American Immigration Council v. United States Department of Homeland Security , 950 F. Supp. 2d 221 ( 2013 )

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
Plaintiff American Immigration Council brought this action under the Freedom of
Information Act seeking records on immigrants’ access to legal counsel during their interactions
with U.S. Immigration and Customs Enforcement authorities. Defendant ICE (a component of
the Department of Homeland Security, the second Defendant) eventually produced nearly 8,000
pages of responsive records, withholding and partially redacting hundreds of pages. In its suit,
Plaintiff challenges the sufficiency of Defendants’ search for responsive records, as well as the
propriety of many of their withholdings. Arguing they have complied with their obligations,
Defendants now move for summary judgment on both issues. As to the first, the Court
concludes that an issue of material fact exists as to whether Defendants conducted a sufficiently
exhaustive search to satisfy FOIA. Having also reviewed Defendants’ justifications for their
various withholdings and having examined their redactions in camera, the Court further finds
that Defendants have not provided sufficient information for it to determine whether any of the
withholdings are proper. Denial of Defendants’ Motion for Summary Judgment thus results.
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I. Background
In March 2011, the American Immigration Council (AIC) submitted the following FOIA
request concerning individuals’ access to legal counsel during their interactions with U.S.
Immigration and Customs Enforcement authorities:
[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.
Compl., Exh. A (Letter from Emily Creighton, AIC, to FOIA Office, U.S. Immigrations and
Customs Enforcement (March 14, 2011)) at 1 (footnote omitted). The request “include[d], but
[was] not limited to” thirteen specific types of records. Id. at 1-3.
After more than a year without receiving any records and three unsuccessful
administrative appeals of actual and constructive denials of its request, AIC concluded that it had
exhausted its administrative remedies and filed suit in this Court. See Compl., ¶¶ 15-24; see also
5 U.S.C. § 552(a)(6)(A)-(C) (under normal circumstances, agency must make an initial
determination within 20 days, with another 20 days allotted for administrative appeal; where the
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agency exceeds its time limits, requester will be deemed to have exhausted administrative
remedies).
Two and a half months after AIC filed its Complaint with this Court, ICE processed
1,084 pages of responsive documents and produced them. See Joint Motion to Stay These
Proceedings, ¶ 4. Shortly thereafter, ICE “identified an additional 6,000 or so pages of
documents” that it deemed potentially responsive to AIC’s request. Id., ¶ 5. The parties jointly
requested a brief stay of the proceedings to allow ICE to review and produce additional
documents on a rolling basis. Id., ¶¶ 6-7. The Court granted this request on August 20, 2012.
ICE then processed 6,906 pages of further records in five rolling productions,
withholding portions of the records pursuant to various FOIA exemptions. See Mot., Attach. 1
(Defendant Statement of Material Facts (SMF)), ¶¶ 20-21; Opp., Attach. 1 (Plaintiff Response to
Def. SMF), ¶¶ 20-21. ICE also provided AIC with a summary Vaughn Index for the purpose of
identifying information in its withholdings. See Def. SMF, ¶ 23.
On January 9, 2013, the parties entered into a joint stipulation acknowledging AIC’s
receipt and review of the 6,906 additional pages of documents, many of which ICE had redacted
in whole or in part pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). See Mot., Exh. 2 (Joint
Stipulation), ¶¶ 1-2. AIC agreed that it would not challenge ICE’s whole or partial redactions for
the following page ranges: 0216-0221, 0242-0432, 0449-0518, 0550-0581, 0584-0620, 0658-
0724, 0748-0781, 0803-0816, 0821-0822, 0830-0840, 0845-0847, 0855, 0859, 0890, 0899, 0918-
0919, 0924, 0934, 0948-0962, 0967-0984, and 1085-6906. See id., ¶¶ 2-3.
On January 25, 2013, Defendants filed a Motion for Summary Judgment, claiming that
they had conducted a reasonable search in response to Plaintiff’s request, produced all responsive
documents, and properly withheld certain records pursuant to various FOIA exemptions. See
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Mot. at 7-21. AIC contests the Motion, arguing that Defendants failed to demonstrate that their
search was adequate, that the descriptions of their withholdings are insufficient as a whole, and
that they improperly withheld various documents. See Opp. at 5-33.
On April 25, this Court ordered Defendants to produce the remaining disputed documents
for in camera review. Thereafter, Defendants produced the documents, which number nearly
600 pages. The Court has since reviewed the redactions along with Defendants’ various
justifications.
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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477
U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by “citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a
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court may grant summary judgment based solely on information provided in an agency’s
affidavits or declarations when they “describe 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.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(citation omitted). 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) (internal
quotation marks omitted). “Unlike the review of other agency action that must be upheld if
supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the
burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter
de novo.’” U.S. Dep’t of Justice v. Reporters Com. for the Freedom of the Press, 489 U.S. 749,
755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
III. Analysis
Plaintiff contends that Defendants erred in two essential areas. First, AIC claims that ICE
failed to conduct an adequate search for responsive records. See Opp. at 7-16. Second, AIC
asserts that ICE improperly withheld multiple records pursuant to several FOIA exemptions. See
id. at 16-35. Given that ICE has demonstrated neither the adequacy of its search nor the
propriety of its withholdings, the Court cannot grant Defendants’ Motion on either ground.
A. Adequacy of Search
FOIA requires government agencies to describe their searches in sufficient detail for a
court to determine whether the search was sufficiently exhaustive to satisfy the Act. Nation
Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995);
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Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). To describe its search in this
case, ICE relies on two declarations from its Deputy FOIA Officer, Ryan Law. See Mot., Exh. 1
(Declaration of Ryan Law); Reply, Exh. 1 (Supplemental Declaration of Ryan Law). Those
declarations, ICE contends, demonstrate that the search it undertook was reasonable. They
describe, inter alia, the ICE departments searched, the employees who conducted the searches,
the “search terms utilized,” and “the databases, physical spaces, and other computer files
searched.” Reply at 7-8.
Plaintiff raises several objections to ICE’s search, which it argues preclude summary
judgment on this issue. These objections fall into three categories: First, that ICE failed to
explain why it excluded certain departments and local field offices from its search, see Opp. at
10-12, Sur-Reply at 5; second, that ICE has not described its search in sufficient detail to allow
this Court to assess its reasonableness, see Opp. at 5-12; Sur-Reply at 6-7; and, third, that
countervailing evidence indicates the actual search ICE conducted was not adequate. See Reply
at 12-16; Sur-Reply at 7.
As the Court ultimately finds the first two objections persuasive, it concludes that an
issue of material fact remains as to whether the agency’s search was adequate.
1. Selection of Offices & Files to Search
Plaintiff first argues that Defendants have failed to explain why they have not searched
certain offices, sub-offices, and field offices that are likely to contain responsive records. It
additionally complains that, within those departments ICE did search, ICE improperly omitted
filing systems that are likely to contain responsive records.
As a first step, “[u]pon receiving Plaintiff’s FOIA request . . . the ICE FOIA Office
reviewed the request and determined that based on the subject matter of the FOIA request that
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the following offices and divisions as likely possessing records responsive [sic].” Law Decl.,
¶ 20. Indeed, this appears to be the normal practice of the agency: “When the ICE FOIA Office
receives a FOIA request, its first step is to identify which program offices within ICE are most
likely to possess records responsive to that request and to initiate searches within those program
offices.” Id., ¶ 7. Similarly, in deciding which filing systems within a department to search, the
agency explains: “These terms and locations were used as they were determined by the person
familiar with the records within [an ICE department] to be relevant to the request and reasonably
calculated to uncover relevant documents.” Suppl. Law Decl., ¶ 37; see also id. ¶¶ 27, 43.
