Transgender Law Center v. Ice ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRANSGENDER LAW CENTER; JOLENE No. 20-17416
K. YOUNGERS, as personal
administrator for the wrongful death D.C. No.
estate of Roxsana Hernandez, 3:19-cv-03032-
Plaintiffs-Appellants, SK
v.
ORDER AND
IMMIGRATION AND CUSTOMS AMENDED
ENFORCEMENT; U.S. DEPARTMENT OPINION
OF HOMELAND SECURITY; OFFICE
FOR CIVIL RIGHTS AND CIVIL
LIBERTIES - UNITED STATES
DEPARTMENT OF HOMELAND
SECURITY,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Sallie Kim, Magistrate Judge, Presiding
Argued and Submitted November 16, 2021
San Francisco, California
Filed May 12, 2022
Amended August 19, 2022
2 TRANSGENDER LAW CENTER V. ICE
Before: Sidney R. Thomas and M. Margaret McKeown,
Circuit Judges, and Jane A. Restani, * Judge.
Order;
Opinion by Judge McKeown
SUMMARY **
Freedom of Information Act
The panel reversed the district court’s partial summary
judgment in favor of federal agencies in a Freedom of
Information Act (“FOIA”) action involving requests for
government documents related to an asylum-seeker’s death
in federal custody; vacated the district court’s mootness
determination; and remanded.
The Transgender Law Center and Jolene K. Youngers
(collectively “TLC”), acting on behalf of Roxsana
Hernandez’s family and estate, submitted two FOIA
requests. The first FOIA request was directed to the U.S.
Immigration & Customs Enforcement (“ICE”), and the
second was directed to the Department of Homeland
Security Office for Civil Rights and Civil Liberties. TLC
filed suit in district court seeking declaratory and injunctive
relief. The district court granted TLC’s request for
declaratory judgment that the agencies had failed to timely
*
The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TRANSGENDER LAW CENTER V. ICE 3
respond to their FOIA requests, but in all other respects ruled
for the agencies, holding that they had adequately complied
with the FOIA requests, had conducted an adequate search,
had appropriately applied FOIA exemptions, and had
provided adequate Vaughn indices.
The panel first considered whether the district court erred
in holding that the agencies’ search was “adequate.” Joining
the other circuits that had considered the issue, the panel held
that the agencies had the burden to demonstrate adequacy
“beyond material doubt.” Applying that standard, the panel
concluded that the Government failed to carry its burden
because the agencies did not appropriately respond to
positive indications of overlooked materials provided by
TLC and did not hew to their duty to follow obvious leads.
The panel therefore reversed the district court’s summary
judgment and remanded to the district court to direct the
agencies to properly comply with TLC’s FOIA requests.
The panel next considered the sufficiency of the
agencies’ Vaughn indices. A Vaughn index is a submission
that identifies the withheld documents, the claimed FOIA
exemptions, and a particularized explanation of why each
document fell within the claimed exemption. The panel held
that the agencies’ Vaughn indices were filled the boilerplate
or conclusory statements; and this high-level, summary
approach resulted in an unacceptable lack of specificity and
tailoring that undermined TLC’s ability to contest the
agencies’ withholdings. The panel remanded to the district
court to direct the agencies to provide specific, non-
conclusory Vaughn indices.
The agencies withheld and redacted information under
FOIA Exemptions 5, 6, 7(C), and 7(E). First, under FOIA
Exemption 5, the Government need not disclose “inter-
4 TRANSGENDER LAW CENTER V. ICE
agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5). This
allows agencies to withhold privileged information,
including documents revealing an agency’s deliberative
process. The panel held that the district court erred in
treating all drafts as necessarily covered by the deliberative
process privilege. Simply designating a document as a
“draft” did not automatically make it privileged. The panel
remanded to the district court to direct the release of the draft
mortality review and the draft press statements. The district
court should also reconsider the other assertions of
deliberative process privilege. Second, Exemption 6 applies
to “personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The
panel held that the district court erred in permitting the
agencies to withhold email domains under Exemption 6.
The panel remanded to the district court to direct the
agencies to release the requested documents with the email
domains redacted. For similar reasons, the panel held that
the district court erred in permitting the agencies to withhold
email domains under FOIA Exemption 7(C). Third, FOIA
Exemption 7(E) allows agencies to withhold certain “records
or information compiled for law enforcement purposes.”
5 U.S.C. § 552(b)(7)(E). The agencies broadly invoked
Exemption 7(E). The district court held that the withheld
information was categorically exempted under the
Exemption. The panel held that this finding was overbroad,
and the district court should have analyzed whether the
withheld documents were, in fact, law enforcement
techniques and procedures, and not guidelines (which for
exemption require additional information to show that
disclosure “could reasonably be expected to risk
circumvention of the law”). In this situation a categorical
TRANSGENDER LAW CENTER V. ICE 5
exclusion could not be sustained as the panel had no basis to
review whether “techniques and procedures” were at issue.
The panel remanded for further clarification.
