Edward Tuffly v. Usdhs , 870 F.3d 1086 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD TUFFLY, AKA Bud Tuffly, No. 16-15342
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-00067-
ROS
U.S. DEPARTMENT OF HOMELAND
SECURITY,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Argued and Submitted June 5, 2017
Pasadena, California
Filed September 13, 2017
Before: Sidney R. Thomas, Chief Judge, Stephen
Reinhardt, Circuit Judge, and Edward R. Korman,*
District Judge.
Opinion by Judge Reinhardt
*
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
2 TUFFLY V. USDHS
SUMMARY**
Freedom of Information Act
The panel affirmed the district court’s summary judgment
in favor of the United States, and the district court’s finding
that the government had properly withheld former detainees’
names under Freedom of Information Act (“FOIA”)
Exemption 7(C).
Edward Tuffly, the treasurer of the National Border Patrol
Council, the union for Border Patrol agents, sought to compel
under FOIA the disclosure of the names of 149 non-citizens
who were released from detention pending a final
determination whether they will be removed.
The panel held that the released detainees had a
substantial privacy interest that outweighed the public interest
in the disclosure of their names. Specifically, the panel held
that so long as the disclosure of the information would give
rise to a potential, nontrivial invasion of personal privacy,
there was a privacy interest to be balanced against the public
interest under FOIA Exemption 7(c). In weighing the public
interest versus the privacy interest, the panel held that the
privacy interests in this case were particularly strong, both
because of the context of immigration enforcement and
because of the private information already disclosed by the
government that would be linked to the names of the released
individuals; and the public interest in evaluating the effects of
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TUFFLY V. USDHS 3
government actions would be advanced only minimally by
information that Tuffly sought.
COUNSEL
Michael Bekesha (argued) and James F. Peterson, Judicial
Watch Inc., Washington, D.C., for Plaintiff-Appellant.
Robert D. Kamenshine (argued) and Matthew Collette,
Appellate Staff; John S. Leonardo, United States Attorney;
Civil Division, United States Department of Justice,
Washington, D.C.; for Defendant-Appellee.
OPINION
REINHARDT, Circuit Judge:
Edward “Bud” Tuffly, the treasurer of the National
Border Patrol Council, the union for Border Patrol agents,
seeks to compel, under the Freedom of Information Act, the
disclosure of the names of 149 non-citizens who were
released from detention pending a final determination
whether they will be removed—names that could be linked to
other personal information that has already been released. In
opposing release of the names, the government invoked
FOIA’s personal privacy exemptions, finding that the former
detainees had a privacy interest in the non-disclosure of their
names, and that Tuffly did not assert a countervailing public
interest. Tuffly disagreed, and filed suit in the district court.
On summary judgment, the district court found that the
government had properly withheld the former detainees’
names under FOIA Exemption 7(C). Tuffly, represented by
4 TUFFLY V. USDHS
Judicial Watch, appealed. We hold that the released detainees
have a substantial privacy interest that outweighs the public
interest in the disclosure of their names, and affirm.
I.
In February 2013, the Department of Homeland Security
(DHS) announced that, due to “fiscal uncertainty,” it was
releasing from detention a number of non-citizens who were
in removal proceedings. The Department issued a statement
reading:
As fiscal uncertainty remains over the
continuing resolution and possible
sequestration, ICE has reviewed its detained
population to ensure detention levels stay
within ICE’s current budget. Over the last
week, ICE has reviewed several hundred
cases and placed these individuals on methods
of supervision less costly than detention. All
of these individuals remain in removal
proceedings. Priority for detention remains on
serious criminal offenders and other
individuals who pose a significant threat to
public safety.
The Department also stated that “[t]he detainees who’ve been
released can be characterized as non-criminals and other low
risk offenders who do not have serious criminal histories that
would subject them to mandatory detention. Detainees with
serious criminal histories are a detention priority and have not
been released.”
TUFFLY V. USDHS 5
Following the announcement by DHS, USA Today filed
a FOIA request asking for information about the detainees
released pursuant to the new policy. In response, the
government provided records demonstrating that two-thirds
of the 2,200 individuals who were released had no criminal
records. The records also showed, however, that several of
the released detainees had been charged with more serious
crimes, including kidnapping and homicide, although they did
not indicate whether any of them had actually been convicted.
