Stevens v. U.S. Department of Homeland Security, Immigration and Customs Enforcement

Filing 144

MEMORANDUM Opinion and Order: For the reasons stated herein, Plaintiff's Motion for Summary Judgment (Dkt. No. 126) is granted in part and denied in part, and Defendant's Motion for Summary Judgment (Dkt. No. 131) is granted in part and denied in part. Signed by the Honorable Harry D. Leinenweber on 4/8/2020:Mailed notice (maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JACQUELINE STEVENS,
Plaintiff,
v.
Case No. 14 C 3305
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY,
IMMIGRATION AND CUSTOMS
ENFORCEMENT,

Judge Harry D. Leinenweber

Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Jacqueline Stevens requests certain records related
to the detainee volunteer work program from Defendant United States
Department

of

Homeland

Security,

Immigration,

and

Customs

Enforcement (“ICE”) under the Freedom of Information Act (“FOIA”).
5 U.S.C. § 552. In this action, Stevens challenges the adequacy of
ICE’s response to her request. The parties cross-move for summary
judgment. For the reasons stated herein, Plaintiff’s Motion for
Summary Judgment (Dkt. No. 126) is granted in part and denied in
part, and Defendant’s Motion for Summary Judgment (Dkt. No. 131)
is granted in part and denied in part.
I.

BACKGROUND

Plaintiff Jacqueline Stevens is a professor of political
science and director of the “Deportation Research Clinic” at

Northwestern University. (Def.’s Resp. to Pl.’s Stmt. of Facts
(“PSOF”) ¶ 1, Dkt. No. 132.) Defendant ICE is an executive agency
principally responsible for enforcing federal immigration laws.
(Id. ¶ 2.) On August 24, 2013, Stevens submitted the following
FOIA request to ICE:
(1) ICE generated, received, or maintained requests,
memoranda,
and
analysis
used
for
budgeting
and
contractual
allocations
for
individual
private
contra[c]tors and employees for Detainee Volunteer
Wages, as designated, for instance, in the attached
supplemental contract at p. 3 of the pdf, item 004,
“funding in support of CLIN 1005, Detainee Volunteer
Wages.” To clarify, ICE demonstrably allocates funds to
detention centers to disburse Detainee Volunteer Wages;
I am requesting all underlying documentation and
analysis that informs the amounts set for these
allocations for each ICE detention facility. I am
requesting these documents for all ICE ERO contracted
facilities from January 1, 2003 to the present. This
includes but is not limited to: - e-mail, faxes, notes,
memoranda, reports from ICE or private companies to the
ICE
officials
handling
Immigrant
and
Customs
Enforce[ment] budgetary decisions for Detainee Volunteer
Wages. Please include as well *the underlying Houston
CCA contract that includes the CLIN 1005 referenced in
the supplemental contract* quoted above at p. 3 004 (and
attached);
(2) All intra- inter-agency analysis of the ICE Detainee
Volunteer Work Program in all media maintained by any
component of ICE, including but not limited to
grievances,
litigation,
public
relations,
and
Congressional correspondence from January 1, 2003 to
present; [and]
(3) the total amount disbursed by ICE for Detainee
Volunteer Wages for each year since January 1, 2003 to
the amount budgeted for 2014.

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(Id. ¶ 3.) ICE received the request and assigned it a tracking
number. (Id. ¶ 4.) In May 2014, Stevens filed this lawsuit to
resolve outstanding issues with this request and three other FOIA
requests that she submitted to ICE in 2013. (Id. ¶ 5; Pl.’s Resp.
to Def.’s Stmt. of Facts (“DSOF”) ¶ 16, Dkt. No. 139.)
Between May 2014 and June 2018, the parties engaged in efforts
to streamline and manage the production of responsive records.
(PSOF ¶ 6.) In June 2018, the parties agreed that ICE would conduct
a supplemental search of six custodians’ emails based on certain
negotiated search terms. (Id. ¶ 7; DSOF ¶ 21.) The parties limited
the search to responsive hits between 2011 and 2014. (PSOF ¶ 7.)
In March 2019 and May 2019, ICE produced 707 pages of responsive
documents

to

supplemental
ICE’s

Stevens.

(Id.

production

determination

¶ 8.)

contained

that

those

Ninety-three
certain

portions

pages

redactions
contained

of
based

the
on

“sensitive

and/or privileged information as well as personally identifiable
information.” (Id.; PSOF ¶ 23.) Stevens objected to several of
those redactions, and since May 2019, the parties have had several
discussions. (DSOF ¶ 10.) During these discussions, ICE agreed to
lift some § 552(b)(5) redactions that it applied to some documents
in the supplemental production. (Id.)
Despite

this

progress,

unresolved

issues

remain.

