Long v. Immigration and Customs Enforcement

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_________________________________________
)
SUSAN B. LONG et al., )
)
Plaintiffs, )
)
v. ) Case No. 17-cv-1097 (APM)
)
IMMIGRATION AND CUSTOMS )
ENFORCMENT, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION

I. INTRODUCTION

Plaintiffs Susan B. Long and David Burnham bring this Freedom of Information Act

(“FOIA”) suit against Defendant U.S. Immigration and Customs Enforcement (“ICE”), seeking

the production of 27 fields of data on immigration removals related to ICE’s Secure Communities

enforcement program. Plaintiffs’ request covers fiscal year 2015 through August 2016. ICE

previously produced the same fields in response to nearly identical requests from Plaintiffs

covering earlier time periods, but now it contends that such production would require the creation

of new records and thus is not obligatory under FOIA. Before the court are the parties’ cross-

motions for summary judgment on that issue. For the reasons that follow, the court grants ICE’s

cross-motion and denies Plaintiffs’ cross-motion.

II. BACKGROUND

A. Factual Background

Plaintiffs are co-directors of the Transactional Records Access Clearinghouse (“TRAC”),

“a data gathering, data research, and data distribution organization associated with Syracuse
University.” See Pls.’ Mot. for Summ. J., ECF No. 12 [hereinafter Pls.’ First Mot.], Decl. of Susan

B. Long, ECF No. 12-1 [hereinafter First Long Decl.], ¶ 2. TRAC’s primary purpose is to provide

“comprehensive information about the staffing, spending, and enforcement activities of the federal

government.” Id. ¶ 3.

For years, Plaintiffs have submitted monthly FOIA requests to ICE seeking certain data

within ICE’s Enforcement Integrated Database (“EID”). See Pls.’ Second Cross-Mot. for Summ.

J., ECF No. 54 [hereinafter Pls.’ Mot.], Third Decl. of Susan B. Long, ECF No. 54-1, ¶ 3; First

Long Decl. ¶ 9. The EID is an electronic database owned and operated by ICE that “captures and

maintains information relating to the investigation, arrest, booking, detention, and removal of

persons encountered during immigration and law enforcement investigations and operations

conducted by ICE” and other component agencies within the U.S. Department of Homeland

Security (“DHS”). Def.’s Mot. for Summ. J., ECF No. 11, Decl. of Marla Jones, ECF No. 11-2

[hereinafter Jones Decl.], ¶¶ 6–7; see also id. ¶ 6 (explaining that “the EID is the common database

repository for all records created, updated, and accessed by a number of [DHS] software

applications” that “allows ICE officers to manage cases from the time of an alien’s arrest, in-

processing, or placement into removal proceedings, through the final case disposition”); id. ¶ 8

(“The EID is used as data storage throughout the immigration enforcement lifecycle from arrest to

removal or release.”).

Plaintiffs’ monthly FOIA requests “sought from the EID updated, anonymous case-by-case

information about each person whom ICE deported as a result of the Secure Communities

Program, an immigration enforcement program administered by ICE, and its temporary successor,

the Priority Enforcement Program.” Mem. Op. & Order, ECF No. 20 [hereinafter First Mem. Op.],

at 2. Each request identified the specific case-by-case information sought by Plaintiffs, including

2
a list of separately numbered sub-requests describing particular fields of information and data

elements that Plaintiffs sought from the EID. Id. at 2–3.

Previously, ICE responded to these requests “by providing computer extracts furnished as

Excel spreadsheet files derived from the EID.” Id. at 3 (internal quotation marks omitted).

Although the spreadsheets were derived from the EID, ICE did not query the EID itself in

searching for responsive records; instead, it searched the Integrated Decision Support System

(“IIDS”), a snapshot of a subset of data from the EID that is updated three days a week. Def.’s

Mot. for Summ. J., ECF No. 53 [hereinafter Def.’s Mot.], Def.’s Stmt. of Undisputed Material

Facts, ECF No. 53-2, ¶¶ 32–33. The spreadsheets “contained fields of information and data

elements that corresponded to at least some of the separately numbered requests.” First Mem. Op.

at 3. But in January 2017, in response to Plaintiffs’ FOIA request for data covering fiscal year

2015 through August 2016 (“August 2016 Request”), ICE withheld many of the fields that it had

previously provided in response to Plaintiffs’ requests covering earlier, overlapping time periods—

including a virtually identical request submitted by Plaintiffs several months earlier, which covered

fiscal year 2015 through December 2015 (“December 2015 Request”). Id.

