American Immigration Council v. United States Department of Homeland Security , 21 F. Supp. 3d 60 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN IMMIGRATION COUNCIL,
Plaintiff,
v. Civil Action No. 12-856 (JEB)
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, et al.,
Defendants.
MEMORANDUM OPINION
This dispute started with a Freedom of Information Act request by the American
Immigration Council, an immigration law and policy group, seeking information about
individuals’ access to counsel during their interactions with Immigration and Customs
Enforcement. After the government repeatedly refused to release documents responsive to
AIC’s request, the group sued the Department of Homeland Security and ICE. Defendants
finally produced certain responsive documents and moved for summary judgment, which this
Court rebuffed in Am. Immigration Council v. Dept. of Homeland Sec., 950 F. Supp. 2d 221(D.D.C. 2013). Defendants have now retooled and renew their request in a second Motion for
Summary Judgment. AIC claims, in opposition, that Defendants have still not complied with
their obligations under FOIA.
Although Defendants repeatedly excoriate AIC for “wast[ing] enough of the Court’s and
Defendants’ time,” Mot. at 1; see also Reply at 4 n.5, the reality is that Defendants have wasted
their own time by neglecting to follow the Court’s clear instructions, set out in its prior Opinion,
about what they must do to prevail in this matter. Because the government has again failed to
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demonstrate that it conducted an adequate search for records and has also failed to include in its
Vaughn Index one of the withheld documents, the Court must deny the Motion in part. The
Court, however, will grant Defendants summary judgment in part on their decisions to redact
eleven documents that were included in their Vaughn Index.
I. Background
The Court’s prior decision in this matter laid out in great detail the factual background of
the dispute, see Am. Immigration Council, 950 F. Supp. 2d at 227-28, so this Opinion need
provide only a brief sketch. In March 2011, AIC submitted a FOIA request to Defendants asking
for:
[A]ny and all records which have been prepared, received,
transmitted, collected and/or maintained by the U.S. Department of
Homeland Security and/or U.S. Immigration and Customs
Enforcement (ICE), whether issued or maintained by ICE
Headquarters offices (including but not limited to the Office of the
Assistant Secretary (OAS), Enforcement and Removal Operations
(ERO), Homeland Security Investigations (HIS) [sic],
Management and Administration, Office of the Principal Legal
Advisor (OPLA), and the Office of Detention Policy and Planning
(ODPP), including any divisions, subdivisions or sections therein);
ICE field offices, including any divisions, subdivisions or sections
therein; local Offices of Chief Counsel; and/or any other ICE
organizational structure; and which relate or refer in any way to
any of the following:
• Attorneys’ ability to be present during their clients’
interactions with ICE;
• What role attorneys may play during their clients’
interactions with ICE;
• Attorney conduct during interactions with ICE on behalf
of their clients;
• Attorney appearances at ICE offices or other facilities.
Id. at 227. A year later, AIC had nothing to show for its troubles but three unsuccessful
administrative appeals challenging Defendants’ repeated denials of its request. See id.
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AIC therefore filed suit in this Court, prompting Defendants to release nearly 8,000 pages
of responsive documents. See id. at 228. Defendants then moved for summary judgment,
claiming that they had conducted a reasonable search for the queried records, produced all
documents responsive to AIC’s FOIA request, and properly invoked various FOIA exemptions
in order to withhold certain materials. See id. at 227. The Court denied that motion on the
ground that issues of material fact remained as to the adequacy of Defendants’ search and
because Defendants’ summary Vaughn Index was too vague. See id.
There followed a status conference with both parties, after which the Court ordered
Defendants to produce supplemental declarations and an updated Vaughn Index that would cure
the defects of their last submission. See Minute Order of July 9, 2013. Defendants complied
with the Court’s Order and have once again moved for summary judgment. AIC opposes that
Motion but has limited its Opposition to two primary issues: the adequacy of Defendants’ search
and the withholding of twelve specific documents. 1 See Opp. at 4, 14-16. To assist in its
analysis of those arguments, the Court ordered Defendants to produce in camera redacted and
unredacted copies of the disputed materials. See Minute Order of Feb. 10, 2014. Having now
reviewed those records, the Court may consider the parties’ legal arguments.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine issue of material fact is one that would change the outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
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For ease of reference, the Court will refer to these records as Documents 1 through 12. They correspond to the
records listed in Defendants’ Vaughn Index, see Response to Order of the Court, Exh. C (Vaughn Index), as follows:
Document 1 (page numbers 623-38), Document 2 (782-83), Document 3 (788-89), Document 4 (817-18), Document
5 (856-57), Document 6 (909-12), Document 7 (913), Document 8 (963-64), Document 9 (965-66), Document 10
(990-1002), Document 11 (1020-22), and Document 12 (1023-84).
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might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to
construe the evidence in the light most favorable to the non-moving party. See Sample v. Bureau
of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the moving party’s
affidavits or declarations may be accepted as true unless the opposing party submits his own
affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453,
456 (D.C. Cir. 1992).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. U.S.
Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears
the ultimate burden of proof. See U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3
(1989). The Court may grant summary judgment based solely on information provided in an
agency’s affidavits or declarations when they describe “the documents and the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded “a presumption
of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. Analysis
Congress enacted FOIA in order “to pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
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(1976) (citation omitted). “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.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (citation omitted). The statute provides that “each agency, upon any request for
records which (i) reasonably describes such records and (ii) is made in accordance with
published rules . . . shall make the records promptly available to any person.” 5 U.S.C. §
552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order
the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(3); Dep’t
of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989).
“Unlike the review of other agency action that must be upheld if supported by substantial
evidence and not arbitrary or capricious,” the Freedom of Information Act “expressly places the
burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter
de novo.’” Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times
courts must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure’. . . .”
Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of
State v. Ray, 502 U.S. 164, 173 (1991)).
The Court will first address the adequacy of Defendants’ search for responsive
documents, turn next to the exemptions invoked to justify withholding certain documents, and
finish by assessing the segregability of those documents. In the end, the Court concludes that it
must deny summary judgment to Defendants on the adequacy of their search and on Document
12, but it may grant Defendants’ Motion on their redactions of Documents 1 through 11.