Specifically, the parties cannot agree on the adequacy of ICE’s

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search and about the release of certain information, such as names
of email recipients and senders. (Id. ¶¶ 12–13.) The documents at
issue

address:

(1)

ICE

responses

to

media

or

congressional

inquiries; (2) an editorial that ICE employees prepared in response
to a New York Times article; (3) a hunger strike and administrative
segregation at an ICE detention facility in Tacoma, Washington;
and (4) legal advice provided on those issues. (Id. ¶ 28.) The
parties now cross-move for summary judgment.
II.

LEGAL STANDARD

Summary judgment is proper if the moving party “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).
When considering a motion for summary judgment, a court views the
record in the light most favorable to the non-moving party and
draws all reasonable inferences in that party’s favor. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On cross-motions
for summary judgment, a court examines the record and draws “all
reasonable inferences in the light most favorable to the party
against

whom

the

motion

was

filed.”

Yeatts

v.

Zimmer

Biomet

Holdings, Inc., 940 F.3d 354, 358 (7th Cir. 2019).
III.

DISCUSSION

“The basic purpose of FOIA is to ensure an informed citizenry,
vital to the functioning of a democratic society, needed to check

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against corruption and to hold the governors accountable to the
governed.” Rubman v. U.S. Citizenship & Immigration Servs., 800
F.3d 381, 386 (7th Cir. 2015) (citing NLRB v. Robbins Tire & Rubber
Co., 437 U.S. 214, 242 (1978)). Stevens challenges the adequacy of
ICE’s search and ICE’s withholding of information under FOIA
Exemptions 5, 6, & 7(C). ICE disputes Stevens’s contentions,
arguing that its search was adequate and its withholding proper.
The Court addresses each of Stevens’s challenges below.
A.

Adequacy of the Supplemental Search

To prevail on summary judgment, “the agency must show that
there is no genuine issue of material fact about the adequacy of
its records search.” Rubman, 800 F.3d at 387. Thus, the agency
“must show that it made a good faith effort to conduct a search
for the requested records, using methods which can be reasonably
expected

to

produce

the

information

requested.”

Id.

(quoting

Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).
There is a presumption of good faith that can be strengthened by
evidence of the agency’s efforts to satisfy the request. Id. The
agency can support this presumption by “reasonably detailed,” nonconclusory affidavits describing the agency’s search. Henson v.
Dep’t of Health & Human Servs., 892 F.3d 868, 875 (7th Cir. 2018)
(stating the affidavits must “set forth the search terms used in
electronic searches and the kind of search performed by the agency,

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and aver that all files likely to contain responsive documents
were searched”).
A FOIA requester can present “‘countervailing evidence’ as to
the adequacy of the agency’s search.” Rubman, 800 F.3d at 387
(quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 314
(D.C. Cir. 2003)). The requester must show “that the agency might
have discovered a responsive document had the agency conducted a
reasonable search.” Patterson v. I.R.S., 56 F.3d 832, 841 (7th
Cir. 1995) (citations omitted). Because “neither the requester nor
the court know the content of the agency’s records, this is a low
bar.” Rubman, 800 F.3d at 387. “Importantly, the question at
summary judgment is not whether the agency might have additional,
unidentified responsive documents in its possession.” Id. “Rather
the

court

need

only

determine

whether

the

search

itself

was

performed reasonably and in good faith.” Id.
Stevens argues that ICE failed to offer evidence sufficient
for the Court to determine the adequacy of ICE’s search under
Rule 56. If the Court’s decision depended solely on the first
declaration from Toni Fuentes, ICE’s Deputy Officer, that contains
a single paragraph touching on the adequacy of ICE’s search, the
Court would agree. (See Fuentes Decl. ¶ 13, PSOF Ex. 1, Dkt.
No. 132-1.) There were two primary issues with this declaration:
(1) a failure to show, with reasonable detail, that the search

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method

was

reasonably

calculated

to

uncover

all

relevant

documents; and (2) a failure to identify the terms searched or to
explain the search method. But ICE also offered a supplemental
declaration from Fuentes. (Fuentes Supp. Decl., Def.’s Resp. to
Pl.’s Stmt. of Add. Facts (“PSOAF”), Ex. A, Dkt. No. 141-1.) This
supplemental declaration resolves both issues.
As to the first, the supplemental declaration explains ICE’s
general method of data collection and storage in its “Enterprise
Vault journaling server, which captures and preserves all sent,
deleted, and received electronic records of all ICE users” since
2008. (Id. ¶ 8.) See Henson, 892 F.3d at 875 (stating agency
affidavits must “aver that all files likely to contain responsive
documents were searched”). Because five of the six custodians
subject to the supplemental search are no longer ICE employees,
ICE directly retrieved all the records from those email accounts
for January 2011 to December 2014 in “‘personal storage tables’ or
.pst files” from the Enterprise Vault server. (Fuentes Supp. Decl.
¶ 8.)