In order for such a methodology to be sufficient, ICE would, at a minimum, have to aver
that it has searched all files likely to contain relevant documents. Agencies regularly make such
attestations when they use similar methods of selecting which departments and files to search.
For example, in Brehm v. Dep’t of Def., 593 F. Supp. 2d 49 (D.D.C. 2009), the government
agency selected two filing systems that it determined were “likely to contain responsive records.”
Id. at 50. The defendant, however, additionally averred that “it is unlikely that other CIA
directorates would possess records responsive to Plaintiff’s request.” Id.; see also Nation
Magazine, 71 F.3d at 891 (agency attested that it had “made a comprehensive search through all
of its records systems where [records] responsive to the Plaintiffs request could conceivable [sic]
be maintained and failed to locate any [responsive] records”).
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. In Jefferson v. Bureau of
Prisons, No. 05-848, 2006 WL 3208666 (D.D.C. Nov. 7, 2006), for example, the court found the
FBI’s search inadequate because its declaration did not “aver that the FBI searched all files likely
to contain responsive records.” Id. at *6. Likewise, in Bonaparte v. U.S. Dept. of Justice, 531 F.
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Supp. 2d 118 (D.D.C. 2008), the court found the search inadequate in part because the
Defendants had not averred that “all files likely to contain responsive materials . . . were
searched.” Id. at 122. And in Maydak v. U.S. Dep’t of Justice, 362 F. Supp. 2d 316 (D.D.C.
2005), the court lamented that “no one avers, and the record does not otherwise permit the
inference that all files likely to contain responsive records were searched.” Id. at 326.
Here, similarly, Defendants have not indicated that all those offices and records systems
likely to contain responsive records have been searched. ICE has only stated that it identified
certain offices as “most likely to possess records responsive to [Plaintiff’s] request.” Law Decl.,
¶ 7; see also id., ¶ 20. The D.C. Circuit rejected just such an attestation in Oglesby, 920 F.2d at
68. There, the defendant selected the departments and filing systems it searched in much the
same manner that ICE did in this case: “Based upon the information contained in [the plaintiff’s]
letter, and consistent with customary practice and established procedure, a search was initiated of
the Department record system most likely to contain the information which had been
requested . . . namely, the Central Records.” Id. The plaintiff complained that in response to his
FOIA request, “the agency only searched the record system ‘most likely’ to contain the requested
information.” Id. The D.C. Circuit held that, while an agency need not search every one of its
record systems, a “reasonably detailed affidavit . . . averring that all files likely to contain
responsive materials . . . were searched, 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. Such an assurance is necessary because
the agency cannot limit its search to only one record system if
there are others that are likely to turn up the information requested.
It is not clear from [the government’s] affidavit that the Central
Records system is the only possible place that responsive records
are likely to be located. At the very least, [the government] was
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required to explain in its affidavit that no other record system was
likely to produce responsive documents.
Id. (emphasis original).
While this averment may seem a technical requirement, the facts of this case demonstrate
its importance. Plaintiff argues that certain offices, sub-offices, and filing systems should have
been searched, see Opp. at 9, Sur-Reply at 5, but the Court cannot begin to analyze such a
contention until it knows ICE’s position on whether any of those locations have potentially
responsive documents.
2. Description of Search
For those departments and files that the agency did search, ICE has similarly failed to
carry its burden. The government must describe a search with sufficient detail that the reviewing
court can determine whether the search was reasonable. See Nation Magazine, 71 F.3d at 890(“To show reasonableness at the summary judgment phase, an agency must set forth sufficient
information in its affidavits for a court to determine if the search was adequate.”); Oglesby, 920
F.2d at 68 (“A reasonably detailed affidavit, setting forth the search terms and the type of search
performed … 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.”).
Here, Defendants’ description is not sufficiently detailed. Law’s supplemental
declaration describes searches of particular databases without explaining what those databases
are and the documents they contain. For example, it details a search of the “ERO Resource
Library,” but does not explain what kinds of documents that database includes. See Suppl. Law
Decl., ¶ 42. Elsewhere, it refers to the “ICE OPLA District Court Litigation Division Litigation
Database,” without explaining what records the database contains. Id., ¶ 16. At one point, the
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declaration simply refers to “a database search” without providing even the name of the
database. Id., ¶ 20. For OPLA, ERO, and ODPP, the supplemental declaration describes
searches of network “Shared Drive[s]” without explaining what employees, departments, or field
offices have access to those drives. See id., ¶¶ 11, 30, 36, 40. The explanation dedicated to the
search of ODPP refers simply to a “computer search of the ‘Documents’ folder,” but does not
explain where the folder was located or who had access to it. Id., ¶ 41. Paragraph 34 refers to a
“desktop/laptop computer search,” but does not explain whose computers were actually
searched. Id. at 34.
At several points, the supplemental declaration describes searches of the “Email Outlook
program,” but does not explain what is included in this “program.” See id., ¶¶ 13, 21, 26, 31. In
other words, the declaration does not make clear whether these searches encompassed all emails
from all employees within a particular division, or whether they included only certain employees
thought to have relevant information. In addition, the original declaration describes the general
system for archived emails, see Law Decl., ¶ 15 (“Individual archives of emails are searched by
the individual employees where those employees have identified individual archives containing
potentially responsive documents.”), but the searches of the “Email Outlook program” appear to
be distinct from the searches of “archived emails” that Law describes in his supplemental
declaration. Compare, e.g., Suppl. Law Decl., ¶ 13 (describing an “‘instant search’ of the Email
Outlook program”), with id.,¶ 17 (referring to “a search of the archived emails of the individual
conducting the search”).
In the same way, Defendants failed to adequately describe the searches of three databases
that apparently returned responsive records. Defendants retrieved records “responsive to
Plaintiff’s FOIA request” from three of its recordkeeping systems: the “ICE External
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Investigations Records,” the “Immigration and Enforcement Operational Records,” and the
“Alien Medical Records.” Law Decl., ¶ 16. While Law’s first declaration does describe the
nature of those records systems in some detail, see id.,¶ 16(a)-(c), it does not discuss the searches
performed on those record systems. The supplemental declaration, however, which ICE
ostensibly provided to address this and other omissions, see Reply at 7, makes no reference to
any of the three records systems mentioned in Law’s first declaration.
Without a more detailed description of the systems that the agency searched, a question
of material fact exists as to whether the search was adequate. Additionally, a more detailed
description of the search will help the Court evaluate some of Plaintiff’s more specific criticisms.
For instance, Plaintiff points out that the search terms the agency employed seem inconsistent
and incomplete. See Sur-Reply at 6. The Court will not venture an opinion on this claim
without a better understanding of what files were being searched. It does note, however, that the
relevance of some of these search terms, such as “Jena,” “SPC,” and RA Memos,” is not
immediately apparent. See Suppl. Law Decl., ¶ 30. More explanation will prove of future
assistance to the Court.
3. Countervailing Evidence
Plaintiff additionally points to “countervailing evidence” that, it argues, indicates that
ICE did not perform an adequate search. See Opp. at 12-16. Although, as just discussed, the
Court does not have enough information to evaluate the adequacy of the overall search, it does
not agree that the countervailing evidence Plaintiff has identified, on its own, demonstrates that
the search was inadequate.
