National Immigrant Justice Center v. United States Department of Justice

Filing 103

MEMORANDUM Opinion and Order signed by the Honorable Andrea R. Wood on 3/27/2018. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NATIONAL IMMIGRANT JUSTICE
CENTER,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.

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No. 12-cv-04691
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
This matter concerns a Freedom of Information Act (“FOIA”) request related to eleven
immigration matters decided by the United States Attorney General. Plaintiff National Immigrant
Justice Center (“NIJC”), a non-profit organization that provides immigration assistance,
deportation defense, and asylum representation to low-income immigrants, submitted the FOIA
request to Defendant Department of Justice (“DOJ”) and received a number of documents in
response. But many more documents were withheld as privileged. Presently before the Court are
the parties’ cross-motions for summary judgment. For the reasons stated below, DOJ’s motion
for summary judgment (Dkt. No. 61) and NIJC’s motion for summary judgment (Dkt. No. 69)
are both granted in part and denied in part.
BACKGROUND
Immigrants subject to removal generally go through the following process. First, the
immigrant’s case is heard by an immigration judge. See 8 C.F.R. § 1003.14. Immigration judges
exercise the powers and duties delegated to them by the Attorney General. Id. § 1003.10(b).
Decisions by immigration judges are subject to review by the Board of Immigration Appeals

(“BIA”). Id. § 1003.10(c).The BIA consists of attorneys appointed by the Attorney General to act
as her delegates. Id. § 1003.1(a)(1). Both immigration judges and the BIA are employed by the
Executive Office of Immigration Review, which is within DOJ. (Def.’s Resp. to Pl.’s 56.1 Stmt.
of Facts (“DRPSF”) ¶ 6, Dkt. No. 81.) The Department of Homeland Security (“DHS”)
represents the government’s interests in removal proceedings before immigration judges and the
BIA.1 See 6 U.S.C. § 251.
The Attorney General has the power to review any BIA case she chooses as well as those
the BIA refers to her for decision. See 8 C.F.R. § 1003.1(h)(1). Besides a mandate that the
Attorney General’s decision be in writing, there are no procedural requirements for the Attorney
General’s decision-making process. Id.; see also Nani v. Brownell, 153 F. Supp. 679, 680 (D.D.C
1957) (holding that, pursuant to 8 C.F.R. § 1003.1, Attorney General is not required to give
notice to the immigrant when a case is referred to her for review). The Attorney General’s
decisions in removal matters are binding and precedential. 8 C.F.R. § 1003.1(g). Immigrants may
seek review of final BIA or Attorney General decisions in the appropriate federal court of
appeals, 8 U.S.C. § 1252(a)(1) & (5), where the Office of Immigration Litigation (“OIL”)
defends the BIA’s or the Attorney General’s decision. See 28 C.F.R. §§ 0.45(k), 0.20(a). If the
decision gets appealed to the U.S. Supreme Court, the Office of the Solicitor General represents
the government. See 28 U.S.C. § 1254.
To gain insight into the policies and procedures used by the Attorney General when
reviewing removal cases, NIJC filed a FOIA request on December 3, 2010 seeking production of
all of the Attorney General’s communications related to eleven contested immigration decisions
issued by the Attorney General. (Pl.’s Resp. to Def.’s 56.1 Stmt. of Facts (“PRDSF”) ¶ 1, Dkt.

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Until March 1, 2003, lawyers from DOJ prosecuted removal and deportation actions before immigration
judges and the BIA. (DRPSF ¶ 5.)

