UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Transcription

1 Case :-cv-00-jjt Document Filed 0// Page of 0 0 Victoria Lopez (Bar No. 00) Daniel J. Pochoda (Bar No. 0) James Duff Lyall (Bar No. 00) ACLU FOUNDATION OF ARIZONA 0 North th Street, Suite Phoenix, AZ 0 Tel: (0) 0- vlopez@acluaz.org dpochoda@acluaz.org jlyall@acluaz.org David Loy Mitra Ebadolahi ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES P.O. Box San Diego, CA Tel: () - davidloy@aclusandiego.org mebadolahi@aclusandiego.org Whitty Somvichian (CA SBN ) Aarti G. Reddy (CA SBN ) COOLEY LLP 0 California Street th Floor San Francisco, CA -00 Tel: () wsomvichian@cooley.com areddy@cooley.com Attorneys For Plaintiffs ACLU FOUNDATION OF ARIZONA; et al., v. Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES DEPARTMENT OF HOMELAND SECURITY OFFICE FOR CIVIL RIGHTS AND CIVIL LIBERTIES, et al., Defendants CASE NO.: CV--00-PHX- JJT OPPOSITION TO DEFENDANTS MOTION FOR EXTENSION OF PRODUCTION AND BRIEFING DEADLINES (First Request)

2 Case :-cv-00-jjt Document Filed 0// Page of 0 0 I. INTRODUCTION Defendants motion for an extension should be denied because they fail to provide the Court with any legally cognizable basis for such an extension. The relevant legal standard, which Defendants do not bother to reference in their Motion for Extension of Production and Briefing Deadlines ( Motion ), requires that Defendants show exceptional circumstances and due diligence in responding to the request in order to obtain an extension. None of the arguments presented in Defendants Motion satisfy these requirements. First, Defendants primary basis for their Motion appears to be their purported identification of,00 additional responsive pages. However, Defendants knew that their prior page count was inaccurate and told the Court as much during the status conference four months ago; thus, Defendants recent acknowledgement of that fact is hardly an exceptional circumstance. Second, Defendants contend that CBP and OIG are processing documents at a rate of 00 and 000 pages per month, respectively. Yet the number of pages actually produced by CBP and OIG in the last four months 0 pages and pages belies any claim of diligence. Third, Defendants also attempt to blame Plaintiffs for their own delay by pointing to Plaintiffs purported unwillingness to narrow their Request. This argument is both factually inaccurate and legally irrelevant. Defendants have not offered any reasonable, good faith proposals for narrowing the FOIA Request, as they are required to do. Even if they had, the parties failure to agree on narrowing does not justify the extension that Defendants seek. Even if Defendants had met the legal requirements for an extension (and they have not), the proposed extension should still be denied because it would substantially prejudice Plaintiffs. Defendants proposal delays full resolution of this case until at least mid-0, thereby jeopardizing the value of the requested information, which spans a time period of 00-0, and causing a complete fail[ure] to afford [the] accountability of government that [FOIA] requires. ACLU v. Dep t of Def., F. Supp. d 0, 0 (S.D.N.Y. 00). For these reasons, Defendants requested extension, including the

3 Case :-cv-00-jjt Document Filed 0// Page of 0 0 additional one-month delay for the production of a Vaughn index, should be denied. Further, given Defendants continuing violation of the FOIA and the still glacial pace of Defendants production to date, Plaintiffs respectfully request that the Court require Defendants to provide Plaintiffs and the Court with a fuller accounting of Defendants efforts to comply with this Court s Scheduling Order, and to provide periodic updates, such as monthly status reports, to ensure that Defendants are in compliance. II. BACKGROUND i. Plaintiffs FOIA Request. On December, 0, Plaintiffs American Civil Liberties Union of Arizona ( ACLU of Arizona ) and American Civil Liberties Union of San Diego and Imperial Counties ( ACLU of San Diego ) submitted a FOIA request (the Request ) to defendant Department of Homeland Security ( DHS ). DHS forwarded the Request to each of four component sub-agencies, Customs and Border Protection ( CBP ), Office for Civil Rights and Civil Liberties ( CRCL ), Immigration and Customs Enforcement ( ICE ), and Office of Inspector General ( OIG ) (together with DHS, Defendants ). Plaintiffs requested expedited processing of the Request pursuant to U.S.C. (a)()(e)(i) and U.S.C. (a)()(e)(v). The Request seeks records related to abuse and mistreatment of children in the custody of Defendant CBP and its sub-agency, the Office of Border Patrol, from 00 to 0. The Request arose out of a series of investigations and policy reports that have consistently described verbal and physical abuse of young children in Border Patrol custody. (Complaint ( Compl. ) at 0.) While DHS has acknowledged recurring problems in CBP detention facilities, it has taken minimal steps to address these issues. (Compl. at.) Several high ranking officials have suggested that CBP is rife with coverups and corruption and is actively working to thwart investigation into agency misconduct. (Compl. at, fn..) The purpose of the Request is to gather information regarding the full extent of the abuse and mistreatment of children in Border Patrol facilities in order to provide a check against corruption and to hold DHS accountable for

