Union v. United States Immigration and Customs Enforcement

Background

The American Civil Liberties Union brought this Freedom of Information Act case against United States Immigration and Customs Enforcement and the United States Department of Homeland Security. It sought declaratory and injunctive relief and requested records concerning electronic legal research materials provided at Immigration and Customs Enforcement detention facilities.

The request had three categories: the electronic law-library materials; supporting materials related to those materials; and documents concerning software requirements. The government produced records responsive to the second category and stated that records responsive to the third category did not exist. The remaining dispute concerned the first category, which the American Civil Liberties Union described as a copy of the electronic law library in its native format.

Immigration and Customs Enforcement contracts with RELX Inc., which owns the LexisNexis Research Service, to provide legal research materials to detained noncitizens. The contract covers an online or tablet system and an offline system using electronic hard drives. The motions concerned only the offline system. RELX installs databases and software on the hard drives, updates them quarterly, and sends them to detention facilities and field offices. The materials are then uploaded to law-library computers. The contract states that RELX, rather than the government, is responsible for day-to-day operation and quality control.

Parties’ Arguments

The government argued that the Offline Lexis Materials were not “agency records” subject to the Freedom of Information Act. It also argued that, if they were agency records, they were protected by Exemption 4, which covers certain confidential commercial or financial information obtained from another person.

The American Civil Liberties Union argued that the materials were agency records because they reflected Immigration and Customs Enforcement’s decisions about how to meet its obligation to provide law-library materials to detained people. It also disputed the government’s reliance on Exemption 4.

Agency-Records Analysis

The court applied the two-part test from Tax Analysts: materials are agency records if the agency created or obtained them and controlled them. The parties agreed that Immigration and Customs Enforcement obtained the materials, so the dispute concerned control.

The court rejected the government’s argument that library reference materials can never be agency records. It distinguished earlier cases involving reference libraries because this request concerned materials selected and provided as part of Immigration and Customs Enforcement’s decisions about how to provide a law library to detainees. The court also noted that the earlier cases did not apply the later two-part Tax Analysts test.

The court considered the Master Agreement governing Immigration and Customs Enforcement’s use of the RELX materials. The agreement gave Immigration and Customs Enforcement a nonexclusive, nontransferable, limited license for internal use. It restricted copying, use by others, transfer, and other uses that could infringe RELX’s or its suppliers’ rights. The agreement also stated that RELX and its suppliers owned the materials.

After a hearing, the court allowed the government to submit additional evidence about whether the Master Agreement applied. The supplemental evidence stated that the agreement appeared on each electronic hard drive and that an Immigration and Customs Enforcement employee had to accept its terms during installation for the installation to continue. The court found that evidence sufficient and overruled the American Civil Liberties Union’s objections based on foundation, personal knowledge, and hearsay.

The court concluded that Immigration and Customs Enforcement lacked sufficient control over the Offline Lexis Materials. The license restricted the agency’s ability to use and dispose of the materials, while RELX retained ownership. The court also relied on uncontroverted evidence that Immigration and Customs Enforcement personnel did not use the materials for agency research or decision-making; the materials were maintained for detained noncitizens in Immigration and Customs Enforcement custody.

Disposition

The court held that the Offline Lexis Materials were not agency records under the Freedom of Information Act. It granted defendants’ motion for summary judgment and denied the American Civil Liberties Union’s motion for summary judgment. Because it resolved the case on the agency-records issue, the court did not reach the government’s argument that the materials were protected by Freedom of Information Act Exemption 4.

The court directed the parties to meet and confer about outstanding issues and submit a joint letter by October 11, 2024, describing any remaining issues and proposing a schedule.