e) (guidance on
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`trademark-infringement defenses, the fair-use doctrine, and circuit-specific case law on trademark
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`infringement), 3, and 4. Id. at ¶ 15. The last of the five rolling productions occurred in April 2016.
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`Id. at ¶ 14. After it discovered that two of its field offices (Newark and San Antonio) had not yet
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`completed their searches, ICE made one additional production of 133 pages to Tushnet in June
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`2016. Fourth Pineiro Decl. ¶ 10. In total, then, ICE has produced 1,475 pages of text documents
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`and 3,197 photographs of seized items, along with a Vaughn index documenting its withholdings.
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`Pl.’s Reply Cross-MSJ (“Reply”) 2. ICE has partially redacted approximately 300 pages of the
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`industry guides on the grounds that the undisclosed material is protected law-enforcement material
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`under FOIA Exemption 7(E). See Third Pineiro Decl. ¶ 71. In addition, the agency originally
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`withheld eight pages from the industry guides in their entirety pursuant to FOIA Exemption 4, but it
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`has since released those documents with more limited redactions under Exemption 7(E). See
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`Fourth Pineiro Decl. ¶ 15.
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`During the course of the search, Tushnet expressed concerns about the adequacy of ICE’s
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`search methods. Pl’s SMF, Ex. 10. ICE clarified that its search was ongoing, but indicated that it
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`Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 7 of 19
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`believed that several of the searches would be unduly burdensome. See id., Ex. 11. Tushnet
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`responded by offering to narrow the scope of the search. Id., Ex. 12 at 1. With respect to request 1,
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`Tushnet advised ICE that she sought only images and descriptions of items seized during the
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`months of January and December of 2012 through 2014 and any images and descriptions associated
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`with a list of 25 seizures reflected in the SEACATS summary table. See id. at 2. Likewise,
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`Tushnet sought only documents pertaining to sports apparel for request 2 and excluded from
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`requests 3 and 4 “any seizure case files that are not being reviewed in response to Request No. 1.”
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`Id. at 5. Tushnet estimated that the revised requests would result in a “narrowing of over 80% from
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`the original request.” Id. ICE nonetheless declined to change its search methodology to
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`accommodate the narrowed requests. See Pl.’s SMF, Ex. 13.
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`II.
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`Legal Standard
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`FOIA requires that each “agency, upon any request for records which (i) reasonably
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`describes such records and (ii) is made in accordance with published rules ... shall make the records
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`promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). To fulfill its disclosure obligations, an
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`agency must conduct a comprehensive search tailored to the request and release any responsive
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`material not protected by one of FOIA’s enumerated exemptions, see § 552(b). While an agency’s
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`search must be adequate, Congress did not intend “to reduce government agencies to full-time
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`investigators on behalf of requesters.” Judicial Watch v. Export-Import Bank, 108 F. Supp. 2d 19,
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`27 (D.D.C. 2000).
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`FOIA cases are appropriately resolved at summary judgment. See Brayton v. Office of U.S.
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`Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment can be awarded to the
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`government if “the agency proves that it has fully discharged its obligations under the FOIA, after
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`the underlying facts and inferences to be drawn from them are construed in the light most favorable
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`to the FOIA requester.” Gatore v. DHS, 177 F. Supp. 3d 46, 50 (D.D.C. 2016) (internal quotation
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`Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 8 of 19
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`omitted). An agency must show “beyond material doubt that its search was reasonably calculated
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`to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d
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`504, 514 (D.C. Cir. 2011) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C.
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`Cir. 1999)) (internal quotation marks omitted). A search is judged by the individual circumstances
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`of each case. See Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). The central question
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`is whether the search itself was reasonable, regardless of the results. See Cunningham v. DOJ, 40
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`F. Supp. 3d 71, 83–84 (D.D.C. 2014). Agencies need not scour every file cabinet and electronic
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`database, but rather should conduct a “good faith, reasonable search of those systems of records
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`likely to possess requested records.” Id. (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,
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`1201 (D.C. Cir. 1991)). Agency declarations, especially from individuals coordinating the search,
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`carry “a presumption of good faith, which cannot be rebutted by purely speculative claims about the
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`existence and discoverability of other documents.” SafeCard, 926 F.2d at 1200.
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`III. Discussion
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`Tushnet challenges both the adequacy of ICE’s search for responsive records and its
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`application of Exemption 7(E) in redacting pages of the industry guides used by agents to detect
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`counterfeit apparel.5 The Court turns to each challenge below.