Plaintiff relies on two types of countervailing evidence. First, it identifies documents that
AIC knows existed at one time but that ICE did not provide in response to Plaintiff’s FOIA
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request. For example, ICE has held several meetings with immigration advocacy groups – e.g.,
the American Immigration Lawyers Association – concerning the role of counsel. See Opp.,
Attach. 6 (Declaration of Robert Deasy), ¶ 3. After each meeting, the Lawyers Association sent
“meeting minutes” to ICE, to which ICE responded in writing. See id., ¶ 3. In several of these
meeting minutes, ICE responded to questions about access to counsel. Plaintiffs complain,
though, that in response to their FOIA request, Defendant turned over only “limited
correspondence relating to such meetings.” Opp. at 12. Similarly, Plaintiff has provided
affidavits from several immigration rights advocates attesting to written correspondence they
have conducted with ICE officials regarding access to attorneys, which correspondence was not
included in the materials ICE provided to Plaintiff. See id. at 12-13.
Second, Plaintiff contends that some of the documents that ICE did provide contain
references to other relevant documents that the agency did not turn over. Plaintiff cites examples
of records referring to, for example, “talking points,” “PowerPoint” presentations, or “policies.”
Several emails also refer to “documents” and “memos.” Id. at 14. An “Operation Plan” that
Defendants disclosed refers to four attachments, but the attachments are not included. Id. at 14.
In general, identifying a handful of documents that the agency failed to uncover does not,
in itself, demonstrate that the search was inadequate. See Boyd v. Criminal Div. of U.S. Dep’t of
Justice, 475 F.3d 381, 391 (D.C. Cir. 2007) (“[T]he fact that a particular document was not found
does not demonstrate the inadequacy of a search.”); Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir.
2004) (“the agency’s failure to turn up a particular document … does not undermine the
determination that the agency conducted an adequate search for the requested records”). Nor is
the government required to examine every document that is cross-referenced by the records that
have been reviewed. In Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548 (D.C. Cir. 1994), the
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plaintiff complained that the government had not examined six files that were mentioned in
several disclosed documents. Id. at 552. The D.C. Circuit held that FOIA does not require
agencies to track down every cross-referenced record in the documents it examines: “[M]ere
reference to other files does not establish the existence of documents that are relevant to
appellant’s FOIA request.” Id.The existence of particular undisclosed documents is not conclusive because any
individual document may have been lost, destroyed, or not retained in the first place. See
Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (The “adequacy of
a FOIA search is generally determined not by the fruits of the search, but by the appropriateness
of the methods used to carry out the search. After all, particular documents may have been
accidentally lost or destroyed, or a reasonable and thorough search may have missed them.”)
(internal citations omitted); see also Porter v. CIA, 778 F. Supp. 2d 60, 69 (D.D.C. 2011).
True, in some instances, courts have found that the government’s failure to hand over
specific documents indicates that the search was inadequate. These cases, however, tend to
involve instances where the existence of a particular document indicates that the agency failed to
search a particular category of files or a particular department’s records. For instance, in Wolf v.
CIA, 357 F. Supp. 2d 112 (D.D.C. 2004), aff’d in part, rev’d in part on other grounds, 473 F.3d
370 (D.C. Cir. 2007), the plaintiff sought all documentation in the FBI’s possession regarding the
activities of a particular individual. Id. at 114. The plaintiff independently produced an internal
FBI memorandum indicating that the individual’s case file was being closed and that his
subsequent activities would be reported in a file called “Political Situation in Colombia—Foreign
Political Matter.” Id. at 119. The court agreed that the FBI should have searched this “Political
Situation” file and that the agency’s failure to do so rendered summary judgment improper. Id.
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Likewise, in Campbell v. U.S. Dep’t of Justice, 164 F.3d 20 (D.C. Cir. 1998), the files that the
FBI provided in response to plaintiff’s FOIA request alluded to records contained in two
additional record systems, an electronic surveillance index, and “tickler” files. Id. at 27. The
court thus held that the FBI should have searched those additional record systems. Id. at 28; see
also Iturralde, 315 F.3d at 315 (failure to disclose a particular document only indicates an
inadequate search under certain circumstances – e.g., the government “failed to search particular
offices or files where the document might well have been found”; “failed or refused to interview
government officials for whom there was strong evidence that they might have been helpful in
finding the missing documents”; or “ignored indications in documents found in its initial search
that there were additional responsive documents elsewhere”) (citations omitted).
Unlike the documents discussed in Wolf and Campbell, the records that Plaintiff refers to
here do not demonstrate that the search was inadequate. Plaintiff has not provided evidence to
demonstrate that ICE saved the meeting minutes that immigrant rights advocates sent to them or
that ICE personnel retained their correspondence with those advocates. The evidence does not
reveal a particular category of files or a particular department whose records the agency failed to
search. Plaintiff’s suggestion that records of these correspondences exist is thus largely
speculative.
In summary, the Court holds that issues of material fact exist as to the adequacy of ICE’s
search. The agency 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. Summary judgment on this issue will
be denied.
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B. Withholdings Under Various FOIA Exemptions
FOIA 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). Nine categories of
information are exempt from FOIA’s broad rules of disclosure. 5 U.S.C. § 552(b)(1)-(9). These
exemptions are to be narrowly construed, see Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976), and the reviewing court must bear in mind that FOIA mandates a “strong presumption in
favor of disclosure.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991); Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). This Court, accordingly, can compel the
release of any records that do not satisfy the requirements of at least one exemption. See U.S.
Dep’t of Justice v. Reporters Com. for Freedom of the Press, 489 U.S. 749, 755 (1989).
Plaintiff argues that ICE’s withholdings are deficient in four respects. First, AIC
maintains that ICE’s Vaughn Index and other explanations of its withholdings are insufficient as
a whole, and that summary judgment should be rejected on the overall ground that Defendants
have not carried their evidentiary burden. See Opp. at 19-22. Second, Plaintiff takes issue with
specific categories of withholdings, arguing that ICE has not thoroughly explained how
particular FOIA exemptions apply to individual documents. See id. at 22-33. Third, Plaintiff
contests withholdings and redactions for which no exemptions have been claimed and that have
been marked as redacted without further explanation. See id. at 21. Fourth and finally, Plaintiff
asserts that even if ICE has appropriately described its withholdings, it has nevertheless failed to
release “reasonably segregable portion[s]” of its exempted records. Id. at 33-35. The Court will
address each of these issues in sequence.
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1. Overall Sufficiency of Documentation and Explanations
FOIA was drafted with the objective of affording the public maximum access to most
government records. See Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). The
government, as a result, bears the burden of demonstrating that at least one exemption applies.
See id. In order to assist a court in its de novo review of the withholdings and to allow the party
seeking access to documents to engage in effective advocacy, the government must furnish
“detailed and specific information demonstrating ‘that material withheld is logically within the
domain of the exemption claimed.’” Campbell, 164 F.3d at 30 (quoting King v. U.S. Dep’t of
Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)). This allows for “as full a public record as possible,
concerning the nature of the documents and the justification for nondisclosure.” Hayden v. Nat’l
Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1384 (D.C. Cir. 1979). Time and again, courts in
this Circuit have stressed that the government cannot justify its withholdings on the basis of
summary statements that merely reiterate legal standards or offer “far-ranging category
definitions for information.” King, 830 F.2d at 221; see, e.g., Campbell, 164 F.3d at 30(emphasizing that an agency’s explanations will not suffice if they “‘are conclusory, merely
recit[e] statutory standards, or if they are too vague or sweeping’”) (quoting Hayden, 608 F.2d at
1387).
While FOIA’s individual exemptions impose their own tailored evidentiary burden, as a
starting point, the government must meet five overarching requirements for each withholding.