ICE

then

exported

these

files

into

Relativity,

its

e-

discovery software program, and indexed, processed, and organized
the files on that platform. (Id.) Fuentes avers that “no documents
were excluded from import on the basis of being ‘privileged,’ ‘not
likely to produce relevant information,’ or any other reason.”
(Id.) Therefore, ICE sufficiently established that its chosen

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search method was reasonably calculated to uncover all relevant
documents.
Second, the supplemental declaration identifies the terms
searched and explains ICE’s method of conducting that search. See
Henson, 892 F.3d at 875 (finding that agency affidavits must
provide the search terms used and describe the kind of search
performed). Fuentes identifies the terms searched by reference to
an exhibit—an email exchange between counsel for ICE and Stevens
that includes search term negotiations and the final list of search
terms. (See Fuentes Decl., Ex. B.) Fuentes confirms that “ICE’s
Relativity
terms

administrator

[the]

parties

thereafter
agreed

utilized

upon,

with

the
all

exact

search

‘modifiers,’

‘restricting signals,’ and ‘wild cards,’ if any as required by the
plaintiff and agreed upon by the agency, and reflected in the above
cited Exhibit B, to conduct the search of the electronic records.”
(Fuentes Supp. Decl. ¶ 9 (emphasis in original).) This establishes
that ICE performed the agreed upon searches in the correct form
and using the correct method.
ICE

provided

reasonably

detailed

declarations

from

Toni

Fuentes that describe the search and demonstrate that it was
performed reasonably and in good faith. Therefore, ICE has shown
that there is no genuine issue of material fact about the search’s
adequacy.

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B.
Stevens

next

Improper Withholding

challenges

ICE’s

withholding

of

information

pursuant to certain FOIA exemptions. “FOIA requires a federal
agency upon request to disclose records in its possession, subject
to nine exemptions.” Enviro Tech Int’l, Inc. v. U.S. Envtl. Prot.
Agency,

371

F.3d

§§ 552(a)–(b)).

370,

374

“Disclosure

(7th
is

Cir.

2004)

required

(citing

unless

the

5

U.S.C.

requested

record is clearly exempted from disclosure by the statute.” Enviro
Tech,

371

objective’

F.3d
of

at

374.

FOIA,

“Because

courts

are

disclosure
to

is

construe

the
the

‘dominant
exemptions

narrowly.” Stevens v. U.S. Immigration & Customs Enf’t, No. 17 C
2853, 2020 WL 108436, at *4 (N.D. Ill. Jan. 9, 2020) (citations
omitted).
The government has the burden to prove “by a preponderance of
the evidence that a withheld document falls within one of the
exemptions.” Enviro Tech, 371 F.3d at 374 (citing § 552(a)(4)(B)).
Courts determine whether the government has met that burden via a
de novo review of the record. See 5 U.S.C. § 552(a)(4)B). To meet
its burden, ICE submitted two declarations and a Vaughn index—a
log listing and describing each document withheld, partially or in
full, from the supplemental production. Patterson, 56 F.3d at 839
n.11.

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The government is entitled to summary judgment only if its
Vaughn

index

and

“agency

affidavits

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.”
Id. at 836 (internal citations omitted). ICE withholds information
from the supplemental production pursuant to Exemptions 5, 6, and
7(C). The Court addresses each asserted exemption below.
1.
Exemption

5

applies

Exemption 5
to

“inter-agency

or

intra-agency

memorandums or letters that would not be available by law to a
party other than an agency in litigation with the agency. 5 U.S.C.
§ 552(b)(5). Accordingly, the agency may invoke the attorney client
privilege,

work

product

privilege,

and

deliberative

process

privilege to shield documents from disclosure. Enviro Tech, 371
F.3d at 374; see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
149 (1975) (noting the provision exempts “those documents, and
only those documents that are normally privileged in the civil
discovery context”). Here, ICE invokes Exemption 5 to shield
documents it alleges are protected by the attorney client privilege
and the deliberative process privilege.

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a.

Attorney client privilege

The attorney client privilege protects communications made
for the purpose of seeking or giving legal advice. See U.S. v.
White, 970 F.2d 328, 335 (7th Cir. 1992). “The privilege is not
limited to communications made in the context of litigation or
even a specific dispute but extends to all situations in which an
attorney’s counsel is sought on a legal matter.” Coastal States
Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980).
“In the FOIA context, the agency is the ‘client’ and the agency’s
lawyers are the ‘attorneys’ for the purposes of attorney-client
privilege.” Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 802 F.
Supp. 2d 185, 200 (D.D.C. 2011). The question for attorney client
privilege

assertions

“is

always

whether

the

‘primary’

or

‘predominant purpose’ of the communication is to render or solicit
legal advice.” BankDirect Capital Fin., LLC v. Capital Premium
Fin., Inc., 326 F.R.D. 176, 181 (N.D. Ill. 2018).
ICE asserts the attorney client privilege over portions of
four documents that it alleges contain confidential communications
between agency attorneys and other agency personnel about legal
aspects of the detainee volunteer work program. (See PSOF ¶ 30;
Fuentes Decl. ¶¶ 26–27; Vaughn Index at 8–9, 14–16, & 33–37 (citing
Supp. 104–10, 155–63, 454–55, & 473–76), Fuentes Decl., Ex. C,
Dkt. No. 132-1.) Specifically, ICE claims that agency attorneys