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No. 71.) DOJ’s Office of Information Policy (“OIP”) received NIJC’s request on December 22,
2010, and acknowledged receipt of the request by letter dated January 21, 2011. (Id. ¶¶ 2, 3.)
Over the course of the following year, OIP identified 5,269 records responsive to NIJC’s request,
of which 989 were released to NIJC. (Id. ¶¶ 17, 18.) The documents that were not released were
withheld pursuant to Exemptions 5 and 6 of FOIA. (Id. ¶¶ 6–17.)
On February 21, 2013, NIJC sent a second FOIA request seeking Office of Legal Counsel
(“OLC”) communications related to the same eleven immigrations decisions issued by the
Attorney General. (Id. ¶ 19.) By January 30, 2015, OIP released several hundred pages of
communications, with excisions made and documents withheld pursuant to Exemptions 5 and 6
of FOIA. (Id. ¶¶ 25, 26.)
NIJC then filed this lawsuit on June 15, 2012, alleging that DOJ violated FOIA by
unlawfully withholding, in whole or in part, non-exempt documents responsive to their requests.
After the complaint was filed, the parties attempted to work out their dispute, and DOJ produced
a number of documents. But the parties were not able to resolve their differences completely, and
thus on June 12, 2014, NIJC filed an amended complaint, again seeking an order requiring DOJ’s
production of responsive records. Eventually, DOJ filed its motion for summary judgment (Dkt.
No. 62), in which it argues that it fully complied with FOIA and has released all non-exempt
records responsive to NIJC’s two requests. To support its motion, DOJ has submitted two
Vaughn indices, which are “comprehensive listing[s] of each withheld document crossreferenced with the FOIA exemption that the Government asserts is applicable.” Solar Sources,
Inc. v. United States, 142 F.3d 1033, 1036 n.3 (7th Cir. 1998). One index relates to the first
FOIA request regarding the Attorney General’s communications (Def.’s Mot. for Summ. J. Ex.
P, Dkt. No. 62-1), and the other relates to the second FOIA request regarding OLC

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communications (Id., Dkt. No. 62-2.) With respect to the first FOIA request, DOJ also has
submitted a declaration from Laurie A. Day, Chief of Initial Request Staff at DOJ OIP. (Id., Dkt.
No. 62-1.) With respect to the second, the OLC request, DOJ has submitted a declaration from
Paul P. Colborn, Special Counsel in OLC. (Id., Dkt. No. 62-2.)
In response to DOJ’s motion, NIJC has filed a cross-motion for summary judgment,
arguing that DOJ has improperly applied Exemption 5 to documents that should be released.
(Dkt. No. 70.) NIJC makes two arguments: (1) DOJ improperly withheld documents as
privileged that are actually ex parte communications in connection with contested proceedings,
and therefore not protected; and (2) DOJ’s Vaughn index does not provide sufficient detail
regarding the contents of documents withheld pursuant to the deliberative process privilege.
DISCUSSION
Congress enacted FOIA “to open up the workings of government to public scrutiny
through the disclosure of government records.” Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984)
(internal quotation marks omitted). When a request under FOIA is made, the government may
withhold a document only if it falls within one of nine statutory exemptions. 5 U.S.C.
§ 552(a)(4)(B). “Congress created these exemptions because it realized that legitimate
governmental and private interests could be harmed by release of certain types of information.”
FBI v. Abramson, 456 U.S. 615, 621 (1982). Because disclosure is “the dominant objective of
the FOIA,” the Court construes “FOIA exemptions narrowly in favor of disclosure.” Patterson v.
I.R.S., 56 F.3d 832, 835 (7th Cir. 1995) (internal quotation marks omitted). Consequently, the
government has the burden of justifying its decision to withhold requested documents. Id.; see
also 5 U.S.C. § 552(a)(4)(B) (“the burden is on the agency to sustain its action”). The Court may
grant summary judgment in favor of the government in a FOIA case only if the government

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provides “affidavits [that] describe the documents withheld and the justifications for
nondisclosure in enough detail and with sufficient specificity to demonstrate that material
withheld is logically within the domain of the exemption claimed.” Patterson, 56 F.3d at 836
(quoting PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d 248, 250 (D.C. Cir. 1993)).
Here, DOJ relies on Exemption 5 of FOIA to support withholding the requested
documents.2 That Exemption allows the government to withhold “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. § 522(b)(5). “Exemption 5 incorporates the privileges
which the Government enjoys under the relevant statutory and case law in the pretrial discovery
context.” Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975). One
such privilege that Exemption 5 incorporates is the deliberative process privilege, which protects
government documents reflecting the deliberative or policy-making processes. Enviro Tech Int’l,
Inc. v. U.S. E.P.A., 371 F.3d 370, 374 (7th Cir. 2004). Exemption 5 also incorporates the
attorney-client privilege and the attorney work-product protection. Rockwell Intern. Corp. v.
DOJ, 235 F.3d 598, 601 (D.C. Cir. 2001).
I.