See King, 830 F.2d at 224. The government must:
(1) [I]dentify the document, by type and location in the body of
documents requested; (2) note that [a particular exemption] is
claimed; (3) describe the document withheld or any redacted
portion thereof, disclosing as much information as possible without
thwarting the exemption’s purpose; (4) explain how this material
falls within one or more of the categories . . . ; and [if the
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exemption requires a showing of harm] (5) explain how disclosure
of the material in question would cause the requisite degree of
harm.
Id.In circumstances where an in-depth description of a withholding would risk disclosure of
sensitive information, and particularly where a confidential source might be compromised, the
government may supplement its explanations with non-public affidavits and other documents for
in camera review by the court. See Simon v. Dep’t of Justice, 980 F.2d 782, 784 (D.C. Cir.
1992) (“in camera review . . . is the best way to assure both that the agency is entitled to the
exemption it claims and that the confidential source is protected”). In camera review, however,
is “not a substitute for the government’s obligation to provide detailed public indexes and
justifications whenever possible.” Lykins v. U.S. Dep’t of Justice, 725 F.2d 1455, 1463 (D.C.
Cir. 1984); see also PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 253 (D.C. Cir. 1998) (“[I]n
camera review is generally disfavored,” and is “not a substitute for the government’s obligation
to justify its withholding in publicly available and debatable documents.”) (internal citations
omitted). As the D.C. Circuit noted in Lykins, the government’s documentary obligations not
only enable the reviewing court to make an informed and accurate determination, but they also
allow the adversary system to operate effectively and encourage transparency by “forc[ing] the
government to analyze carefully any material withheld.” 725 F.2d at 1463. Admittedly, this
evidentiary burden is likely to create significant costs for government agencies as they respond to
FOIA requests; however, “[t]he costs must be borne . . . if the congressional policy embodied in
FOIA is to be well served.” Senate of the Com. of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d
574, 587 (D.C. Cir. 1987).
17
In this case, ICE has fallen well short of meeting its obligations and has instead shifted
the burden of analyzing nearly 600 pages of withheld documents to the shoulders of this Court.
More specifically, at the Court’s request, Defendants have submitted the disputed documents for
in camera review, supplementing them with declarations and briefs that are laden with
generalized, categorical descriptions of the contents and conclusions that do little more than
parrot established legal standards. See, e.g., Mot. at 9-20 (broad, categorical descriptions of
documents using statutory language and legal conclusions); Law Decl., ¶¶ 37-57 (use of
summary categories without any individual descriptions of documents); Reply at 9-18 (same).
Defendants have also provided an equally unsatisfactory “summary” Vaughn Index, which they
claim reflects “customary practice, particularly in cases . . . where a large number of potentially
responsive documents [are] identified.” Law Decl., ¶ 36. The Index purports to convey all
necessary detail in only four pages comprising six rows of vague description. See Vaughn Index
at 1-4 (multiple records assigned to sweeping categories such as “[a]ll documents containing
commonly withheld techniques and procedures of law enforcement,” or “[e]mails and draft
discussions regarding NGO questions”).
Defendants provide no authority to show that submission of a “summary” Vaughn Index,
without more, is either a customary or acceptable means of discharging their evidentiary burden.
Indeed, consistent precedent demonstrates that the contrary is true. As the Vaughn Court itself
cautioned: “[I]t is unreasonable to expect a trial judge to do as thorough a job of illumination and
characterization as would a party” who is familiar with the documents and who seeks to withhold
them. 484 F.2d at 825.
While the form of the government’s explanations may vary, the substance must meet a
consistent standard. If the government chooses to submit a short Vaughn Index containing
18
abbreviated descriptions, it must supplement the index with detailed affidavits that do more than
merely repeat the same generalized categorization of content. See Judicial Watch, Inc. v. FDA,
449 F.3d 141, 146 (D.C. Cir. 2006); see also Coastal States Gas Corp. v. Dep’t of Energy, 617
F.2d 854, 861 (D.C. Cir. 1980) (index identifying “who wrote the memorandum, to whom it was
addressed, its date, and a brief description of the memorandum,” accompanied by affidavits
drafted in “conclusory terms” deemed insufficient). While the government need not furnish
repetitive descriptions of the same type of document and may describe commonalities among its
withholdings, it must avoid resorting to explanation in generalities. See Judicial Watch v. FDA,
449 F.3d at 147. A “document-by-document” description in the Vaughn Index may not always
be necessary, particularly when the withholdings comprise multiple, duplicative records and
when the government’s supporting affidavits are “sufficiently detailed to allow the district court
to fairly evaluate” the application of a claimed exemption to distinct categories of documents.
See Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994); see also Landmark Legal Found. v.
IRS, 267 F.3d 1132, 1138 (D.C. Cir. 2001) (“It is not the agency’s fault that thousands of
documents belonged in the same category, thus leading to exhaustive repetition.”).
Indeed, in certain past FOIA cases, this Court has refrained from demanding exhaustive
descriptions of each redacted document where so doing would “exalt form over substance.”
Smith v. Dep’t of Labor, 798 F. Supp. 2d 274, 281 (D.D.C. 2011). Such findings, however, have
been limited to occasions when the government agency has only redacted small portions of a
limited number of contested records, and the non-redacted content has provided more than
enough detail for both plaintiff and judicial review. See id. This case is not analogous in any
respect. A substantial number of ICE documents that remain in contention have either been
heavily redacted or withheld in their entirety. In general, the text that has been made public does
19
not suffice to allow Plaintiff to glean adequate context or engage in the type of advocacy that
FOIA seeks to encourage. Of perhaps greater concern, ICE’s Vaughn Index does not offer a
useable point of reference to negotiate nearly 600 pages of withholdings, a problem that is
discussed in further detail in relation to each claimed FOIA exemption. See Sections
III(B)(2)(a)-(b), infra.
This Court, consequently, holds that Defendants’ Vaughn Index and explanations of the
withholdings are insufficient as a whole. On these grounds alone, the Court must deny the
Motion for Summary Judgment as to ICE’s withholdings. If ICE does not produce the contested
records, it must submit revised documentation that is sufficiently detailed and comprehensive to
meet the evidentiary standards set out in King, 830 F.2d at 224, as well as the exemption-specific
standards, which are discussed in detail in the sections that follow.
2. Applicability of Specific Exemptions
Plaintiff’s challenges to specific withholdings turn principally on the applicability of
FOIA Exemptions 5 and 7(E); AIC no longer contests ICE’s withholdings under Exemptions 6
and 7(C). See Opp. at 22-32; Reply at 14-16. The Court, consequently, need not decide whether
Defendants have improperly withheld portions of documents described in the Vaughn Index (at
1) as containing “personally identifiable information.” See Hopkins v. Women’s Div., Gen. Bd.
of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit
that when a plaintiff files an opposition to a dispositive motion and addresses only certain
arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to
address as conceded.”), aff’d 98 F. App’x 8 (D.C. Cir. 2004) The Court will thus consider
Exemptions 5 and 7(E) in turn.
20
a. Exemption 5
FOIA Exemption 5 applies to “inter-agency or intra-agency memorandums or letters
which 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). Withholdings are restricted to “those documents, and only those
documents, normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 149 (1975); see also United States v. Weber Aircraft Corp., 465 U.S. 792, 798-99
(1984). In contrast to disclosures in that context, the needs of a particular plaintiff are irrelevant
to a court’s determination of whether a particular communication is exempt from disclosure
under (b)(5). Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d 1181, 1184
(D.C. Cir. 1987) (citing Sears, Roebuck, 421 U.S. at 149).
Exemption 5 encompasses three distinct components relevant here – namely, the
deliberative-process privilege (sometimes referred to as “executive privilege”), the attorney
work-product privilege, and the attorney-client privilege. Am. Immigration Council v. U.S.