4 Case :-cv-00-jjt Document Filed 0// Page of 0 0 providing competent care for juvenile detainees. See NLRB v. Robbins Tire & Rubber Co., U.S., () (the purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed ). Following submission of the Request to DHS, Plaintiffs received responses from three of DHS s component agencies CRCL, OIG, and ICE invoking ten-day extensions under U.S.C. (a)()(b) and denying Plaintiffs request for expedited processing, but declining to provide a determination as to the Request. (Compl. at 0.) Plaintiffs received no correspondence from CBP. (Id.) More than one full year ago, on February, 0, after the deadline for DHS and all component agencies to respond to the Request had passed, Plaintiffs filed the instant complaint. ii. Proceedings To Date. On September, 0, the parties submitted to the court a Joint Status Report ( JSR ), detailing the production of documents to date and the anticipated scope of future review; each party proposed separate production and briefing schedules. (ECF No..) Plaintiffs proposed that Defendants complete their production by February, 0 with summary judgment briefing beginning April, 0. (Id. at.) Defendants noted that they had completed their document search, but the exact number of pages was uncertain because the records were complex, including s with attachments of varying lengths. (Id. at,.) Defendants argued that a production and briefing schedule was premature, and proposed that they continue to produce at the rate of 00 pages per month. Plaintiffs observed that this pace would result in the completion of production by ICE, OIG, CRCL, and OIG within eight, ten, thirty and eighty months, respectively. (Id. at.) At the status conference held telephonically on October, 0, counsel for Defendants subsequently informed the Court that the number of potentially responsive Only ICE and OIG denied Plaintiffs request for expedited processing. CRCL neither granted nor denied Plaintiffs request. CBP provided no response to any aspect of Plaintiffs Request, including the request for expedited processing.

5 Case :-cv-00-jjt Document Filed 0// Page of 0 0 pages for component agency OIG was roughly ten-times greater than originally projected in the parties submission. Notwithstanding the Defendants claimed constraints, the Court ordered Defendants to complete their production by May, 0 and file dispositive motions beginning June, 0. (ECF No. 0 ( Scheduling Order ).) While the Court initially requested supplemental briefing regarding the contents of a Vaughn index, (id.), it subsequently vacated that request and ordered Defendants to produce a Vaughn index with their final document production on May, 0. (ECF No..) Defendants began production of documents in response to Plaintiffs December 0 FOIA Request in June 0. By the time the Court issued its Scheduling Order on October, 0, Defendants had collectively produced roughly 0 pages approximately 00 pages from CBP, 00 pages from CRCL, 000 pages from ICE, and 0 pages from OIG. Since that time, Defendants have not significantly increased their rate of production. Specifically, CBP has produced approximately 00 pages; ICE has produced 00 pages; CRCL has produced 0 pages. (Declaration of Aarti Reddy ( Decl. ) at 0-.) Although OIG has produced about 0 pages, about of those pages consisted of public documents that required no processing, including letters from Pope Francis, public laws, copies of websites, and policy reports from non-profit agencies like the ACLU. (Id. at.) The parties have also been in communication since May 0 regarding possible narrowing of the Request, the adequacy of Defendants document searches, the lawfulness of Defendants redactions, and Plaintiffs concerns regarding Defendants rate of production. None of these discussions have been fruitful; however, Defendants representations regarding these discussions are rife with misrepresentations. Plaintiffs briefly address these inaccuracies to clarify the factual record, and have attached the referenced correspondence as exhibits. Plaintiffs have since informed Defendants that they need not produce publicly available, non-dhs documents in the future.