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A. Adequacy of Search
An agency “fulfills its obligations under FOIA if it can demonstrate beyond material
doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-
Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897
F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C.
Cir. 1994). “[T]he issue to be resolved is not whether there might exist any other documents
possibly responsive to the request, but rather whether the search for those documents was
adequate.” Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
The adequacy of an agency’s search for documents requested under FOIA “is judged by a
standard of reasonableness and depends, not surprisingly, upon the facts of each case.” Id. To
meet its burden, the agency may submit affidavits or declarations that explain the scope and
method of its search “in reasonable detail.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982)
(per curiam). The affidavits or declarations should “set [ ] forth the search terms and the type of
search performed, and aver[ ] that all files likely to contain responsive materials (if such records
exist) were searched.” Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Absent
contrary evidence, such affidavits or declarations are sufficient to show that an agency complied
with FOIA. See Perry, 684 F.2d at 127. “If, however, the record leaves substantial doubt as to
the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d
at 542.
Defendants have submitted a lengthy declaration by Ryan Law, Deputy FOIA Officer of
ICE’s FOIA Office – the third such declaration Defendants have submitted in this case. See ECF
No. 22 (Response to Order of the Court), Att. 1 (Declaration (Third) of Ryan Law); see also ECF
No. 12 (Motion for Summary Judgment), Exh. 1 (Declaration of Ryan Law); ECF No. 17 (Reply
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to Opposition to Motion for Summary Judgment), Att. 1 (Supplemental Declaration of Ryan
Law). The latest Law Declaration recounts ICE’s prosecution of its search as follows: the ICE
FOIA Office reviewed AIC’s request and instructed three ICE program offices to search for
records that would be responsive to that request: the Office of Detention and Removal (ERO),
the Office of Investigations (HSI), and the Office of the Principal Legal Advisor (OPLA). See
3d Law Decl., ¶ 22. Later, the ICE FOIA Office instructed a fourth program office to search as
well – the Office of Detention Policy and Planning (ODPP). See id., ¶ 23. ICE ERO searched
within its Custody Management Division, ICE OPLA searched within its Homeland Security
Investigations Law Division and District Court Litigation Division, and ICE ODPP searched
within its Network Shared Drive and the ICE Policy Manual. See id., ¶¶ 24-32, 36-51. ICE HSI
determined that it would not likely have documents responsive to AIC’s request. See id., ¶¶ 33-
35. These searches turned up a total of 6,906 pages of potentially responsive records. See id., ¶
20.
The Court’s first decision denying Defendants summary judgment made very clear what
was necessary for them to prevail on the adequacy issue: “In order for [ICE’s search]
methodology to be sufficient, ICE would, at a minimum, have to aver that it has searched all files
likely to contain relevant documents.” Am. Immigration Council, 950 F. Supp. 2d at 230
(emphasis added). That standard came from the D.C. Circuit’s decision in Oglesby v. Dept. of
Army, 920 F.2d 57 (D.C. Cir. 1990), which held that a search is inadequate if it includes only
those records “most likely to contain the information which had been requested” because an
“agency cannot limit its search to only one record system if there are others that are likely to turn
up the information requested.” Id. at 68 (emphasis added). According to the Oglesby court, an
agency must “aver[] that all files likely to contain responsive materials (if such records exist)
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were searched,” since that “is necessary to afford a FOIA requester an opportunity to challenge
the adequacy of the search and to allow the district court to determine if the search was adequate
in order to grant summary judgment.” Id. (emphasis added). Indeed, as this Court observed in
its prior decision denying Defendants summary judgment, “Agencies regularly make such
attestations when they use similar methods of selecting which departments and files to search.”
Am. Immigration Council, 950 F. Supp. 2d at 230 (citing Brehm v. Dept. of Def., 593 F. Supp.
2d 49 (D.D.C. 2009), and Nation Magazine v. U.S. Customs Service, 71 F.3d 885 (D.C. Cir.
1995)). “Where the government has not made such an attestation, courts have typically found
that an issue of material fact exists as to the adequacy of the search.” Id. (citing Jefferson v.
Bureau of Prisons, No. 05-848, 2006 WL 3208666 (D.D.C. Nov. 7, 2006), Bonaparte v. DOJ,
531 F. Supp. 2d 118 (D.D.C. 2008), and Maydak v. DOJ, 362 F. Supp. 2d 316 (D.D.C. 2005)).
Remarkably, despite the many hours that Defendants have apparently invested in
responding to AIC’s FOIA request, they have still not followed the Court’s instructions on this
point. When the Court denied Defendants’ last Motion, it divided its analysis into two
components: first, the selection of offices and files to search, and second, the search of those
selected locations. See id. at 230-231. In that decision, the Court found that ICE’s search was
inadequate on both counts. Once again, the Court finds that ICE’s selection of offices and files
to search is insufficient. Although it need not decide the issue, the Court also notes that AIC has
raised several important concerns about ICE’s search of the offices that it did select.
The first Law Declaration that Defendants submitted with their initial Motion for
Summary Judgment stated that ICE had searched those offices “most likely to possess records
responsive to [Plaintiff’s] request.” Id. (alteration in original) (internal quotation marks omitted).
The Court rejected that Motion because “Defendants ha[d] not indicated that all those offices and
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records systems likely to contain responsive records ha[d] been searched.” Id. at 230 (emphasis
added). Yet the third Law Declaration that Defendants have submitted in this case commits the
same exact sin, stating that the ICE FOIA Office reviewed AIC’s request and “determined that
ICE ERO, HSI, and OPLA would be the ICE program offices that would likely maintain records
that would be responsive to Plaintiff’s FOIA request.” See 3d Law Decl., ¶ 22. That statement
once again fails to indicate whether Defendants searched “all files likely to contain relevant
documents.” Am. Immigration Council, 950 F. Supp. 2d at 230 (emphasis added).