The records also did not disclose the former detainees’ names
or other identifying information. In October 2014, USA Today
published an article discussing the information contained in
the released records.1
The next month, inspired by the publication of the USA
Today article, Tuffly filed a FOIA request with ICE.2 Tuffly
sought the “[r]ecords sufficient to identify all ICE detainees
released in late February or early March 2013” from five
Arizona detention facilities. Tuffly also requested records
sufficient to identify the date of each detainee’s release, his
criminal history or criminal charges at the time of release, the
methods of supervision to which he was subjected, and
information about whether the detainee appeared for
subsequent removal proceedings or was removed from the
United States. In his FOIA request, Tuffly stated that this
information would “enable [him], other members of the
1
Immigration and Customs Enforcement (ICE) stated that the
“releases involving individuals with more significant criminal histories
were, by and large, dictated by special circumstances outside of the
agency’s control.”
2
ICE is a subdivision of DHS. Each is frequently referred to
throughout this opinion as the “government.”
6 TUFFLY V. USDHS
public and the media to investigate public records pertaining
to the detainees’ prior convictions and arrests and potentially
shed light on ICE’s decision to release these detainees.”
Tuffly also asserted that the disclosure would “shed light on
the risk to the public posed by the detainees’ release and
ICE’s performance of its duties and responsibilities.”3
DHS complied with Tuffly’s request, but redacted the
names, file numbers, and case identification numbers of the
149 released detainees identified in the records. In doing so,
the agency invoked FOIA Exemptions 6 and 7(C), which
permit the government to withhold personnel or law
enforcement files that implicate personal privacy.4 The
government explained that in applying the exemptions, it had
“considered the privacy interests of the aliens in remaining
free from embarrassment, humiliation, annoyance,
harassment, intimidation, un-official questioning, retaliation
or physical harm for having been detained in a detention
facility.” Moreover, the government stated that Tuffly “failed
3
It is not clear what particular interest the treasurer of the union of
Border Patrol agents had in the government’s decision to release certain
individuals in the process of removal proceedings. Although we find
Tuffly’s assertion of the public interest somewhat odd, in the end the
question is irrelevant, as our analysis of withholding under Exemption
7(C) “cannot turn on the purposes for which the request for information
is made.” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 771 (1989).
4
As required, the government also submitted an affidavit “identifying
the documents withheld, the FOIA exemptions claimed, and a
particularized explanation of why each document falls within the claimed
exemption.” Lion Raisins v. U.S. Dep't of Agric., 354 F.3d 1072, 1082
(9th Cir. 2004), overruled on other grounds by Animal Legal Def. Fund
v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016) (en banc). On
appeal, Tuffly does not challenge the sufficiency of this affidavit.
TUFFLY V. USDHS 7
to articulate any public interest that could be advanced by
releasing the [personal] information,” and that “the redaction
was limited to the name[s] of the individual[s] or other
personally identifiable information which, if released, would
not shed light on the operations or activities of ICE.”
In January 2015, Tuffly filed a lawsuit in the district
court, seeking the release of the names of the 149 individuals.
The district court found that releasing their names “would
constitute a significant invasion of privacy.” The court then
concluded that Tuffly failed to demonstrate that the public
interest in obtaining the names outweighed the privacy
interests at stake. Finding that the government properly
withheld the names of the released detainees under FOIA
Exemption 7(C), the district court granted DHS’s motion for
summary judgment.
II.
The Freedom of Information Act seeks “to ensure an
informed citizenry, vital to the functioning of a democratic
society.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978). To that end, the Act requires that federal agencies
make records within their possession promptly available to
citizens upon request. See 5 U.S.C. § 552(a)(3). Yet this
command is not absolute. Rather, Congress recognized that,
at times, transparency may come at the cost of legitimate
governmental and privacy interests. Thus, the Act provides
for nine specific exemptions under which disclosure may be
refused. See 5 U.S.C. § 552(b). Here, the government relied
on Exemptions 6 and 7(C), which state that the following
information may be withheld from a FOIA disclosure:
8 TUFFLY V. USDHS
(6): personnel and medical files and similar
files the disclosure of which would constitute
a clearly unwarranted invasion of personal
privacy;
(7): records or information compiled for law
enforcement purposes, but only to the extent
that the production of such law enforcement
records or information . . . (C) could
reasonably be expected to constitute an
unwarranted invasion of personal privacy.
