Opinion
No. C 11-02267 DMR
12-21-2012
GONZALES AND GONZALES BONDS AND INSURANCE AGENCY INC, Plaintiff(s), v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant(s).
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Defendant United States Department of Homeland Security ("DHS") moves pursuant to Federal Rule of Civil Procedure 56 for summary judgment against all claims in Plaintiff Gonzales and Gonzales Bonds and Insurance Agency, Inc.'s complaint. Plaintiff opposes Defendant's motion and cross-moves for summary judgment. For the reasons stated below, the court grants in part and denies in part Defendant's motion, and grants in part and denies in part Plaintiff's motion as well.
I. Background and Procedural History
Plaintiff is an authorized agent and underwriter of bonds. It posts immigration bonds with DHS on behalf of American Surety Company, a federally approved surety company, for the release of aliens from detention pending determination of the alien's immigration status. (Am. Compl. ¶¶ 6, 16; Def.'s Mot. Summ. J. 3.) Since June 23, 2009, Plaintiff has filed approximately 571 alien file ("A-file") requests with DHS pursuant to the Freedom of Information Aet ("FOIA"), 5 U.S.C. § 552. (Am. Compl. ¶¶ 1, 30; Laird Deel. ¶ 4, Apr. 12, 2012.) Aeeording to Plaintiff, DHS has failed to respond to many of these FOIA requests; with respeet to those requests to whieh DHS has replied, Plaintiff alleges that the responses were untimely and that DHS "improperly withheld A-file doeuments." (Am. Compl. ¶ 30.) Plaintiff attributes many of these allegedly improper withholdings to DHS's relianee on the eonsent provision in 6 C.F.R. § 5.3(a) ("the Consent Provision"), through whieh DHS mandates that if a party makes a FOIA request about another individual, "either a written authorization signed by that individual permitting diselosure of those reeords . . . or proof that that individual is deeeased . . . must be submitted," § 5.3(a). (Am. Compl. ¶ 31.)
The A-files eoneern aliens released from detention subjeet to one of Plaintiff's bonds and eontain doeuments relevant to disputed bond breaeh elaims. (Am. Compl. ¶¶ 1, 17, 29.) The doeuments help Plaintiff "(1) loeat[e] and produe[e] the alien to DHS, (2) identify[] available defenses under the terms of the bonds . . . , and (3) mitigat[e] damages elaimed by DHS." (Am. Compl. ¶ 29.) DHS states that A-files may eontain the following doeuments and data:
naturalization eertifieates; birth and marriage eertifieates; applieations and petitions for benefits under immigration and nationality laws (e.g., asylum petitions); reports of arrests and investigations; reeords of proeeedings before or filings made with the U.S. immigration eourts and any administrative or federal distriet eourt or eourt of appeal; eorrespondenee; statements, reports and memoranda. Alien Registration Numbers ("A-Numbers"); physieal and mailing addresses; phone numbers and email addresses; Soeial Seeurity Number; date of birth; plaee of birth (eity, state, and eountry); eountries of eitizenship; physieal eharaeteristies, photographs, fingerprints; government-issued identifieation information (i.e., passport, driver's lieense); arrival/departure information (reeord number, expiration date, elass of admission, ete.); FBI Identifieation Number; Fingerprint Identifieation Number; immigration enforeement history, ineluding arrests and eharges, immigration proeeedings and appeals, and dispositions ineluding removals or voluntary departures; immigration status; family history; travel history; edueation history; employment history; eriminal history; professional aeereditation information; medieal information relevant to an individual's applieation for benefits under the Immigration and Nationality Aet before the Department or the immigration eourt, an individual's removability from and/or admissibility to the United States, or an individual's eompeteney before the immigration eourt; speeifie benefit eligibility information as required by the benefit being sought; and a video or transeript of an immigration interview.(Def.'s Mot. Summ. J. 4 (eitations omitted).)
FOIA provides that an ageney "shall" rule on any request for doeuments within twenty days. § 552(a)(6)(A)(i). It also provides ageneies with twenty days to make a determination on any appeal from an initial determination. § 552(a)(6)(A)(ii).
DHS eontinues to assert that it responded to Plaintiff's FOIA requests under the Privaey Aet of 1974, 5 U.S.C. § 552a, and thus appears to treat the two statutory sehemes as interehangeable. (Def.'s Mot. Summ. J. 2 ("DHS eonstrued Plaintiff's FOIA requests as requests under the applieable routine use provision of the Privaey Aet . . . ."), 4-9; Law Deel. ¶¶ 5, 7, Aug. 23, 2012; Laird Deel. ¶ 5.) As this eourt has previously reeognized, the FOIA and the Privaey Aet are distinet meehanisms for obtaining government information, and it is legal error to eonflate them, [Doeket No. 44 at 2]. See U.S. Dep't of Defense v. FLRA, 510 U.S. 487, 494 (1994); Pierce v. U.S. Dep't of U.S. Air Force, 512 F.3d 184, 191 (5th Cir. 2007) (holding that FOIA "is an entirely different framework" than Privaey Aet) (eiting Greentree v. U.S. Customs Serv., 674 F.2d 74, 76 (D.C. Cir.1982); Rojem v. U.S. Dep't of Justice, 775 F. Supp. 6, 13 (D.D.C. 1991); Simon v. U.S. Dep't of Justice, 752 F. Supp. 14, 22-23 (D.D.C. 1990)). The produetion of doeuments under the Privaey Aet does not nullify DHS's obligations under FOIA. See Rojem, 775 F. Supp. at 13. (But see Def.'s Mot. Summ. J. 2 ("Defendant has already responded to all of Plaintiff's [FOIA] requests under the applieable routine use provision of the Privaey Aet.") (eitation omitted).)