Dep’t of Homeland Sec., 905 F. Supp. 2d 206, 216 (D.D.C. 2012). In addition to meeting the
distinct evidentiary burden for each relevant privilege of (b)(5), the government must
demonstrate that its withholdings satisfy the threshold requirement of “inter-agency or intra-
agency memorandums.” 5 U.S.C. § 552(b)(5). The Court will address this threshold
requirement first and then move to each of the three privileges.
i. Inter-Agency or Intra-Agency Memoranda
The types of records that qualify as inter-agency or intra-agency memoranda under
Exemption 5 are not limited to exchanges between government personnel and may also include
deliberative discussions with private liaisons acting in the capacity of consultants and providing
input at the behest of the government. See Nat’l Inst. of Military Justice v. U.S. Dep’t of Def.,
21
512 F.3d 677, 686-87 (D.C. Cir. 2008). Whenever a private liaison initiates the contact and
communicates with his or her “own . . . interests in mind,” such communications cannot satisfy
the threshold requirement of Exemption 5. See Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 12 (2001).
At present, Defendants’ documentation is insufficient for the Court to determine
whether the records withheld under Exemption 5 satisfy the inter-agency or intra-agency
memoranda test. In order for the Court to apply this (b)(5) threshold requirement, Defendants
must provide some indication as to the identities of the agency personnel and other individuals
involved in a particular exchange. Neither the summary Vaughn Index nor the accompanying
documents do so. In a typical Vaughn Index entry, Defendants conclude: “FOIA Exemption 5 is
applied to protect from disclosure draft declarations that are deliberative, non-finalized versions
being reviewed. Draft materials reflect the agency decision making process and are deliberative
in nature.” Vaughn Index at 2. Elsewhere, Defendants offer thin, conclusory statements such as:
“The withheld and redacted information meets the threshold for ‘inter-agency or intra-agency
memorandums or letters,’ none of which are communications with third parties.” Mot. at 10.
Despite Plaintiff’s requests for additional information on the “authors and intended recipients” of
these documents, Opp. at 22, Defendants simply repeat verbatim the same inadequate
justification, maintaining that “none [of the documents] are communications with third parties.”
Reply at 10.
Defendants have released many of their documents in partially redacted form, which,
under ideal circumstances, could “supplement[] the Vaughn index . . . and ‘serve[] to illuminate
the nature of the redacted material.’” Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)
(quoting Judicial Watch v. FDA, 449 F.3d at 145). Unfortunately, the unredacted portions of the
22
documents do little, if anything, to prove that they meet the threshold requirement of (b)(5). For
all the email exchanges in this category, Defendants have also redacted names and personal
identifiers for the majority of senders and recipients, and the text rarely displays email signatures
attesting to the parties’ positions or agency affiliations. See, e.g., 2012FOIA8229.000817-0820;
0798-0799 (email chain provides title and affiliation of sender but do not identify recipients).
The non-email records withheld under Exemption 5 characteristically fail to provide any
identification of either the author or intended audience. See, e.g., 2012FOIA8229.000965-0966
(document redacted in full and lacking identifying information; Vaughn Index misidentifies the
document as an email communication); 2012FOIA8229.001020-1021 (handwritten notes
redacted in full without indication of source or recipient; Vaughn Index misidentifies the
document as an email communication). Although the Court could end its analysis here, it hopes
that the following discussion of each privilege proves instructive on what must further be
accomplished if the government desires to protect these documents.
While many of Defendants’ (b)(5) withholdings may in fact qualify as inter-agency or
intra-agency memoranda, the current state of the documentation is insufficient to adequately
support a request for summary judgment. The Court could opt to use its in camera review to
engage in informed guesswork as to the identities of the authors and recipients of each document,
but that hardly seems an appropriate endeavor.
ii. Deliberative-Process Privilege
The deliberative-process privilege of Exemption 5 “calls for disclosure of all opinions
and interpretations which embody the agency’s effective law and policy,” while “withholding []
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, Roebuck, 421 U.S. at 153 (internal quotations
23
omitted). In order to justify a withholding under this privilege, the government must prove two
basic elements. First, it must demonstrate that the document qualifies as “pre-decisional” in the
sense that it was “[a]ntecedent to the adoption of an agency policy.” Jordan v. U.S. Dep’t of
Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc), partially overruled on other grounds by
Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1053 (D.C. Cir. 1981).
Second, the government must show that the document forms “a direct part of the deliberative
process in that it makes recommendations or expresses opinions on legal or policy matters.”
Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975) (Vaughn II); see also Pub. Citizen, Inc.
v. Office of Mgmt. and Budget, 598 F.3d 865, 876 (D.C. Cir. 2009) (explaining that “[a]
document that does nothing more than explain an existing policy cannot be considered
deliberative”). These elements are referred to as “predecisional” and “deliberative.”
Over the years, courts in this Circuit have developed a substantial body of precedent to
guide the government in formulating descriptions of its deliberative-process withholdings. A
court’s decision on the applicability of this privilege fundamentally “depend[s] upon the
individual document and the role it plays in the administrative process.” Coastal States, 617 F.2d
at 867. The government, accordingly, bears the burden of situating the document within that
process and must provide detailed information on the “nature of the decisionmaking authority
vested in the office or person issuing the disputed document,” Taxation with Representation
Fund v. IRS, 646 F.2d 666, 678 (D.C. Cir. 1981), as well as the “relative positions in the
agency’s ‘chain of command’ occupied by the document’s author and recipient.” Senate of the
Com. of Puerto Rico, 823 F.2d at 586 (quoting Arthur Andersen & Co. v. IRS., 679 F.2d 254,
258 (D.C. Cir. 1982)). Indeed, in order to discharge its burden, the government must specifically
“establish[] what deliberative process is involved, and the role played by the documents in issue
24
in the course of that process.” Coastal States, 617 F.2d at 868 (citing Vaughn II, 523 F.2d at
1146).
In this case, Defendants have consistently failed to provide the type of information
required to discharge their burden of proof under the deliberative-process privilege. Starting
with the “summary” Vaughn Index, Defendants have offered perfunctory descriptions that are
vague and categorical. In one example, a single entry invokes the deliberative-process privilege
for a laundry list of records including “draft operational plans, comments on the premises
description, draft investigation summaries, draft Operational Procedures, and proposed personnel
assignments.” Vaughn Index at 2. The entry claims that these materials “reflect the agency
decision making process and are deliberative in nature,” id., without offering any description of
this process, the identities of either the drafters or the recipients of the documents, or their
respective positions within the agency “chain of command.” Senate of the Com. of Puerto Rico,
823 F.2d at 586 (citing Anderson, 679 F.2d at 258).
Defendants’ subsequent submissions, furthermore, do not aid the Court in making an
informed assessment of whether redacted information is either predecisional or deliberative.
Defendants assert that all of the documents withheld under the deliberative-process prong
“consist[] of three categories of information,” constituting “part of the internal deliberations of
federal government employees regarding issues that resulted in final agency decisions.” Reply at
12. The categories that follow in Defendants’ shorthand list do not identify individual
documents, but merely provide broad-brush descriptions of their content. See id.For some of the Vaughn entries, it is unclear whether Defendants invoke the deliberative-
process privilege at all, a confusion that is only exacerbated by conflicting statements in
Defendants’ Reply and on the marked portions of the documents submitted for in camera review.
25
For instance, Defendants draw the Court’s attention to an entry in the Index encompassing nine
separate documents, claiming that none of the records has any relationship to the deliberative-
process privilege. See Reply at 11-12 (quoting Vaughn Index at 3). The Vaughn entry itself,
conversely, is at best ambiguous on this point, employing the word “deliberative” and cautioning
that disclosure of the documents would create a “chilling effect on the free and frank exchange of
ideas within the agency.” Vaughn Index at 3.