5 U.S.C. § 552(b). Tuffly does not contest that the records at
issue were “compiled for law enforcement purposes,” the
threshold requirement for Exemption 7(C). Because we
affirm on the basis of Exemption 7(C), we need not consider
Exemption 6.5 See Roth v. U.S. Dep't of Justice, 642 F.3d
1161, 1173 (D.C. Cir. 2011). We therefore need determine
only whether the disclosure of the released detainees’ names
could “reasonably be expected to constitute an unwarranted
invasion” of their personal privacy.
When a FOIA request implicates the areas of privacy
identified by a FOIA exemption, “[t]he statutory direction
that the information not be released if the invasion of
personal privacy could reasonably be expected to be
5
The “only distinction between the balancing tests applied” in the two
exemptions is “the ‘magnitude of the public interest’ required to override
the respective privacy interests they protect.” Forest Serv. Emps. for Envtl.
Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1025 n.2 (9th Cir. 2008)
(quoting U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487,
496 n.6 (1994)). Thus, cases arising under Exemption 6 may inform our
analysis of the private and public interests protected by Exemption 7(C).
We apply, however, the balancing test provided for in Exemption 7(C).
TUFFLY V. USDHS 9
unwarranted requires the courts to balance the competing
interests in privacy and disclosure.” Nat’l Archives &
Records Admin. v. Favish, 541 U.S. 157, 172 (2004). In
conducting such balancing, we apply a three-step test. First,
we must determine whether the “disclosure implicates a
personal privacy interest that is nontrivial or . . . more than [ ]
de minimis.” Yonemoto v. Dep't of Veterans Affairs, 686 F.3d
681, 693 (9th Cir. 2012) (internal citation and quotations
omitted), overruled on other grounds by Animal Legal Def.
Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir.
2016). Second, if such a privacy interest is at stake, the
requester “must show that the public interest sought to be
advanced is a significant one . . . and that the information is
likely to advance that interest.” Favish, 541 U.S. at 172.
Absent a showing of a significant public interest under step
two, the invasion of privacy is unwarranted, and the
information is properly withheld. Id. If both factors are
present, however, we must proceed to balancing the two.
Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir.
2009).
III.
We turn first to identifying the relevant privacy interests.
The “concept of personal privacy under Exemption 7(C) is
not some limited or ‘cramped notion’ of that idea.” Favish,
541 U.S. at 165 (quoting U.S. Dep’t of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989)).
Instead, the “statutory privacy right protected by Exemption
7(C) goes beyond the common law and the Constitution.” Id.
at 170. Under FOIA, a disclosure implicates privacy interests
if it affects “the individual’s control of information
concerning his or her person,” or involves the “disclosure of
records containing personal details about private citizens.”
10 TUFFLY V. USDHS
Reporters Comm., 489 U.S. at 763, 766. Additionally,
“notions of privacy in the FOIA exemption context
encompass information already revealed to the public.” Lane
v. Dep’t of Interior, 523 F.3d 1128, 1137 (9th Cir. 2008).
In order to demonstrate that the disclosure “could
reasonably be expected to constitute an unwarranted invasion
of personal privacy,” the government need not show that such
an infringement is certain to occur. Rather, an agency need
only show that the requested disclosure “could reasonably be
expected” to result in an unwarranted invasion of personal
privacy. Lahr, 569 F.3d at 977; see also Forest Serv. Emps.,
524 F.3d at 1026 (finding a privacy interest when the
disclosure “may” have resulted in an invasion of privacy). As
the Supreme Court has held, the personal privacy exemptions
apply even when the “danger of mistreatment” is “impossible
to measure.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 176
(1991).
Under Exemption 7(C), we must consider the privacy
interests at stake “in light of the consequences that would
follow” from disclosure. Favish, 541 U.S. at 170; see also
Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873,
878 (D.C. Cir. 1989) (“Disclosure does not, literally by itself,
constitute a harm; it is the requester’s (or another’s) reaction
to the disclosure that can sting.”). “Disclosures that would
subject individuals to possible embarrassment, harassment, or
the risk of mistreatment constitute nontrivial intrusions into
privacy.” Cameranesi v. U.S. Dep’t of Def., 856 F.3d 626,
638 (9th Cir. 2017); see also Forest Serv. Emps., 524 F.3d at
1026 (finding that there is a cognizable privacy interest under
FOIA in avoiding “embarrassment and stigma”).