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`A. Adequacy of the Search
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`For a search to be adequate, “the agency must show that it made a good faith effort to
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`conduct a search for the requested records, using methods which can be reasonably expected to
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`produce the information requested.” Campbell v. DOJ, 164 F.3d 20, 27 (D.C. Cir. 1998).
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`Adequacy is “generally determined not by the fruits of the search, but by the appropriateness of the
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` 5
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` Initially, Tushnet also challenged ICE’s invocation of Exemption 4 to withhold parts of the
`industry guides. But because ICE has since released the documents previously withheld under
`Exemption 4, this issue is moot and need not be addressed here.
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`Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 9 of 19
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`methods used to carry out the search,” which an agency can establish by presenting affidavits and
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`declarations that are submitted in good faith and are “relatively detailed and non-conclusory.”
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`Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). “An agency affidavit can
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`demonstrate reasonableness by ‘setting forth the search terms and the type of search performed, and
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`averring that all files likely to contain responsive materials (if such records exist) were searched.’”
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`Cunningham, 40 F. Supp. 3d at 83 (quoting Valencia–Lucena, 180 F.3d at 326). “An affiant who is
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`in charge of coordinating an agency’s document search efforts is the most appropriate person to
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`provide a comprehensive affidavit in FOIA litigation.” Id. at 84 (internal citation omitted). But a
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`plaintiff can rebut an agency declaration by raising “substantial doubt[s] as to the reasonableness of
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`the search, especially in light of ‘well-defined requests and positive indications of overlooked
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`materials.’” Cunningham, 40 F. Supp. 3d at 84 (quoting Founding Church of Scientology of
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`Washington, D.C. v. NSA, 610 F.2d 824, 837 (D.C. Cir. 1979)).
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`1. Pineiro Declarations
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`ICE supports the adequacy of its searches with a series of declarations from its Deputy
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`FOIA Officer, Fernando Pineiro. Mr. Pineiro avers that he is familiar with Tushnet’s request and
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`outlines ICE’s general process for responding to FOIA requests: The agency begins by reviewing
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`the request and identifying which of its program offices are likely to have responsive records.
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`ICE’s FOIA Office then contacts liaisons within the relevant offices and provides them with a copy
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`of the request, along with case-specific instructions if necessary. “Based on their experience and
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`knowledge of their program office practices and activities, [the liaisons] forward the request and
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`instructions to the individual employees or component offices within the program office that they
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`believe are reasonably likely to have responsive records, if any.” Third Pineiro Decl. ¶ 21. Any
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`potentially responsive records are then turned over to the central FOIA office for processing. Id.
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`Given ICE’s size and breadth, this approach aims to locate the individuals most familiar with the
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`Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 10 of 19
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`subject-matter of the request and permits them to customize their searches based on the way the
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`particular office maintains its files. Id. at ¶¶ 22–26. As noted above, ICE followed this process
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`when responding to Tushnet’s request by delegating the search to the four ICE offices most likely
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`to have responsive records: the Office of Training and Development, the Principal Legal Advisor’s,
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`the Office of Public Affairs, and HSI. Id. at ¶ 27. Pineiro maintains that each office conducted a
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`search based “on [its] experience and knowledge of [its] . . . practices and activities[.]” Id. at ¶¶ 30,
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`33, 38, 42. Moreover, the declarations set out in detail the type of search each office performed
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`(manual or digital), the types of records searched (paper, email, shared drives, or databases), and the
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`search terms used, and they further assert that all locations reasonably likely to house relevant
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`documents were searched. See id. at ¶¶ 29–47. The granularity of detail provided by Mr. Pineiro’s
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`declarations is far from conclusory and, if unrebutted, sufficiently establishes the adequacy of ICE’s
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`search.
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`Tushnet attempts to rebut the presumption of good faith accorded to agency declarations by
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`pointing to a series of errors and inconsistencies found across Pineiro’s multiple declarations.
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`These errors include misstating the column headings contained in the agency’s Vaughn index, the
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`number of pages ICE produced by a certain date (2,749 as opposed to 2,784), and the dates ICE’s
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`FOIA Office tasked different offices with performing searches. Pl.’s Reply 3–4. Tushnet also
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`points out that ICE initially failed to document the searches conducted by two of its 26 field offices
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`or release responsive material they might have uncovered. See id. Although misstatements in an
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`agency’s FOIA response can portend an inadequate search, “[m]istakes alone do not imply bad
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`faith.” Leopold v. DOJ, 130 F. Supp. 3d 32, 42 (D.D.C. 2015) (citing Fischer v. DOJ, 723 F. Supp.