The panel next considered the segregability of portions
of the record from the exempt portions. The panel held that
the Government failed to come forward with clear, precise,
and easily reviewable explanations for why information was
not segregable. The panel remanded for the district court to
make specific findings as to whether factual information was
properly segregated and disclosed in all documents.
The panel held that the district court did not err by failing
to make a finding on the Government’s withholding of
certain documents as “non-responsive” or “duplicative.”
TLC argued at the trial stage that the agencies unlawfully
denied two expedited processing requests it submitted in
January and August of 2020. The district court determined
that the expedited processing requests were moot. Because
the panel is remanding due to the inadequacy of the
agencies’ compliance, the panel vacated the mootness
determination, which should be reconsidered by the district
court.
6 TRANSGENDER LAW CENTER V. ICE
COUNSEL
Irene R. Lax (argued), Grant & Eisenhofer P.A., New York,
New York; for Plaintiffs-Appellants.
Laura E. Myron (argued) and Abby C. Wright, Appellate
Staff; Stephanie M. Hinds, Acting United States Attorney;
Brian M. Boynton, Principal Deputy Assistant Attorney
General; Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellees.
ORDER
The opinion filed on May 12, 2022, is hereby amended
as follows:
Page 16, Lines 5–10: Change 2020 U.S. Dist. LEXIS
204854, at *12–13 (S.D. Cal. Nov. 2, 2020) (internal
quotation marks and citation omitted).> to 2020 U.S. Dist. LEXIS
204854, at *12–13 (S.D. Cal. Nov. 2, 2020).>
With this amendment, Defendants-Appellees’ motion to
amend the opinion (Dkt. No. 58) is GRANTED in part. No
TRANSGENDER LAW CENTER V. ICE 7
further petitions for rehearing or rehearing en banc will be
entertained.
OPINION
McKEOWN, Circuit Judge:
At the heart of this case is an effort by advocates to learn
about the circumstances of an asylum-seeker’s tragic death
in federal custody. The Freedom of Information Act exists
for just such a purpose—to ensure an informed citizenry,
promote official transparency, and provide a check against
government impunity. Yet here the advocates’ FOIA
requests met first with silence and then with stonewalling;
only after the advocates filed suit did the government begin
to comply with its statutory obligations. Our task is to
discern whether the government’s belated disclosure was
“adequate” under FOIA. We conclude that it was not.
BACKGROUND
On May 9, 2018, Roxsana Hernandez, age 33, entered
the United States seeking asylum. Hernandez, a transgender
woman, was fleeing her home country of Honduras after
experiencing persecution on account of her gender identity.
Upon entering the United States, Hernandez, along with
several other transgender asylum seekers, was detained by
officials from U.S. Customs & Border Patrol (“CBP”).
According to the complaint, Hernandez’s health began to
deteriorate rapidly, causing her to lose weight, endure
diarrhea and a persistent fever, and frequently vomit and
cough up bloody phlegm. Hernandez was seen by medical
staff on May 11, 2018, and she disclosed that she had
untreated HIV and was experiencing significant illness,
including cough and fever. Her physicians recommended
8 TRANSGENDER LAW CENTER V. ICE
that she receive vital HIV treatment, but U.S. Immigration
& Customs Enforcement (“ICE”) officials refused and
instead shuttled Hernandez and the other women to various
holding, processing, and detention facilities in the days that
followed, depriving them of food, water, sleep, and
opportunities to relieve themselves.
On May 16, 2018, Hernandez arrived at Cibola
Detention Center, a private facility managed by CoreCivic,
an ICE contractor. The following day, she was taken to a
local hospital and then airlifted to an intensive care unit. Yet
Hernandez’s health continued to deteriorate, and on May 25,
2018, she died while in the custody of ICE officials.
Hernandez’s death provoked widespread public outcry,
including calls for inquiries into the deficiencies in medical
care provided by CBP and ICE. In early 2019, the
Transgender Law Center and Jolene K. Youngers
(collectively “TLC”), acting on behalf of Hernandez’s
family and estate, submitted two Freedom of Information
Act (“FOIA”), 5 U.S.C. § 552, requests seeking government
records about Hernandez’s detention and death. The first
FOIA request was directed to ICE, and the second was
directed to the Department of Homeland Security (“DHS”)
Office for Civil Rights and Civil Liberties (“the Civil Rights
Office”).
Months later, having received no records from either ICE
or the Civil Rights Office, 1 TLC filed suit in district court
seeking: (1) declaratory relief that ICE, DHS, and the Civil
Rights Office (collectively “the Government” or “the
agencies”) had violated FOIA; (2) injunctive relief
1
In their brief, the agencies claim that this was “[d]ue to [a] lapse in
appropriations . . . and [a] backlog of FOIA requests received by ICE.”
TRANSGENDER LAW CENTER V. ICE 9
compelling the agencies to conduct adequate searches for the
relevant records and release them; and (3) costs and
attorneys’ fees.