6 Case :-cv-00-jjt Document Filed 0// Page of 0 0 First, Defendants claim that Plaintiffs ignored CBP s September, 0 asking that Plaintiffs consider narrowing the Request. (Mot. at.) That is not true. In the correspondence at issue, counsel for Defendants noted that a large number of documents that CBP was processing were non-responsive and requested assistance in narrowing or refining search parameters. ( Decl. at.) In a call with opposing counsel on September, 0, Plaintiffs counsel indicated their willingness to assist CBP and requested additional information about the search terms CBP was employing. (Id. at.) On September, 0, and October, 0, Defendants counsel related that she was still working to finalize the information regarding the scope of [each agency s] searches. (Id. at,.) One month later, having received no further information from Defendants counsel about the agencies searches, Plaintiffs inquired as to whether Defendants still intended to provide search information. (Id. at.) Defendants indicated that they did not, noting that the Court has entered a briefing schedule and settlement discussions no longer seem fruitful. (Id. at.) Second, as to OIG, although Plaintiffs have no statutory obligation to narrow their Requests and such narrowing is typically not warranted where as here the request is already relatively narrow in scope, Plaintiffs repeatedly indicated a willingness to do so, provided that Defendants provide further information on those proposals (which they failed to do). OIG made its first proposal that Plaintiffs narrow their Request before OIG had produced any documents to Plaintiffs. Accordingly, Plaintiffs responded to OIG s request by explaining that it was premature given that Plaintiffs lacked sufficient information to assess whether any narrowing proposal was appropriate or viable. In October 0, OIG proposed that parts (a), (b), (c), (d) of the Request regarding records pertaining to complaints or investigations of verbal, physical, sexual abuse, or conditions of confinement of children in DHS custody be narrowed to include only certain records related to cases that resulted in formal investigations. (Id. at.) Counsel for Plaintiffs agreed to consider the request if they could obtain enough information about the

7 Case :-cv-00-jjt Document Filed 0// Page of 0 0 agency s search and the types of records it has identified to be able to make an informed decision regarding the proposal to narrow. (Id.) Defendants responded on November, 0, by withdrawing their proposal. (Id. at.) OIG also proposed that Part (a) of the Request regarding records related to three interim reports regarding Oversight of Unaccompanied Alien Children prepared by DHS be narrowed to exclude 00 pages collected from OIG s Offices of Investigations, Legislative Affairs, Public Affairs and Front Office. (Id. at.) In response, Plaintiffs stated that they could not accept the proposal at that time because: () the Government had provided no information as to what was contained in the documents proposed to be excluded, and () OIG had produced such a small number of pages to date (0, approximately 0 of which were public documents), that OIG would almost certainly still be unable to comply with this Court s Scheduling Order, irrespective of the narrowing proposed by OIG. (Id. at.) Defendants declined to provide any additional information regarding the documents proposed to be excluded; as a result, once again, negotiations stalled. Defendants filed their motion for an extension on February. III. ARGUMENT I. Defendants Have Not Met the Legal Requirements for an Extension The FOIA statute imposes strict deadlines regarding a government agency s response to a FOIA request. U.S.C. (a)()(a). These limitations exist with good reason, and reflect the congressional understanding that delays undermine the purpose of FOIA. See ACLU v. DOD, F. Supp. d at 0 ( In amending FOIA, Congress evinced an increasing concern over the timeliness of disclosure, recognizing that delay in Counsel for Defendants failed to adequately meet and confer prior to the filing of this motion. Counsel for Defendants first informed Plaintiffs counsel via at : PM EST on February, 0 of their intention to file the instant Motion. (Id. at.) In response, Plaintiffs counsel asked to review a draft of the motion, additional information regarding Defendants position, and forty-eight hours to confer with co-counsel. (Id.) Defendants counsel refused these requests and filed a fifteen-page brief less than twentyfour hours after notifying Plaintiffs of their intent to seek an extension, before Plaintiffs had an opportunity to apprise Defendants of their position on the motion. (Id.)