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and agency personnel discussed: “(1) certain legal standards for
inclusion in a draft agency response to the media; (2) legal advice
about if and how to respond to a letter from a legal advocacy
group; and (3) legal advice about an active case in litigation in
which ICE was a party.” (PSOF ¶ 31.)
Stevens argues the attorney client privilege does not apply
to

these

records.

Her

two

main

points

are

that:

(1)

rendering/receiving legal advice is not the primary purpose of the
withheld communications; and (2) those communications were not
kept confidential. Although Stevens is correct that documents are
not

automatically

recipient

or

descriptions

privileged

author,
that

it

is

the

just

because

clear

four

an

from

ICE’s

redactions

attorney

is

a

index

issue

at

Vaughn

cover

communications between attorney and client that seek or provide
legal advice. (See, e.g., Vaughn Index at 8–9 (Supp. 104–10)
(“internal ICE discussion involving ICE’s legal counsel pertaining
to

the

legal

authorities

that

underpin

the

voluntary

work

program”), 14–16 (Supp. 155–63) (“email exchanges among ICE ERO
and OPLA pertaining to a litigation filing and litigation strategy
that was being pursued in a case in which ICE was involved”), &
33–37 (Supp. 454–55 & 473–76) (“privileged information conveyed by
a

client

(ICE

ERO

and

Seattle’s

Chief

Counsel)

to

an

OPLA

supervisory attorney”).) See also Vento v. I.R.S., 714 F. Supp. 2d

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137, 151 (D.D.C. 2010) (finding Vaughn index descriptions of
attorney client privileged documents sufficient for agency to
withhold). Further, Stevens provides no evidence to counter ICE’s
insistence that the documents in question were kept confidential.
(Fuentes Decl. ¶¶ 22 & 27.) Thus, ICE adequately establishes that
these four records fall within the attorney client privilege and
can be withheld from the supplemental production.
b.
The

Deliberative process privilege

deliberative

“reflecting
governmental

the

process

deliberative

agencies.”

Enviro

privilege
or

shields

policy-making

Tech,

371

F.3d

documents

processes
at

374.

of
“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 citations omitted).
To qualify for this privilege, the document must first be
pre-decisional, “meaning that it must be ‘generated before the
adoption of an agency policy.’” Nat’l Immigrant Justice Ctr. v.
U.S. Dep’t of Justice, No. 19-2088, 2020 WL 1329660, at *3 (7th

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Cir. Mar. 23, 2020) (citing Tax Analysts v. I.R.S., 117 F.3d 607,
616 (D.C. Cir. 1997)); see also Coastal States, 617 F.2d at 866
(stating that “even if the document is pre[-]decisional at the
time it is prepared, it can lose that status if it is adopted,
formally or informally, as the agency position on an issue”).
“Second

the

record

in

question

must

contain

deliberative

communications and therefore ‘reflect the give-and-take of the
consultative process.’” Nat’l Immigrant Justice Ctr., 2020 WL
1329660, at *4; see also Enviro Tech, 371 F.3d at 375 (explaining
that

documents

were

deliberative

because

they

reflected

“the

internal dialogue at the EPA” regarding a proposed rule).
ICE asserts the deliberative process privilege to justify
most of its redactions. Indeed, all but two of the Vaughn index’s
thirty-two document entries assert this privilege. ICE argues that
these

redactions

cover

“internal

drafts,

discussions,

deliberations, and recommendations by and among agency personnel”
related to three categories of information: “(1) agency responses
to media or congressional inquiries; (2) an editorial that agency
employees prepared in response to a New York Times article; [and]
(3) a hunger strike and administrative segregation at an ICE
detention facility in Tacoma, Washington.” (DSOF ¶ 28.) Stevens
argues that the redactions cover facts, not deliberations, and
that ICE failed to identify a “definable decisionmaking process”

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to which the redacted communications could be considered predecisional. (Pl.’s Reply at 8, Dkt. No. 138.) The Court addresses
whether

and

how

the

privilege

applies

to

each

category

of

documents.
Because ICE’s first two categories are similar, the Court
addresses them together. ICE asserts the deliberative process
privilege

over

possible

agency

responses

to

media

and

congressional inquiries and an agency editorial in response to a
New York Times article. Although this District and the Seventh
Circuit have yet to address this exact topic, other courts have
confronted similar “messaging communications.” See, e.g., New York
v. U.S. Dep’t of Commerce, No. 18-CV-2921 (JMF), 2018 WL 4853891,
at

*2

(S.D.N.Y.