The suit itself apparently prompted ICE and the Civil
Rights Office to begin disclosure, but TLC was displeased
by the pace and adequacy of release, in part because the
agencies refused to disclose either the mortality and
morbidity review or the root cause analysis. TLC then
submitted a third FOIA request.
In total, TLC received 158 pages from the Civil Rights
Office and 1,591 pages from ICE. The agencies ultimately
released 5 pages and 1 excel spreadsheet in response to the
request for documents that went into the mortality review;
the agencies informed TLC that they had conducted no root
cause analysis. TLC has alleged that DHS video
surveillance footage of Hernandez disappeared despite
receipt of letters requiring its preservation. The agencies
redacted numerous documents and claimed that many others
were exempted from disclosure altogether.
On August 31, 2020, the agencies filed a motion for
summary judgment, arguing that their production was
complete and “adequate.” TLC filed a cross-motion for
summary judgment, arguing that the agencies improperly
denied expedited search requests related to the FOIA
requests at issue, failed to conduct an adequate search,
improperly applied each of the FOIA exemptions, and
furnished insufficient Vaughn indices. The district court
granted TLC’s request for declaratory judgment that the
agencies had failed to timely respond to their FOIA requests,
but in all other respects ruled for the agencies, holding that
they had “adequately complied with [TLC’s] FOIA
requests,” had “conducted an adequate search,” had
“appropriately applied FOIA exemptions to the documents
10 TRANSGENDER LAW CENTER V. ICE
at issue,” and had provided “adequate” Vaughn indices.
TLC timely appealed.
ANALYSIS
We review de novo a district court’s grant of summary
judgment. Animal Legal Def. Fund v. FDA, 836 F.3d 987,
988–89 (9th Cir. 2016) (en banc) (per curiam). We therefore
employ the same standard used by the district court and must
“view the evidence in the light most favorable to the
nonmoving party, determine whether there are any genuine
issues of material fact, and decide whether the district court
correctly applied the relevant substantive law.” Id. at 989.
I. ADEQUACY OF THE GOVERNMENT’S SEARCH
We first consider whether the district court erred in
holding that the agencies’ search was “adequate.” To do so,
we clarify the precise burden that agencies bear in
demonstrating the adequacy of their search. In accord with
well-established precedent, the parties agree that the trial
court must assess whether the Government has met its
burden of demonstrating that its search was “reasonably
calculated to uncover all relevant documents.” Hamdan v.
Dep’t of Just., 797 F.3d 759, 770 (9th Cir. 2015). According
to the agencies, in order to make such an assessment the
court must simply determine whether the agency’s search
was “adequate.” By contrast, TLC asserts that, while a court
must determine whether the search was “adequate,” the
agency has a burden to demonstrate adequacy “beyond
material doubt.”
The district court assessed adequacy of the search but did
not address the agencies’ precise burden of proof. We join
our sister circuits and hold that “beyond material doubt” is
TRANSGENDER LAW CENTER V. ICE 11
the appropriate standard. Applying that standard, we
conclude that the Government has failed to carry its burden.
A. The Government must prove adequacy “beyond
material doubt”
Circuit courts across the country have stated that
agencies must demonstrate adequacy “beyond material
doubt” or “beyond a material doubt.” See, e.g., Miccosukee
Tribe of Indians of Fla. v. United States, 516 F.3d 1235,
1248 (11th Cir. 2008); Morley v. CIA, 508 F.3d 1108, 1114
(D.C. Cir. 2007); Miller v. Dep’t of State, 779 F.2d 1378,
1383 (8th Cir. 1985). District courts in every circuit,
including the Ninth Circuit, use this standard, and no circuit
has explicitly rejected it. See, e.g., Informed Consent Action
Network v. NIH, No. CV-20-01277-PHX-JJT, 2021 U.S.
Dist. LEXIS 118185, at *9 (D. Ariz. June 24, 2021); Our
Child.’s Earth Found. v. Nat’l Marine Fisheries Serv., 85 F.
Supp. 3d 1074, 1082 (N.D. Cal. 2015); S. Yuba River
Citizens League v. Nat’l Marine Fisheries Serv., No. CIV.
S-06-2845 LKK/JFM, 2008 U.S. Dist. LEXIS 107177,
at *35 (E.D. Cal. June 20, 2008).
Demonstrating adequacy “beyond material doubt” is, to
be sure, a heavy burden, but such a burden appropriately
reflects the purpose and policy of FOIA, including
transparency, public access, and an informed citizenry. See
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242
(1978) (“The basic purpose of FOIA is to ensure an informed
citizenry, vital to the functioning of a democratic society,
needed to check against corruption and to hold the governors
accountable to the governed.”); Hamdan, 797 F.3d at 769–
70 (“Government transparency is critical to maintaining a
functional democratic polity, where the people have the
information needed to check public corruption, hold
government leaders accountable, and elect leaders who will
12 TRANSGENDER LAW CENTER V. ICE
carry out their preferred policies. Consequently, FOIA was
enacted to facilitate public access to [g]overnment
documents by establish[ing] a judicially enforceable right to
secure [government] information from possibly unwilling
official hands.” (alterations in original) (internal quotation
marks omitted)).