8 Case :-cv-00-jjt Document Filed 0// Page of 0 0 complying with FOIA requests may be tantamount to denial. ); EPIC v. DOJ, F. Supp. d 0, (D.D.C. 00) ( [U]nreasonable delays in disclosing non-exempt documents violate the intent and purpose of the FOIA, and the courts have a duty to prevent [such] abuses. ) (quoting Payne Enters. v. United States, F.d, (D.C. Cir. )). Further, the FOIA statute provides that an agency s request for additional time may be granted only where an agency can show exceptional circumstances and due diligence in responding to the request. U.S.C. (a)()(c)(i). As the party seeking additional time to process a FOIA request, Defendants bear the burden of showing its entitlement to relief. Exner v. FBI, F.d, (th Cir. ). Here, Defendants do not even argue that they have met the relevant statutory requirements, and for this reason alone, their motion for an extension must be denied. Elec. Privacy Info. Ctr. v. United States DOJ, No (CKK), 00 U.S. Dist. LEXIS, at * (D.D.C. Aug., 00) (denying motion for -month extension because Defendant does not specifically allege that exceptional circumstances exist, nor does it assert that it has exercised due diligence... [a]s such, the Court lacks the required foundation to evaluate the need for an extension). However, even assuming they had done so, Defendants are not entitled to an extension because they have not presented any facts warranting such relief. i. Defendants Have Not Shown Exceptional Circumstances Defendants have not even argued, let alone established, that exceptional circumstances justify their request for additional delay. Exceptional circumstances exist where the agency has found it impossible to respond to a request within the time limits specified, even with all due diligence. Open Am. v. Watergate Special Prosecution Force, F.d 0, 0- (D.C. Cir. ). Notably, inadequate staff, insufficient funding or a great number of requests are not within the meaning of exceptional circumstances as that language is used in the statute nor were they within the contemplation of its framers as evidenced by the legislative history. Hamlin v. Kelley, F. Supp. 0, (N.D. Ill. ). Here, Defendants assert that an extension is

9 Case :-cv-00-jjt Document Filed 0// Page of 0 0 warranted because: () the component agencies have identified,000 additional potentially responsive pages; () agency backlog has delayed processing; and () Plaintiffs have refused to narrow their broad Request. None of these issues qualify as exceptional circumstances. First, OIG s and CBP s purported identification of additional pages does not constitute exceptional circumstances because Defendants have already informed this Court of many of these pages, and because Defendants anticipated (or should have anticipated) the need to timely process and produce them. Defendants provide no explanation as to why their estimate of potentially responsive pages has increased; nor do they clarify whether this reflects identification of additional documents or simply a more accurate page count of documents Defendants had already identified. OIG: There has been no material change in circumstances with respect to OIG rendering its performance otherwise impossible. Rather, OIG has repeatedly understated the number of potentially responsive pages. During the parties Joint Status Conference, Defendants informed the Court that OIG had identified at least,000 potentially responsive pages, rather than the,00 cited in the JSR. The Court s Scheduling Order thus takes into account over half of Plaintiffs purported page count increase. Moreover, Defendants have provided no explanation as to why OIG s page count has markedly increased. If the increase is due to the discovery of new documents, Defendants should explain why OIG is still discovering additional responsive documents more than one year after receiving Plaintiffs Request. If the additional pages are instead the result of a more accurate page count of documents Defendants had already identified, the timing of this discovery has been entirely within Defendants control. In either event, Defendants should not be rewarded for their failure to perform a diligent and adequate search for documents, or an accurate count of pages; nor does this failure constitute exceptional circumstances. //