A charitable reading of the declaration, moreover, which might infer that Law intended to
suggest that ERO, HSI, and OPLA were the only offices likely to contain responsive records, is
foreclosed by its very next section. There, Law adds that “the ICE FOIA Office [later] instructed
ICE ODPP [Office of Detention Policy and Planning] to conduct a search for records that would
be responsive to Plaintiff’s FOIA request.” 3d Law Decl., ¶ 23. Apparently, then, ICE itself did
not believe that a search of ERO, HSI, and OPLA would have been enough. Indeed, as this
Court specifically noted in denying Defendants’ last Motion for Summary Judgment, an
attestation that the agency searched filing systems “likely to contain responsive records” also
requires an accompanying averment that “it is unlikely that other . . . directorates would possess
records responsive to Plaintiff’s request.” Am. Immigration Council, 950 F. Supp. 2d at 230
(quoting Brehm, 593 F. Supp. 2d at 49-50) (internal quotation marks omitted). The affidavits
Defendants have submitted contain no such assurance.
Defendants dispute this characterization of Law’s latest declaration, thrice claiming that it
establishes that ICE searched “the only offices reasonably calculated to maintain records
responsive to Plaintiff’s request.” Mot. at 11; Reply at 9, 10; see also Reply at 9 (“[T]he updated
Law Declaration . . . affirmatively avers that . . . the searches conducted swept up all responsive
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documents as required.”). While Defendants may wish this were so, the language of the
declaration speaks for itself. Nowhere does it affirm that ICE searched “the only” offices likely
to have responsive records. Although, as Defendants note, the adequacy of a search does not
depend on “whether additional potentially responsive documents exist,” Lardner v. FBI, 875 F.
Supp. 2d 49, 55 (D.D.C. 2012), the problem here is that Defendants have failed to confirm that
they searched “all files likely to contain responsive materials,” Oglesby, 920 F.2d at 68, not that
other potentially responsive records may exist elsewhere.
As the Court noted in its prior decision on this matter, the necessity that ICE aver it
searched “all files likely to contain relevant documents” may appear a mere “technical
requirement, [but] the facts of this case demonstrate its importance.” Am. Immigration Council,
950 F. Supp. 2d at 231. In that round of the litigation, AIC had argued “that certain offices, sub-
offices, and filing systems should have been searched, [and] the Court [could not] begin to
analyze such a contention until it kn[ew] ICE’s position on whether any of those locations have
potentially responsive documents.” Id. (citations omitted). Here again, AIC has alleged that ICE
should have searched for responsive records in certain additional offices and sub-offices – for
example, ICE field offices and local Offices of Chief Counsel – as specified in its initial FOIA
request. See Opp. at 10; Am. Immigration Council, 950 F. Supp. 2d at 227. As with the last
Motion, the Court cannot judge the merits of AIC’s contention without knowing Defendants’
position on whether any of those locations are likely to have responsive documents. In the
absence of an affidavit containing the specific assertion that ICE searched all files likely to
contain responsive documents – or, the contrapositive, that the files ICE did not search were not
likely to contain responsive documents – the Court cannot conclude that Defendants’ search was
adequate.
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Because Defendants have failed to establish that they searched all the ICE program
offices likely to maintain records responsive to AIC’s FOIA request, the Court need not reach the
question of whether Defendants’ searches within those offices were also sufficiently
comprehensive. That said, a few of the arguments raised in AIC’s Opposition do give cause for
concern. Although Law’s declaration uses the right language in averring that each of ICE’s
search for records within ERO, HSI, OPLA, and ODPP was “reasonably calculated to locate all
records that would be responsive to the Plaintiff’s FOIA request,” 3d Law Decl., ¶¶ 32, 40, 46,
51; see also id., ¶¶ 34-35 (explaining that a search of HSI’s investigative case-management
system “would not have been reasonably calculated to uncover records responsive to the
Plaintiff’s FOIA request”), AIC observes that it includes no explanation of how ICE decided
where to search within each office, nor why certain sub-offices were not searched – for instance,
the Field Legal Operations division, the Training division, and the Detention and Removal Law
section of OPLA. See Opp. at 12 (citing DHS ICE Office of the Principal Legal Advisor
Organizational Chart, available at http://goo.gl/svnnYr); see also id. at 9-11. Defendants would
do well to consider these points when preparing the declaration for their next Motion.
The Court is sympathetic to the many hours Defendants have already invested in this case
and appreciates that the extremely broad nature of AIC’s request may have made it particularly
difficult to fulfill. See CREW v. DOJ, 955 F. Supp. 2d 4, 16 (D.D.C. 2013) (FOIA’s evidentiary
burden likely to create significant costs for government agencies, but congressional policy
requires costs be borne). Defendants have not claimed, however, that AIC required “an
unreasonably burdensome search,” Am. Fed’n of Gov’t Emps., Local 2782 v. Dep’t of
Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (quoting Goland v. CIA, 607 F.2d 339, 353
(D.C. Cir. 1978)) (internal quotation marks omitted), such that “a professional employee of
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[ICE] familiar with the subject matter” could not “locate the records with a ‘reasonable amount
of effort.’” Armstrong v. Bush, 139 F.R.D. 547, 553 (D.D.C. 1991) (quoting Am. Fed’n of
Gov’t Emps., Local 2782 v. Dep’t of Commerce, 632 F. Supp. 1272, 1278 (D.D.C. 1986)).
Instead, Defendants have set out to respond to AIC’s request, which is a task they must complete
in accordance with their obligations under FOIA. Because they have not provided a declaration
averring that ICE searched “all files likely to contain responsive materials” to AIC’s FOIA
request, Oglesby, 920 F.2d at 68, the Court must deny summary judgment on this point. As the
Court now makes clear for a second time, Defendants “must, in the future, aver that all
departments and files likely to contain responsive records were searched and must describe its
search procedures in sufficient detail for the Court to determine whether the search was
reasonable.” Am. Immigration Council, 950 F. Supp. 2d at 234.
B. Exemptions Claimed by Defendants
Search issues now resolved, the remainder of the dispute concerns the propriety of
Defendants’ claimed FOIA Exemptions for twelve particular documents and whether Defendants
properly segregated and released all non-exempt material within those documents. After
considering AIC’s threshold complaint regarding the Vaughn Index entries for three of the
withheld documents, the Court examines Defendants’ invocations of Exemptions 5 and 7, as well
as their segregation of the non-exempt portions of the withheld materials.