Oct.

5,

2018)

(ordering

disclosure

of

draft

responses to Congress and the Washington Post); Am. Civil Liberties
Union of Mass., Inc. v. U.S. Immigration & Customs Enf’t, No. CV
19-10690-LTS, 2020 WL 1429882, at *6–7 (D. Mass. Mar. 24, 2020)
(ordering

disclosure

of

draft

talking

points,

email

communications, and a draft agenda). These cases conclude “that
‘messaging’ communications can be protected by the deliberative
process privilege,” but not “all deliberations over what to say
are protected.” New York, 2018 WL 4853891, at *2. Given that
agencies are in constant communication with the press, public, and
Congress, the privilege has limits.

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Accordingly, messaging communications are protected if they
“reflect[ ] the give-and-take of the consultative process” and
were

“prepared

to

facilitate

and

inform

a

final

decision

or

deliberative function entrusted to the agency.” Providence Journal
Co. v. U.S. Dep’t of Army, 981 F.2d 552, 559–60 (1st Cir. 1992).
For example, deliberations “about the timing and content of a
policy announcement, although post-decisional with respect to the
particular policy to be announced, also relate to a future decision
(what to say and when to say it) that implicates questions within
the scope of the agency’s delegated policymaking authority.” Id.;
see also Am. Ctr. for Law and Justice v. U.S. Dep’t of Justice,
325 F. Supp. 3d 162, 172 (D.D.C. 2018) (applying privilege to parts
of emails discussing response to media inquiries about a meeting
that was the subject of a DOJ investigation); Judicial Watch, Inc.
v. U.S. Dep’t of Homeland Sec., 736 F. Supp. 2d 202, 207–08 (D.D.C.
2010) (applying privilege to communications regarding agency’s
response to congressional and press inquiries related to specific
investigations and prosecutions). Messaging communications are not
protected where the “communications amount to little more than
deliberations over how to spin a prior decision, or merely reflect
an effort to ensure that an agency’s statement is consistent with
a prior decision.” New York, 2018 WL 4853891, at *2.

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Therefore, the key question is:
whether the disputed materials reflect deliberations
about what message should be delivered to the public
about an already-decided policy decision, or whether the
communications are of a nature that they would reveal
the
deliberative
process
underlying
a not-yetfinalized policy decision, including the very decision
about what message to deliver—provided that the
particular messaging decision is among those that
Congress has asked the agency to make.
Id. (internal quotations and citations omitted). Applying that
standard to the documents here, ICE’s internal communications
about its responses to outside inquiries from the press, Congress,
advocacy

groups,

and

the

public

are

not

protected

by

the

deliberative process privilege. From the Vaughn index descriptions
and a review of the reprocessed supplemental production, ICE merely
deliberates over which agency subpart should handle an inquiry
and/or how to spin its prior decisions about the detainee volunteer
work program and general operation of ICE detention centers. Those
communications do not qualify as facilitating/informing a final
agency decision or performing a deliberative function specifically
assigned to ICE.
ICE emphasizes that many of the documents contain draft
responses,

meaning

they

are

inherently

not-yet-finalized

and,

therefore, entitled to protection. But the fact that a document
itself might not be finalized (is labeled as a draft, has redlines,
or contains comments) does not “automatically exempt it from

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disclosure.” See New York Times Co. v. U.S. Dep’t of Def., 499 F.
Supp. 2d 501, 515 (S.D.N.Y. 2007) (ordering disclosure of draft
documents). This distracts from a central piece of the deliberative
process

privilege

analysis:

How

the

document

relates

to

the

agency’s statutory purpose and decisionmaking process. ICE must
show that the messaging communications are so “intimately bound up
with [the] agency’s central policy mission” to warrant protection.
New York, 2018 WL 4853891, at *2. ICE does not make that showing
here.
ICE does not exercise its essential policymaking role when it
coordinates who from the agency should respond to an outside
inquiry and what they should say consistent with and in defense of
existing agency policies. In fact, ICE’s document descriptions
show no evidence of policymaking. See, e.g., Vaughn Index at the
following:
•

Page 2: Supp. 21 (“describing a news media inquiry to
ICE regarding an ICE contract with a county jail . . .
contains both a background to the inquiry as well as a
draft proposed response to the media”);

•

Page 7: Supp. 87–89 (“Mr. Homan expresses his thoughts
on what the agency should consider when editing the draft
submitted by the journalist . . . Ms. Christensen is
expressing her thoughts regarding options on what ICE’s
contribution to the draft provided by the journalist
should look like . . .”);

