Jacqueline Stevens v. DOJ

responsive to" her requests. The agencies moved for summary judgment, appending declarations from each agency's FOIA officer, outlining the search procedure each agency used in response to Stevens' records requests. The district court granted summary judgment in favor of the agencies.

Stevens appeals, challenging only the adequacy of Immigration and Customs Enforcement ("ICE")'s searches in response to Stevens' requests for all information in ICE's records related to Manuel Valdez Soto, Juan Hurtado Valencia, and Nathan Anfinson.¹But Stevens' arguments on appeal differ somewhat from those she made to

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the district court. Rather than contest the speed at which ICE responded to her requests, or ICE's withholdings on responsive records, Stevens now argues that ICE's searches were inadequate because they lacked uniformity; specifically, ICE, without explanation, used different search terms and searched different locations for each search. She also argues that we should not presume that the affidavits supporting ICE's claims that their searches complied with FOIA were made in good faith. Stevens' arguments as to search terms and the good faith presumption are forfeited, and her arguments as to search locations fail on the merits because Stevens provides us with no authority suggesting that the use of dissimilar search locations across separate searches is per se unreasonable. Therefore, we affirm.

I

As a threshold matter, we decide the scope of the arguments that we will consider on appeal. Stevens' search term and good faith presumption arguments are forfeited. At no point in the district court did Stevens discuss the search terms used by ICE or address the presumption of good faith afforded to ICE. Because she raises these arguments for the first time on appeal, they are forfeited. United States v. Sheth, 924 F.3d 425, 435 (7th Cir. 2019) ("A party forfeits an argument by failing to raise it below, or by raising it in a perfunctory or general manner."); Dalton v. Teva N. Am., 891 F.3d 687, 692 (7th Cir. 2018) (citing Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012)) ("[I]nadequately briefed arguments are forfeited.").

But Stevens' arguments as to search locations are preserved. True, before the district court, Stevens did not squarely raise the argument that ICE's searches for records related to Valdez Soto, Anfinson, and Hurtado Valencia were inadequate because ICE, without explanation, varied the locations searched for each request. But in her response to the agencies' motion for summary judgment, Stevens focused on each agency's "insufficiently detailed" declarations, which, she alleged, failed to provide officials of US Citizenship and Immigration Services and the State Department . . . [A]ll memorandums, draft memorandums, reports, notes, email, text messages, and any other information maintained in any form about Mr. Hurtado . . . All records of grievances filed by Mr. Hurtado orally or in writing under the control of ICE or its components, including county jails or private prisons with which ICE has contracted . . . Screen shots of all tabs for interfaces to databases consulted for responsive records, including but not limited to PLAnet.

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specifics on its recordkeeping schemes, name the databases under its control, and describe the documents each database contained. And as an example of such an insufficiently detailed declaration, Stevens observed that the ICE FOIA officer's declaration reflected that ICE searched one location for the Valdez Soto request, two locations for the Anfinson request, and four locations for the Hurtado Valencia request. Each agency, including ICE, Stevens argued, had not explained "how it selected the [databases] that were searched in response to [Stevens'] requests." Thus, because Stevens' arguments on appeal "grow[] out of the facts presented to the district court,"

and both Stevens' arguments to the district court and on appeal "are arguments in support of the claim that" ICE's searches violate FOIA, Stevens' argument on appeal "is not a separate claim" from her argument made to the district court. Bew v. City of Chicago, 252 F.3d 891, 896 (7th Cir. 2001).

II

We turn next to the merits of Stevens' search location argument. As noted, the crux of this argument is that ICE improperly searched in "different locations" for each of her three requests, and as a result, ICE's search was not "reasonable." A search is adequate if it is the result of "a good faith effort" and is also "reasonable in light of the request." Rubman v. U.S. Citizenship & Immigration Servs., 800 F.3d 381, 387 (7th Cir. 2015). "In response to an agency affidavit, the FOIA requester can present 'countervailing evidence' as to the adequacy of the agency's search." Id. (quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 314 (D.C. Cir. 2014)). As a threshold matter, we have never suggested that an agency's decision to search different locations for different requests (even if those requests are overlapping) is unreasonable and thus, a FOIA violation. And indeed, our caselaw, driven by another of Stevens' requests, suggests the opposite. In Stevens' earlier litigation before us, Stevens v. United States Dep't of State, 20 F.4th 337, 343 (7th Cir. 2021), we addressed the same arguments that Stevens raises here: that a FOIA officer's "declaration lack[ed] crucial details, preventing us from evaluating whether the Department searched all databases likely to contain responsive documents" and that the declaration did not make clear "the Department's process for choosing databases to search," leading Stevens to speculate as to why the Department searched some locations but not others. We held that "we d[id] not share Professor Stevens's concerns about the declaration."