1. Index Documents 5, 6, and 12
At the outset, AIC notes that three withheld documents – numbered 5, 6, and 12 in AIC’s
Opposition brief, see Opp. at 15-16 – do not appear in Defendants’ Vaughn Index. AIC further
observes that Documents 5 and 6 were withheld without citation to any FOIA Exemption and
instead were simply marked as “non-responsive duplicate” and “refer to DOJ.” Id. at 17-18.
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AIC highlighted the same problem in the last round of this litigation, leading the Court to warn
then that “[u]nless Defendants indicate the applicable exemption(s) . . . and provide a description
of the contents sufficient to satisfy FOIA’s evidentiary requirements, this Court will have no
choice but to compel disclosure.” Am. Immigration Council, 950 F. Supp. 2d at 248. Once
again, it seems, Defendants have not gotten the message.
Defendants’ Reply brief, fortunately, offers a belated acknowledgement of the error with
respect to Documents 5 and 6 and also includes redacted copies of both records, along with a
supplemental Vaughn Index that describes their contents and the applicable FOIA Exemption.
See Reply at 20-21 & Att. 1 (Documents 5 and 6 Materials). This appears to address AIC’s
concerns as to these two records, and since AIC has not sought leave to file a Sur-Reply in order
to raise new objections on the matter, the Court will deem the issue conceded.
As for Document 12, Defendants offer no response, let alone explanation, for why the
record does not appear in their Vaughn Index. Without a Vaughn entry describing the contents
of the document or the applicability of the claimed exemptions, the government has not carried
its burden to show the appropriateness of its decision to withhold it. The Court must therefore
deny Defendants summary judgment as to Document 12 and order them to produce the record in
full to AIC.
2. Exemption 5
Defendants invoked Exemption 5 to withhold nine of the records at issue here:
Documents 1, 2, 3, 4, 7, 8, 9, 10, and 11. See Opp. at 14-16; Response to Order of the Court,
Exh. C (Vaughn Index). Exemption 5 protects “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party . . . in litigation with the agency.” 5
U.S.C. § 552(b)(5). It incorporates three traditional civil-discovery privileges: (1) the
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deliberative-process privilege; (2) the attorney-client privilege; and (3) the attorney work-product
privilege. See Cuban v. SEC, 744 F. Supp. 2d 60, 75 (D.D.C. 2010). The Court will separately
address the parties’ arguments as to each privilege below. Because Defendants have failed to
specify which of these three privileges they intended to invoke in order to justify their redaction
of Document 10, see Vaughn Index at 7, however, the Court cannot evaluate the appropriateness
of that withholding and will not regard that record as eligible for redaction under Exemption 5.
Instead, Document 10 will be analyzed in relation to Exemption 7(E). See Section III.B.3, infra.
a. Deliberative-Process Privilege
Defendants have invoked the deliberative-process privilege to justify their withholdings
of Documents 1, 2, 3, 4, 7, 8, and 9. See Opp. at 14-16; Vaughn Index. Because the Court finds
that Document 7 is protected from disclosure under the attorney-client privilege, as explained
below, it need only address AIC’s objections as to Documents 1, 2, 3, 4, 8, and 9.
The deliberative-process privilege exempts from disclosure “documents reflecting
advisory opinions, recommendations, and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 150 (1975). It is intended “to enhance the quality of agency decisions by protecting open
and frank discussion among those who make them within the Government.” Dep’t of Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (2001) (internal quotation marks omitted).
The privilege “rests on the obvious realization that officials will not communicate candidly
among themselves if each remark is a potential item of discovery and front page news.” Id.; see
also Dow Jones & Co. v. DOJ, 917 F.2d 571, 573-74 (D.C. Cir. 1990). To fall under the
protection of the deliberative-process privilege, withheld material must be both “predecisional”
and “deliberative.” Mapother v. DOJ, 3 F.3d 1533, 1537 (D.C. Cir. 1993). Material is
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“predecisional” if it was “generated before the adoption of an agency policy.” Coastal States
Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). It is “deliberative” if it
“reflects the give-and-take of the consultative process.” Id.AIC first challenges the “predecisional” nature of several documents withheld under the
deliberative-process privilege. Specifically, it complains that Defendants have not established
that Documents 2, 3, and 9 were created prior to the adoption of an agency policy.
As to Documents 2 and 3, AIC notes that the records “contributed to the creation of a set
of talking points,” and it argues that if those talking points related to policies that had already
been finalized, then they could not be considered “predecisional.” Opp. at 21-22. But AIC’s
characterization of the records is hardly complete. As Defendants explain in their Vaughn Index,
Documents 2 and 3 contain:
[D]iscussions between counsel and between counsel and agency
client [sic] on possible ways to respond to NGO inquiries. These
materials were proposing various ways to respond to questions on
when an alien is entitled to an attorney during an I-213 interview,
and extending the status of F-1 students. . . . These materials were
discussions between agency counsel and its client and deliberated
between different circumstances and scenarios and what possible
responses would be under those circumstances.
Vaughn Index at 3.
AIC’s characterization of the law is shaky as well. This Court recently had occasion to
note that the deliberative-process privilege covers “agency deliberations about how to respond to
media inquiries regarding prior agency actions, as well as discussions about press coverage of
existing agency policies and suggested talking points about how to answer questions regarding
the duties assigned to agency employees.” Competitive Enter. Inst. v. EPA, No. 12-1617, 2014
WL 308093, at *10 (D.D.C. January 29, 1014) (citations omitted). Such deliberations are
regarded as “predecisional” so long as they were “generated as part of a continuous process of
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agency decision making, viz., how to respond to on-going inquiries.” Judicial Watch v. Dep’t of
Homeland Sec., 736 F. Supp. 2d 202, 208 (D.D.C. 2010); see also Judicial Watch v. Dep’t of the
Treasury, 796 F.Supp.2d 13, 31 (D.D.C. 2011) (“Post-decisional documents properly fall under
the deliberative[-]process privilege when they recount or reflect pre-decisional deliberations.”).
If the deliberative-process privilege protects agency deliberations about how to respond to media
inquiries regarding prior agency actions, the Court sees no reason why it should also not protect
agency deliberations about how to respond to NGO inquiries regarding prior agency actions.
Documents 2 and 3, therefore, are predecisional.