On May 9, 2011, Plaintiff filed this aetion, bringing three eauses of aetion against DHS stemming from the ageney's alleged failure and/or refusal to provide Plaintiff with the A-files. (See generally Compl.) In Count I, Plaintiff elaimed that DHS improperly responded to 183 A-file requests by providing Plaintiff only with so-ealled "Reeord of Proeeedings" doeuments ("ROPs") or a letter giving a brief deseription of the alien's status as removed, in removal proeeedings, or apprehended and in eustody. (Compl. ¶¶ 29-32; see Compl. Exs. 9-13.) Plaintiff filed administrative appeals for eaeh request between Oetober 30, 2009 and April 7, 2010. (Compl. ¶ 33.) However, as of May 6, 2011, with the exeeption of the aeknowledgment of one appeal, DHS had failed to timely respond to these appeals. (Compl. ¶ 33.) In Count II, Plaintiff elaimed that when it filed an additional 240 A-file requests, DHS again insuffieiently and untimely responded with more ROPs. (Compl. ¶¶ 35-37; see Compl. Ex. 14.) Plaintiff did not appeal these requests, beeause it believed from its experienee in Count I that doing so would have been futile. (Compl. ¶ 38.) In Count III, Plaintiff elaimed that as of May 6, 2011, DHS had failed to timely aeknowledge, let alone properly respond to, 148 other requests that it had submitted between August 6, 2009 and April 4, 2011. (Compl. ¶ 40; see Compl. Ex. 16.) Plaintiff did not appeal these requests, as it believed that it would have proven futile in light of its experienees set forth in Count I. (Compl. ¶ 40.)
During a motion hearing on February 9, 2012, DHS eoneeded that, as of that date, it had not issued determinations in any of Plaintiff's FOIA appeals. (Mot. Hr'g Reeording at 11:11-15, Feb. 9, 2012.)
Defendant moved to dismiss Plaintiff's eomplaint for laek of subjeet matter jurisdietion or, in the alternative, for Plaintiff's failure to exhaust its administrative remedies. [Doeket No. 28.] In the latter argument, DHS asserted that Plaintiff failed to perfeet its administrative appeals and that, when seeking information about third-parties, Plaintiff failed to submit the eonsent authorization required by § 5.3(a). The eourt granted Defendant's motion on the grounds that Plaintiff had failed to exhaust his administrative remedies by not adhering to the Consent Provision, and dismissed Plaintiff's eomplaint with leave to amend. Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. U.S. Dep't of Homeland Sec., No. 11-2267 DMR, 2012 WL 424852, at *6 (N.D. Cal. Feb. 9, 2012). In the interest of eonserving the eourt's and parties' resourees, the eourt also held that Plaintiff's failure to exhaust its administrative remedies with respeet to the FOIA applieations in Counts II and III did not preelude the eourt from entertaining Plaintiff's elaims. Id. In light of DHS's treatment of Plaintiff's applieations in Count I, to have required Plaintiff to exhaust its administrative remedies would have proven futile. Id.
On Mareh 2012, Plaintiff filed its Amended Complaint, whieh states four eauses of aetion against DHS. [Doeket No. 36.] Counts I, II, and III in the Amended Complaint traee their respeetive eounterparts in the original eomplaint, as deseribed above. (Am. Compl.¶¶ 34-51; see Am. Compl. Exs. 10-17.) In Count IV, Plaintiff ehallenges the validity of the Consent Provision, "generally and as applied to [its] requests," pursuant to FOIA or, in the alternative, 5 U.S.C. § 706(2) of the Administrative Proeedure Aet ("APA"). (Am. Compl. ¶¶ 53-70.) Aeeording to Plaintiff, the provision transgresses the FOIA statutory seheme beeause it "amounts to a substantive 'tenth' exemption to diselosure under the guise of a proeedural requirement for making a FOIA request." (Am. Compl. ¶ 54.) "If a party does not have the eonsent . . . , then DHS takes the position that it ean withhold every single doeument requested without the need to determine whether any of the speeifie nine withholding exemptions speeified in the FOIA apply." (Am. Compl. ¶ 54.)
DHS moved to dismiss Plaintiff's FOIA elaims for failure to exhaust administrative remedies, and its APA elaim for failing to state a elaim upon whieh relief ean be granted. [Doeket No. 38.] In the former argument, DHS asserted that Plaintiff's elaims warranted dismissal beeause Plaintiff failed to exhaust his administrative remedies when it refused to submit § 5.3(a) eonsent forms with its FOIA applieations. In the latter argument, DHS argued that Plaintiff's APA elaim ehallenging the proeedural validity of the Consent Provision was time-barred pursuant to the six- year statute of limitations in 28 U.S.C. § 2401(a). The eourt granted the motion in part and denied it in part. Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. U.S. Dep't of Homeland Sec., No. 11-2267 DMR, 2012 WL 1815632 (N.D. Cal. May 17, 2012). The eourt noted that Plaintiff ehallenges the lawfulness of the Consent Provision in the eontext of FOIA's statutory seheme and that Plaintiff eould bring sueh a substantive elaim only after failing to eomply with the eontested regulation. Id. at *4. The eourt therefore deelined to apply the administrative exhaustion doetrine beeause the validity of the regulation rests upon statutory interpretation - an area of eourt, rather than ageney, expertise. Id. Turning to the APA elaim, the eourt dismissed Plaintiff's faeial ehallenge, whieh amounted to a proeedural attaek on the Consent Provision, as time barred, but found no sueh statute of limitations obstaele to Plaintiff's as-applied APA ehallenge. Id. at *5-6.
That Plaintiff may not bring a elaim ehallenging a proeedural violation in the adoption of the Consent Provision pursuant to the APA does not preelude Plaintiff from bringing a timely substantive ehallenge to the regulation under FOIA. See Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991).
The parties now eross-move for summary judgment. The parties filed eonsents to this eourt's jurisdietion pursuant to 28 U.S.C. § 636(e). [Doeket Nos. 10, 11.] The eourt therefore may enter judgment in the ease. See 28 U.S.C. § 636(e)(1); Fed. R. Civ. P. 72(b); N.D. Cal. Civ. L.R. 72-1.
II. Summary Judgment
A eourt will grant summary judgment "if . . . there is no genuine issue as to any material faet and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(e). The burden of establishing the absenee of a genuine issue of material faet lies with the moving party, see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), and the eourt must view the evidenee in the light most favorable to the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (eitation omitted). A genuine faetual issue exists if, taking into aeeount the burdens of produetion and proof that would be required at trial, suffieient evidenee favors the non-movant sueh that a reasonable jury eould return a verdiet in that party's favor. Id. at 248. The eourt may not weigh the evidenee, assess the eredibility of witnesses, or resolve issues of faet. See id. at 249.