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`2d 104, 109 (D.D.C. 2010)). ICE is a complex organization and this particular request involved
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`multiple parts, rolling productions, and coordinated searches across approximately 30 offices. A
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`handful of inconsistencies is, therefore, unsurprising. Moreover, when notified that it had not
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`Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 11 of 19
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`included the searches performed by two field offices, ICE’s counsel stated at oral argument that the
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`agency promptly rectified its mistake by reaching out to the Newark and San Antonio offices and
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`producing additional records, which it described in a supplemental affidavit. See Fourth Pineiro
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`Decl. ¶ 10. “[An] agency’s cooperative behavior of notifying the court and plaintiff that it had
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`discovered a mistake, if anything, shows good faith.” Leopold, 130 F. Supp. 3d at 42 (internal
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`quotation omitted). Accordingly, the Court finds that the Pineiro declarations remain entitled to a
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`presumption of good faith.
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`2. Reasonableness of Search
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`Tushnet also argues that “positive indications of overlooked materials” undermine the
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`reasonableness of ICE’s search. The Court considers each of these “indications” below.
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`i.
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`Internal Training Guides
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`As noted above, the only material that ICE produced in response to Tushnet’s request for
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`training or guidance documents given to ICE agents were 25 instructional guides provided to ICE
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`by various sports leagues and sports apparel companies. Tushnet finds it is “implausible that ICE
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`has no documents of its own” that instruct officers on how to distinguish counterfeit marks. Pl.’s
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`Reply 7. The Court does not share Tushnet’s skepticism on this score. It seems entirely logical that
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`ICE would rely on apparel licensers and manufacturers to point out the unique features of their
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`branded clothing, rather than to expend the resources necessary to develop those guidelines
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`internally. Apart from Tushnet’s unsupported claims to the contrary, then, she has not offered any
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`evidence that ICE has internal training guides that it failed to disclose or that the searches
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`conducted by its training and development office were not reasonably calculated to uncover
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`responsive documents. If anything, the fact that the agency’s searches uncovered private industry
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`guides on identifying counterfeits validates that the search terms they used adequately captured the
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`substance of the FOIA request. Therefore, Tushnet’s “[m]ere speculation that as yet uncovered
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`11
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`Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 12 of 19
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`documents may exist does not undermine the finding that the agency conducted a reasonable search
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`for them.” SafeCard, 92 F.2d at 1201 (quoting Weisberg v. DOJ, 745 F.2d 1476, 1486–87 (D.C.
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`Cir. 1984). Accordingly, the Court concludes that ICE has established the adequacy of its search
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`for training and guidance documents.
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`ii.
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`The TECS Database
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`Tushnet’s next argument centers on ICE’s failure to search the investigative TECS case
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`management system for more detailed descriptions of the seized items catalogued in the SEACATS
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`database. Second Pineiro Decl. ¶ 11. Pineiro avers that there are 1,085 TECS case files associated
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`with the 5,564 seizures recorded in SEACATS, and that the files generally contain “reports of
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`investigation . . . and other records related to an investigation.” Id. at ¶¶ 12–13. Without discussing
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`whether these reports would contain additional item descriptions, Pineiro implies that TECS was
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`not searched because it would be unduly burdensome for the agency to manually review these files
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`for responsive documents. See id. at ¶¶ 13–14. Months later, however, ICE claimed that the reason
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`it did not search TECS was because all locations reasonably likely to uncover relevant descriptions
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`had already been searched. Def.’s Reply MSJ (“Reply”) 10–11.
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`The Court is not persuaded by either justification offered by ICE for not searching the TECS
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`system. As for burdensomeness, Tushnet offered to narrow the scope of her request to 25 specific
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`seizures listed in SEACATS as well as all seizures made in December or January. According to
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`Tushnet, this would have reduced the volume of materials for ICE to review by roughly 80%. ICE
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`insists that it was under no obligation to accept the offer in the first place because it “occurred only
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`after ICE had conducted the search” and therefore had no bearing on its reasonableness. Id. at 11.
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`But the record says otherwise. Tushnet made her offer in October 2015. See Pl.’s Cross-MSJ, Ex.
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`12. ICE did not contact many of the offices that would be searching for documents until a month
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`later. See Fourth Pineiro Decl. ¶ 8 (ICE tasked field offices with searching for responsive records
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`on November 10, 2015). And ICE admits that it was willing to accept Tushnet’s offer as part of its
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`settlement negotiations, which implies that the narrowed search would not be unduly burdensome.