TUFFLY V. USDHS 11
Contrary to the apparent view of Tuffly’s counsel, our
analysis of the consequences that might follow from
disclosure does not turn on the requester’s asserted intent in
obtaining the information. The Supreme Court has held that
“whether an invasion of privacy is warranted cannot turn on
the purposes for which the request for information is made.”
Reporters Comm., 489 U.S. at 771 (emphasis omitted). This
is a sensible rule, in light of the fact that under FOIA “once
there is disclosure, the information belongs to the general
public.” Favish, 541 U.S. at 174. See also Painting Indus. of
Haw. Mkt. Recovery Fund v. U.S. Dep’t of Air Force, 26 F.3d
1479, 1482 (9th Cir. 1994) (“We must evaluate both the
public benefit and the potential invasion of privacy by
looking at the nature of the information requested and the
uses to which it could be put if released to any member of the
public.”); Horner, 879 F.2d at 875 (holding that courts cannot
“ignore the impact on personal privacy of the more general
disclosure that will likely ensue”).
Thus, so long as the disclosure of the information would
give rise to a potential, nontrivial invasion of personal
privacy, there is a privacy interest to be balanced against the
public interest under Exemption 7(C).
In this case, disclosing the names of the released detainees
would give rise to significant privacy concerns. The
disclosure Tuffly seeks would identify the individuals in
question as subject to immigration enforcement proceedings
and as having been previously detained. The disclosure would
also link the former detainees’ names with the information
already released by the government in the redacted reports,
including much personal and private information. Each of
these individuals has a privacy interest in this “information
concerning his or her person” and these “personal details”
12 TUFFLY V. USDHS
about himself or herself. Reporters Comm., 489 U.S. at 763,
766. We discuss the strength of these privacy interests in
further detail below, but they are certainly sufficient to move
to the second step of the analysis.
IV.
We must next evaluate the public interest in obtaining
disclosure. At this step, the requester bears the burden of
showing (1) that the “public interest sought to be advanced is
a significant one, an interest more specific than having the
information for its own sake,” and (2) that the information is
“likely to advance that interest.” Favish, 541 U.S. at 172. In
determining the significance of the public interest, the
relevant inquiry under the “FOIA balancing analysis is the
extent to which disclosure of the information sought would
she[d] light on an agency’s performance of its statutory duties
or otherwise let citizens know what their government is up
to.” Bibles v. Or. Natural Desert Ass’n, 519 U.S. 355, 355–56
(1997) (per curiam) (quotations omitted). This inquiry
focuses not on the “general public interest in the subject
matter of the FOIA request,” Schrecker v. U.S. Dep’t of
Justice, 349 F.3d 657, 661 (D.C. Cir. 2003), but on the
“additional usefulness” of the specific information withheld,
Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 978 (9th Cir.
2009).
Tuffly first asserts an interest in understanding ICE’s
decision-making process in releasing the 149 detainees.
However, he is unable to demonstrate that disclosing the
names would “add significantly to the already available
information concerning the manner in which [the agency] has
performed its statutory duties.” Cameranesi, 856 F.3d at 640
(internal citations omitted). Tuffly has already been provided
TUFFLY V. USDHS 13
with the criminal history (if any) of each of the released
detainees. He therefore possesses the relevant information
that ICE had before it when it made its decisions to release
them.6 The purpose of FOIA is to “pierce the veil of
administrative secrecy and to open agency action to the light
of public scrutiny.” Schiffer v. F.B.I., 78 F.3d 1405, 1410 (9th
Cir. 1996) (quoting Ray, 502 U.S. at 173). Here, the veil has
been pierced and the light cast upon ICE’s release of the
149 non-citizen detainees. The names of the detainees would
do nothing to further illuminate the government’s decision
that these individuals should be released pending completion
of their removal proceedings.