Plaintiffs dub these withheld fields the “disappearing fields”—i.e., the fields of information

and corresponding data elements from the EID/IIDS that ICE provided in response to the

December 2015 Request but not the August 2016 Request. See Compl., ECF No. 1, ¶ 18. The

court, however, will refer to these fields as the “disputed fields.” The following is a list of the

disputed fields and the specific numbered requests to which they correspond in the August 2016

Request, see First Long Decl., Ex. F:

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 Aggravated Felon (57) “Aggravated felon (yes/no)”

Removal Current Program (60) “Latest program code before departure”

Case Category Time of Arrest (61) “Case category at the time of latest arrest”
Latest Arrest Current Program Code; (62) “Program code at the time of latest arrest”
Latest Arrest Current Program
Latest Apprehension Date (63) “Date of latest arrest”

(64) “Name of the program or area associated with
the original arrest or apprehension (criminal alien
Cause Arrest Current Program program, fugitive operations, office of investigations,
border patrol operation streamline, other border
patrol program, 287(g), etc.)”

(65) “The apprehension method associated with the
Latest Apprehension Method
latest apprehension”

(66) “Ordered removed by court, where order has
become final (yes/no)”
Final Order Yes No
(68) “Administratively ordered removed, where order
has become final (yes/no)”

Reinstated Final Order (70) “Reinstatement of prior removal order (yes/no)”

(71) “Date of latest reinstatement of prior removal
Reinstated Final Order Date
order”

Prior Removal (74) “Prior removal (yes/no)”

Most Recent Prior Depart Date (75) “Date of latest prior removal”

ICE denied Plaintiffs’ administrative appeal of the agency’s response to the August 2016

Request. First Mem. Op. at 4. The agency reasoned that because the relevant fields did not exist

in the EID, Plaintiffs were not entitled to them under FOIA. Id.

B. Procedural Background

On June 8, 2017, Plaintiffs brought this FOIA action to challenge ICE’s denial of their

administrative appeal and to compel ICE to produce the disputed fields. After the parties filed

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cross-motions for summary judgment, on September 28, 2018, the court issued a Memorandum

Opinion concluding that there remained a genuine dispute of material fact concerning whether the

requests at issue require ICE to create new records. See First Mem. Op. The court found that

ICE’s explanations were “neither request nor data-point specific,” and that “to the extent ICE’s

declarant addresse[d] a particular request or data point in her declarations, she relie[d] upon generic

explanations and hyper-technical rhetoric to describe the ‘additional analysis’ purportedly

demanded by Plaintiffs’ requests.” Id. at 15. The court denied both parties’ motions without

prejudice. Id. at 16.

In June 2020, the parties submitted renewed cross-motions for summary judgment.

See Def.’s Mot.; Pls.’ Mot. The briefing once again centered on whether ICE’s production of the

disputed fields necessitates the creation of new records. See Def.’s Reply in Supp. of Mot. for

Summ. J. & Opp’n to Pls.’ Cross-Mot. for Summ. J., ECF No. 60 [hereinafter Def.’s Reply],

at 4–16; Pls.’ Reply in Supp. of Second Cross-Mot. for Summ. J., ECF No. 63 [hereinafter Pls.’

Reply], at 2–9. On May 27, 2021, the court held an evidentiary hearing to resolve factual disputes

underlying that question. The court heard testimony—both in open court and in a sealed, ex parte

session—from Timothy Gibney, Management and Program Analyst and project manager for IIDS.

See May 27, 2021 Hr’g Tr., ECF No. 77 [hereinafter Hr’g Tr.], at 13. The court also heard

testimony from Plaintiff Long, an Associate Professor of Managerial Statistics at Syracuse

University. Id. at 137.

III. LEGAL STANDARD

Although “the vast majority of FOIA cases” are appropriately resolved on motions for

summary judgment, the D.C. Circuit has observed that summary judgment is “not always” proper.

Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011); see also

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Gov’t Accountability Project v. FDA, 206 F. Supp. 3d 420, 430 (D.D.C. 2016) (noting that while

courts “routinely resolve FOIA disputes in the summary judgment context,” “summary judgment

cannot be granted if dueling affidavits create a genuine dispute over issues of material fact”). In

those situations, “[r]esolving issues of material fact . . . has, for example, required . . . an

evidentiary hearing.” Scudder v. CIA, 25 F. Supp. 3d 19, 29 (D.D.C. 2014).