As for Document 9, AIC notes that the Vaughn Index entry describes only “a draft legal
opinion as to the right to remain silent and the right to counsel,” Vaughn Index at 6, and
complains that Defendants do not explain “whether a more final policy document exists, how
[Document 9] contributed to any such policy, and whether all or part of [Document 9] was
expressly adopted in any final decision.” Opp. at 22. AIC cites no authority, however, that
requires Defendants to provide such detailed information. The fact that Document 9 is a draft
legal opinion, which “contains ‘red-lined’ edits within the text as well as comments provided by
an ICE attorney discussing his/her opinion of a legal holding and its implications,” is enough for
the Court to conclude that it is “predecisional” with respect to the agency’s decision on a final
legal opinion. As the Supreme Court has explained, the deliberative-process privilege “calls for
disclosure of all opinions and interpretations which embody the agency’s effective law and
policy, and the withholding of all papers which reflect the agency’s group thinking in the process
of working out its policy and determining what its law shall be.” Sears, 421 U.S. at 153. A draft
legal opinion such as Document 9 falls into the latter camp.
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Next, AIC challenges the “deliberative” nature of several redacted documents, noting that
such records must be “a direct part of the deliberative process in that [they] make[]
recommendations or express[] opinions on legal or policy matters . . . [rather] than explain an
existing policy.” Public Citizen, Inc. v. OMB, 598 F.3d 865, 876 (D.C. Cir. 2009) (internal
quotation marks omitted). According to AIC, Defendants have not established that the records
withheld in this case reflect deliberations over new policies rather than explanations of current
ones. All AIC has done in support of that argument, however, is to cut out bits and pieces from
the Vaughn entries for each document in order to claim that Defendants’ descriptions are
inadequate. As AIC must know, the Court has reviewed the full Vaughn Index, and the entries
simply speak for themselves. For instance, while AIC says that “Defendants do little more than”
describe Document 1 as “contain[ing] draft operation plans . . . [and] draft investigation
summaries,” Opp. at 22, the Vaughn entry for that record provides a much fuller description,
which makes clear the document’s deliberative nature:
[Document 1] contains draft operational plans that contain
proposed personnel assignments, comments by ICE personnel on
the premises description, operational procedures, and summary of
investigation, ‘red-lined’ corrections and modifications of a
substantive and grammatical nature of investigation summaries,
operational objectives, and operational procedures, and proposed
personnel assignments. . . . The comments and corrections made by
ICE personnel in reviewing the draft operational plans reflect the
agency decision[-]making process and are deliberative nature. The
document contained intra-agency discussions prior to a final
decision being made by the agency, namely, the final Operation
Plan for SAC Chicago.
Vaughn Index at 2. The same is true for the rest of AIC’s descriptions – over and over, it cherry-
picks a short phrase from the Vaughn entry for each document and uses it to impugn the whole.
The Court need not fill space detailing the remainder.
17
Moving on, AIC argues that Defendants have not shown whether Documents 2 and 3
“were seeking suggestions (and as such would be deliberative) or were simply providing answers
(and would not be deliberative).” Opp. at 23. Specifically, AIC complains that the Vaughn
Index “provides no further information that clarifies whether the authors of the final emails in
each . . . Document were final decision-makers” and that “[b]ased on the current information, [it]
cannot determine whether the final email in each . . . Document is seeking suggestions or
feedback or simply providing answers.” Id. Without endorsing the legal binary that AIC has
drawn on this issue, of which the Court is deeply skeptical, the Vaughn Index and the Court’s
own in camera review of the materials at issue make clear that AIC’s concern is unfounded. The
Vaughn Index, in fact, provides much of the detail that AIC claims is missing:
The emails involve ICE attorneys of a supervisory level (Riah
Ramlogan, as well as various deputies whose names have been
redacted), ICE attorneys of a non-supervisory level (associate legal
advisors whose names have been redacted), and an ICE employee
in a non-attorney capacity (Dan Ragsdale [Assistant to the
Secretary]). The emails specifically discuss a request for legal
advice from Dan Ragsdale (03/18/09 at 3:51 pm and 03/18/09 at
3:20 pm), guidance to a legal question by a supervisory attorney
(03/18/09 at 3:50), recommendation by [a] supervisory attorney to
Dan Ragsdale on how to answer [a] legal question related to
conference (03/18/09 at 2:53 pm), a draft response from a
supervisory attorney regarding a question about I-213 interviews
(03/18/09 at 2:53 pm), discussion between [a] supervisory attorney
and [a] non-supervisory attorney regarding [a] request for legal
advice from Dan Ragsdale (03/18/09 at 8:02 pm), discussion
between supervisory attorneys regarding 8 CFR 287.3 and advice
to ICE officers (03/18/09 at 3:56 pm; at 4:37 pm; at 4:45 pm; at
5:01 pm).
Vaughn Index at 3. This impressively detailed account, combined with the Court’s own
examination of the records, is sufficient to establish the deliberative character of Documents 2
and 3.
18
Finally, AIC argues that Defendants “have failed to establish that they have withheld only
the ‘portions’ of the records ‘reflect[ing] the give and take of the deliberative process.’” Opp. at
23 (quoting Public Citizen, 598 F.3d at 876). As to Document 1, for example, which contains a
draft operational plan, AIC contends that “[t]o the extent parts of these pages merely describe
finalized ICE policies incorporated into the operations plan, those pages should not be withheld
under this privilege as they do not reflect any give and take among those at the agency.” Id. at
24. Similarly, as to Documents 4 and 8, which contain a draft answer to a question about the
right to counsel, AIC contends that “to the extent these withheld portions include statements
about Defendants’ already existing and final policies, Defendants should not be permitted to
withhold those portions.” Id. These arguments effectively claim that Defendants failed to
properly segregate and release the non-exempt portions of Documents 1, 4, and 8, and the Court
will address them in the segregability section of its analysis. See Section III.B.4, infra. Insofar
as redacted portions of Document 1 may reflect finalized ICE policies not subject to exemption
under the deliberative-process privilege, Defendants have also claimed protection for those
sections under FOIA Exemption 7. As the Court will explain later on, Document 1 is entitled to
withholding under that exemption as well. See Section III.B.3, infra.