Tuffly next asserts an interest in exposing government
negligence or misconduct in the decision to release these
individuals. However, there is an additional evidentiary
showing required when the asserted public interest is
demonstrating “that responsible officials acted negligently or
otherwise improperly in the performance of their duties.”
Favish, 541 U.S. at 174. In such cases, the “requester must
produce evidence that would warrant a belief by a reasonable
person that the alleged government impropriety might have
occurred.” Id. In such cases, “[o]nly when the FOIA requester
has produced evidence sufficient to satisfy this standard will
there exist a counterweight on the FOIA scale for the court to
balance against the cognizable privacy interests in the
requested records.” Id. at 174–75. Tuffly has failed to identify
any such evidence. Instead, he relies on conclusory assertions
that the names might help him uncover evidence of
6
Tuffly does not allege that ICE relied upon any information outside
of the records already provided by the government when making the
release determinations.
14 TUFFLY V. USDHS
negligence or misconduct. Those assertions are insufficient to
satisfy his burden.
Finally, Tuffly asserts an interest in evaluating the effects
of the government’s release decisions, independently of his
claims of negligence or misconduct. Unlike Tuffly’s other
asserted interests, there is a significant enough public interest
in examining the success or failure of governmental programs
to reach the balancing stage of the analysis. Discovering that
a government policy had deleterious consequences can be
important information for the public to have, even if those
consequences were unforeseeable and the government in no
way acted improperly or negligently in adopting the policy.
Evidence about the effects of prior policy decisions helps in
evaluating the wisdom of future policy proposals, and thus
helps “citizens know what their government is up to.” Or.
Nat. Desert Ass’n, 519 U.S. at 356.
Tuffly is not required to present any additional evidence
to support an interest in evaluating the effects of the
government’s policy. As we said in Cameranesi, “[i]f the
FOIA requester does not allege any government impropriety,
the Favish reasonable belief standard may be inapplicable.”
856 F.3d at 640 n.17 (citing Citizens for Responsibility &
Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082,
1094–95 (D.C. Cir. 2014)). However, this public interest only
supports disclosure of the names to the extent that disclosure
“is likely to advance” the public’s ability to evaluate future
government actions. Favish, 541 U.S. at 172.
Having found that one of Tuffly’s asserted public interests
is significant we proceed to balance that interest against the
privacy interests identified above.
TUFFLY V. USDHS 15
V.
The privacy interests in this case are particularly strong,
both because of the context of immigration enforcement and
because of the private information already disclosed by the
government that would be linked to the names of the released
individuals. On the other side of the scale, the public interest
in evaluating the effects of government actions would be
advanced only minimally by the information Tuffly seeks.
Accordingly, we find that the privacy interests here outweigh
the public interest and that nondisclosure is appropriate.
The release of the detainees’ names would identify them
as being in the country without authorization and as subject
to prior ICE detention. The district court was correct that the
“often hostile atmosphere surrounding unauthorized
immigration” weighs heavily in favor of finding that those
detainees may be subjected to harassment, embarrassment, or
stigma. There is no question, as the government points out,
that undocumented immigrants face a serious risk of
“harassment, embarrassment, and even physical violence and
reprisal by citizens and law enforcement.”7 Certain local law
enforcement agencies have racially profiled and harassed
7
As discussed, we consider the possible consequences of disclosure
to any member of the public, not just disclosure to Tuffly. Disclosure
under FOIA is disclosure to the general public, not just disclosure to a
specific person. Additionally, although Tuffly disavows any intent to
contact the detainees, there is no reason to believe that he will not
publicize their names. Indeed, his counsel, Judicial Watch, has already
published on its website the records released pursuant to Tuffly’s
FOIA request, and there is no indication that the organization does
not plan to similarly publish the released detainees’ names. See
http://www.judicialwatch.org/wp-content/uploads/2015/07/Tuffly-v-DHS-
06247-Records-List.pdf.
16 TUFFLY V. USDHS
entire groups of citizens and non-citizens alike in order to
identify undocumented immigrants. See, e.g., Melendres v.