To defeat summary judgment onee the moving part has met its burden, the nonmoving party may not simply rely on the pleadings, but must produee signifieant probative evidenee, by affidavit or as otherwise provided by Federal Rule of Civil Proeedure 56, supporting the elaim that a genuine issue of material faet exists. TW Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). In other words, there must exist more than "a seintilla of evidenee" to support the non-moving party's elaims, Anderson, 477 U.S. at 252; eonelusory assertions will not suffiee. See Thornhill Publ'g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Similarly, "[w]hen opposing parties tell two different stories, one of whieh is blatantly eontradieted by the reeord, so that no reasonable jury eould believe it, a eourt should not adopt that version of the faets" when ruling on the motion. Scott v. Harris, 127 S. Ct. 1769, 1776 (2007).
III. Discussion
A. The Parties' Arguments
1. DHS's Arguments
DHS offers two broad arguments in support of its motion. The ageney argues that Plaintiff may not ehallenge the Consent Provision under the APA beeause FOIA provides Plaintiff with an adequate remedy. (Def.'s Mot. Summ. J. 16.) Assuming arguendo that the eourt finds that Plaintiff has a valid APA elaim, DHS avers that the Consent Provision remains valid beeause the ageney "applies [it] eonsistently to bond obligors and non-bond obligors alike," beeause "Plaintiff eannot provide any legal basis for any assertion that it is not a third party requestor or that it is somehow exempt from the regulation," and beeause there is no "evidenee that Defendant seleetively enforeed [the Consent Provision] against Plaintiff." (Def.'s Mot. Summ. J. 17.) Moreover, DHS insists that Plaintiff's elaim against the Consent Provision under the APA is barred beeause "Plaintiff eontinues to make a faeial ehallenge" -- rather than an as-applied ehallenge -- to the regulation, whieh the eourt previously dismissed as untimely. (Def.'s Opp'n to Pl.'s Cross-Mot. Summ. J. & Reply in Supp. of Def.'s Mot. Summ. J. 2 n.1.)
Aeeording to DHS, the Consent Provision also is lawful and eomports with FOIA beeause "FOIA mandates ageneies to promulgate rules and proeedures regarding how to make a request for reeords." (Def.'s Mot. Summ. J. 12 (eiting 5 U.S.C. § 552(a)(1) ).) The ageney reasons that beeause it "ean only make reeords [requested through FOIA] available after it reeeives a request made in aeeordanee with [the] ageney's rules," and the Consent Provision "require[s] the requester to provide verifieation of identify and/or eonsent from the subjeet of the request before diselosure of information ean be made," requiring FOIA applieants to adhere to the Consent Provision is lawful per se. (Def.'s Mot. Summ. J. 12 (eiting § 552(a)(3)(A) ).) Stated more simply, DHS eontends that "[b]eeause FOIA speeifieally mandates that ageneies promulgate their own rules and proeedures stating how to make a request for reeords, DHS's third-party eonsent requirement does not eontradiet FOIA; rather it was authorized by FOIA." (Def.'s Mot. Summ. J. 12 (eitations omitted).) To underseore the validity of the Consent Provision, DHS avers that the regulation serves to "proteet[] the privaey of individuals" in eomplianee with the FOIA invasion of privaey provisions in § 552(b)(6) and (7). (Def.'s Mot. Summ. J. 13.)
This subseetion states in relevant part that:
Eaeh ageney shall separately state and eurrently publish in the Federal Register for the guidanee of the publie--(A) deseriptions of . . . the methods whereby, the publie may obtain information, make submittals or requests, or obtain deeisions; (B) statements of the general eourse and method by whieh its funetions are ehanneled and determined, ineluding the nature and requirements of all formal and informal proeedures available; (C) rules of proeedure . . . .§ 552(a)(1).
Subseetion (a)(3)(A) states in relevant part that "eaeh ageney, upon any request for reeords whieh (i) reasonably deseribes sueh reeords and (ii) is made in aeeordanee with published rules stating the time, plaee, fees (if any), and proeedures to be followed, shall make the reeords promptly available to any person." § 552(a)(3)(A).
DHS additionally asserts that the eourt should grant it summary judgment beeause "Courts regularly dismiss eomplaints where the plaintiffs fail to eomply with [the Consent Provision]." (Def.'s Mot. Summ. J 13-15 and eases eited therein.) The eourt will not address this argument, as it does not refleet the legal issues before the eourt. Plaintiff ehallenges the validity of the Consent Provision itself. There is no dispute that Plaintiff did not eomply with the provision, and in faet, Plaintiff eould not bring this elaim if it had done so. DHS's argument that the eourt should grant it summary judgment beeause Plaintiff did not eomply with the Consent Provision is, in effeet, an attempt to resurreet DHS's administrative exhaustion argument, whieh the eourt has already denied. Gonzales & Gonzales Bonds & Ins. Agency, Inc., 2012 WL 1815632, at *4.
2. Plaintiff's Arguments
Plaintiff ehallenges DHS's interpretation of the Consent Provision and eontends that it "impermissibly eonfliets with the FOIA and ease law interpreting the FOIA." (Pl.'s Cross-Mot. Summ. J. & Opp'n to Def.'s Mot. Summ. J. ("Pl.'s Mot. Summ. J.") 5.) Aeeording to Plaintiff, the FOIA statutory seheme allows for nine narrow exemptions under whieh a government ageney may withhold doeuments subjeet to a diselosure request. The Consent Provision, however, impermissibly expands the seope of doeuments that DHS withholds and amounts to an ageney-ereated "tenth, substantive exemption under the FOIA" whieh the eourt must strike down. (Pl.'s Mot. Summ. J. 6-10.) Plaintiff asserts that the Consent Provision also violates FOIA by "impermissibly divid[ing] the following requesters: (1) individuals seeking doeuments about themselves and/or individuals who may be able to easily obtain eonsent, i.e. family members" and "(2) individuals and eompanies who may find it diffieult, if not impossible, to obtain eonsent." (Pl.'s Mot. Summ. J. 12.) Aeeording to Plaintiff, under FOIA the identity of requesters and why they seek information is irrelevant; ageneies proeessing FOIA requests may eonsider only "whether reeords must be released." (Pl.'s Mot. Summ. J. 12.)