Because evidentiary hearings are rare in the FOIA context, the case law outlining the

standards that govern those proceedings is unsurprisingly thin. Here, the court applies the same

standard it used to resolve a previous FOIA dispute between the same parties that also involved an

evidentiary hearing: the agency has the burden to prove by a preponderance of the evidence that

the factual dispute should be resolved in its favor. See Long v. ICE, 464 F. Supp. 3d 409, 417

(D.D.C. 2020); cf. Nat’l Parks & Conservation Ass’n v. Kleppe, 547 F.2d 673, 679–83 (D.C. Cir.

1976) (reviewing for clear error a trial court’s findings—following a two-day evidentiary

hearing—that certain factual predicates for an agency’s withholding were supported by “[t]he

preponderance of the evidence”).

IV. DISCUSSION

FOIA requires that federal agencies, “upon any request for records which (i) reasonably

describes such records and (ii) is made in accordance with published rules . . ., shall make the

records promptly available to any person,” 5 U.S.C. § 552(a)(3)(A), provided those records are not

exempt from disclosure, see id. § 552(b); see also Citizens for Resp. & Ethics in Wash. v. U.S.

Dep’t of Justice, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (“FOIA provides a ‘statutory right of

public access to documents and records’ held by federal government agencies.” (quoting Pratt v.

Webster, 673 F.2d 408, 413 (D.C. Cir. 1982))). That said, the statute “imposes no duty on the

agency to create records.” Forsham v. Harris, 445 U.S. 169, 186 (1980) (emphasis added);

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see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162 (1975) (FOIA provides for “disclosure of

certain documents which the law requires the agency to prepare or which the agency has decided

for its own reasons to create”). FOIA “only requires disclosure of documents that already exist,

not the creation of new records not otherwise in the agency’s possession.” Nat’l Sec. Couns. v. CIA

(NSC II), 969 F.3d 406, 409 (D.C. Cir. 2020).

The question this case presents is whether ICE’s production of the disputed fields would

require the creation of new records under FOIA. Before answering that question, the court

provides the following factual findings for context.

A. The Secure Communities Removals Report and the Disputed Fields

To assist ICE’s immigration enforcement efforts, when an individual is arrested by local

law enforcement, his fingerprints may be taken and run against the DHS immigration fingerprint

database and the Federal Bureau of Investigation’s fingerprint database. Hr’g Tr. at 14–15. This

process is known as an “interoperability query.” See id. at 15. If the query results in a match, the

system presents ICE with a notification that the individual is potentially deportable. Id. at 27. ICE

can then choose to issue a “detainer,” id., which is a notice informing the local law enforcement

agency that DHS intends to assume custody of the individual once he is no longer subject to local

law enforcement’s detention. 2 The information regarding issued detainers is input into the EID.

Id. at 24. Critically, however, the EID does not document whether the detainer was issued because

of an interoperability match, or due to some other reason. Id. at 31.

DHS’s Secure Communities Program—which ran from 2008 to 2014 and was revived from

2017 to 2021—required ICE to report which of its detainers and subsequent immigration removals

2
See Dep’t of Homeland Sec., Immigration Detainer – Notice of Action at 2, https://www.ice.gov/doclib/secure-
communities/pdf/immigration-detainer-form.pdf (last visited Sept. 1, 2021).
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resulted from an interoperability match. Id. at 16–19. To comply with this reporting requirement,

ICE engaged in a multistep process. First, to ensure the continued integrity of the EID, ICE relied

on an imported copy of the EID’s data in the IIDS, its data warehouse system for reporting,

analytics, and queries. Id. at 31–33. Next, ICE ran a “correlation analysis” consisting of multiple

“complex matching algorithm[s]” that attempted to link the removals and detainers in the IIDS

with particular interoperability queries. Id. at 37–38. The algorithms utilized, among other

elements, fingerprint identification numbers and various biographical data of the individual subject

to the removal/detainer. Id. The linked enforcement events were then aggregated and eventually

packaged into the “Secure Communities (SC) Removals Report.” See Def.’s Reply, Suppl. Decl.

of Patricia J. De Castro, ECF No. 60-2, ¶ 12; Hr’g Tr. at 41–42. Although production of the SC

Removals Report was not required between 2014 and 2017, see Hr’g Tr. 17–18, ICE continued

running the correlation analysis voluntarily as part of its responses to Plaintiffs’ periodic FOIA

requests for SC Program data, see First Mem. Op. at 3 (noting the December 2015 Request).