In sum, the Court finds that Defendants properly redacted Documents 2, 3, 4, 8, and 9
and portions of Document 1 under the deliberative-process privilege. The Court will therefore
grant Defendants summary judgment on those points.
b. Attorney Work-Product Privilege
Defendants invoked the attorney work-product prong of Exemption 5 to justify their
redaction of Document 11. See Opp. at 14-16; Vaughn Index at 7. This privilege extends to
“documents and tangible things that are prepared in anticipation of litigation or for trial” by an
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attorney. Fed. R. Civ. P. 26(b)(3)(A). As this Court has noted in the past, the privilege is
relatively broad, encompassing documents prepared for litigation that is “foreseeable,” if not
necessarily imminent. Am. Immigration Council v. Dept. of Homeland Sec., 905 F. Supp. 2d
206, 221 (D.D.C. 2012). The privilege is not endless, however:
While it may be true that the prospect of future litigation touches
virtually any object of a [law-enforcement agency] attorney’s
attention, if the agency were allowed “to withhold any document
prepared by any person in the Government with a law degree
simply because litigation might someday occur, the policies of the
FOIA would be largely defeated.”
Senate of the Commonwealth of P.R. on Behalf of Judiciary Comm. v. DOJ, 823 F.2d 574, 586-
87 (D.C. Cir. 1987) (quoting Coastal States Gas Corp. v. DOE, 617 F.2d 854, 865 (D.C. Cir.
1980)).
When reviewing a withholding under the work-product prong of (b)(5), the “‘testing
question’ . . . is ‘whether, in light of the nature of the document and the factual situation in the
particular case, the document can fairly be said to have been prepared or obtained because of the
prospect of litigation.’” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (quoting Senate
of the Commonwealth of P.R., 823 F.2d at 586 n.42). At a minimum, the government must
demonstrate that the lawyer who prepared the document possessed the “subjective belief that
litigation was a real possibility, and that belief must have been objectively reasonable.” Id. As
this Court explained in its last decision in this matter, in order for the government to discharge its
evidentiary burden, it must (1) provide a description of the nature and contents of the withheld
document, (2) identify the document’s author or origin (by job title or otherwise), (3) describe
the factual circumstances that surround the document’s creation, and (4) provide some indication
of the type of litigation for which the document's use is at least foreseeable. See Am.
Immigration Council, 950 F. Supp. 2d at 241-42.
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AIC argues that Defendants have failed to follow this Court’s previous directions with
respect to Document 11 – namely, to identify “the document’s author or origin (by job title or
otherwise)” and “the factual circumstances that surround the document’s creation.” Opp. at 27-
28 (quoting Am. Immigration Council, 950 F. Supp. 2d at 241-42). The Court disagrees. The
Vaughn entry for Document 11 explains that the record “consists of hand written notes by an
ICE attorney that discusses the particulars of specific cases involving aliens,” Vaughn Index at 7,
and Defendants’ brief adds that the notes “analyz[e] specific cases involving aliens and the
attorney’s legal conclusions.” Mot. at 19. Although this description is thin enough to give the
Court pause, it does identify the document’s author by job title and provides some explanation
about the document’s creation. Coupled with the Court’s own in camera review of the record,
this is just enough to convince the Court that Document 11 was properly withheld under the
attorney work-product privilege. The Court will therefore grant Defendants’ Motion for
Summary Judgment as to this document.
c. Attorney-Client Privilege
Defendants invoked the attorney-client privilege to justify their redactions of Documents
2, 3, 7, and 9. See Opp. at 14-16; Vaughn Index at 3, 5-6. Because the Court has already found
that Documents 2, 3, and 9 were properly redacted under the deliberative-process privilege, it
need only address the parties’ arguments as to Document 7.
The attorney-client privilege protects confidential communications from clients to their
attorneys, as well as communications from attorneys to their clients containing confidential
information supplied by the client. See Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997).
“In the governmental context, the ‘client’ may be the agency and the attorney may be an agency
lawyer.” Tax Analysts, 117 F.3d at 618. Where an agency lawyer serves in a mixed capacity
21
that involves responsibilities both within and “outside the lawyer’s sphere,” however, the agency
employee’s communications will only be protected to the extent that they involve his or her
professional, legal capacity. In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984).
Like the other prongs of (b)(5), it falls to the government to prove, through “detailed and
specific information,” that the withheld information falls within the domain of the attorney-client
privilege. See Campbell, 164 F.3d at 30. As the Court explained in its last Opinion denying
Defendants summary judgment, the government must substantiate five essential elements in its
supporting documentation in order to prevail on a motion for summary judgment in this area:
(1) [T]he holder of the privilege is, or sought to be, a client; (2) the
person to whom the communication is made is a member of the bar
or his subordinate and, in connection with the communication at
issue, is acting in his or her capacity as a lawyer; (3) the
communication relates to a fact of which the attorney was
informed by his client, outside the presence of strangers, for the
purpose of securing legal advice; and (4) the privilege has been
claimed by the client. Additionally, [(5)] a “fundamental
prerequisite to the assertion of the privilege” is “confidentiality
both at the time of the communication and maintained since.”
Am. Immigration Council, 950 F. Supp. 2d at 243 (quoting Judicial Watch v. Dep’t of Homeland
Sec., 841 F. Supp. 2d 142, 153–54 (D.D.C. 2012)); see also Coastal States, 617 F.2d at 863);
Fed. Trade Comm’n v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C. Cir. 2002).
AIC claims that Defendants have failed to show that Document 7 contains confidential
information, emphasizing that the D.C. Circuit has refused to apply the attorney-client privilege
to “neutral, objective analyses of agency regulations,” rather than “private information
concerning the agency . . . [e.g.,] ‘counseling[]’ intended to assist the agency in protecting its
interests.” Coastal States, 617 F.2d at 863. The description Defendants provide in their Vaughn
Index and the Court’s own in camera review of the record, however, put Document 7 firmly on
the “counseling” side of the line. The Vaughn Index describes Document 7 as follows: “[A]n
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ICE employee was seeking guidance from ICE attorneys regarding the processing of aliens
during a worksite enforcement action . . . and an ICE attorney was providing a legal opinion to
[sic] the question about the processing of aliens.” Vaughn Index at 5. Defendants’ briefs repeat
this description practically word for word. See Mot. at 18; Reply at 15. While the records at
issue in Coastal States consisted of legal memoranda interpreting agency regulations based on
specific factual circumstances, which the panel compared to “question and answer guidelines
which might be found in an agency manual,” Coastal States, 617 F.2d at 858-59, 863, here the
material reflects legal advice and recommendations regarding agency action. This kind of
information is entitled to protection under the attorney-client privilege.