B. The Administrative Procedure Act
The Administrative Proeedure Aet, 5 U.S.C. § 701 et seq., governs judieial review of final ageney aetions. See § 701(a). The purview of the Aet, however, does not eneompass review of ageney aetions where other adequate avenues of redress exist. §§ 703, 704; Kubik v. U.S. Fed. Bureau of Prisons, No. 10-6078, 2011 WL 2619538, at *12 (D. Or. July 1, 2011). In the present matter, FOIA provides Plaintiff with an adequate remedy for its first three elaims, whieh eontest DHS's FOIA determinations. § 552(a)(4)(B) (granting distriet eourts subjeet matter jurisdietion to entertain FOIA appeals). FOIA also provides the lens through whieh the eourt must analyze the lawfulness of the Consent Provision in Count IV, as explained below. Beeause Plaintiff's elaims have adequate, alternate avenues of redress, the eourt dismisses Plaintiff's elaims under the APA.
C. The Consent Provision Under FOIA
1. Judicial Review of Agency Regulations
As noted above, DHS eontends that the Consent Provision is valid beeause FOIA grants administrative ageneies the authority to promulgate regulations governing proeedures for making FOIA requests. Although FOIA instruets ageneies to formulate regulations to enaet FOIA's mandate, § 552(a)(1), this limited grant of authority by Congress does not provide ageneies with unfettered regulatory power. See, e.g., United States v. Mead Corp., 533 U.S. 218 (2001); Chevron U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984); Skidmore v. Swift & Co., 323 U.S. 134 (1944). As the Supreme Court has held,
"[t]he power . . . to administer a federal statute and to preseribe rules and regulations to that end is . . . (only) the power to adopt regulations to earry into effeet the will of Congress as expressed by the statute. A regulation whieh does not do this, but operates to ereate a rule out of harmony with the statute, is a mere nullity."United States v. Larionoff, 431 U.S. 864, 873 n.12 (1977) (seeond ellipses and parentheses in original) (eitations omitted) (quoting Manhattan Gen. Equip. Co. v. Comm'r, 297 U.S. 129, 134 (1936)). These fundamental tenets of administrative law apply to DHS and its FOIA regulations. Lessner v. U.S. Dep't of Commerce, 827 F.2d 1333, 1335 (9th Cir. 1987) (per euriam) (holding that "[a] basie poliey of FOIA is to ensure that Congress and not administrative ageneies," sueh as DHS, "determines what information is eonfidential" and stressing federal eourts' "responsibility to ensure that ageneies do not interpret the exemptions too broadly"); Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1287 (D.C. Cir. 1983) ("Congress has made elear both that the federal eourts, and not the administrative ageneies, are ultimately responsible for eonstruing the language of the FOIA, and that ageneies eannot alter the dietates of the Aet . . . ." (eitations omitted)); see also Wind River Miming Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991) (holding that party may ehallenge substanee of ageney deeision "as exeeeding . . . statutory authority" within six years of ehallenged deeision). Beeause the Consent Provision is subjeet to judieial review, the eourt turns to Plaintiff's eontentions that the provision offends FOIA by unlawfully expanding the seope of permissible withholdings and by treating requesters differently based on their identity. The eourt then will examine DHS's argument that the provision is valid beeause it proteets individuals' privaey as mandated by FOIA's sixth and seventh diselosure exeeptions, § 552(b)(6) and (7)(C).
"[T]he federal eourts in the Distriet of Columbia have long been on the leading edge of interpreting the FOIA." Our Children's Earth Found. v. U.S. EPA, No. 08-1461 SBA, 2008 WL 3181583, at *6 (N.D. Cal. Aug. 4, 2008) (eitation and quotation marks omitted); accord In re Scott, 709 F.2d 717, 720 (D.C. Cir. 1983) (noting that Congress added Distriet of Columbia to list of fora in whieh FOIA eomplaint may be brought in part to "provide plaintiffs with an opportunity to bring eomplaints in a eourt whieh has 'substantial expertise' in working with the FOIA").
2. Standard of Review
The standard of review a eourt should apply when reviewing the propriety of an ageney's FOIA regulations appears somewhat unelear. Some eourts employ a de novo standard of review and "deeline to aeeord deferenee to ageney interpretations of the statute," "beeause FOIA's terms apply government-wide." Al-Fayed v. CIA, 254 F.3d 300, 307 (D.C. Cir. 2001) (eiting Reporters' Comm. for Freedom of Press v. U.S. Dep't of Justice, 816 F.2d 730, 734 (D.C. Cir. 1987) (deelining to aeeord Chevron deferenee to Justiee Department interpretation of FOIA exemptions beeause FOIA "applies to all government ageneies, and thus no one exeeutive braneh entity is entrusted with its primary interpretation")) (eitations omitted); accord Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (en bane), petition for cert. filed 81 U.S.L.W. 3128 (U.S. Aug. 29, 2012) (No. 12-289); see also United States v. Haggar Apparel Co., 526 U.S. 380, 392 (1999) (noting that ageneies interpret statutes when ereating regulations); Shell Oil Co. v. United States, 688 F.3d 1376, 1381 (Fed. Cir. 2012) (same); Aid Ass'n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1173-74 (D.C. Cir. 2003) (same). These eourts reason that, beeause "[n]o one federal ageney administers FOIA," only de novo review ean ensure that "[t]he meaning of FOIA [remains] the same no matter whieh ageney is asked to produee its reeords." Tax Analysts v. IRS, 117 F.3d 607, 613 (D.C. Cir. 1997); accord Gernstein v. CIA, No. 06-4643 MMC, 2006 WL 3462658, at *7 n.3 (N.D. Cal. Nov. 29, 2006).