10 Case :-cv-00-jjt Document Filed 0// Page 0 of 0 0 CBP: Defendants claim again, without explanation that CBP discovered,000 additional pages, increasing the total number of potentially responsive pages to,0. (Mot. at ; JSR at.) Even assuming the delay in discovering these pages is not attributable to the inadequacy of CBP s initial search, a % increase in the number of pages of documents the agency must review is not an exceptional circumstance meriting a four-month extension, particularly in light of the fact that this FOIA Request has been pending for months. Second, Defendants claim that an extension is warranted because CBP has a backlog of FOIA requests (Mot. at ). However, Section (a)()(c)(ii) of the FOIA statute expressly provides that exceptional circumstances does not include a delay that results from a predictable agency workload of requests. Defendants do not contend that CBP s backlog is anything more than the predictable agency workload of requests, and thus this circumstance cannot constitute exceptional circumstances. Hamlin, F. Supp. at. Third, although Defendants suggest that their inability to comply with the Scheduling Order is due to Plaintiffs unwillingness to consider narrowing the scope of the Request, this too is not an exceptional circumstance. Even if Defendants factual contentions were accurate (and as described above, they are not), FOIA does not obligate a party to narrow upon request. On the contrary, FOIA mandates that so long as a request for records reasonably describes such records... and [is] made in accordance with published rules, an agency shall make the records promptly available. U.S.C. (a)()(a). Further, the Request is not facially overbroad. It is limited to those records relating to verbal, physical, or sexual abuse of children in DHS custody, including claims related to poor conditions of confinement, and DHS s efforts to comply with applicable While Defendants claim to have identified an additional,000 pages over their initial estimate, Defendants also represent that the number of responsive pages now totals,0. (Mot. at.) This represents only an additional 0 pages over the estimate of,00 pages provided to the Court in the JSR. (JSR at.)

11 Case :-cv-00-jjt Document Filed 0// Page of 0 0 regulations for a five-year period. Nor is the Defendants projected volume of responsive materials,00 pages, and likely far fewer records excessively burdensome as to strain DHS s ability to respond within. years. Finally, Defendants argument is precisely backwards, as it is Defendants obligation to offer Plaintiffs reasonable, good faith proposals for narrowing, and they failed to do so here. Ruotolo v. DOJ, Tax Div., F.d, 0 (d Cir. ) (holding the Department of Justice had a duty to assist FOIA requesters in reformulating their request if it was thought that the request needed to be narrowed ). As explained above, Defendants have made no reasonable proposal as to how the Request may be modified. Cf. U.S.C. (a)()(c) (the refusal by a person to reasonably modify the scope of a request may be considered in evaluating whether exceptional circumstances exist (emphasis added)). CBP did not propose that any aspect of the Request be narrowed, but only requested Plaintiffs assistance with crafting search terms, and then withdrew this request without providing Plaintiffs with any pertinent information. OIG made two proposals to narrow the Request; the first proposal was quickly withdrawn, while the second provided so little information as to the records suggested to be excluded that Plaintiffs were unable to determine whether the proposal was reasonable. Thus, Defendants attempts to invoke Plaintiffs purported unwillingness to narrow as a basis for an extension should be rejected. ii. Defendants Have Not Shown Due Diligence. Even assuming Defendants established that exceptional circumstances exist, their request for an extension still fails because Defendants incomplete description of the agencies review process does not demonstrate due diligence. Indeed, the pace of production to date underscores that further oversight is needed to ensure that Defendants comply with this Court s Scheduling Order. OIG: While Defendants claim that OIG has devoted additional resources to this review, this representation is undermined by their actual rate of production. OIG claims that it increased its rate of processing from approximately 00 to,00 pages per month 0

12 Case :-cv-00-jjt Document Filed 0// Page of 0 0 between October and December 0 and is continuing to process at a rate of,00 pages per month, but this processing rate does not seem credible based on the number of pages Plaintiffs have received. (Mot. at.) OIG has produced pages since the Court issued its Scheduling Order, of which are public documents that required no processing by OIG. (Decl. at.) The remaining 0 pages reflect a production rate of approximately 0 pages per month, roughly equivalent to OIG s rate of production prior to this Court s Scheduling Order. (Id.) Thus, OIG s claim that their rate of review has increased -fold in response to the Scheduling Order seems doubtful, given that its rate of production has remained the same. CBP: Similarly, although Defendants represent that CBP has devoted additional resources to this review, this too is belied by its actual production of documents. At the time the Court issued its Scheduling Order, CBP had produced 0 pages. (Id. at 0.) Since that time, CBP has produced a total of 0 pages transmitted in two batches on October 0, 0 and November, 0. (Id.) Plaintiffs have received no documents from CBP in the past two-and-a-half months. Defendants only representation relevant to CBP s purported diligence is its statement that CBP assigned additional employees to process FOIA requests on January 0, 0. (Mot. at.) However, Defendants provide no explanation of steps CBP undertook in the three-and-a-half months immediately following this Court s issuance of the Scheduling Order that would allow the Court to conclude that CBP has exercised due diligence. iii. Defendants Contention That They Cannot Increase their Rate of Processing Without Prioritizing Plaintiffs Request Is Legally Irrelevant Although Defendants contend that they cannot comply with the Scheduling Order without prioritizing Plaintiffs Request, this too is an insufficient basis for an extension. As an initial matter, other Courts have squarely rejected the very same argument. In Hamlin, F. Supp. at, the court denied Defendants request for an extension and dismissed as extraordinary the Defendants argument that court-ordered compliance with FOIA would result in an unfair preference to plaintiff over others seeking

