The opinion of the court was delivered by: Paul Barbadoro United States District Judge
The Union Leader Corporation ("Union Leader"), a New Hampshire newspaper, filed a complaint based on the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking to compel Immigration and Customs Enforcement ("ICE"), a division of the Department of Homeland Security, to produce records of the names and addresses of six individuals ICE arrested in 2011. ICE filed a motion to dismiss for lack of subject matter jurisdiction or, in the alternative, for summary judgment, claiming that the names and addresses are exempt from disclosure. The Union Leader responded by objecting to ICE's motion to dismiss and filing a cross-motion for summary judgment.*fn1 For the reasons provided below, I deny the Union Leader's motion and grant ICE's motion for summary judgment.
Operation Cross Check is a national immigration enforcement initiative designed to arrest convicted criminal aliens, including "criminal fugitives; criminal aliens who illegally reentered the United States after having been removed; and at large criminal aliens." Doc. No. 1-1. The first nationwide Cross Check operation resulted in the arrest of 2,442 convicted criminal aliens. In 2011, ICE performed its second Cross Check operation. That operation resulted in the arrest of 2,901 convicted criminal aliens, six of whom were arrested in New Hampshire. On September 28, 2011, ICE's public affairs office issued an Operation Cross Check press release describing the operation and listing cities in New England where ICE arrested individuals.
The Union Leader contacted an ICE public affairs officer to request the names and addresses of the six individuals arrested in New Hampshire during Operation Cross Check. The officer provided the Union Leader information about the arrestees, including the individuals' sexes, ages, countries of birth, state of arrest (i.e. New Hampshire), criminal conviction information, and ICE custody status, but not the names and addresses of the individuals. The Union Leader filed suit in this court on January 13, 2012. Finding that the Union Leader failed to exhaust its administrative remedies, the court dismissed the Union Leader's suit on March 23, 2012. Union Leader Corp. v. U.S. Dep't of Homeland Security, Immigration and Customs Enforcement Div., No. 12-cv-18-JL, 2012 WL 1000333, at *3 (D.N.H. Mar. 23, 2012).
On February 29, 2012, the Union Leader submitted a FOIA request to ICE seeking "any and all records and documents relating to, and/or concerning the six individuals" ICE arrested in New Hampshire during the agency's second Cross Check operation.*fn2 Doc. No. 1-3. The Union Leader's request did not include a privacy waiver or other authorization from any of the six individuals. Doc. No. 7-2. ICE's FOIA office reviewed the request and forwarded it to the ICE Office of Enforcement and Removal Operations*fn3 ("ICE ERO") after determining that ICE ERO might have records responsive to Union Leader's request. ICE's search resulted in nineteen pages of responsive documents, which consisted of forms I-213 for each of the six criminal aliens.*fn4
Deputy FOIA Officer Ryan Law reviewed the responsive records and redacted portions of the documents, including the names and addresses of the criminal aliens.*fn5 ICE created a Vaughn index to document the redactions and identify the exemptions claimed to justify nondisclosure,*fn6 Doc. No. 7-3, and disclosed the redacted I-213 forms to the Union Leader on March 9, 2012.*fn7 According to the redacted forms, one of the criminal aliens arrested by ICE was ordered removed by an immigration judge and will remain in ICE custody pending removal; two were scheduled for a hearing before an immigration judge at a later date; and three were processed and served with a notice to appear for removal proceedings.
On March 14, 2012, the Union Leader administratively appealed ICE's initial determination that the names and addresses of the arrestees are exempt from disclosure. Doc. No. 1-5. On March 28, 2012, the ICE Office of Principal Legal Advisor, Government Information Law Division responded to the Union Leader's appeal and upheld ICE's determination to partially withhold the records. Doc. No. 7-8. Having exhausted its administrative remedies, the Union Leader filed this action on April 4, 2012, seeking a judicial order compelling ICE to produce the names and addresses of the six individuals arrested in New Hampshire during 2011.
A. Summary Judgment Standard
ICE seeks dismissal of this action on the ground that the court lacks subject matter jurisdiction because ICE has not unlawfully withheld records. In the alternative, ICE moves for summary judgment.
Ordinarily, a motion to dismiss for lack of subject matter jurisdiction is analyzed under Rule 12(b)(1). A court, however, must treat a motion challenging subject matter jurisdiction as a motion for summary judgment "where jurisdictional issues cannot be separated from the merits of the case." Gonzales v. United States, 284 F.3d 281, 287 (1st Cir. 2002); see Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 & n.3 (1st Cir. 2001). "A jurisdictional issue is intertwined with the merits where the court's subject matter jurisdiction depends upon the statute that governs the substantive claims in the case." Gonzales, 284 F.3d at 287.
To invoke subject matter jurisdiction under the FOIA, a plaintiff must allege that the agency "(1) 'improperly' (2) 'withheld' (3) 'agency records.'" Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). If the elements of jurisdiction are properly alleged, the burden shifts to the agency to show that the records sought by the plaintiff are not agency records or were not improperly withheld. U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). "[B]ecause FOIA serves as the source of both this court's subject matter jurisdiction and the plaintiff['s] cause of action, the jurisdictional inquiry is intertwined with the merits of [its] claim." Wilkinson v. ...