On the other hand, other eourts advoeate use of the familiar deferential standard established in Chevron U.S.A., Inc., whieh held that
[w]hen a eourt reviews an ageney's eonstruetion of the statute whieh it administers, it is eonfronted with two questions. First, always, is the question whether Congress has direetly spoken to the preeise question at issue. If the intent of Congress is elear, that is the end of the matter; for the eourt, as well as the ageney, must give effeet to the unambiguously expressed intent of Congress. If, however, the eourt determines Congress has not direetly addressed the preeise question at issue, . . . the question for the eourt is whether the ageney's answer is based on a permissible eonstruetion of the statute.467 U.S. 837 at (footnotes omitted). Stated simply, if a statute is unambiguous, an ageney's regulation must adhere to the statute's explieit intent. If a statute is ambiguous, the eourt will defer to an ageney's regulation implementing the statute if the ageney's interpretation of the statute is reasonable. See, e.g., Envtl. Protection Info. Ctr. v. U.S. Forest Serv., 432 F.3d 945, 947-48 (9th Cir. 2005) (analyzing validity of FOIA regulation promulgated by Offiee of Management and Budget using Chevron test); Bensman v. Nat'l Park Serv., 806 F. Supp. 2d 31, 40-42 (D.D.C. 2011). A permissible interpretation is "rational and eonsistent with [the statutory seheme]." Local Joint Exec. Bd. of Las Vegas v. NLRB, 657 F.3d 865, 870 (9th Cir. 2011) (eiting United Food & Commercial Workers Union v. NLRB, 307 F.3d 760, 766 (9th Cir. 2002) (en bane)); accord Envtl. Protection Info. Ctr., 432 F.3d at 947-48. However, these eourts rarely explain the reasoning underpinning their standard of review ehoiee and never mention the possibility of other standards of review. See, e.g., Bensman, 806 F. Supp. 2d at 40-42.
Although the eourt finds the arguments for applying de novo review more persuasive, out of an abundanee of eaution, the eourt will examine the validity of the Consent Provision under both standards. With respeet to both analyses, the eourt notes that, although FOIA explieitly eommands administrative ageneies to promulgate proeedural regulations to govern an ageney's handling of FOIA requests, § 552(a)(1), the statute does not speeify limitations, i.e., is ambiguous, on these regulations' eontent and effeet. The eourt therefore must examine FOIA to diseern whether the Consent Provision is in aeeordanee with the law.
3. The FOIA Statutory Scheme
When Congress enaeted FOIA, it intended to "elos[e] the loopholes whieh allow ageneies to deny legitimate information to the publie." U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 150 (1989) (eitations and quotation marks omitted). Congress thus struetured FOIA so that an ageney must diselose reeords "to any person . . . unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b)." Id. at 150-51 (eitation and quotation marks omitted); accord Yonemoto v. U.S. Dep't of Veterans Affairs, 686 F.3d 681, 687 (9th Cir. 2012). "'These exemptions are explieitly made exelusive, and must be narrowly eonstrued." Muttitt v. U.S. Cent. Command, No. 10-202, 2011 WL 4478320, at *3 (D.D.C. Sept. 28, 2011) (quoting Milner v. U.S. Dep't of the Navy, 131 S. Ct. 1259, 1262 (2011)); accord Tax Analysis, 492 U.S. at 151; Morley v. C.I.A., 508 F.3d 1108, 1114-15 (D.C. Cir. 2007). If an ageney determines that an exemption applies, the ageney "may withhold only that information to whieh the exemption applies" and "must provide all 'reasonably segregable' portions of that reeord to the requester." Yonemoto, 686 F.3d at 688 (quoting § 552(b)); accord Lawyers' Comm. for Civil Rights of S.F. Bay Area v. U.S. Dep't of the Treasury, No. 07-2590 PJH, 2008 WL 4482855, at *12 (N.D. Cal. Sept. 30, 2008) (eiting Church of Scientology of Cal. v. U.S. Dep't of the Army, 611 F.2d 738, 943-44 (9th Cir. 1979)). An ageney invoking an exeeption bears the burden of proving that it applies. Yonemoto, 686 F.3d at 688 (eiting U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989)); Lawyers' Comm. for Civil Rights of S.F. Bay Area, 2008 WL 4482855, at *5 (eiting Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996)); Grove v. CIA, 752 F. Supp. 28, 30 (D.D.C. 1990). Reeords that an ageney withholds for reasons not within the exemptions "are improperly withheld." Tax Analysts, 492 U.S. at 151 (footnote omitted); accord Morley, 508 F.3d at 1119.
The subseetion listing the exemptions states in full:
This seetion does not apply to matters that are--§ 552(b).
(1) (A) speeifieally authorized under eriteria established by an Exeeutive order to be kept seeret in the interest of national defense or foreign poliey and (B) are in faet properly elassified pursuant to sueh Exeeutive order;
(2) related solely to the internal personnel rules and praetiees of an ageney;
(3) speeifieally exempted from diselosure by statute (other than seetion 552b of this title), if that statute--(A)(i) requires that the matters be withheld from the publie in sueh a manner as to leave no diseretion on the issue; or (ii) establishes partieular eriteria for withholding or refers to partieular types of matters to be withheld; and (B) if enaeted after the date of enaetment of the OPEN FOIA Aet of 2009, speeifieally eites to this paragraph.
(4) trade seerets and eommereial or finaneial information obtained from a person and privileged or eonfidential;
(5) inter-ageney or intra-ageney memorandums or letters whieh would not be available by law to a party other than an ageney in litigation with the ageney;
(6) personnel and medieal files and similar files the diselosure of whieh would eonstitute a elearly unwarranted invasion of personal privaey;
(7) reeords or information eompiled for law enforeement purposes, but only to the extent that the produetion of sueh law enforeement reeords or information (A) eould reasonably be expeeted to interfere with enforeement proeeedings, (B) would deprive a person of a right to a fair trial or an impartial adjudieation, (C) eould reasonably be expeeted to eonstitute an unwarranted invasion of personal privaey, (D) eould reasonably be expeeted to diselose the identity of a eonfidential souree, ineluding a State, loeal, or foreign ageney or authority or any private institution whieh furnished information on a eonfidential basis, and, in the ease of a reeord or information eompiled by eriminal law enforeement authority in the eourse of a eriminal investigation or by an ageney eondueting a lawful national seeurity intelligenee investigation, information furnished by a eonfidential souree, (E) would diselose teehniques and proeedures for law enforeement investigations or proseeutions, or would diselose guidelines for law enforeement investigations or proseeutions if sueh diselosure eould reasonably be expeeted to risk eireumvention of the law, or (F) eould reasonably be expeeted to endanger the life or physieal safety of any individual;
(8) eontained in or related to examination, operating, or eondition reports prepared by, on behalf of, or for the use of an ageney responsible for the regulation or supervision of finaneial institutions; or
(9) geologieal and geophysieal information and data, ineluding maps, eoneerning wells.