13 Case :-cv-00-jjt Document Filed 0// Page of 0 0 documents. Id. It explained that Defendants have not only delayed plaintiff s request for more than a year in clear violation of the statutory time limits, but now suggest that this Court become party to their denial of documents in violation of the statute by holding plaintiff in his place in the line of those awaiting the agencies convenience. Id. The same result follows here, and this Court should decline Defendants invitation to further delay full resolution of this matter until mid-0. Further, Plaintiffs have also requested that this Court review Defendants explicit and implicit denial of their request for expedited processing pursuant to U.S.C. (a)()(e)(i) and U.S.C. (a)()(e)(v). (Compl. at.) Expedited processing is appropriate because children in CBP custody may face continuing, imminent threats to their lives or physical safety. U.S.C. (a)()(e)(v). Moreover, Plaintiffs Request also qualifies for expedited processing because Plaintiffs are entities primarily engaged in disseminating information and there is an urgency to inform the public concerning actual or alleged Federal Government activity. Id. The Court has jurisdiction to review Defendants denial of Plaintiffs request for expedited processing under (a)()(e)(iii), and it would be perfectly appropriate for Defendants to prioritize Plaintiffs Request over other, less urgent matters. II. The Government Should Not be Permitted Additional Time to Produce a Vaughn Index Defendants request to delay the provision of the Vaughn index until Defendants submit their motion for summary judgment should also be rejected. Multiple courts have Additionally, FOIA does not prohibit prioritizing one request above another. Indeed, the Ninth Circuit has held that filing suit under FOIA can create a preference in fulfilling a FOIA request, see Exner, F.d at, and courts have not hesitated to order rapid production of documents to ensure compliance with FOIA. See, e.g., ACLU v. DOD, F. Supp. d at 0 (ordering the remainder of the requested ~0,000 documents to be produced within one month); Judicial Watch, Inc. v. Dep t of Energy, F. Supp. d, 0- (D.D.C. 00) (similar). ICE and OIG explicitly denied Plaintiffs request for expedited processing, while neither CRCL nor CBP provided any response to Plaintiffs request.

14 Case :-cv-00-jjt Document Filed 0// Page of 0 0 ordered production of Vaughn indices prior to summary judgment, rejecting arguments that it would be premature to do so. See, e.g., People ex rel. Brown v. EPA, No. 0-00, 00 WL 0, at * (N.D. Cal. Aug., 00) (ordering agencies to submit Vaughn indices prior to filing motions for summary judgment due to passage of time since submission of initial request; it would be unfair to allow [agencies] months to prepare their case and then force Plaintiff to formulate its entire case within the two weeks it has to respond to the motion ); Keeper of Mountains Found. v. DOJ, No. 0-cv-000, 00 WL, at * (S.D. W. Va. June, 00) (granting plaintiff s request for Vaughn index prior to agency s dispositive motion, because production at this stage of the litigation, rather than later at the summary judgment stage, is the more efficient and fair approach ); ACLU v. DOD, F. Supp. d at 0-0. These and other courts have recognized that compelling production of a Vaughn index in the early stages of litigation better serves the FOIA s objectives of speedy resolution and disclosure. The documents that have been produced to Plaintiffs so far have been replete with redactions the sufficiency of which will be impossible to ascertain until Defendants provide a Vaughn index. Allowing Defendants to delay production of the Vaughn index until submission of Defendants motion for summary judgment would afford Plaintiffs only one month in which to match up Defendants redactions to their justifications and formulate a response, while preparing summary judgment briefing. Given the volume of pages at issue, submission of Vaughn indices prior to summary judgment is the most efficient and fair approach. III. Plaintiffs Would be Prejudiced By Additional Delay Even assuming Defendants had met the legal requirements for an extension under FOIA, their Motion should be denied because the additional nine-month delay proposed by Defendants will significantly prejudice Plaintiffs. Defendants proposal to delay completion of production for two agencies and to delay production of the Vaughn indices for all agencies necessarily postpones the start of summary judgment briefing, which is set to commence on June, 0, to March 0. The December, 0 production