•

Page 25: Supp. 298–300 (“exchange of opinions . . .
regarding the best way to respond to the Congressional
inquiries, ERO Seattle field office’s opinion and
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recommendation regarding which ERO sub-offices are best
equipped to answer the questions and their opinion on
which ICE office should engage with the local advocacy
group”);
•

Page 37: Supp. 483–89 (“opinion expressed by ICE ERO
employee to the employee’s superiors regarding how the
agency should approach answering an inquiry on behalf of
Congressman Adam Smith regarding ICE’s detention
facility, as well as the employee’s proposed draft
response”);

•

Page 40: Supp. 500–01 (“This draft letter is withheld in
full under Exemption (b)(5) as it contains red-lined
tracked changes and comments bubbles by ICE ERO with
suggested language and edits and the reasons therefor
[sic], comments, questions, clarifications, and requests
for additional information”); and

•

Page 41: Supp. 549 (“internal email discussion among ICE
ERO and OPA employees regarding a draft press release in
response to a media inquiry pertaining to the use of the
volunteer work program at certain county jails that
house ICE detainees”).

Indeed, ICE admits that every federal agency confronts this same
task. (See Def.’s Reply at 6, Dkt. No. 140 (“one of ICE’s other
functions (as is the case with all other federal agencies) is to
communicate with, and be accountable to, Congress and the public
about agency affairs and operations . . .”).) The duty to respond
is not unique to ICE.
ICE’s Vaughn index descriptions and accompanying declarations
do not demonstrate that these communications relate to anything
other

than

rationalizing

the

agency’s

final

decisions.

Thus,

disclosure would not reveal the deliberative process behind not-

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yet-finalized policy decisions. Some of the redacted portions also
appear to be pure facts and data that ICE solicited from its
private jail operators. This kind of information is not protected
by the deliberative process privilege. Nat’l Immigrant Justice
Ctr. v. U.S. Dep’t of Justice, No. 12-CV-04691, 2018 WL 1508531,
at *5 (N.D. Ill. Mar. 27, 2018) (citing Enviro Tech, 371 F.3d at
374) (noting the deliberative process privilege “typically does
not

justify

the

withholding

of

purely

factual

material”).

Therefore, ICE must disclose any non-attorney client privileged
messaging

communications

on

the

following

pages

of

the

supplemental production: 21, 31–33, 46, 87–89, 104–10, 136–38,
149, 155–63, 199–204, 229–30, 238, 259, 290–96, 298–300, 337–38,
343, 348, 372, 483–89, 494–96, 498–500, 500–01, 506–08, 549, 552–
55, 611.
ICE also asserts the deliberative process privilege over a
third broad category of communications related to a detainee hunger
strike and administrative segregation in a Washington facility.
The Court identifies these remaining communications as Supp. 142–
46, 428–29, 454–55, 473–76. As an initial matter, there are two
documents

in

this

group

that

contain

ICE

discussion

about

a

response letter to the American Civil Liberties Union. (Vaughn
Index

at

33–37

(citing

Supp.

454–55

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and

473–76).)

As

with

categories one and two, these kinds of discussions are considered
“messaging communications.” See New York, 2018 WL 4853891, at *2.
The Vaughn index descriptions that address the “messaging
communications”

portions

of

these

two

documents

signal

circumstances where ICE again rationalizes a finalized policy.
(Vaughn

Index

at

33–35

(citing

Supp.

454–55)

(describing

redactions in emails about detainees in administrative segregation
at Tacoma Detention Center: “internal email discussion . . .
regarding whether and how to respond to a letter by the American
Civil Liberties Union (ACLU) regarding detainees at one of ICE’s
detention facilities”) & 35–37 (citing Supp. 473–76) (same).) This
description merely reflects “deliberations about what ‘message’
should be delivered to the public about an already-decided policy
decision”—what ICE should tell the ACLU about its administrative
segregation policy as applied to detainees as the Tacoma Detention
Center. New York, 2018 WL 4853891, at *3. Disclosure would not
reveal the deliberative process behind a not-yet-finalized policy
decision. Therefore, ICE shall disclose any non-attorney client
privileged messaging communications redacted on Supp. 454–55 and
473–76.
The

remaining

parts

of

documents

that

ICE

asserts

the

deliberative process privilege over are: (1) a draft summary report
regarding ICE’s tracking process for detainees on hunger strike