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`ICE therefore has failed to support its burdensomeness objection.
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`As to ICE’s assertion that the TECS system is unlikely to contain additional responsive
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`records, the agency has not explained why a full-length investigation report would not contain a
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`more detailed description of seized items than a 40-character database summary. The Court is
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`therefore left unconvinced by the agency’s conclusory justification for not searching for records
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`stored in the TECS system. Because ICE “cannot limit its search to only one record system if there
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`are others that are likely to turn up the information requested[,]” Campbell, 164 F.3d at 28, the
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`Court will deny ICE’s motion for summary judgment on this issue and order ICE to review the
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`TECS case files associated with the limited list of seizures that Tushnet has specified.6 ICE shall,
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`within 60 days, either release any responsive material or renew its summary judgment motion with
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`respect to the TECS search along with a supplemental declaration justifying its position.
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`iii. Field Office Search Terms
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`Tushnet also challenges the adequacy of ICE’s search on the grounds that widely varying
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`search terms were used across the twenty-six field offices tasked with searching for responsive
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`records. Agencies generally have “discretion in crafting a list of search terms” as long as they are
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`“reasonably tailored to uncover documents responsive to the FOIA request.” Bigwood v. DOD,
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`132 F. Supp. 3d 124, 140–41 (D.D.C. 2015) (quoting Agility Public Warehousing Co. K.S.C. v.
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`NSA, 113 F. Supp. 3d 313, 339 (D.D.C. 2015)) (internal quotation marks omitted). “Where the
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`agency’s search terms are reasonable, the Court will not second guess the agency regarding whether
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` There appears to be some dispute as to whether the TECS system contains photographs of
`seized apparel. To the extent it does, reviewing the TECS system might alleviate Tushnet’s
`concern that ICE’s search failed to reveal a sufficient number of photographs.
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`other search terms might have been superior.” Liberation Newspaper v. Dep’t of State, 80 F. Supp.
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`3d 137, 146 (D.D.C. 2015).
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`Here, ICE apparently presented its twenty-six field offices with Tushnet’s FOIA request and
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`no further instructions, giving them full discretion to search their records “based on their
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`operational knowledge and subject matter expertise[.]” Def.’s SMF ¶ 16. The result was widely
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`divergent searches, with several offices using one or two search terms and others conducting more
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`comprehensive searches using 15 or more terms. See Third Pineiro Decl. ¶ 46 (reporting that the
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`New York office used a single search term, the Miami office did not specify which or how many
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`search terms it used, and the Houston office used twenty four). After comparing the terms used by
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`these offices with Tushnet’s FOIA request, the Court finds the selection of terms by many of the
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`field offices to be facially lacking, with some not even including terms explicitly called out in
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`Tushnet’s request. Compare id. (New York only searched records for “counterfeit goods”) with
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`FOIA Request 2 (“All records that use the words “disparagement,” “parody,” “distortion,” or
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`“tarnishment,” . . . in connection with trademark rights holders’ requests[.]”). And ICE’s
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`declarations fall short of explaining why such disparate searches were reasonable for particular
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`offices. The Court is left wondering, for example, why the Boston Office’s choice to query its
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`electronic files using solely the terms “counterfeit” and “IPR” was “reasonably tailored” to uncover
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`documents responsive to all parts of Tushnet’s request. Or why field offices with seemingly similar
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`law enforcement responsibilities and activities would store records so differently that there would
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`be little consistency among their searches. ICE’s claim of “subject matter expertise” alone cannot
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`resolve these questions. While FOIA might not require complete uniformity, it does require
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`reasonable explanations for the scope of agency-wide searches. The wide and unexplained
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`variances in the field offices’ search parameters fall short of this standard. The Court will therefore
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`order ICE to re-evaluate the searches conducted by its field offices, determine which were
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`Case 1:15-cv-00907-CRC Document 37 Filed 03/31/17 Page 15 of 19
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`inadequate in light of the discussion above, and provide those offices with additional guidance to
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`conduct further searches.7 Within 60 days, ICE shall either release any newly uncovered responsive
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`material or renew its summary judgment motion with respect to this issue.
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`B. Application of Exemption 7(E)
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`FOIA Exemption 7(E) authorizes agencies to withhold “records or information compiled for
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`law enforcement purposes [that] would disclose techniques and procedures for law enforcement
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`investigations or prosecutions, or would disclose guidelines for law enforcem