Communications with OSG and OIL

DOJ contends that all of the withheld documents are protected by the deliberative process
privilege, and therefore were properly withheld under Exemption 5. NIJC counters that the
records DOJ withheld pursuant to Exemption 5 constitute ex parte communications and are
therefore not privileged. Specifically, NIJC contends that the Attorney General’s
communications with OIL and OSG were ex parte communications.
An ex parte communication is a communication between an adversary and an adjudicator
about the case that is done without giving an affected party notice or the opportunity to respond.
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DOJ also relies on Exemption 6, but NIJC does not challenge that Exemption.

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See D’Acquisto v. Washington, 640 F. Supp. 594, 621 (N.D. Ill. 1986). It is an adjudicator’s
responsibility to “accord to every person who is legally interested in a proceeding, or his lawyer,
full right to be heard according to law, and, except as authorized by law, neither initiate nor
consider ex parte or other communications concerning a pending or impending proceeding.” C &
F Packing Co. v. Doskocil Companies, Inc., 126 F.R.D. 662, 688 (N.D. Ill. 1989) (quoting
A.B.A. Code of Judicial Conduct, Canon III(A)(4)); see also EX PARTE, Black’s Law
Dictionary (10th ed. 2014) (defining ex parte as “[o]n or from one party only, usu. without notice
to or argument from the adverse party”).
To support its argument that the Attorney General’s communications with OIL and OSG
were ex parte, NIJC points to the Ninth Circuit’s decision in Klamath Water Users Protective
Association v. U.S. Department of Interior, 189 F.3d 1034 (9th Cir. 1999). Klamath involved the
control and administration of a water source by the Bureau of Reclamation, an agency within the
Department of Interior (“Department”). Id. at 1035. Many Indian Tribes received their water
from this source and disputed the management of the water. Id. Among those involved in the
dispute were the Klamath Basin Tribes. Id. The Department decided to create a long-term
solution to the water-source problem and, in the process of developing this solution, entered into
an agreement with the Klamath Basin Tribes to provide consultation and other services. Id. at
1035–36. The other water users eventually filed a FOIA request for documents provided to or
received from the Klamath Basin Tribes pertaining to the water-source issue. Id. at 1036. The
Department withheld communications between itself and the Klamath Basin Tribes, arguing that
the documents were the functional equivalent of inter-agency/intra-agency communications
protected under Exemption 5. Id. at 1037. The Ninth Circuit disagreed, however, holding that the
documents submitted to the Department by the Klamath Basin Tribes were ex parte

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communications in contested proceedings. Crucial to that determination was the fact that the
Klamath Basin Tribes had an interest in the contested matter that the Department was deciding—
the agency’s adjudication would affect water allocations to the Klamath Basin Tribes and to
others. Id.at 1038.
NIJC argues here that, similar to the Klamath Basin Tribes, OIL and OSG had an interest
in the issue being adjudicated because on appeal they would be litigating against one of the
parties to the administrative adjudication—the immigrant. However, at the time OIL and OSG
were communicating with the Attorney General, they were not adversaries to the immigrant or
interested parties in the proceedings. The eleven contested immigration decisions had, in fact,
been prosecuted by DHS at the administrative level. Thus, at the time the Attorney General
reviewed the cases, the only interested parties were the immigrant and DHS. It does not appear
from DOJ’s Vaughn index that it withheld any communications between DHS and the Attorney
General. If it had, the ex parte status of those communications would present a separate issue.
But in contrast to DHS, OIL and OSG were simply groups within the same agency as the
Attorney General, giving advice. OIL and OSG only become substantively involved in a case
after the Attorney General has made its decision, and the case is appealed out of DOJ
administrative proceedings and into federal court. At that point, the Attorney General is no
longer an adjudicator, and OIL and OSG are charged with representing the Attorney General.
But at no point during the administrative process are OIL and OSG involved or interested parties
in the litigation.
While OIL and OSG do not represent the immigrant or the government at the
administrative stage, they do represent the future interests of the Attorney General. In this
capacity, communications by OIL and OSG with the Attorney General during her review of a

