Tushnet v. U.S.

Topic(s): 
Government Transparency — FOIA
Case Description: 

We represent Harvard Law Professor Rebecca Tushnet in a Freedom of Information Act (FOIA) case against U.S. Immigration and Customs Enforcement (ICE). After an ICE official was reported to have stated at a press conference that critical use of a trademark—such as the profane debasing of a mascot—constitutes trademark infringement that would allow ICE to seize the merchandise as counterfeit, Professor Tushnet sought to determine whether ICE’s official policies are based on a misunderstanding of intellectual property law. When ICE refused to cooperate with Professor Tushnet’s informal requests for information, she submitted a FOIA request in March 2015.

ICE failed provide a substantive response to Professor Tushnet’s FOIA request within the required time limits. On June 12, 2015, Professor Tushnet filed a complaint in U.S. District Court seeking an injunction ordering ICE to make the requested records available without delay. After she filed suit, ICE made several rolling productions of responsive material. The parties then filed cross-motions for summary judgment.

We argued that ICE failed to conduct an adequate search for responsive records and made improper redactions under FOIA Exemption 7(E) to material in 25 industry guides. The Court agreed, and, on March 31, 2017, denied ICE’s motion for summary judgment. The Court found that ICE had failed to demonstrate that its search was adequate because it failed to justify its decision not to search one of its internal records systems, and ICE failed to support the scope of its searches across the agency’s 26 field offices. With respect to ICE’s reliance on FOIA Exemption 7(E), the Court found that there were unresolved questions concerning the appropriateness of the challenged redactions. The Court ordered ICE to conduct an adequate search within the next 60 days and to review its redactions in light of the Court’s ruling that parodies or other uses of trademarks protected under the doctrine of fair use should not have been withheld under Exemption 7(E). On June 29, 2017, ICE produced two pages of material that had been improperly redacted from the industry guides, and 1,032 pages of material from a records system that has not previously been searched. ICE is expected to produce more documents by July 31, 2017.