Requiring the Government to meet the “beyond material
doubt” standard ensures that the “adequacy of an agency’s
search for requested documents is judged by a standard of
reasonableness.” Miller, 779 F.2d at 1383 (citing Weisberg
v. Dep’t of Just., 705 F.2d 1344, 1351 (D.C. Cir. 1983)).
This approach properly places a concrete burden of proof on
the Government, requiring an agency to show that it has
undertaken all reasonable measures to uncover all relevant
documents. This standard also gives teeth to the adequacy
standard by preventing agencies from blithely asserting
adequacy without backing up such an assertion.
Aligning ourselves with the other circuits to consider the
issue, we conclude that, under FOIA, agencies bear the
burden of demonstrating the adequacy of their search beyond
a material doubt.
B. The agencies failed to demonstrate adequacy
beyond material doubt
Applying this standard, we hold that the agencies failed
to meet their burden because they did not appropriately
respond to “positive indications of overlooked materials”
provided by TLC, Hamdan, 797 F.3d at 771, and did not hew
to their duty to follow “obvious leads,” Valencia-Lucena v.
U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999).
“An agency can demonstrate the adequacy of its search
through ‘reasonably detailed, nonconclusory affidavits
TRANSGENDER LAW CENTER V. ICE 13
submitted in good faith.’” Hamdan, 797 F.3d at 770
(quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir.
1985)). The affidavits need not “set forth with meticulous
documentation the details of an epic search for the requested
records,” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)
(per curiam), and they “are presumed to be in good faith,”
Hamdan, 797 F.3d at 770 (citing Ground Saucer Watch, Inc.
v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (per curiam)).
Ultimately, the adequacy of a search is judged “not by the
fruits of the search, but by the appropriateness of the
methods used to carry out the search.” Iturralde v.
Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.
2003).
Here, summary judgment was inappropriate because
TLC provided the agencies with both “well-defined
requests” and “positive indications of overlooked materials,”
Hamdan, 797 F.3d at 771, as well as “leads that emerge[d]
during [the agencies’] inquiry,” Campbell v. Dep’t of Just.,
164 F.3d 20, 28 (D.C. Cir. 1998). In the first FOIA letter,
TLC included two pages of detailed search requests. In later
communiques, TLC provided additional search leads that
emerged as a result of a state-level public records request
TLC had made of CoreCivic, the ICE contractor that ran the
detention facility in which Hernandez died. TLC also
provided detailed indications that the agencies’ initial
production was lacking many significant documents within
their possession. For example, TLC identified several
relevant documents turned over by CoreCivic that were not
produced by the agencies, despite—all agree—being in the
agencies’ possession. And TLC’s follow-up explanations
were not cursory complaints—TLC identified 48 custodian
email accounts (14 ICE enterprise level accounts, 32 ICE
individual custodian emails, and 2 DHS individual custodian
emails) that the agencies apparently refused to search.
14 TRANSGENDER LAW CENTER V. ICE
In response, the agencies claimed that TLC has “no basis
to contend that relevant documents were not produced from
these accounts . . . .” Because ICE and the Civil Rights
Office “appropriately redacted all non-public facing
employee names, including their email addresses, which
included the names,” the agencies may well have already
turned over emails belonging to those accounts. Yet were a
court to accept this argument, it would effectively eviscerate
the FOIA right. The agencies’ response—in effect, we may
have already done this search but you’ll never know—
cannot meet the agencies’ burden of demonstrating
adequacy “beyond material doubt.” While an agency is not
required “to account for documents which the requester has
in some way identified if it has made a diligent search for
those documents in the places in which they might be
expected to be found,” Lahr v. Nat’l Safety Bd., 569 F.3d
964, 987 (9th Cir. 2009) (quoting Miller, 779 F.3d at 1385),
in this case the agencies made no representation as to the
diligence of their search, instead seeking to avoid the matter
by relying on their decision to redact. This circular approach
falls short of the agencies’ burden.
In light of the new leads and indications of overlooked
material, the agencies have not met their burden of
demonstrating adequacy beyond material doubt. We
therefore reverse the district court’s grant of summary
judgment and remand this matter to the district court to direct
the agencies to properly comply with TLC’s FOIA requests.
In so doing, the agencies should consider, in particular, the
leads provided by TLC, including the 48 custodian email
accounts, as well as TLC’s query regarding any records
relating to the Civil Rights Office’s visit to the Cibola
County Correctional Center as part of its investigation into
Hernandez’s death (including any emails, calendar
TRANSGENDER LAW CENTER V. ICE 15
invitations, other logistical records, or any factual findings
as a result of the investigation).