“[I]n the context of an SC removal,” however, “the [disputed] fields don’t exist.” Hr’g Tr.

at 42. More concretely, to produce those fields, ICE must build upon what is available in the

SC Removals Report. ICE would need to run a “secondary analysis” of the underlying data in the

SC Removals Report against the broader IIDS removals dataset. Id. at 52–53. That analysis

requires additional complex correlations and calculations to establish connections between various

data points across the two sources. Id.; see id. at 43 (reiterating the same).

B. The Creation of New Records

With that context in mind, the court turns to whether producing the disputed fields would

require ICE to create new records. The only D.C. Circuit authority meaningfully referenced by

either party is National Security Counselors v. CIA. See Def.’s Reply at 12–14; Pls.’ Reply at 7.

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There, the plaintiff “submitted FOIA requests to the CIA for a listing of all FOIA requesters from

fiscal years 2008 to 2010 organized under each of four fee categories contemplated by FOIA.”

NSC II, 969 F.3d at 408. After the CIA declined to process the requests, the plaintiff sued. Id. On

appeal, the Circuit held for the agency and concluded that processing the requests “would require

the agency to create new records, not to disclose existing ones.” Id. at 409. For support, it cited a

declaration from the CIA’s Information Review Officer stating that, to produce the requested

listings, an analyst “would be required to individually review each FOIA request submitted from

2008 to 2010 and manually sort thousands of requests based on fee category.” Id. (internal

quotation marks omitted). The Circuit also noted that it had no occasion “to consider whether

sorting a database by field would involve the creation of new records” because the CIA’s FOIA

database “d[id] not contain the relevant field (i.e. fee category) as mandatory information in the

first place.” Id.

ICE asserts that National Security Counselors “is directly on point” and resolves the matter

in its favor. Def.’s Reply at 13. The court disagrees. ICE emphasizes that, like in National

Security Counselors, neither the IIDS nor the EID contains the disputed fields as a matter of course.

See id. But unlike that case, the information required to produce the disputed fields does exist in

the IIDS. See, e.g., Hr’g Tr. at 60 (“But—so is detainer data in IIDS? Of course, yes.”), 61 (“So

the underlying detainer data exists. I’m not saying—it’s obviously there.”); see also id. at 62, 65.

The question remains, therefore, whether producing those fields using the information available

necessitates the creation of new records. The court holds that it does.

Courts in this District have recognized that “sorting a pre-existing database of information

to make information intelligible does not involve the creation of a new record

because . . . computer records found in a database rather than a file cabinet may require the

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application of codes or some form of programming to retrieve the information.” Nat’l Sec. Couns.

v. CIA (NSC I), 898 F. Supp. 2d 233, 270 (D.D.C. 2012) (cleaned up), aff’d, 969 F.3d 406 (D.C.

Cir. 2020); see Long v. CIA, No. 15-cv-1734 (TSC), 2019 WL 4277362, at *4 (D.D.C. Sept. 10,

2019) (“[T]he court is unconvinced by the . . . argument that writing new computer code to locate

responsive records in [the agency’s] database or compiling the resulting records constitute the

creation of a new record.”). Here, however, to produce the disputed fields, ICE must do more than

simply sort through information using preexisting connections—it must create many of those

connections in the first instance. As one of the agency’s declarants explains, to fulfill Plaintiffs’

requests, ICE analysts must “create new data combinations” and sub-combinations that “do not

automatically connect to each other in the ICE database.” Def.’s Mot., Decl. of Patricia J. De

Castro, Ph.D, ECF No. 53-3 [hereinafter De Castro Decl.], ¶¶ 40–41; see also id. ¶ 44 (“Ultimately,

the problem is that Plaintiffs seek . . . extensive data connections . . . concerning individuals and

all their immigration enforcement experiences, and the ICE database structure simply does not

accommodate that request format.”). The court addresses two groups of disputed fields that

illustrate the point.

First, the four fields that relate to detainers: “Detainer Prepare Date,” “Detainer Facility

City,” “Detainer Facility State,” and “Detainer Threat Level.” Those fields correspond to the

information sought in Request 22 (“Was I-247/I-247D issued for individual before removal yes/no,

and date issued”); Request 23 (“Was I-247N issued for individual before removal (yes/no), and

date issued”); Request 26 (“City, county and state of jail or facility in which the individual was

detained prior where the I-247/I-247D/I-247N was sent”); and Request 27 (“Detainer threat level

(or corresponding notice threat level)”). See First Long Decl., Ex. F. For those fields, ICE’s

testifying witness, Timothy Gibney, noted that the “correlation analysis does attempt to put

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together a detainer with a removal,” but “there’s no context between the two.” Hr’g Tr. at 54; see

De Castro Decl. ¶ 80 (“The database does not connect a particular detainer to a particular

removal.”). The De Castro Declaration provides additional details. See De Castro Decl. ¶¶ 80–83.