15 Case :-cv-00-jjt Document Filed 0// Page of 0 0 deadline proposed by OIG ensures that nearly two years will have passed before Plaintiffs receive the records they seek. Time is of the essence with respect to the records at issue in this case, which relate to children in CBP custody that may be facing continuing and imminent threats to their lives or physical safety. Prior reports concerning children in CBP custody have included allegations of children physically and sexually abused, denied medical care, or held in life-threatening conditions. Plaintiffs preliminary review of documents produced in response to the Request reveal instances of children being intentionally run over, forced to fight other detainees, stripped of clothes and interrogated, and used as bait to lure migrant smugglers. Plaintiffs ability to hold government accountable for its current actions and prevent future harm depends on timely access to the records sought in this Request. Under these circumstances, the need for prompt FOIA compliance is particularly acute. See Ferguson v. FBI, F. Supp., (S.D.N.Y. ) (ordering immediate processing of documents where plaintiff had shown exceptional need or urgency ). Moreover, the delay proposed by Defendants runs counter to the purposes of FOIA. See ACLU v. DOD, F. Supp. d at 0 (noting that the defendants glacial pace... fails to afford accountability of government that the act requires. ). Court have observed that delay in responding to FOIA requests may mean that even successful plaintiffs only obtain information once it has become stale. See NRDC v. Dep't of Energy, F. Supp. d, (D.D.C. 00). Plaintiffs seek records relating to events which occurred between 00 and 0, and Defendants proposal contemplates summary judgment briefing extending until summer 0. Given the delay, the records that Plaintiffs obtain may no longer be relevant, thereby undermining the very purpose of the Request. IV. Defendants Current Rate of Review Merits Closer Supervision of Defendants Progress. Plaintiffs note that Defendants rate of review has been troubling not just with respect to the two agencies at issue in Defendants Motion, but also with respect to CRCL and ICE. While Defendants have provided no further information as to the review rate of

16 Case :-cv-00-jjt Document Filed 0// Page of 0 0 either of these component agencies, neither CRCL s production ( pages in four months), nor ICE s production ( pages in four months) roughly equivalent to their production in the four months preceding the Court s Scheduling Order affords any assurance that these agencies are capable of meeting the Court s May, 0 production deadline. (Decl. at,.) Plaintiffs therefore respectfully request that the Court require Defendants to provide periodic updates, such as monthly status reports, to ensure that Defendants are in compliance with this Court s Scheduling Order. V. CONCLUSION Defendants have provided no legal justification for the extension they seek. Thus their Motion should be denied. DATED this th day of February, 0. Respectfully submitted, ACLU FOUNDATION OF ARIZONA By /s/ James Duff Lyall with permission Victoria Lopez Daniel J. Pochoda James Duff Lyall ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES By /s/ Mitra Ebadolahi with permission David Loy Mitra Ebadolahi COOLEY LLP By /s/ Aarti Reddy Aarti Reddy Whitty Somvichian Attorneys for Plaintiffs

17 Case :-cv-00-jjt Document Filed 0// Page of 0 0 CERTIFICATE OF SERVICE I hereby certify that on February, 0, I electronically transmitted the attached document to the Clerk s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Mitra Ebadolahi Victoria Lopez David Loy James Duff Lyall Emily Sue Newton Daniel Joseph Pochoda Whitty Somvichian /s/ Aarti G. Reddy Aarti G. Reddy