II. SUFFICIENCY OF THE AGENCIES’ VAUGHN INDICES
A Vaughn index is a submission that “identif[ies] the
documents withheld, the FOIA exemptions claimed, and a
particularized explanation of why each document falls
within the claimed exemption.” Lahr, 569 F.3d at 989(internal citation omitted). Such an index must “describe the
justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically
falls within the claimed exemptions, and show that the
justifications are not controverted by contrary evidence in
the record or by evidence of [agency] bad faith.” Hunt v.
CIA, 981 F.2d 1116, 1119 (9th Cir. 1992). “Specificity is
the defining requirement of the Vaughn index.” Wiener v.
FBI, 943 F.2d 972, 979 (9th Cir. 1991); see also Hamdan,
797 F.3d at 773 (agency must be “as specific as possible”).
For this reason, the agency “may not respond with
boilerplate or conclusory statements.” Shannahan v. IRS,
672 F.3d 1142, 1148 (9th Cir. 2012). The agency “bears the
burden of demonstrating that the exemption properly applies
to the documents.” Yonemoto v. Dep’t of Veterans Affs.,
686 F.3d 681, 692 (9th Cir. 2012), overruled on other
grounds by Animal Legal Def. Fund, 836 F.3d at 989.
The district court devoted roughly half a page to the
question of the adequacy of the Vaughn indices, concluding
simply, “as Defendants point out, the Vaughn indices
submitted contain all of the elements required by law”
insofar as they “are specific, explain the exemptions applied,
and are entitled to a presumption of good faith.” But, as TLC
appropriately points out, the agencies’ Vaughn indices are
“riddled with ‘boilerplate or conclusory statements.’” For
instance, the Civil Rights Office provided copy-and-pasted
16 TRANSGENDER LAW CENTER V. ICE
generic descriptions in five of six total entries invoking
FOIA Exemption 5, failing to explain how the specific
content of each document individually implicated the
agency’s deliberative process. Similarly, when the agencies
invoked FOIA Exemption 7, they provided almost identical
copy-and-pasted generic descriptions in nearly every
instance. This high-level, summary approach resulted in an
unacceptable lack of specificity and tailoring, thus
undermining TLC’s ability to contest the agencies’
withholdings.
While it is not the case that “an agency can never repeat
language to justify withholding multiple records,” Hamdan,
797 F.3d at 774, an agency must “disclose[] as much
information as possible without thwarting the [claimed]
exemption’s purpose,” Wiener, 943 F.2d at 979. It would be
a stretch to say that the agencies’ indices did so in this case.
For example, one Vaughn index states, in part, that the Civil
Rights Office redacted an email “to protect deliberative
information contained in [the] email outlining [its]
investigation.” Such an explanation, omitting even general
occupation titles for the sender and recipient, undermines
TLC’s ability to understand why the exchange is exempted.
Once again, the Government has not met its burden of
specificity.
As we counseled in Wiener, the Government “must bear
in mind that the purpose of the index is not merely to inform
the requester of the agency’s conclusion that a particular
document is exempt from disclosure . . . but to afford the
requester an opportunity to intelligently advocate release of
the withheld documents and to afford the court an
opportunity to intelligently judge the contest.” Id. The
Government’s Vaughn indices failed to afford TLC or the
district court such an opportunity and were therefore
TRANSGENDER LAW CENTER V. ICE 17
insufficient. We remand to the district court to direct the
agencies to provide specific, non-conclusory Vaughn
indices.
III. WITHHOLDINGS AND REDACTIONS UNDER FOIA
EXEMPTIONS 5, 6, AND 7
The agencies withheld and redacted information under
FOIA Exemptions 5, 6, 7(C), and 7(E). Withholding is
permissible “only if the agency reasonably foresees that
disclosure would harm an interest protected by an
exemption” and only after “consider[ing] whether partial
disclosure of information is possible” and taking “reasonable
steps necessary to segregate and release nonexempt
information.” 5 U.S.C. § 552(a)(8)(A). The Supreme Court
has “consistently stated that FOIA exemptions are to be
narrowly construed.” Dep’t of Just. v. Julian, 486 U.S. 1, 8
(1988). The burden of proving that withheld documents fit
into the exemptions falls on the agencies. Dep’t of State v.
Ray, 502 U.S. 164, 173 (1991).
We recognize that the agencies’ broad withholdings
required the district court to slog through hundreds of pages
of indices containing thousands of invocations. Indeed, the
following discussion of these exemptions is tedious enough.
Nonetheless, this is what FOIA requires, and the burden
should fall on the agencies, not the court, to provide
sufficient detail for an adequacy review. The agencies failed
to properly withhold or redact certain documents under each
claimed exemption.
A. FOIA Exemption 5
Under Exemption 5, the Government need not disclose
“inter-agency or intra-agency memorandums or letters that
would not be available by law to a party other than an agency
18 TRANSGENDER LAW CENTER V. ICE
in litigation with the agency . . . .” 5 U.S.C. § 552(b)(5).
This allows agencies to withhold privileged information,
including documents revealing an agency’s deliberative
process and confidential attorney-client communications.