Arpaio, 784 F.3d 1254, 1258 (9th Cir. 2015). One even
refused to cease such conduct notwithstanding the orders of
the federal court. See Melendres v. Arpaio, No. CV-07-2513-
PHX-GMS, 2016 WL 2783715, *2 (D. Ariz. May 13, 2016)
(Snow, J.) (finding sheriff and other sheriff’s office
leadership in civil contempt for “multiple acts of misconduct,
dishonesty, and bad faith with respect to the Plaintiff class
and the protection of its rights” and “persistent disregard for
the orders of this Court”); United States v. Arpaio, No. CR-
16-01012-001-PHX-SRB, 2017 WL 3268180, *7 (D. Ariz.
July 31, 2017) (Bolton, J.) (finding sheriff guilty of criminal
contempt for “willfully violat[ing] an order of the court”). In
addition, the association in voters’ minds between day
laborers and undocumented immigrants has contributed to
laws and local ordinances targeting such laborers. See, e.g.,
Valle del Sol Inc. v. Whiting, 709 F.3d 808, 819 (9th Cir.
2013); Centro de la Comunidad Hispana de Locust Valley v.
Town of Oyster Bay, __ F.3d __, 2017 WL 3596995, *1
(2d Cir. Aug. 22, 2017). To disclose the identities of the
released detainees would be to publicize their immigration
status and the fact of their prior detention—a disclosure that
could well have a serious impact on the privacy and other
rights of the affected individuals.
Moreover, for certain of the detainees, the records already
released by ICE include other forms of personal information,
including their educational history, race, religion, medical
conditions (including psychiatric disorders), and arrest and
TUFFLY V. USDHS 17
conviction records, if any.8 Thus, granting Tuffly’s request
could link the detainees with particular, sensitive information,
resulting in serious and impermissible invasions of their
privacy. See Ray, 502 U.S. at 176 (“Although disclosure of
such personal information constitutes only a de minimis
invasion of privacy when the identities of the [individuals]
are unknown, the invasion of privacy becomes significant
when the personal information is linked to particular
[individuals].”).
On the other side of the scale is the public interest in
evaluating the effects of the government’s release decisions
to inform similar public policy decisions in the future. While
that interest is significant in the abstract, here the information
Tuffly seeks would only minimally advance public
understanding of the government’s actions.
There is nothing special about the 149 detainees
addressed by Tuffly’s FOIA request. These individuals are
not, as he claims, “criminal aliens” or “dangerous
individuals.” Rather, the records released by the government
reveal that 53% of the former detainees have no criminal
convictions at all. Of those with any criminal convictions,
87% were for minor offenses, such as traffic offenses,
shoplifting, and disorderly conduct. Only 7% of the
149 released detainees were convicted of more serious
8
See, e.g., http://www. j u d i c i a l wa t c h . o r g / wp -
content/uploads/2015/07/Tuffly-v-DHS-06247-Records-r_2015-ICFO-
06247.pdf at 47, 64, 88, 134 (educational history); id. at 103 (race); id. at
356 (religion); id. at 128, 134, 244, 365 (medical conditions).
18 TUFFLY V. USDHS
offenses such as assault, battery, and weapons offenses.9
None had been convicted, as some would have us believe, of
crimes such as murder, rape, or kidnapping. Thus, the large
majority of the released detainees are not criminals in the
ordinary sense of the word, and only a small number could
conceivably be described as “dangerous” even under the most
expansive use of that term. Indeed, the rate of criminal
convictions is lower among the released detainees than
among adult Americans in general, and the crimes previously
committed by the few with a prior record are far less serious.
This is confirmed by a recent Cato Institute study, which
found that, excluding immigration offenses, native-born
Americans are more than three times as likely to be
incarcerated as undocumented immigrants.10 Tuffly’s
willingness to label as dangerous criminal aliens people who
have never even been charged with a crime, people who have
been charged but not convicted, and people who have been
convicted only of traffic offenses or other minor crimes
vividly illustrates the risks to these individuals’ privacy if
their names are disclosed.
9
See http://www.judicialwatch.org/document-archive/tuffly-v-dhs-
06247-records-list/. The calculation of “more serious offenses” includes
convictions for domestic violence, assault, battery, intimidation, weapons
offenses, firing a weapon, and robbery.
