In ACLU Immigrants' Rights Project v. U.S. Immigration & Customs Enforcement, 58 F.4th 643, 2023 WL 405766 (2d Cir. 2023), the U.S. Court of Appeals for the Second Circuit revisited the thorny question of when a federal agency must manipulate an electronic database in response to a request under the Freedom of Information Act, 5 U.S.C. Section 552 (FOIA). The ACLU sued Immigration and Customs Enforcement (ICE) for refusing to replace personally identifiable "alien identification numbers" held in its databases with anonymized "Unique IDs" that would allow the organization to connect records of events to individuals. ICE responded that making such Unique IDs would create new records, which FOIA does not require. In a unanimous opinion authored by Circuit Judge Reena Raggi and joined by Circuit Judges Susan Carney and Richard Wesley, the court reversed the district court's grant of summary judgment to ICE and held that Unique IDs are not new records. In reaching this conclusion, the court refined its framework for analyzing when FOIA requires agencies to alter electronic disclosures in order to facilitate access to records held within their databases.

FOIA and the Limit on 'New Records'

FOIA establishes a general rule of agency disclosure of records unless one of nine exemptions applies. Even if an exemption allows an agency to withhold certain records, the agency still must produce "any reasonably segregable portion of that record." 5 U.S.C. Section 552(b). However, the Supreme Court has explained that because FOIA "deals with 'agency records,' not information in the abstract," it "imposes no duty on the agency to create records." See Forsham v. Harris, 445 U.S. 169, 185–86 (1980).