See Dep’t of Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8 (2001). TLC barely raised any
arguments regarding the invocation of attorney-client
privilege, so we focus our analysis on the Government’s
invocation of the deliberative process privilege—namely
with respect to non-final drafts (including drafts of the
detainee death review and mortality review), pre-decisional
internal discussions and emails, and emails regarding non-
final drafts.
To properly assert this privilege, an agency must show
that a document is both “(1) ‘predecisional’ or ‘antecedent
to the adoption of agency policy’ and (2) ‘deliberative,’
meaning ‘it must actually be related to the process by which
policies are formulated.’” Nat’l Wildlife Fed’n v. Forest
Serv., 861 F.2d 1114, 1117 (9th Cir. 1988) (quoting Jordan
v. Dep’t of Just., 591 F.2d 753, 774 (D.C. Cir. 1978)); see
also Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct.
777, 786 (2021). A document is “predecisional” if it was
“prepared in order to assist an agency decisionmaker in
arriving at his decision.” Renegotiation Bd. v. Grumman
Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975). A
document is “deliberative” if “disclosure of materials would
expose an agency’s decision-making process in such a way
as to discourage candid discussion within the agency and
thereby undermine the agency’s ability to perform its
functions.” Assembly of the State of Cal. v. Dep’t of
Commerce, 968 F.2d 916, 921 (9th Cir. 1992) (quoting
Dudman Comms. Corp. v. Dep’t of the Air Force, 815 F.2d
1565, 1568 (D.C. Cir. 1987)).
TRANSGENDER LAW CENTER V. ICE 19
The district court essentially treated all drafts as
necessarily covered by the deliberative process privilege.
But this was error: “simply designating a document as a
‘draft’ does not automatically make it privileged under the
deliberative process privilege.” Wilderness Soc’y v. Dep’t
of Interior, 344 F. Supp. 2d 1, 14 (D.D.C. 2004). Two
withheld documents illustrate the hazards of allowing the
Government to effectively exempt all drafts. ICE, for
example, withheld a draft mortality review, simply stating in
its Vaughn index that “[t]his Preliminary report . . . contains
information pertaining to medical care [and] interviews of
detention facility personnel.” Yet such an explanation
contains no references to any decision to which the
document pertains. Likewise, the agencies withheld draft
press statements without adequately explaining how they
reveal a deliberative process. Government “deliberations
regarding how best to address public relations matters or
possible responses to an inquiry received from an outside
entity” are not necessarily the type of policy decisions the
privilege covers. Al Otro Lado, Inc. v. Wolf, No. 3:17-cv-
2366-BAS-KSC, 2020 U.S. Dist. LEXIS 204854, at *12–13
(S.D. Cal. Nov. 2, 2020). In such instances, the Government
failed to meet its burden of demonstrating predecisional
status and deliberation.
In line with our precedent, we remand to the district court
to direct the release of the draft mortality review and the draft
press statements. The district court should also reconsider
the other assertions of deliberative process privilege.
B. FOIA Exemption 6
Exemption 6 applies to “personnel and medical files and
similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). The phrase “‘similar files’ has a ‘broad, rather
20 TRANSGENDER LAW CENTER V. ICE
than a narrow meaning.’” Forest Serv. Emps. for Env’t
Ethics v. Forest Serv., 524 F.3d 1021, 1024 (9th Cir. 2008).
“Our cases establish a two-step test for balancing individual
privacy rights against the public’s right of access” under
Exemption 6, which begins with a threshold evaluation of
whether the personal privacy interest at stake “is nontrivial.”
See Cameranesi v. Dep’t of Def., 856 F.3d 626, 637 (9th Cir.
2017). “[G]overnment records containing information that
applies to particular individuals satisfy the threshold test of
Exemption 6.” Forest Serv. Emps., 524 F.3d at 1024.
The agencies invoked Exemption 6 in thousands of
instances. TLC objects specifically to the use of Exemption
6 to shield email domains (for example, @ice.dhs.gov). The
district court held that Exemption 6 allowed ICE and the
Civil Rights Office to properly withhold email domains as
“similar files,” because they “relate to a particular person.”
Yet email domains are not specific to particular
individuals—email domains are shared by all employees
within a given DHS component—so they do not satisfy the
threshold test, and thus cannot be withheld per Exemption 6.
Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 n.4
(1982) (“Information unrelated to any particular person
presumably would not satisfy the threshold test.”).
Email domains reveal which government agencies and
agency components were involved in decisions and
communications regarding Hernandez and her death. Since
“domains normally indicate what government agency
employs the individual email address holder,” their release
would help TLC understand “which agencies and
departments are involved in making different types of
decisions.” Bloche v. Dep’t of Def., 370 F. Supp. 3d 40, 59
(D.D.C. 2019). This disclosure can be done without any
identification of individuals. Accordingly, the district court
TRANSGENDER LAW CENTER V. ICE 21
erred in permitting the agencies to withhold email domains
under Exemption 6. We remand to the district court to direct
the agencies to release the requested documents with the
email domains unredacted.