To produce the “Detainer Prepare Date” field responsive to Request 22, for example, an analyst

would “need to first develop a method to connect millions of individuals (with no universal ID

number) with all their detainers.” De Castro Decl. ¶ 80. “Then they would need to develop a new

way to analyze relative SC removals and detainer dates to see if a detainer occurred before a

removal.” Id. Those steps are made more difficult by the fact that “an individual can have many

removals and many detainers.” Id.

The agency offers a similar explanation for the ten fields that relate to an individual’s

criminal history. Those fields correspond to the information sought in Request 43 (“Charged with

a crime (yes/no) (any charge, not restricted to convictions)”); Request 54 (“Information on every

conviction not just the most serious (date of the charge, date of the conviction, NCIC code for

charge, level of offense (felony, misdemeanor, citation, etc.), sentence received)”); Request 55

(“Information on every charge not just the most serious for which a conviction has not occurred

(date of charge, current status, NCIC code for charge, level of offense (felony, misdemeanor,

citation, etc.))”); and Request 57 (“Aggravated felon yes/no”). See First Long Decl., Ex. F. When

asked what the agency would need to do to produce those fields, Gibney testified that after pulling

the full criminal history, ICE would have to “create[] a unique identifier that would link . . . the

removal case in the Secure Communities dataset to the criminal history.” Hr’g Tr. at 56 (emphasis

added). To produce the “Charged with Crime” field responsive to Request 43, for instance, an

analyst would need to identify the relevant Secure Communities matches and “would then [need

to] create a new connection between all those individuals and the criminal data . . . [to] determine

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a ‘yes’ or ‘no’ based on whether they were charged with a crime.” De Castro Decl. ¶ 84. That

process “is complicated by the fact that an individual may have numerous removals and numerous

[potential] criminal charges,” the latter of which would require an analyst to “look[] at each

matching record for an individual to determine if even one met the standard of ‘charged with a

crime.’” Id.

As these examples demonstrate, the production of the disputed fields requires ICE to

manufacture complex and often imprecise connections between otherwise facially unrelated data

in the IIDS. See, e.g., Hr’g Tr. at 54 (stating that “the matching algorithm is a little inconsistent”

and certain detainers may not ultimately be related to the matched removal case). Because

constructing those connections requires the agency to go beyond merely “sorting . . . information

to make [it] intelligible,” NSC I, 898 F. Supp. 2d at 270, or “writing new computer code to locate

responsive records,” Long, 2019 WL 4277362, at *4, production of the disputed fields is

tantamount to the creation of new records. 3

Plaintiffs advance two related objections to the agency’s characterization of what it takes

to produce the disputed fields. Neither moves the needle. First, Plaintiffs highlight the information

ICE already produced in response to the August 2016 Request, noting that those responsive records

included some SC Removals–specific data. Pls.’ Reply at 4–5 (citing Jones Decl. ¶ 42). For

example, ICE provided Plaintiffs with the “state and county that originated the fingerprint

submission resulting in [the SC match].” Jones Decl. ¶ 42. Plaintiffs assert that if such information

3
Plaintiffs analogize the production of the disputed fields to a hypothetical in which “DOJ had a set of files on all
cities that received a DOJ law enforcement grant and a separate list of cities that had a DOJ investigation of a police
shooting.” Pls.’ Reply at 6. In Plaintiffs’ view, if DOJ received a request for the file of every city that (1) received a
DOJ grant and (2) was also the subject of a DOJ investigation, “it would have to use the list[s] to identify and gather
the responsive files but doing so would not involve the creation of new records.” Id. But Plaintiffs’ hypothetical is
distinguishable from the instant case. The former requires simple sorting based on a preexisting identifier (i.e., the
city) that naturally connects the two data sources. Producing the disputed fields, by contrast, requires ICE to use
analysis and calculations to create predicate links between the relevant data.
13
can be produced “straight from IIDS without need for the ‘analysis’ or ‘calculations’ that ICE

contends constitutes the creation of new records,” then the same should be true for the disputed

fields “because all records responsive to the FOIA request relate to individuals identified as SC

matches.” Pls.’ Reply at 4.