AIC further contends that Defendants have not established the confidentiality of
Document 7 at the time of the communication. As the Court noted in its last decision in this
matter, “The confidentiality of a communication is not something this Court is at liberty to
assume,” and documents must be disclosed unless the government can reasonably demonstrate
that the information was “’supplied by [the agency] [to agency counsel] with the expectation of
secrecy and was not known by or disclosed to any third party.’” Am. Immigration Council, 950
F. Supp. 2d at 244 (quoting Mead Data Cent., Inc. v. Dept. of Air Force, 566 F.2d 242, 254 (D.C.
Cir. 1977)). Defendants have met that burden with respect to Document 7. The Court’s in
camera review of the record reveals a confidentiality notice at the bottom of the email in
question that clearly reflects the parties’ expectation that the discussion would remain
confidential. The Vaughn entry for Document 7, moreover, states that the communications
exclusively involved ICE employees. See Vaughn Index at 5 (“The emails involve ICE
attorneys of a supervisory level[,] . . . ICE attorneys of a non-supervisory level[,] . . . and ICE
employees in a non-attorney capacity.”).
23
In sum, then, based on Defendants’ descriptions and the Court’s own examination of the
record, Document 7 is protected by the attorney-client privilege. The Court will therefore grant
Defendants’ Motion with regard to it.
3. Exemption 7(E)
Defendants invoked Exemption 7(E) to redact portions of two of the documents at issue
here: Document 1 and Document 10. See Opp. at 14-16; Vaughn Index. Exemption 7 authorizes
the Government 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” meets one
of six requirements. 5 U.S.C. § 552(b)(7); see also Keys v. DOJ, 830 F.2d 337, 340 (D.C. Cir.
1987) (“[Exemption 7] exempts such documents from disclosure only to the extent that
production of the information might be expected to produce one of six specified harms.”). The
fifth subparagraph – 7(E) – permits withholding where production “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). The agency must thus
satisfy two requirements: First, the record must be compiled for law-enforcement purposes; and
second, production must disclose either techniques and procedures for law-enforcement
investigations or guidelines for law enforcement investigations that would risk circumvention of
the law.
ICE is an investigative arm of DHS “tasked with preventing any activities that threaten
national security and public safety by investigating the people, money, and materials that support
illegal enterprises.” 3d Law Decl., ¶ 66. AIC acknowledges ICE’s “status as a law enforcement
agency” and the deference the agency is due in invoking Exemption 7, see Opp. at 32, but it also
24
notes that “[agency] records are not law enforcement records [under FOIA] simply by virtue of
the function that the [agency] serves.” King v. DOJ, 830 F.2d 210, 229 (D.D.C. 1987). “[A]
law-enforcement agency must still make a showing of ‘law enforcement purposes’ by providing
a sufficient explanation that ‘establish[es] a rational nexus between [the withholding] and one of
the agency’s law enforcement duties,’ as well as a ‘connection between an individual or incident
and a possible security risk or violation of federal law.’” Am. Immigration Council, 950 F.
Supp. 2d at 245 (quoting Campbell v. DOJ, 164 F.3d 20, 32 (D.C. Cir. 1998)).
While AIC concedes that most of Documents 1 and 10 were collected for law-
enforcement purposes, it questions certain parts of both documents. For Document 1, AIC
challenges those sections “relating to administrative processing of individuals [in contrast to] the
portions related to investigation or arrest of noncitizens.” Opp. at 32. AIC offers no argument
for why the movement and control of persons detained in federal custody as the result of a law-
enforcement operation should not be considered a law-enforcement activity, and the Court sees
no reason to treat such procedures any differently from those related to investigations or arrests.
Cf. Anderson v. Federal Bureau of Prisons, 806 F. Supp. 2d 121, 127 (D.D.C. 2011) (finding that
Exemption 7 covered information withheld by Federal Bureau of Prisons regarding decisions on
inmate transfers intended to prevent future violence). For Document 10, AIC says that “[p]arts
of [the record] are less clearly marked, and, as a result, AIC challenges a larger portion of those
redactions.” Opp. at 32. AIC does not explain the substance of those challenges, however, and
so the Court will treat their objection as abandoned. The Court therefore finds that both
Documents 1 and 10 were collected for law-enforcement purposes.
Moving on to Exemption 7(E)’s second requirement, AIC claims that Defendants have
failed to show that full release of Documents 1 and 10 “would disclose techniques and
25
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.” Opp. at 33 (quoting 5 U.S.C. § 552(b)(7)(E)). As the Court
noted in its last decision on this matter, courts typically have found that the government carries
its evidentiary burden on this point when it provides:
(1) a description of the technique or procedure at issue in each
document, (2) a reasonably detailed explanation of the context in
which the technique is used, (3) an exploration of why the
technique or procedure is not generally known to the public, and
(4) an assessment of the way(s) in which individuals could
possibly circumvent the law if the information were disclosed.
Am. Immigration Council, 950 F. Supp. 2d at 247. AIC argues that Defendants have not carried
that burden on several fronts.
First, AIC contends that Defendants have neglected to categorize certain redacted
material as a technique, a procedure, or a guideline – for instance, the “premise descriptions” in
Document 1 and “the particulars of each phase of the operation” in Document 10. Vaughn Index
at 2, 7. AIC asks too much. Insofar as premise descriptions and operation phases are part and
parcel of the law-enforcement techniques, procedures, and guidelines at issue – and the Court’s
in camera review of the materials convinces it that, in this case, they are – a FOIA defendant
need not tag them with specific labels.