C. FOIA Exemption 7(C)
For similar reasons, the district court erred in permitting
the agencies to withhold email domains under Exemption
7(C). See Yonemoto, 686 F.3d at 693 n.7 (noting that it is
appropriate to consider Exemptions 6 and 7(C) together).
Exemption 7(C) allows agencies to withhold “records or
information compiled for law enforcement purposes, but
only to the extent that the[ir] production . . . could
reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). As
with Exemption 6, the agencies improperly redacted email
domains by relying on Exemption 7(C). We remand to the
district court to direct the release of the email domains.
D. FOIA Exemption 7(E)
Exemption 7(E) allows agencies to withhold “records or
information compiled for law enforcement purposes, but
only to the extent that the production of such law
enforcement records or information . . . would disclose
techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines
for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk
circumvention of the law.” 5 U.S.C. § 552(b)(7)(E)
(emphasis added). The requirement that the Government
show that disclosure “could reasonably be expected to risk
circumvention of the law” applies only to guidelines for law
enforcement investigations or prosecutions, not to
techniques and procedures. Hamdan, 797 F.3d at 778.
22 TRANSGENDER LAW CENTER V. ICE
“‘[G]uidelines’ refer to how the agency prioritizes its
investigative resources, while ‘techniques and procedures’
cover ‘how law enforcement officials go about investigating
a crime.’” Anguiano v. ICE, 356 F. Supp. 3d 917, 923–24
(N.D. Cal. 2018).
The agencies broadly invoked Exemption 7(E), claiming
it protected from disclosure numerous codes, information
“concerning the number of guards used at detention
facilities, location of cameras, as well as the staffing and
routes used to transport detainees,” and information
concerning technology “used for law enforcement
purposes.” The district court concluded that “the
information that ICE and [the Civil Rights Office] withheld
. . . would disclose law enforcement techniques and
procedures if released . . . . As such, this information is
categorically exempted under [Exemption 7(E)].”
Such a finding is overbroad. The district court should
have analyzed whether the withheld documents were, in fact,
techniques and procedures, and not guidelines (which for
exemption require additional information to show that
disclosure “could reasonably be expected to risk
circumvention of the law”). For instance, ICE withheld the
“factors and circumstances taken into consideration by ICE
personnel when detaining and transporting detainees.”
Neither ICE nor the district court explained why these
documents were “techniques and procedures” rather than
“guidelines.” Absent an analysis, such “factors and
considerations” could plausibly be construed as reflecting
“how the agency prioritizes its investigative resources” (i.e.,
guidelines), rather than “how law enforcement officials go
about investigating a crime” (i.e., techniques and
procedures). Id. at 924. In this situation, a categorical
TRANSGENDER LAW CENTER V. ICE 23
exclusion cannot be sustained as we have no basis to review
whether “techniques and procedures” were at issue. 2
We remand this matter to the district court to direct the
agencies to (1) clarify whether each document withheld is a
“technique and procedure,” rather than a guideline, and then
proceed accordingly, and (2) account for the revelations
from the CoreCivic production (which indicate that the
agencies were overbroad in their reliance on Exemption
7(E)).
IV. SEGREGABILITY
FOIA provides that any “reasonably segregable portion
of a record shall be provided to any person requesting such
record after deletion of the portions which are exempt under
this subsection.” 5 U.S.C. § 552(b). Glossing this provision,
we have repeatedly held that “[i]t is reversible error for the
district court to simply approve the withholding of an entire
document without entering a finding on segregability, or the
lack thereof, with respect to that document.” Hamdan,
797 F.3d at 779 (alteration in original) (internal quotation
marks omitted) (quoting Wiener, 943 F.2d at 988). Indeed,
a district court errs “by failing to make specific findings on
Our conclusion is strengthened by evidence that the Government
2
withheld information under this exemption in an overbroad manner. For
instance, ICE redacted a portion of Hernandez’s credible fear interview
under Exemption 7(E), but when TLC received an unredacted version
from the CoreCivic production, the redacted text read as follows: “I left
because my life was threatened by the Maras gang. A group of Maras
raped and tried to kill me I was afraid for my life and left Honduras.”
This statement from Hernandez could not possibly fall under the
category of techniques, procedures, or guidelines. Such a redaction
suggests that the agencies may have invoked Exemption 7(E) in an effort
to shield prejudicial information. See Pulliam v. EPA, 292 F. Supp. 3d
255, 260 (D.D.C. 2018).
24 TRANSGENDER LAW CENTER V. ICE
the issue of segregability.” Wiener, 943 F.2d at 988(emphasis added). This requirement dovetails with the
principle that a district court errs when it grants summary
judgment where the agency “did not provide [plaintiff] or the
district court with specific enough information to determine
whether the [agency] had properly segregated and disclosed
factual portions of those documents that the [agency]
claimed were exempt under the deliberative process
privilege.” Pac. Fisheries, Inc. v. United States, 539 F.3d
1143, 1149 (9th Cir. 2008).