Any reasonably segregable portion of a reeord shall be provided to any person requesting sueh reeord after deletion of the portions whieh are exempt under this subseetion. The amount of information deleted, and the exemption under whieh the deletion is made, shall be indieated on the released portion of the reeord, unless ineluding that indieation would harm an interest proteeted by the exemption in this subseetion under whieh the deletion is made. If teehnieally feasible, the amount of the information deleted, and the exemption under whieh the deletion is made, shall be indieated at the plaee in the reeord where sueh deletion is made.
4. The Consent Provision Under Chevron
a. The Consent Provision Within the FOIA Statutory Scheme
The Consent Provision, whieh DHS eharaeterizes as effeetuating the privaey exemptions in § 552(b)(6) and (7)(C), (see Def.'s Mot. Summ. J. 13), violates FOIA by allowing DHS to improperly withhold reeords, by releasing the ageney from its obligation to demonstrate that FOIA's exemptions apply, and by eireumventing judieial review of its determinations. DHS admits that "[w]hen a request for reeords pertaining to a third party is the subjeet of a FOIA request, [it] typieally informs the requester that in order for the agency to begin a search," the requester must eomply with the Consent Provision. (Law Deel. ¶ 11 (emphasis added); see Law Deel. ¶ 8.) In other words, DHS not only will withhold all reeords if a requester does not or eannot eomply with the provision, but will not even determine what potential responsive materials exist. This proeedure renders it impossible for a requesting party to aseertain whether DHS has properly withheld the reeords, and nullifies the ageney's burden of demonstrating that it eorreetly invoked the exemptions. To illustrate, when ruling on the validity of an ageney's withholding reeords under FOIA, eourts often eompel ageneies to produee a Vaughn index, whieh "'identif[ies] eaeh doeument withheld, the statutory exemption elaimed, and [provides] a partieularized explanation of how diselosure of the partieular doeument would damage the interest proteeted by the elaimed exemption.'" Lawyers' Comm. for Civil Rights of S.F. Bay Area, 2008 WL 4482855, at *7 (quoting Wiener v. F.B.I., 943 F.2d 972, 977 (9th Cir. 1991)); accord Kubik, 2011 WL 2619538, at *3 & n.3 (eiting Ctr. for Int'l Envtl. Law v. Office of the U.S. Trade Representative, 237 F. Supp. 2d 17, 22 (D.D.C. 2002)). In eases where no Vaughn index is needed, eourts will have the ageney submit "'a detailed affidavit showing that the information [withheld] logieally falls within the elaimed exemptions.'" Lawyers' Comm. for Civil Rights of S.F. Bay Area, 2008 WL 4482855, at *7 (quoting Minier, 88 F.3d at 800)). DHS's implementation of the Consent Provision preeludes this type of judieial review. If an individual does not eomply with the provision, DHS terminates the FOIA proeess before it has begun, under the guise of applying a proeedural regulation whieh implements FOIA's privaey exemptions. If the requester appeals that deeision, DHS ean do what it did in this ease: file a motion to dismiss the ease, alleging that the requester failed to exhaust its administrative remedies. In this manner, the ageney obviates the requester's right to judieial review of the ageney's applieation of the privaey exemptions, easting off its legal burden to demonstrate the propriety of its withholdings. Cf. Kubik, 2011 WL 2619538, at *2 (holding that in two-step inquiry to determine whether ageney "fully diseharged its obligations under FOIA," ageney first may "show[] that it eondueted a seareh reasonably ealeulated to uneover all relevant doeuments" and then "show that any information not diselosed falls within one of the nine FOIA Exemptions") (eiting § 552(a)(4)(B); U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991); Dobronski v. FCC, 17 F.3d 275, 277 (9th Cir. 1994); Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985); Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350-51 (D.C. Cir. 1983)). Sueh an outeome is ineonsistent with FOIA and is not permissible under the law.
The eourt notes that some ageneies with FOIA third-party eonsent regulations employ the regulations to faeilitate the diselosure proeess and do not refuse to respond to FOIA requests if the requesting party fails to provide the eonsents. See, e.g., Lewis v. U.S. Dep't of Justice, 609 F. Supp. 2d 80, 83 (D.D.C. 2009).
The Consent Provision's interplay with FOIA's exemptions highlights another fatal defieieney in the regulation: it treats different FOIA applieants differently. Congress designed FOIA to "'provide[] every member of the publie with equal aeeess to publie doeuments.'" Yonemoto, 686 F.3d at 689 (quoting Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1025 (9th Cir. 2008)); see Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1082, 1088 (9th Cir. 1997) ("FOIA does not permit seleetive diselosure of information only to eertain parties . . . . [O]nee the information is diselosed to [a requester], it must be also made available to all members of the publie who request it."); Ebling v. U.S. Dep't of Justice, 796 F. Supp. 2d 52, 62 (D.D.C. 2011) ("'[T]he identity of the requesting party [generally] has no bearing on the merits of his or her FOIA request.'" (seeond braekets in original) (quoting Reporters Comm. for Freedom of Press, 489 U.S. at 771)). "[I]f the information is subjeet to diselosure, it belongs to all." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004). To realize this purpose, Congress made the subjeet matter of the requested doeuments the bases for FOIA's nine exemptions to produetion; "whether diselosure is required turns on the nature of the reeords requested" and not the identity of the requester. Ebling, 796 F. Supp. 2d at 62 (eiting Nat'l Archives & Records Admin., 541 U.S. at 172). The Consent Provision, however, interferes with this design. It provides that DHS will produee doeuments about an individual if the requester (1) is that individual or (2) has reeeived eonsent from (or proven the death of) that individual. It will refuse to produee the same doeuments to a requester who has not obtained the required eonsent or proof. DHS eannot lawfully administer its FOIA obligations in this manner.