Id. We determined that the State Department's "considerable discretion" in choosing what locations to search was justified because "the Department['s] . . . records are spread across offices in over 200 countries," and we found that the alternative search

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locations identified by Stevens "could reasonably have been deemed unlikely to contain responsive emails." Id. After all, an agency's duty to "conduct a search reasonably calculated to uncover all relevant documents" does not require the agency "to speculate about potential leads" or "look beyond the four corners of the request for leads to the location of responsive documents." Kowalczyk v. Dep't of Just., 73 F.3d 386, 389 (D.C. Cir. 1996) (quotation omitted). Without any binding authority suggesting that an agency strays outside of the bounds of its "considerable discretion," Stevens, 20 F.4th at 343, when it searches different locations in response to different requests, we have no basis to conclude that ICE acted unreasonably in searching fewer databases for records related to Valdez Soto than it did for records related to Anfinson or Hurtado Valencia. In addition to the dearth of relevant caselaw in her briefing, Stevens has also failed to introduce "'countervailing evidence' as to the adequacy of the agency's search." Rubman, 800 F.3d at 387 (quoting Iturralde, 315 F.3d at 314). Critically, while Stevens' three FOIA requests here contain some commonalities, they are not identical. For example, Stevens' request for information about Hurtado Valencia (for whom the most locations were searched) noted that he was a U.S. citizen who was mistakenly deported in 2008 and included a link to a blog post about the circumstances of his deportation. But Stevens provided no such information in her requests for Anfinson and Valdez Soto, and it is unclear from the text of those requests whether Anfinson and Valdez Soto were deported, remain in ICE custody, were released, or otherwise. Further, while Stevens requested "all system records" in all three requests, she also specifically requested "records of grievances" from Hurtado Valencia and Anfinson during their detentions, as well as commissary account data and "correspondence, notes, and other records pertaining to assertions or findings of U.S. citizenship" for Anfinson. Because an agency need not "look beyond the four corners of the request for leads to the location of responsive documents," Kowalczyk, 73 F.3d at 389, these differences in the three requests are dispositive. Simply put, it is unsurprising that ICE searched more locations in proportional response to Stevens' requests for information that contained more detail and made more specific asks—namely, four locations for Hurtado Valencia, two locations for Anfinson, and one location for Valdez Soto. We also must credit the affidavit in support of ICE's compliance with FOIA. See Matter of Wade, 969 F.2d 241, 246 (7th Cir. 1992) ("Without evidence of bad faith, the veracity of the government's submissions regarding reasons for withholding the documents should not be questioned."). That affidavit states that for all three requests, ICE employees "conduct[ed] searches of their file systems (including both paper files and electronic files) which in their judgment, based upon their knowledge of the

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manner in which they routinely keep records, would be reasonably likely to have responsive records." The alternative locations that ICE could have searched for both Anfinson and Valdez Soto "could reasonably have been deemed unlikely to contain responsive emails" based, at least in part, on variations in the text of Stevens' initial requests, as described above. See Stevens, 20 F.4th 343. As a result, Stevens has not shown that "the criticized omissions w[ere] unreasonable." Id. at 344. And without more argument from Stevens, fulfilling her "burden to show 'that the agency might have discovered a responsive document had the agency conducted a reasonable search,'" our prior Stevens opinion precludes us from finding in her favor here. Patterson

v. IRS, 56 F.3d 832, 841 (7th Cir. 1995) (quoting Maynard v. CIA, 986 F.2d 547, 560 (1st Cir. 1993)).

In closing, Stevens' argument that similar requests should beget similar results is not unreasonable, and the agencies here might avoid future FOIA litigation by deploying a more uniform, consistent search process and minimizing the discretion of individual employees. Nevertheless, on this record, and without a more developed argument from Stevens, we have no basis to find that ICE did not act in good faith in searching different locations for different requests and failing to explain why it searched some locations but not others.

AFFIRMED

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