In camera review, furthermore, reveals a number of discrepancies between the
descriptions in Defendants’ Reply and the markings actually included on the face of the redacted
documents. For example, Defendants claim that document 2012FOIA8229.000788-0789 is only
withheld pursuant to the work-product and attorney-client prongs of (b)(5) (or possibly both
simultaneously). See Reply at 11-12. The document itself, however, clearly bears the
abbreviation for deliberative process (b5DP) and does not bear the abbreviation for the work-
product prong. See 2012FOIA8229.000788-000789. Defendants also claim that they invoke
only the work-product and attorney-client privileges for documents 2012FOIA8229.000798-
0799, 0801, 0805, 0809-0810, 0913-0915, 0932-0933, 0965-0966, and 1020-1021, see Reply at
14, and not the deliberative-process prong. See id. at 10-12. Such a claim is perplexing given
that most of the documents that Defendants refer to, with the exception of pages 0805, 0809-
0810 (not currently found in Defendants’ withholdings) and pages 1020-1021, bear the
abbreviation for deliberative process. This is just one of the many instances in which Defendants
have provided contradictory, misleading, and poorly explained accounts of their withholdings. It
should not require the Court’s review to discern these obvious errors.
It may very well be that many of the redacted documents qualify for the protections of
Exemption 5 for reasons of deliberative process. Indeed, past cases have found that the
26
deliberative-process privilege often exempts the disclosure of documents that resemble a number
of those that Defendants have submitted. See Judicial Watch, Inc. v. U.S. Dep’t of Homeland
Sec., 880 F. Supp. 2d 105, 111-12 (D.D.C. 2012) (email exchanges discussing draft responses to
press inquiries); Exxon Corp. v. Dep’t of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983)
(documents marked as “draft”). This Court, however, is not at liberty to draw such conclusions
based on mere inference and guesswork. As other courts in this District have emphasized: “Mere
classification of a document as a ‘draft document’ does not end the inquiry; the government must
also prove that the document is pre-decisional and related to a deliberative process.” Techserve
Alliance v. Napolitano, 803 F. Supp. 2d 16, 27 (D.D.C. 2011) (citing Coastal States, 617 F.2d at
866). Given the current state of Defendants’ documentation, the Court cannot agree that
Defendants’ withholdings are proper under the deliberative-process prong of (b)(5).
iii. Attorney Work-Product Privilege
The attorney work-product prong of Exemption 5 extends to “documents and tangible
things that are prepared in anticipation of litigation or for trial” by an attorney. Fed. R. Civ. P.
26(b)(3)(A). As this Court has noted in the past, the work-product privilege is relatively broad,
encompassing documents prepared for litigation that is “foreseeable,” if not necessarily
imminent. See Am. Immigration Council, 905 F. Supp. 2d at 221. 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 Com. of Puerto Rico, 823 F.2d at 586-87 (quoting Coastal States, 617 F.2d at 865).
When reviewing a withholding under the work-product prong of (b)(5), the “‘testing
27
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 Com. of Puerto Rico, 823 F.2d at 586 n.42) (emphasis added). 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. It follows that, 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.
Unfortunately, Defendants’ withholdings under the work-product prong of (b)(5) suffer
the same infirmities identified for their deliberative-process withholdings. For starters, all of
Defendants’ submissions lump the analyses of attorney-client and work-product documents
together, offering practically indistinguishable justifications for the use of both prongs. See, e.g.,
Mot. at 12-14; Reply at 12-14. These submissions rely on categorical summaries that supposedly
apply to multiple, different documents. In one such example, Defendants opine that “documents
withheld or redacted pursuant to Exemption 5 were protected by either the attorney-client
privilege or the attorney work-product doctrine, or in some cases, both privileges.” Mot. at 12.
In what explanation follows, Defendants provide only abstract descriptions covering at least
twenty-three documents, see id. at 13-14 (“request[s] [for] legal advice and representation for a
specific purpose,” “employees seeking legal advice in response to a specific issue,” “emails
regarding specific litigation cases or enforcement operations”), paired with unvarnished claims to
28
the effect that that “the documents are textbook examples of attorney work product and
information protected from disclosure by the attorney-client privilege.” Id. at 13.
The Vaughn Index fares no better, grouping multiple, distinct documents under generic
headings that are formulated in the broadest possible terms. See, e.g., Vaughn Index at 3
(providing such categories as “Litigation Reports and Attorney notes regarding ongoing cases,”
and “Emails and draft discussions regarding NGO questions”). The index descriptions are as
short on detail as they are expansive in scope. See id. (“These materials were drafted by
attorneys in contemplation of litigation and are therefore attorney work product. Additionally,
these materials were intended to be confidential and to be shared with only with clients and are
therefore also protected by the attorney-client privilege.”). Ostensibly, the Court is left to
untangle the various strands of argument and to attempt to impose some semblance of order on
this textual confusion.
While the Court recognizes that the government must walk a fine line between under-
and over-disclosure, the work-product prong of Exemption 5 requires that agencies make a good-
faith effort to describe the nature of each individual document and the particular circumstances
that make its use in litigation foreseeable. See In re Sealed Case, 146 F.3d at 884; Senate of the
Com. of Puerto Rico, 823 F.2d at 586 n.42. Without such information, the Court cannot
distinguish true work-product documents from those that happen to have been penned by
someone with a law degree.
An example from the Court’s in camera review of the documentation is illustrative.
Document 2012FOIA8229.001020-1021 is described in Defendants’ Vaughn Index as an
“[e]mail[] regarding specific litigation cases or Enforcement Operations,” to which either the
work-product, attorney-client, or both privileges apply. See Vaughn Index at 4. The actual
29
document is a scanned copy of handwritten notes (as opposed to an email) that neither bears the
name and function of the author, nor identifies the document’s purpose. This is typical of
Defendants’ withholdings pursuant to the work-product privilege. Rather than playing the role
of the sleuth and attempting to deduce the nature and purpose of each document through its in
camera review, the Court urges Defendants to submit a sufficiently detailed and particularized
description of each document that they wish to withhold in accordance with the guidelines set
out above. Summary judgment for Defendants’ work-product withholdings is thus clearly
unwarranted.
iv. Attorney-Client Privilege
Exemption 5 also extends to attorney-client privileged documents – namely, 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). As with 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. In order to prevail on
a motion for summary judgment in this area, the government must substantiate five essential
elements in its supporting documentation:
(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.”
30
Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 841 F. Supp. 2d 142, 153-54 (D.D.C. 2012)
(citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984); Coastal States, 617 F.2d at 863);
accord Fed. Trade Comm’n v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C. Cir. 2002).
“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 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 at 99.
In this case, ICE has withheld over 100 pages of documents under the attorney-client
privilege of (b)(5), see Vaughn Index at 3-4, although some of these records are no longer
challenged. See Jt. Stip., ¶ 3. Defendants’ Vaughn Index provides, at best, thin descriptions of
broad categories of materials, paired with assertions that merely parrot legal conclusions. For
example, a Vaughn entry applicable to nine separate documents spanning fifteen pages of
material tersely concludes that “[i]n each instance, the client was seeking legal advice from the
attorney.” Vaughn Index at 3. In another entry encompassing more than seventy pages,
Defendants claim that “[T]hese materials were intended to be confidential and to be shared only
with clients.” Id. While this may very well be true, the Court simply cannot issue summary
judgment on the grounds that the disputed materials were “intended” to be held in confidence.