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(Supp. 142–46); (2) a draft to-do list created in response to
concerns voiced “by external stakeholders during a round table
pertaining to an ICE detention facility” (Supp. 428–29); and 3) an
email discussion about ways to maintain detainee safety within a
detention facility during an ongoing hunger strike (Supp. 473–76).
(Vaughn Index at 11–13, 31–32, & 35–37.) As to the first, ICE
describes the report as containing employee “thoughts and ideas”
about “how best to keep track of detainees on hunger strike and to
ensure the detainees’ well-being.” (Id. at 12.) ICE also indicates
that its final process “for better tracking the detainees engaging
in a large-scale hunger strike at this particular facility was
still evolving at that time.” (Id.) Therefore, the summary report
is predecisional and deliberative. It qualifies for protection
under the deliberative process privilege.
As to the to-do list, ICE indicates that it contains “opinions
in terms of what can be done to resolve the concerns and which
operational component should take the lead.” (Id. at 32.) “The
page consists of red-line edits and yellow highlights, reflecting
the document is still a work in progress.” (Id.) The to-do list
contains opinions and discussions related to what can and should
be done about the individual stakeholder concerns and who should
do it, meaning it is deliberative and predecisional. Accordingly,
it is protected by the deliberative process privilege.

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Third,
discussed

an

email

above,

exchange

also

with

contains

an

messaging
internal

communications,

discussion

where

employees request that superiors “approve a specific course of
action to ensure safety within the detention facility” during an
ongoing hunger strike. (Id. at 36.) The email does not contain
final

approval

deliberative

of
and

the

proposed

course

predecisional,

of

these

action.
portions

(Id.)
of

As
the

communication are covered by the deliberative process privilege.
However, they

will

need

to

be

segregated

from

the

messaging

communications portions previously ordered for disclosure. Thus,
all three communications are protected by the deliberative process
privilege.
2.

Exemptions 6 & 7(C)

ICE redacted names and other personal identifiers from the
supplemental production pursuant to Exemptions 6 and 7(C). During
negotiations, ICE agreed to disclose the names of certain federal
employees that it had previously redacted. Now, Stevens challenges
the remaining name redactions. Stevens does not challenge ICE’s
redaction

of

email

addresses,

phone

numbers,

and

third-party

information under Exemptions 6 and 7(C). (See Pl.’s Reply at 10
(“The only redactions challenged here are the names appearing on
the

‘to’

and

‘from’

line

of

the

email

correspondence.”).)

Therefore, the Court analyzes only whether Exemptions 6 and 7(C)

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apply to ICE’s redaction of federal employee names from the emails
in the supplemental production.
Exemption 7(C) protects, “records or information compiled for
law enforcement purposes” if release “could reasonably be expected
to

constitute

an

unwarranted

invasion

of

personal

privacy,”

whereas Exemption 6 shields “personnel and medical files and
similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C. §§ 552(b)(6)
& (b)(7)(C). “Exemption 7(C) is more protective of privacy than
Exemption 6: The former provision applies to any disclosure that
‘could reasonably be expected to constitute’ an invasion of privacy
that is ‘unwarranted,’ while the latter bars any disclosure that
‘would

constitute’

an

invasion

of

privacy

that

is

‘clearly

unwarranted.’” U.S. Dep’t of Defense v. Fed. Labor Relations Auth.,
510 U.S. 487, 496 n.6 (1994).
Thus,

the

threshold

inquiry

is

whether

the

documents

constitute the kinds of records that Exemptions 6 & 7(C) are meant
to protect. Exemption 6 protects medical files, personnel files,
and other “similar files.” 5 U.S.C. § 552(b)(6). The term “similar
files” is interpreted broadly to include any “detailed Government
records on an individual which can be identified as applying to
that individual.” U.S. Dep’t of State v. Washington Post Co., 456
U.S. 595, 602 (1982). The question as to “similar files” is whether

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the records at issue are likely to contain the type of personal
information that would be in a medical or personnel file. Id. at
601. Such information generally includes “place of birth, date of
birth,

date

of

“identifying

marriage,

information,”

employment
though

not

history”

and

necessarily

other

“intimate”

information. Id.
The names redacted here are not akin to personnel or medical
files.

The

emails

communications

that

at

issue

do

are

not

mostly

contain

“mundane

any

interoffice

detailed

personal

information.” Families for Freedom v. U.S. Customs & Border Prot.,
837 F. Supp. 2d 287, 301 (S.D.N.Y. 2011). Indeed, many of these
“emails include standard signature lines with the sender’s name,
position, department, and phone number. Some of the emails include
the email addresses of senders or recipients of the messages; some
do not.” Id. Such communications are not like personnel or medical
files.
ICE itself distinguishes between “personnel record files” and
the emails at issue here. (Def.’s Reply at 8.) Yet, ICE argues
that the names it redacted are protected because they belong to
lower level employees. ICE labels these employees as “support
staff.”

(Id.)