The district court held only that, with respect to records
withheld as deliberative process privilege (under Exemption
5), “DPP material is generally not segregable from the facts
it contains,” and, therefore, TLC’s arguments regarding the
segregability of materials withheld as DPP “are incorrect.”
The district court failed to examine, with any specificity, the
Government’s broad redactions.
For instance, the agencies redacted the draft detainee
death review in its entirety, despite the fact that the final
detainee death review (which was released) included
considerable factual information. The agencies also
redacted the draft mortality review in its entirety—justifying
this on the grounds that the draft contained “information
pertaining to medical care [and] interviews of detention
facility personnel”—despite the likelihood of such a review
also containing factual information. The agencies
additionally redacted broad swaths of emails. The agencies
did not make any representations as to the segregability of
factual information within these documents, although it was
their burden “to establish that all reasonably segregable
portions of a document have been segregated and disclosed.”
Id. at 1148. This evidentiary vacuum makes it difficult for
the district court, which ultimately did not make any findings
TRANSGENDER LAW CENTER V. ICE 25
regarding the segregability of factual information potentially
contained within these redacted materials.
The deliberative process privilege does not cover
“[p]urely factual material that does not reflect deliberative
processes . . . .” FTC v. Warner Comms., Inc., 742 F.2d
1156, 1161 (9th Cir. 1984) (citing EPA v. Mink, 410 U.S. 73,
87–89 (1973)). Only when the “factual material . . . is so
interwoven with the deliberative material that it is not
severable” is an agency relieved of the burden to segregate
and disclose non-privileged factual information. Id. (citing
Binion v. Dep’t of Just., 695 F.2d 1189, 1193 (9th Cir.
1983)). The district court cited no authority to justify its
assertion that “DPP material is generally not segregable from
the facts it contains.” Such a conclusory statement cannot
excuse the agencies’ failure to provide specific information
with respect to segregability, nor does it satisfy the district
court’s obligation to make findings on the issue of
segregability. See Hamdan, 797 F.3d at 779.
We recognize that our caselaw, which demands a careful
document-by-document review, may place considerable
strain on already overburdened district courts. That is
precisely why we require the Government to come forward
with clear, precise, and easily reviewable explanations for
why information is not segregable. The Government’s
failure to do so here requires that we remand and order, as
we did in Pacific Fisheries:
On remand the district court must make
specific findings as to whether factual
information has been properly segregated and
disclosed in all documents or portions of
documents that the [agencies] claim[] are
exempt from disclosure under the
deliberative process privilege . . . . In order to
26 TRANSGENDER LAW CENTER V. ICE
assist the district court, the [agencies] should
submit affidavits describing in more detail
the withheld portions of these documents so
that both the district court and [plaintiffs] can
evaluate the government’s claims of
exemption. If the government is unable to
provide sufficiently specific affidavits, the
district court should review the documents in
camera to determine whether the factual
portions were properly segregated and
disclosed.
539 F.3d at 1150 (citations omitted). The district court
should consider, in particular, whether non-segregable
information might be found in: material withheld under the
deliberative process privilege; the draft detainee death
review; and the redacted emails.
V. DUPLICATIVE AND NON-RESPONSIVE DESIGNATIONS
TLC alleges that the district court “erred” by failing to
make a finding on the Government’s withholding of certain
documents as “non-responsive” or “duplicative.” Because
no binding precedent or statute points to such an obligation,
the district court did not err in neglecting to make such a
finding. Given the multiple failures noted here, however, the
district court should take whatever steps are practicable to
ensure that these designations are applied properly.
VI. EXPEDITED PROCESSING REQUESTS
At the trial stage, TLC argued that the agencies
unlawfully denied two expedited processing requests it
submitted in January and August of 2020. TLC pointed to
6 C.F.R. § 5.5(e)(2), which provides that a request for
expedited processing of a FOIA request may be made at any
TRANSGENDER LAW CENTER V. ICE 27
time. The agencies countered that the January and August
2020 requests were not merely expedited processing
requests for Plaintiffs’ existing FOIA requests, but were new
FOIA requests seeking additional information, among other
arguments. The district court held that it “need not decide
whether the expedited requests are related to the requests at
issue in this lawsuit or are new requests,” because the
agencies had “adequately complied” with TLC’s initial
FOIA requests, and therefore “the expedited processing
requests themselves are now moot.”
Because we are remanding due to the inadequacy of the
agencies’ compliance, we vacate the mootness
determination, which should be reconsidered by the district
court. 3
REVERSED, VACATED, and REMANDED.
3
Because TLC will have “substantially prevailed” within the
meaning of the FOIA statute, it will be eligible to have “reasonable
attorney fees and other litigation costs” assessed against the United
States. 5 U.S.C. § 552(a)(4)(E). We remand to the district court to make
a determination as to fees and costs. Schoenberg v. FBI, 2 F.4th 1270,
1275–76 (9th Cir. 2021).