The government must demonstrate confidentiality in fact, whatever its subjective intentions may
have been. See In re Sealed Case, 737 F.2d at 100.
Elsewhere in its submissions, Defendants offer explanations of their attorney-client
withholdings that are equally insufficient. Justifications for both the work-product and attorney-
client prongs are lumped together and more or less reproduce the categorical descriptions offered
31
in Defendants’ Vaughn Index. See Reply at 12-14. Inexplicably, the Reply devotes additional
time and energy to a number of withholdings that Plaintiff no longer contests, see id. at 13,
allocating a mere paragraph for those that remain in play. See id. at 14. None of Defendants’
submissions offers a document-specific analysis of their attorney-client privileged withholdings,
as required. The explanations, moreover, do not provide any of the factual detail necessary to
discharge the government’s burden for proof. Defendants do not provide any detail to suggest
that each exchange involved an attorney or a client, In re Sealed Case, 737 F.2d at 98–99, show
that the record was premised on a confidential disclosure from the client, id., offer any indication
that the exchanges did not involve any non-clients or “strangers,” id., or supply any details to
demonstrate that agency counsel acted in a professional legal capacity, as opposed to a
managerial or other capacity. Id. Defendants’ submissions, furthermore, do not attempt to prove
that the underlying information in each document was initially kept secret and remains so. See
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977) (holding
that documents should be disclosed unless the government could reasonably demonstrate that the
information was “supplied by the Air Force [to agency counsel] with the expectation of secrecy
and was not known by or disclosed to any third party”). The confidentiality of a communication
is not something this Court is at liberty to assume. See id.Defendants request that this Court engage in precisely this type of unjustified assumption
and find that the applicability of the attorney-client privilege is “plainly evident by the
descriptions, and in some cases, the titles of the documents themselves.” Reply at 13. Even if
FOIA authorized the courts to make such findings based upon an in camera review of the
documents alone, Defendants would still be asking too much. This Court has no independent
knowledge of the specific roles and responsibilities of staff members and legal counsel at ICE. If
32
ICE wishes to withhold any of the responsive documents pursuant to the attorney-client prong of
Exemption 5, it must submit a sufficiently detailed and particularized description of each
withholding that meets the D.C. Circuit’s long-established evidentiary requirements. See In Re
Sealed Case 737 F.2d at 98–99; Coastal States, 617 F.2d at 863. In the event that ICE is
legitimately concerned that providing certain factual details will compromise the confidentiality
of information within a record, it may choose to supply the Court with a supplemental affidavit
that can be reviewed in camera. The Court, therefore, denies summary judgment for all
Defendants’ withholdings under the attorney-client prong of Exemption 5.
b. Exemption 7(E)
Exemption 7(E) authorizes the government to withhold records and documents if they
were “compiled for law enforcement purposes,” provided that their publication “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). Defendants invoke
Exemption 7(E) for a variety of records, which are grouped under four broad categories: “All
documents containing commonly withheld techniques and procedures of law enforcement,”
“Detention Management Division Facility Reviews,” “Draft Operation Plan,” and “Enforcement
Operation Plan.” Vaughn Index at 1-2. The Vaughn Index only matches a limited number of
these 7(E) withholdings to specific document page ranges. The remainder are described as
occurring “[t]hroughout” the disputed documents. Id. at 1. Since the disputed records appear to
be limited to those containing “law enforcement techniques and procedures,” see, e.g., Mot. at
19-20; Law Decl., ¶ 54, the Court need not consider whether Defendants could also withhold any
33
of the relevant documents on the grounds that they disclose “guidelines for law enforcement
investigations or prosecutions.” 5 U.S.C. § 552(b)(7)(E).
In order for the government to invoke the “techniques and procedures” prong of 7(E), it
must demonstrate that its withholdings meet three basic requirements. First, the government
must show that the documents were in fact “compiled for law enforcement purposes” and not for
some other reason. Id. Second, it must show that the records contain law-enforcement
techniques and procedures that are “generally unknown to the public.” Nat’l Whistleblower Ctr.
v. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13, 36 (D.D.C. 2012). Finally, the
government must show that disclosure “could reasonably be expected to risk circumvention of
the law.” Id. The Court will discuss the first threshold requirement and then cover the other two
together.
i. Law-Enforcement Purposes
To ascertain whether certain of Defendants’ records were “compiled for law enforcement
purposes,” the Court must first have a clear understanding of “how and under what
circumstances the requested files were compiled, . . . and ‘whether the files sought relate to
anything that can fairly be characterized as an enforcement proceeding.’” Jefferson v. U.S.
Dep’t of Justice, Office of Prof’l Responsibility, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (citing
Weisberg v. U.S. Dep’t of Justice, 489 F.2d 1195, 1202 (D.C. Cir. 1973) (quoting Aspin v. Dep’t
of Defense, 491 F.2d 24, 27 (D.C. Cir.1973)).
As Defendants correctly note, ICE is an agency specializing in law enforcement, and,
consequently, its decision to invoke Exemption 7(E) is entitled to a measure of deference. See
Reply at 15 (citing Abdelfattah v. U.S. Imm. & Customs Enforcement, 851 F. Supp. 2d 141, 145
(D.D.C. 2012)); accord Campbell, 164 F.3d at 32. This deferential standard of review, however,
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is not a “vacuous” one, and it does not authorize a wholesale departure from all evidentiary
requirements. See Campbell, 164 F.3d at 32. On the contrary, 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.’” Id. (citing Pratt v. Webster, 673 F.2d 408, 419 (D.C.
Cir. 1982)). If the law-enforcement agency’s explanatory documents “fail to supply facts” in
sufficient detail to meet the Pratt nexus test, the reviewing court cannot grant summary judgment
in the agency’s favor. Quinon v. FBI, 86 F.3d 1222, 1229 (D.C. Cir. 1996).
Defendants’ Vaughn Index and associated documentation fall well below the standard set
out in Pratt. Aside from the obvious difficulties created by Defendants’ refusal to specifically
identify the locations of many of their 7(E) withholdings, see, e.g., Vaughn Index at 1 (providing
a list of different “law enforcement techniques” for which no page numbers are indicated), their
argument appears to rest almost entirely on the premise that, as a law-enforcement agency, ICE’s
records and documents are necessarily produced for law-enforcement purposes. See Law Decl.,
¶ 47 (“ICE is tasked with preventing any activities that threaten national security and public
safety . . . . Therefore, all the records responsive to Plaintiff’s FOIA request were compiled for
law enforcement purposes and meet the threshold requirement of FOIA exemption (b)(7).”).
Defendants summarily conclude that, because Plaintiff requested information related to
“activities that ICE performs in a law enforcement and national security context,” this Court can
take it for granted that all of ICE’s withholdings under Exemption 7(E) automatically satisfy the
“law enforcement purposes” requirement. See Reply at 15. The Court notes that similar
explanations prepared by ICE’s FOIA unit and submitted in other jurisdictions have been
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deemed insufficient to prove that the underlying records were “compiled for law enforcement
purposes.” See Black v. U.S. Dep’t of Homeland Sec., No. 10-2040, 2012 WL 3155142, at *3
(D. Nev. Aug. 2, 2012) (declaration insufficient because it failed to “discuss: (1) the underlying
[] investigation to show that the investigation was conducted pursuant to [ICE’s] law
enforcement duties, or (2) how ICE determined that the underlying investigation was for law
enforcement purposes”).