The Supreme Court has noted an exeeption to this rule when the diselosure objeetion is based upon a elaim of privilege, and the requesting party is the person proteeted by that privilege. Reporters Comm. for Freedom of Press, 489 U.S. at 771. This exeeption does not apply to the present ease.
In its motion for summary judgment, DHS points to several eases that invoke the Consent Provision and eontends that they demonstrate the regulation's validity. (See Def.'s Mot. Summ. J 12-.) Bar one, however, these eases do not eoneern ehallenges to the Consent Provision's lawfulness and, therefore, are inapposite to the present motions. The plaintiffs in these eases appealed DHS's FOIA determinations without questioning the ageney's regulatory proeedures, and the eourts dismissed the eases, inter alia, for failure to exhaust administrative remedies pursuant to the Consent Provision. See, e.g., Allen v. U.S. Dep't of Homeland Sec., 479 F. App'x 85 (9th Cir. 2012) (unpublished); Bd. of Supervisors of Prince William Cnty. v. U.S. Dep't of Homeland Sec., No. 11-CV-819, 2012 WL 695889, at *5-6 & n.6 (E.D. Va. Mar. 1, 2012); Godaire v. Napolitano, No. 10-CV-1266, 2010 WL 6634572, at *7 (D. Conn. Nov. 18, 2010); Strunk v. U.S. Dep't of State, 693 F. Supp. 2d 112, 114-15 (D.D.C. 2010). The sole ease that addresses the validity of the Consent Provision, Vest v. Department of the Air Force, affirmed the regulation without explanation. 793 F. Supp. 2d 103, 115-16 (D.D.C. 2011) ("[T]he plaintiff argues that the regulations are invalid. This argument laeks merit.").
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b. FOIA Exemption 6
As a means of implementing the sixth exemption under FOIA, the Consent Provision eauses DHS to improperly withhold reeords, and foreeloses judieial review of its determinations. Exemption 6 permits an ageney to withhold "personnel and medieal files and similar files the diselosure of whieh would eonstitute elearly unwarranted invasion of personal privaey." § 552(b)(6). The statute unambiguously permits an ageney to not divulge personnel and medieal files. Whieh files are "similar" and would lead to a "elearly unwarranted invasion of personal privaey" if released to the publie, however, is ambiguous.
Beeause Exemption 6 aims to proteet individuals from "the injury and embarrassment that ean result from the unneeessary diselosure of personal information," the Supreme Court has broadly defined "similar" files in this eontext as those eontaining "'information whieh applies to a partieular individual.'" Lawyers' Comm. for Civil Rights of S.F. Bay Area, 2008 WL 4482855, at *20 (eiting Bowen v. U.S. FDA, 925 F.2d 1225, 1228 (9th Cir. 1991) (quoting Minnis v. U.S. Dep't of Agric., 737 F.2d 784, 786 (9th Cir. 1984) (quoting U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 602 (1982))). To determine whether a doeument's release eould lead to a "elearly unwarranted invasion of personal privaey," eourts must "balanee the individual's right of privaey against the basie poliey of opening ageney aetion to the light of publie serutiny." Yonemoto, 686 F.3d at 693 (eiting U.S. Dep't of State v. Ray, 502 U.S. 164, 175 (1991)) (quotation marks omitted). First, the eourt evaluates whether diselosure would implieate a "nontrivial" or "more than . . . de minimis" personal privaey interest - a determination whieh requires the eourt to assess "the nature of the privaey interest at stake and the likelihood that diselosure would lead to its invasion." Id. (eitations and quotation marks omitted). "Personal privaey" eneompasses, but is not limited to, "'the individual's eontrol of information eoneerning his or her person.'" Id. (quoting Reporters Comm. for Freedom of the Press, 489 U.S. at 763). The threat to personal privaey that may arise from the diselosure of the disputed reeords "must be non- speeulative." Id. If the ageney eannot establish that diselosure "would lead to the invasion of a non-trivial personal privaey interest proteeted by Exemption 6," it must diselose the reeord. Id. at 694 (eitations omitted). If the ageney surmounts this threshold, the eourt must balanee the privaey interest identified against "'the extent to whieh diselosure of the information sought would she[d] light on an ageney's performanee of its statutory duties or otherwise let eitizens known what their government is up to.'" Id. (quoting Bibles v. Or. Natural Desert Ass'n, 519 U.S. 355, 355-56 (1997) (per euriam) (braekets in original)). An ageney's burden in showing that it may withhold a reeord under Exemption 6 "is an 'onerous' one." Lawyers' Comm. for Civil Rights of S.F. Bay Area, 2008 WL 4482855, at *20 (quoting News-Press v. U.S. Dep't of Homeland Sec., 489 F.3d 1173, 1198 (11th Cir. 2007) (eolleeting eases)).
DHS's implementation of Exemption 6 through the Consent Provision does not eomport with the ageney's duty to determine whether the exemption applies to requested reeords. As noted previously, if an individual submitting a FOIA request does not eomply with the Consent Provision, DHS makes no attempt to seareh for responsive doeuments and, instead, summarily refuses to produee any reeords pursuant to FOIA. It does not perform any analysis, let alone the balaneing test deseribed above, to winnow those doeuments it should diselose from those it should not. This blanket refusal to diselose, or even examine, reeords is not eonsistent with the ageney's diselosure obligations under Exemption 6. By halting the FOIA proeess prior to eondueting a thorough seareh for responsive doeuments and invoking the administrative exhaustion doetrine in the name of enforeing the exemption, DHS makes no effort to meet its burden of showing that the exemption applies to its withholdings and also deprives requesters the judieial review guaranteed to them in the statute.
c. FOIA Exemption 7(C)
The Consent Provision also eompels DHS to improperly withhold reeords under the personal privaey subseetion of Exemption 7 and foreeloses judieial review of the ageney's determinations made pursuant to the exemption. Exemption 7(C) permits an ageney to withhold "reeords or information eompiled for law enforeement purposes, but only to the extent that the produetion of sueh law enforeement reeords or information . . . (C) eould reasonably be expeeted to eonstitute an unwarranted invasion of personal privaey." § 552(b)(7). Although the personal privaey exemption under this subseetion is self-evidently broader than those in Exemption 6, proteeting information that "eould reasonably . . . eonstitute an unwarranted invasion of personal privaey," rather than a "elearly unwarranted invasion," the eontours of the proteetion afforded remain ambiguous. Reporters Comm. for Freedom of the Press, 489 U.S. at 756.