Next, AIC challenges the redaction of Document 1 on the ground that it does not reflect
law enforcement “investigations” or “prosecutions.” See Cowsen-El v. DOJ, 826 F. Supp. 532,
534 (D.D.C. 1992). AIC notes that the redacted section of Document 1 is titled “Administrative
Processing” and claims that “even if these records were compiled for a law enforcement function
and include agency procedures, techniques, or guidelines, they should not be withheld unless
Defendants also show that all of the procedures relate to investigations or prosecutions.” Opp. at
26
36. AIC infers too much from just two words. As explained in Defendants’ Vaughn Index and
pleadings – and confirmed by the Court’s in camera review – Document 1 is a “Draft ICE
Operation Plan for SAC Chicago,” Vaughn Index at 2, that “describes the usage or non-usage of
undercover agents and highly specific details related to, among other things, how law
enforcement will contact suspects, the composition of a mobile command center, codes used, and
how to divide law enforcement teams under specific circumstances.” Reply at 19. Clearly, the
enforcement of immigration laws relates to law-enforcement “investigations” and
“prosecutions,” as does the detention of those suspected of violating such laws. This attack on
Defendants’ withholding of Document 1 is therefore unavailing.
Finally, AIC questions whether Defendants have shown that the redacted materials are
not generally known to the public. Although Defendants do not specifically address the issue in
their Vaughn Index or pleadings, their descriptions of Documents 1 and 10 as a “Draft ICE
Operation Plan for SAC Chicago” and an “Enforcement Operation Plan for SAC St. Paul,”
Vaughn Index at 2, 7, which “relate[] to either ICE enforcement actions against employers
violating federal law by employing unauthorized workers or [to] the manner and method in
which those detained for allegedly violating federal immigration law are housed, when they are
searched for contraband and weapons, and how specific enforcement actions are carried out by
ICE special agents,” Reply at 17, convinces the Court that, on their face, these records contain
information not generally known to the public. This inference is further bolstered by the Court’s
own in camera review of the materials.
In sum, then, the Court concludes that Defendants properly redacted Documents 1 and 10
under FOIA Exemption 7(E). It will therefore grant their Motion with regard to these two
documents.
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4. Segregability
The last issue that the Court must address is segregability. FOIA requires that “[a]ny
reasonably segregable portion of a record . . . be provided to any person requesting such record
after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Accordingly, “non-exempt
portions of a document must be disclosed unless they are inextricably intertwined with exempt
portions.” Mead Data, 566 F.2d at 260. Still, an agency is not obligated to segregate non-exempt
material if “the excision of exempt information would impose significant costs on the agency and
produce an edited document with little informational value.” Neufeld v. IRS, 646 F.2d 661, 666
(D.C. Cir. 1981), overruled on other grounds by Church of Scientology of California v. IRS, 792
F.2d 153 (D.C. Cir. 1986).
While the Government is “entitled to a presumption that [it] complied with the obligation
to disclose reasonably segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013),
this presumption of compliance does not obviate its obligation to carry its evidentiary burden and
fully explain its decisions on segregability. See Mead Data Cent., 566 F.2d at 261. The agency
must provide “a detailed justification and not just conclusory statements to demonstrate that all
reasonably segregable information has been released.” Valfells v. CIA, 717 F. Supp. 2d 110,
120 (D.D.C. 2010) (internal quotation marks omitted); see also Armstrong v. Exec. Office of the
President, 97 F.3d 575, 578 (D.C. Cir. 1996) (determining Government affidavits explained
nonsegregability of documents with “reasonable specificity”). “In making a determination as to
segregability . . . a district court judge ‘may examine the contents of . . . agency records in
camera’ . . . . This Circuit has interpreted this language to give district court judges broad
discretion in determining whether in camera review is appropriate.” Id. at 577-78 (citations
omitted).
28
In the Court’s prior decision in this case, it did not reach the segregability issue, but “[t]o
aid in the preparation of Defendants’ further explanations of the withholdings,” it “made explicit
this Circuit’s precedent on segregability of nonexempt information.” Am. Immigration Council,
950 F. Supp. 2d at 248. The Court explained that “[o]nce Defendants have specifically identified
the exempted portions of their records and described them in accordance with the requirements
set out above . . . they must also provide descriptions of excerpts deemed to be non-segregable,
with explanations as to those decisions.” Id. It added that “Defendants’ current conclusory
assertion that ICE ‘has reviewed each record line-by-line to identify information exempt from
disclosure . . . [finding that] all information not exempted . . . was correctly segregated,’ . . . will
not suffice to discharge this burden.” Id.
As AIC notes, Defendants have again failed to follow the Court’s express instructions on
this matter. Their opening brief parrots almost exactly the same language that this Court
previously described as insufficient: “[ICE] reviewed each record line-by-line to identify
information exempt from disclosure . . . to ensure that all non-exempt information was released.”
Mot. at 22. The only new information that Defendants have provided is their rather meek
assertion that “as demonstrated by the Vaughn Index and the Law Declarations, ICE went to
great lengths to describe in detail the exact material which was withheld (including time stamps
of e-mails) to indicate what was withheld and the reasons the information was statutorily
exempt.” Reply at 20. The Court specifically stated in its last decision, however, that those
descriptions are not sufficient. Defendants must also “provide descriptions of excerpts deemed
to be non-segregable, with explanations as to those decisions.” Am. Immigration Council, 950
F. Supp. 2d at 248. Defendants’ Vaughn Index and declarations are devoid of such information.
29
Fortunately for Defendants, however, the Court’s in camera review of the materials
suffices to persuade it that there are no segregability problems in this case. Documents 2, 3, 4, 7,
and 8 feature targeted redactions, with paragraphs and sentences clipped to remove exempt
information, which suggests that Defendants made the required effort to segregate and disclose
those portions that could be released. While Documents 1, 9, 10, and 11 present broader-brush
redactions, the Court’s examination of these records persuades it that all reasonably segregable
information within has been released. The non-exempt portions of these documents that have
been redacted “are inextricably intertwined with exempt portions” and they need not be further
segregated. Mead Data, 566 F.2d at 260.
IV. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part Defendants’
Motion for Summary Judgment. Summary judgment will be entered in favor of Defendants on
their withholdings of Documents 1 through 11. A separate Order consistent with this Opinion
will be issued this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: March 5, 2014
30