In this case, the Court must follow consistent Circuit precedent by requiring Defendants
to submit further factual explanations that satisfy the Pratt standard. At a minimum, Defendants
must provide an itemized listing of their withholdings and redactions pursuant to 7(E),
accompanied by a description of the circumstances in which the records were compiled,
Jefferson, 284 F.3d at 177, the relevant law-enforcement activity for each, Campbell, 164 F.3d at
32, the nature of the incident or individual involved, id., and the perceived security risk or likely
violation of the law. Id. While Defendants need not provide repetitive descriptions of redundant
documents, they should not resort to description in “generalities” for multiple, different texts.
Judicial Watch v. FDA, 449 F.3d at 147.
ii. Remaining Evidentiary Requirements of 7(E)
Given that Defendants’ documentation fails to sufficiently meet the threshold
requirement of showing that each record was “compiled for law enforcement purposes,” this
Court need not engage in further analysis to determine whether summary judgment is appropriate
for Defendants’ 7(E) withholdings. To assist Defendants in their future efforts, the Court will
nonetheless summarize the evidentiary requirements that must be met in order to prove that the
withholdings contain “techniques and procedures” not generally known to the public, Nat’l
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Whistleblower Ctr., 849 F. Supp. 2d at 36, the disclosure of which could “reasonably be
expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E).
While the government faces a “relatively low bar” to show that it has properly withheld
documents containing law-enforcement techniques and procedures, Blackwell v. FBI, 646 F.3d
37, 42 (D.C. Cir. 2011), it must nevertheless provide a “relatively detailed justification” for each
record that permits the reviewing court to make a meaningful assessment of the redactions and to
understand how disclosure would create a reasonably expected risk of circumvention of the law.
Strunk v. U.S. Dep’t of State, 845 F. Supp. 2d 38, 47 (D.D.C. 2012) (citing Blackwell, 646 F.3d
at 42)). Generic portrayals of categories of documents and vaguely formulated descriptions will
not suffice; accordingly, the government must provide sufficient facts and context to allow the
reviewing court to “deduce something of the nature of the techniques in question.” Clemente v.
FBI, 741 F. Supp. 2d 64, 88 (D.D.C. 2010); accord Davis v. FBI, 770 F. Supp. 2d 93, 100
(D.D.C. 2011) (finding defendant’s “generic description of the documents as ‘prosecution
memoranda . . . detailing evidence gathering efforts and prosecution strategies in [plaintiff’s]
criminal case’” insufficient to describe techniques and procedures involved); Strunk, 845 F.
Supp. at 46-47 (summary listing of categories of techniques and procedures, including “computer
screen transaction codes . . . examination and inspection procedures, internal reporting
requirements, names of specific law enforcement databases, . . .” not enough to discharge
evidentiary burden).
Defendants’ descriptions of its withholdings under Exemption 7(E) exhibit all of the
inadequacies that courts in this Circuit have cautioned against. The Vaughn Index groups many
of the 7(E) withholdings into a single, catchall category for which no page numbers are
indicated. See Vaughn Index at 1 (“All documents containing commonly withheld techniques
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and procedures of law enforcement”). The Index also fails to adequately describe the nature of
the underlying techniques and procedures, instead offering a laundry list of what that may be
included “throughout” the various documents. See id. (various techniques “includ[e] agent
assignment codes, operation names, agency case numbers, National Program Manager email
addresses, TECS Access Codes, Program Codes, Radio Channels, [] encounter identification
numbers . . . [h]ow law enforcement officer access databases, access case material, access
agency radio channels, store evidence, reference related cases . . .” and so on). Defendants’
briefs and supporting declarations exhibit the same flaws, often resorting to categorical
descriptions that occasionally diverge from those in the Vaughn Index. See, e.g., Law Decl. ¶ 54
(listing a number of items not found in Vaughn Index including, inter alia, “methods used by
ICE to identify individuals believed to be illegal aliens using the identity of U.S. Citizens . . . ,
secured URL addresses,” and “site reporting locations”).
The Court is not expecting such full disclosure as to defeat the purpose of the exemption,
but in past cases analyzing 7(E) withholdings, courts in this District have found that the
government carried its evidentiary burden where it provided 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. See, e.g., Skinner v. U.S. Dep’t of Justice,
893 F. Supp. 2d 109, 113-14 (D.D.C. 2012) (detailed description of the function, application, and
highly restrictive conditions for access to the TECS database, along with specific harms expected
from disclosures of codes, sufficient to discharge evidentiary burden); Strunk v. U.S. Dep’t of
State, 905 F. Supp. 2d 142, 147 (D.D.C. 2012) (explanation of the use, application, means of
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access to, and risks of dissemination of computer access codes sufficient to discharge evidentiary
burden).
At present, this Court does not have sufficient information to make an accurate
assessment of the propriety of Defendants’ withholdings under Exemption 7(E). While past
cases indicate that many of Defendants’ techniques and procedures are likely to qualify for
protection, this Court is under a duty to decide the matter de novo, using only the proof
submitted by Defendants. See Campbell, 164 F.3d at 30. While bearing in mind FOIA’s strong
preference for public disclosure, Defendants may opt to submit confidential affidavits for in
camera review if such a course of action is necessary to prevent the disclosure of protected law-
enforcement techniques and procedures. See Simon, 980 F.2d at 784.
3. Withholdings for Which no Exemptions are Claimed
A number of Defendants’ documents that they submitted to Plaintiff and this Court in
redacted form have been withheld without any Vaughn Index descriptions or claimed FOIA
Exemptions. See, e.g., 2012FOIA8229.000935-0944 (marked as “non-responsive duplicate”);
2012FOIA8229.000909-0912 (marked as “refer to DOJ”). Justifications for FOIA withholdings
are confined to the Act’s nine narrowly tailored exemptions. See Rose, 425 U.S. at 361. Unless
Defendants indicate the applicable exemption(s) for all of the documents in this category and
provide a description of the contents sufficient to satisfy FOIA’s evidentiary requirements, this
Court will have no choice but to compel disclosure.
4. Segregable Data
At present, the Court need not address Plaintiff’s claim that Defendants have failed to
release all reasonably segregable information from their withholdings. See Opp. at 33-35 (citing
5 U.S.C. § 552(b)). To aid in the preparation of Defendants’ further explanations of the
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withholdings, the Court wishes to make explicit this Circuit’s precedent on segregability of non-
exempt information. Defendants are correct that the government is “‘entitled to a presumption
that [it] complied with the obligation to disclose reasonably segregable material.’” Reply at 18
(quoting Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) (alteration in original)). This
presumption of compliance, however, does not obviate the government’s obligation to carry its
evidentiary burden and fully explain its decisions on segregability. See Mead Data, 566 F.2d at
261. Once Defendants have specifically identified the exempted portions of their records and
described them in accordance with the requirements set out above, see Sections III(B)(2)(a)-(b),
supra, they must also provide descriptions of excerpts deemed to be non-segregable, with
explanations as to these decisions. See Mead Data, 566 F.2d at 261.
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,” see Reply at 18, will not suffice to discharge this
burden. As the D.C. Circuit stressed in Mead Data, “[U]nless the segregability provision of the
FOIA is to be nothing more than a precatory precept, agencies must be required to provide the
reasons behind their conclusions in order that they may be challenged by FOIA plaintiffs and
reviewed by the courts.” 566 F.2d at 261. The Court trusts that Defendants will follow this
guidance.
IV. Conclusion
For the forgoing reasons, the Court will deny Defendants’ Motion for Summary
Judgment in full. Defendants are advised to submit new documentation that demonstrates the
adequacy of their search and clarifies discrepancies apparent in their prior declarations.
Defendants must also furnish the Court with full explanations of their withholdings under all
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relevant FOIA Exemptions for any records and redacted portions not made available to Plaintiff.
An Order accompanies this Memorandum Opinion.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: June 24, 2013
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