Plaintiffs’ argument misapprehends the agency’s reason for refusing to produce the

disputed fields. Gibney testified that, as part of the agency’s “legacy standard reporting process,”

ICE ran the necessary correlative analysis to build the SC Removals Report. Hr’g Tr. at 68. And

“if what was requested [in Plaintiffs’ FOIA request] . . . was in [the SC Removals Report], [the

agency] provided it [to Plaintiffs].” Id.; see id. at 69 (agreeing that “if there are Secure

Communities fields that are in the database that are responsive, the agency has produced that

data”). That explains why some of the fields produced in response to the August 2016 Request

incorporated SC Removals data. But the disputed fields, Gibney noted, are not native to the SC

Removals Report. See id. at 68 (“Other things that they’re asking for don’t exist and they require

analysis and calculation to produce those records.”). Recall that to produce those fields, ICE would

need to run a “secondary analysis” of the underlying data in the SC Removals Report against the

broader IIDS removals dataset. Id. at 52–53. It is that required extra analysis that (1) differentiates

the disputed fields from other, already produced SC Removals–related fields; and (2) forms the

basis for the agency’s justified refusal to produce the disputed fields.

Second, Plaintiffs assert that ICE’s representations about the disputed fields are “belied by

the IIDS database schema admitted in evidence in Long v. ICE, [464 F. Supp. 3d 409 (D.D.C.

2020)].” Pls.’ Reply at 5. The schema’s introduction states that the IIDS includes “Secure

Communities (SC)” data and has among its sources the “SC Interoperability Controlling Agency

(CRI) Master List, and Automated Biometric Identification System (IDENT).” Pls.’ Mot., Ex. 1

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of Third Decl. of Susan B. Long, ECF No. 54-1, at 1. Various figures and dimensional models

further indicate that the IIDS contains multiple fields related to the Secure Communities program.

See, e.g., id. at 9–14. This evidence, Plaintiffs submit, contradicts “ICE’s assertion that IIDS

‘do[es] not label events as related to SC.’” Pls.’ Reply at 6 (first alteration in original) (quoting

Def.’s Reply, Suppl. Decl. of Patricia J. De Castro, ECF No. 60-2, ¶ 23).

Plaintiffs are correct about the presence of SC-related fields in the IIDS. Hr’g Tr. at 81.

But that fact is entirely consistent with Gibney’s testimony that the “[disputed] data fields . . . are

not reflected in the[] schema” in the first place. See id. at 80–81. The SC-related fields Plaintiffs

identify in the schema were created via the correlative analysis process that resulted in the SC

Removals Report. See id. at 82 (“[I]t is another extract, transform, load process that creates SC-

related data within IIDS, which we then query in the form of our standard Secure Communities

removal populations.”). And as Gibney testified, ICE already provided Plaintiffs with all the

records contained within the SC Removals Report that are responsive to the August 2016 Request.

See id. at 68. The disputed fields were not produced precisely because they “simply do[n’t] exist

in the SC removals report.” Id. at 42.

As a general matter, Plaintiffs fail to call Gibney’s testimony into question. Their cross-

examination gave the court no concrete reason to discount the accuracy of Gibney’s

characterization of the steps required to produce the disputed fields. See id. at 92–131. Nor did

Plaintiff Long’s own testimony. See id at 137–64. She testified, for instance, that the work

involved in responding to Plaintiffs’ requests “certainly isn’t creating records” because “[t]here

are . . . built-in cross-links between the [data] tables [within the IIDS].” Id. at 140; see id. (“You

just link them and the database management system pulls them together.”). She could assert as

much because, to her knowledge, ICE is using a “publicly available” commercial database

15
management system for the IIDS. Id. at 163. Yet, on cross-examination, she admitted that she

had never directly worked with the IIDS or seen a query being run from within the database. Id.

at 162. And, in any event, the “cross-links” that Long posited must exist in the IIDS in fact do not

independently appear in the database; rather, they must be created through the correlative analysis

process that Gibney described. Accordingly, the court resolves the factual dispute over how the

disputed fields are produced in favor of ICE.

* * *
In sum, because the court credits ICE’s explanation of how the disputed fields are produced

and further concludes that such production requires the creation of new records, it grants

Defendant’s cross-motion for summary judgment and denies Plaintiffs’ cross-motion.

V. CONCLUSION

For the reasons set forth above, the court grants Defendant’s cross-motion for summary

judgment and denies Plaintiffs’ cross-motion. A separate final order accompanies this

Memorandum Opinion.

Dated: September 2, 2021 Amit P. Mehta
United States District Court Judge

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