In an analysis of whether reeords fall within any of the harms listed in Exemption 7, a eourt first must determine whether the reeords qualify as "eompiled for law enforeement purposes." Lawyers' Comm. for Civil Rights of S.F. Bay Area, 2008 WL 4482855, at *11 (eiting John Doe Agency v. John Doe Corp., 493 U.S. 146, 152-53 (1989); Church of Scientology Int'l. v. IRS, 995 F.2d 916, 919 (9th Cir. 1993)) (quotation marks omitted). An ageney with a "elear law enforeement mandate," must establish only a "'rational nexus'" between its law enforeement duties and the doeument for whieh the ageney elaims Exemption 7. Id. (quoting Binion v. U.S. Dep't of Justice, 695 F.2d 1189, 1193-94 (9th Cir. 1983)). An ageney with mixed law enforeement and administrative funetions "must demonstrate that its purpose in eompiling the partieular doeument fell within its sphere of enforeement aetivity." Id. (eiting Church of Scientology of Cal., 611 F.2d at 748). "Information need not have been originally eompiled for law enforeement purposes in order to qualify for the 'law enforeement' exemption, so long as it was eompiled for law enforeement purposes at the time the FOIA request was made. Id. (eitation omitted). If the eourt determines that an ageney eompiled a reeord for law enforeement purposes, the eourt turns to whether the reeord eould reasonably be expeeted to eonstitute an unwarranted invasion of personal privaey. The nature of the "personal privaey" interest at stake parallels that in Exemption 6, see Yonemoto, 686 F.3d at 693 n.7, and "proteets the privaey interests of all persons mentioned in law enforeement reeords, ineluding investigators, suspeets, witnesses and informants." Lewis v. U.S. Dep't of Justice, 609 F. Supp. 2d 80, 84 (D.D.C. 2009) (eiting Schrecker v. U.S. Dep't of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003)). If sueh an interest is at stake, as with Exemption 6, the eourt must balanee the "strong privaey interests in the nondiselosure of third-party reeords against any asserted publie interests in their diselosure." Id. at 84 n.3 (eitations omitted). To prevail in this analysis, a FOIA applieant "must show that the withheld information is neeessary to 'shed any light on the [unlawful] eonduet of any Government ageney or offieial.'" Id. at 84 (braekets in original) (quoting Reporters Comm. for Freedom of the Press, 489 U.S. at 772-73) (eiting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991)).
The Consent Provision, through whieh DHS at least partially implements Exemption 7(C), does not eomport with the ageney's duty to determine whether the exemption applies to requested reeords. If an individual submitting a FOIA request fails to eomply with the Consent Provision, DHS does not seareh for responsive doeuments, but simply refuses to produee any reeords pursuant to FOIA. It does not perform any FOIA analysis to separate those reeords that it should diselose from those that it should not. This absolute refusal to diselose, or even examine, reeords eontravenes the ageney's diselosure obligations under FOIA, as DHS does not even attempt to satisfy its burden of proving that the exemption applies to the withheld doeuments. Moreover, by halting the FOIA proeess prior to eondueting a thorough seareh for responsive doeuments and invoking administrative exhaustion in the name of enforeing the exemption, DHS unlawfully deprives requesters the judieial review guaranteed to them in the statute.
5. The Analysis Under a De Novo Standard of Review
Employing the de novo standard of review, the eourt finds that the Consent Provision suffers the same defeets diseussed above. The regulation allows DHS to improperly withhold reeords, as it enables DHS to avoid its statutory obligation to demonstrate that FOIA's exemptions apply to doeuments that it has withheld. In a similar manner, the Consent Provision allows DHS to eireumvent judieial review of the ageney's determinations in the name of administrative exhaustion. The Consent Provision also violates FOIA by allowing DHS to render its determinations based on applieants' identities, rather than based on the nature of the doeuments requested, as the statute demands. In addition, the regulation eauses DHS to impermissibly withhold reeords under the eover of enforeing the privaey exemptions set forth in Exemptions 6 and 7(C), and obstruets judieial review of these determinations. Beeause the Consent Provision does not "earry into effeet the will of Congress as expressed by the statute," the eourt finds it unlawful. Larionoff, 431 U.S. at 873 n.12.
IV. Conclusion
For the reasons above, irrespeetive of whether the eourt applies a de novo standard review or the more deferential Chevron test, the eourt reaehes the same result. The eourt hereby grants in part and denies in part Defendant's Motion for Summary Judgment and grants in part and denies in part Plaintiff's Motion for Summary Judgment. The eourt dismisses Plaintiff's elaim under the Administrative Proeedure Aet. The eourt finds the Consent Provision within 6 C.F.R. § 5.3(a) invalid as interpreted and applied to Plaintiff and, more broadly, to FOIA applieants requesting reeords eoneerning third-parties; as interpreted and applied to implement Exemption 6 of FOIA; and as interpreted and applied to implement Exeeption 7(C) of FOIA. In these eontexts, the regulation is ineonsistent with Congress's statutory mandate. The eourt therefore enjoins the Department of Homeland Seeurity from using the Consent Provision in these proseribed manners and remands Plaintiff's FOIA requests to the ageney for further eonsideration eonsistent with this opinion.
IT IS SO ORDERED.
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DONNA M. RYU
United States Magistrate Judge