10
See, e.g., Cato Institute, Criminal Immigrants: Their Numbers,
Demographics, and Countries of Origin 2 (Mar. 15, 2017), available at
https://object.cato.org/sites/cato.org/files/pubs/pdf/immigration_brief-
1.pdf. Despite the evidence showing that undocumented immigrants are
less likely to commit crimes than citizens, the government has recently
opened a new office dedicated to crimes allegedly committed by
undocumented immigrants. See U.S. Immigrations and Customs
Enforcement, Victims of Immigration Crime Engagement (VOICE)
Office, https://www.ice.gov/voice.
TUFFLY V. USDHS 19
The released detainees are more properly understood as
merely some of the approximately 400,000 undocumented
immigrants who are held in ICE detention every year.11 Of
those detainees, about one-third are granted bond by an
Immigration Judge pursuant to the governing statutes.12 The
vast majority of these individuals post bond and are released.
There is no reason to think that ICE’s release decisions in the
cases involved in this FOIA request are any different from the
hundreds of thousands of other similar decisions ICE makes
each year—decisions to release individuals who are less
likely to commit serious crimes than are citizens of this
country.
The public interest in evaluating the effects of the
government’s immigration detention and release policies is
barely advanced by picking out a small subset of individuals
who are released from detention and tracking down
information about their post-release conduct in an ad hoc
manner. Tuffly admits that release of the names would not
itself advance the public interest in understanding the impact
of the government’s detention and release policies. Rather,
Tuffly would have to use the names to search through various
11
See Dr. Dora Schriro, Immigration and Customs Enforcement,
Immigration Detention Overview and Recommendations at 6 (Oct. 6,
2009), available at https://www.ice.gov/doclib/about/offices/odpp/pdf/ice-
detention-rpt.pdf.
12
See Syracuse University, TRAC Immigration, What Happens When
Individuals Are Released on Bond in Immigration Court Proceedings
(Sept. 14, 2016), available at http://trac.syr.edu/immigration/reports/438/.
Moreover, nearly one-third of American adults have a criminal
history, and at least 4 million have been released on
supervision, probation, or parole. Bureau of Justice Statistics,
Probation and Parole in the United States, 2015, available at
https://www.bjs.gov/content/pub/pdf/ppus15_sum.pdf.
20 TUFFLY V. USDHS
databases (including the individual databases of assorted local
law enforcement agencies) and comb the internet for
references to the released individuals. This task is far from
certain to produce any relevant information regarding the
detainees’ acts after release. Even if such information were
found, Tuffly would still need to connect such acts to the
government’s detention and supervision decisions. Such an
approach does not lend itself to sound conclusions about the
impact of governmental policy. See Ray, 502 U.S. at 179(holding that “[m]ere speculation about hypothetical public
benefits cannot outweigh a demonstrably significant invasion
of privacy”); Associated Press v. U.S. Dep’t of Def., 554 F.3d
274, 289–90 (2d Cir. 2009) (holding that the “speculative
nature” of the public interest was “insufficient to outweigh
the detainees’ privacy interest in nondisclosure”).13
VI.
This case requires us to balance the privacy interests of
non-citizens formerly held in ICE detention with the public’s
right to access government records. Here, disclosing the
names of the released detainees risks subjecting them to
13
The case on which Tuffly primarily relies, Union Leader Corp. v.
U.S. Dep’t of Homeland Sec., 749 F.3d 45 (1st Cir. 2014), involved a
balancing of different privacy and public interests than are at stake here.
The only privacy interests discussed in Union Leader were the
individuals’ privacy interests in the fact of their prior arrests and
convictions, id. at 51, while here the disclosure Tuffly seeks would link
the individuals’ names to substantial amounts of private information,
including medical and psychiatric conditions, that are not a matter of
public record. While all of the individuals in Union Leader had criminal
records, here only a minority of the released detainees have any
convictions at all. Finally, the plaintiffs in Union Leader presented
specific evidence of government misconduct or neglect, id. at 56, which
Tuffly has been unable to do here.
TUFFLY V. USDHS 21
significant invasions of personal privacy. The detainees
would be publicly identified as unauthorized immigrants who
had previously been held in government detention, a status
which carries with it the potential for stigma, harassment,
discrimination, illegal detention, and even violence. In
addition, the detainees’ names would be linked to other
personal and potentially embarrassing information that has
already been disclosed but not identified as applying to them.
This invasion of personal privacy is not, in this case or in this
era, outweighed by the public interest. Thus, we affirm the
decision of the district court.
AFFIRMED.