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BIA decision may constitute communications between attorneys and a client in anticipation of
litigation. Indeed, it is possible that the Attorney General, in anticipation of its decision being
appealed to federal courts, wanted to consult with her appellate attorneys to ensure her decisions
were legally sound and would be upheld.
The inter-agency communications here are strikingly different from the communications
at issue in Klamath. Here, the contested communications were all among DOJ employees. There,
the contested communications were between an agency and a non-government, private party.
Further, the application of the ex parte rule in Klamath resulted in a relatively simple and narrow
precedent—outside groups with an interest in agency administrative proceedings cannot
privately consult with the adjudicator of those proceedings. Extending this rule to
communications made between various groups within an agency would not only be logistically
difficult but also would stymie the very purpose of the Exemption 5—to allow for the free flow
of information and ideas within an agency. Notably, NIJC has failed to cite any other case that
has applied Klamath’s ruling regarding ex parte communications to inter-agency
communications.
In sum, the Court finds that NIJC’s argument that communications between the Attorney
General and either OIL or OSG constitute ex parte communications lacks merit and cannot
justify withholding the documents.
II.

Adequacy of Vaughn Index

NIJC also argues that DOJ’s motion for summary judgment should be denied because its
Vaughn index does not contain sufficient information to show that the communications were
properly withheld pursuant to Exemption 5. Specifically, NIJC contends that many of the

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documents within the Vaughn index appear to be discussions of existing agency policy, which
are not protected by the deliberative process privilege.
FOIA requires agencies to produce “those statements of policy and interpretations which
have been adopted by the agency and are not published in the Federal Register,” as well as
“instructions to staff that affect a member of the public.” 5 U.S.C. § 552(a)(2)(B) & (C). To
prevail in a FOIA case, the government “must supply the courts with sufficient information to
allow [the courts] to make a reasonable determination that they were correct” in withholding
documents. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980).
One way the government may do this is through a Vaughn index.
“The deliberative process 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.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9
(2001). The purpose of the privilege is to “enhance the quality of agency decisions by protecting
open and frank discussion” within the government. Id. (internal quotation marks and citation
omitted). “Consistent with its purpose, the deliberative process privilege typically does not
justify the withholding of purely factual material, nor of documents reflecting an agency’s final
policy decisions, but it does apply to predecisional policy discussions, and to factual matters
inextricably intertwined with such discussions.” Enviro Tech, 371 F.3d at 374–75. Thus, to fall
within the deliberative process privilege, the withheld material must be: (1) predecisional,
meaning it is “antecedent to the adoption of an agency policy,” and (2) deliberative, that is
“actually . . . related to the process by which policies are formulated.” Id. (quoting Jordan v. U.S.
Dep’t of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc) (internal alterations omitted)). A
document is predicisional if it helped agency officers make a specific policy decision, and a

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document is deliberative if it “contains considerations of a policy’s merits, rather than mere facts
or articulations of existing policy.” Nat’l Immigration Project of Nat’l Lawyers Guild v. U.S.
Dep’t of Homeland Sec., 868 F. Supp. 2d 284, 292 (S.D.N.Y. 2012). Meanwhile, “opinion[s]
about the applicability of existing policy to a certain state of facts” and “explanations of agency
regulations in specific factual situations” are not “predecisional” because they “discuss
established policies and decisions” rather than providing suggestions or recommendations about
what a policy should be. See Coastal States Gas. Corp., 617 F.2d at 868.
DOJ invokes the deliberative process privilege, the attorney-client privilege, and the
attorney work-product protection to justify its withholdings. And it provides two Vaughn
indices—one for the first FOIA request to the Attorney General and one for the second FOIA
request to OLC. Each index includes the date, number of pages, sender, recipient, a brief
description, and the applicable FOIA exemption for each withheld document. Broadly, however,
DOJ argues that all communications that underlie, or are related to, the Attorney General’s
adjudication of individual alien immigration appeals are properly withheld as preliminary
decision making. DOJ points to the fact that the agency published a final decision on each
immigration appeal as evidence that prior communications were pre-decisional and deliberative.
Notwithstanding DOJ’s arguments, the public is “vitally concerned with the reasons
which . . . supply the basis for an agency policy actually adopted. These reasons, if expressed
within the agency, constitute the ‘working law’ of the agency and have been held by the lower
courts to be outside the protection of Exemption 5.” N.L.R.B. v. Sears Roebuck & Co., 421 U.S.
132, 152–153 (1975). Thus, Exemption 5 does not cover “papers which reflect an agency’s
group thinking in the process of working out its policy and determining what the law should be.”

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Id. at 153. Consequently, simply providing NIJC with the final immigration decisions is
inadequate.
The Court is unable to discern from the brief descriptions provided in the Vaughn indices
whether all documents were properly excluded as part of the deliberative process. Indeed, the
Court agrees with NIJC that some of the documents withheld by the government appear to fall
outside of Exemption 5, since they appear to articulate internal agency policy. Notably, the
Vaughn indices describe a July 24, 2008 email between Kevin Jones, an attorney from the Office
of Legal Policy, to Office Attorney General and Office of Legal Counsel attorneys as “reflecting
internal deliberations and legal advice regarding the Attorney General’s review of SilvaTrevino.” (PRDSF Ex. P at 6, Dkt. No. 62-1.) This document was withheld solely pursuant to the
deliberative process privilege. But the subject line of the email states, “Re providing for briefing
in an AG certified case,” which suggests that the content of the email discusses the applicable
policy when briefing a case certified for the Attorney General to review. If existing policy was
discussed in this email and other emails in the Vaughn indices, then those communications were
not properly withheld. Consequently, the Court orders the government to re-review all
documents that were withheld solely on the basis of the deliberative process privilege and to
determine whether there are portions, or full documents, that ought to be disclosed. The Court
will review any remaining documents in camera.
The Vaughn indices also describe certain documents that were withheld pursuant to the
attorney-client privilege and attorney work-product protection. As mentioned previously,
Exemption 5 prevents the disclosure of documents containing attorney-client privileged material
or attorney work product. A document is covered by the attorney-client privilege if it includes
confidential communications between an attorney and the agency regarding the legal

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ramifications of the agency’s actions. Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d
242, 252–53 (D.C. Cir. 1977). Meanwhile, attorney work product consists of “the mental
impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative
concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(A)(ii). NIJC does not appear to dispute the
sufficiency of the descriptions of document that were withheld due, in whole or in part, to the
attorney-client privilege or attorney work-product protection. Thus, the Court finds that the
documents labeled as covered by the attorney client privilege or attorney work-product
protection are subject to FOIA Exemption 5.
CONCLUSION
For the foregoing reasons, DOJ’s motion for summary judgment (Dkt. No. 61) and
NIJC’s motion for summary judgment (Dkt. No. 69) are both granted in part and denied in part.
By April 24, 2018, DOJ shall provide to the Court for in camera review copies of any documents
identified in DOJ’s Vaughn indices as exempt from FOIA solely due to the deliberative process
privilege. In reviewing its documents, DOJ should also confirm that none of the withheld
documents are communications between DHS and the Attorney General. To the extent there are
any withheld DHS documents, DOJ should also produce those documents to the Court for in
camera review. DOJ should also file a notice on the docket confirming delivery. The Court will
review the documents and issue a ruling as to specific documents.

ENTERED:

Dated: March 27, 2018

__________________________
Andrea R. Wood
United States District Judge
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