Generally,

support

staff

provide

administrative

assistance to agency managers and would not have job titles like
“Deputy Chief,” “Chief of Staff,” “Deputy Field Office Director,”

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or “Senior Advisor.” (Reprocessed Prod. at Supp. 105, 109, 138, &
299, Fuentes Decl., Ex. D, Dkt. No. 132-1.) Such titles indicate
some level of managerial authority. Even if such employees were
support

staff,

ICE

overstates

the

authority

supporting

these

redactions and fails to cite any case binding on this Court or
directly relevant to these circumstances. See, e.g., Skinner v.
U.S. Dep’t of Justice, 744 F. Supp. 2d 185 (D.D.C. 2010) (upholding
redaction of law enforcement and support staff names, among others,
from

documents

related

to

specific

investigations

under

Exemption 7(C)); Associated Press v. U.S. Dep’t of Justice, 549
F.3d

62

(2d

Cir.

2008)

(withholding

name

redactions

from

a

commutation petition under Exemptions 6 & 7(C)). Thus, Exemption 6
does not permit ICE to withhold the redacted federal employee
names.
As for Exemption 7(C), the Court asks whether these emails
were

“compiled

for

law

enforcement

purposes.”

5

U.S.C.

§ 552(b)(7)(C). While ICE is obviously a federal law enforcement
agency,

not

“compiled

every

for

law

document

ICE

enforcement

produces

or

purposes.”

amasses
Id.

has

been

“Courts

have

generally interpreted Exemption 7 as applying to records that
pertain to specific investigations conducted by agencies, whether
internal or external, and whether created or collected by the
agency—in other words, investigatory files.” Families for Freedom

- 26 -

v. U.S. Customs & Border Prot., 797 F. Supp. 2d 375, 397 (S.D.N.Y.
2011) (collecting cases interpreting Exemption 7). The documents
at issue are not investigatory files.
First, ICE argues broadly, stating that these emails and
attachments involve “the performance of ICE’s law enforcement
mission.” (Def.’s Reply at 8.) Yet, under this definition, any
email or document ICE creates or exchanges qualifies for the
privilege. Exemption 7(C) is not so all-encompassing. Next, ICE
pivots a few degrees, asserting that it compiled these emails and
attachments for the purpose of detaining “individuals who are in
the United States illegally.” (Id. at 9.) This is no less broad
than ICE’s first point and merely repeats one of ICE’s general
functions. Neither proffered purpose links the documents to a
specific investigation. Instead, the documents relate to “the
general execution of tasks by agency personnel.” Families for
Freedom, 797 F. Supp. 2d at 397. While the topics addressed in the
documents pertain to law enforcement in a general sense, the
documents are not investigatory. Thus, they were not “compiled for
law enforcement purposes.” 5 U.S.C. § 552(b)(7)(C). ICE must
disclose the redacted names of the other federal employees on the
emails.

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3.

Segregation of Non-Exempt Information

Finally, Stevens argues that ICE failed to segregate and
release non-exempt information, like facts, from the supplemental
production.

FOIA

requires

that

“[a]ny

reasonably

segregable

portion of a record . . . be provided to any person requesting
such record after deletion of the portions which are exempt.” Id.
§ 552(b). “[N]on-exempt portions of a document must be disclosed
unless they are inextricably intertwined with exempt portions.”
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242,
260 (D.C. Cir. 1977). However, an agency is not required to
segregate

non-exempt

material

if

“the

excision

of

exempt

information would impose significant costs on the agency and
produce an edited document with little informational value.” Pub.
Emps. for Envtl. Responsibility v. Envtl. Prot. Agency, 213 F.
Supp. 3d 1, 24 (D.D.C. 2016) (citations omitted). Agencies are
entitled to a presumption that they complied with the obligation
to

disclose

reasonably

segregable

materials.

Sussman

v.

U.S.

Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). Nonetheless,
the

Court

must

make

an

express

finding

on

the

issue

of

segregability. Patterson, 56 F.3d at 840.
An agency’s Vaughn index plays a key role in a court’s
segregability analysis. See, e.g., Loving v. U.S. Dep’t of Defense,
550 F.3d 32, 41 (D.C. Cir. 2008) (stating that “the description of

- 28 -

the document set forth in the Vaughn index and the agency’s
declaration

that

it

released

all

segregable

material”

are

“sufficient for [the segregability] determination”); Johnson v.
Exec. Office for U.S. Attorneys, 310 F.3d 771, 778 (D.C. Cir. 2002)
(upholding agency’s segregation efforts based on “comprehensive
Vaughn index” and “the affidavits of [agency officials]”).
ICE’s

Vaughn

index

is

sufficiently

descriptive

and

comprehensive. It addresses each document and provides specific
explanations—albeit some ultimately rejected as improper—for each
redaction. In a declaration, ICE avers that it conducted a “lineby-line” review of each responsive document. (Fuentes Decl. ¶¶ 14
& 40–42.) ICE also declares “that all information not exempted
from disclosure by FOIA . . . was correctly segregated where
possible and released to Stevens.” (Id. ¶ 42.) ICE indicates that
factual information was so intertwined with privileged information
that it could not be segregated in just one instance. (Vaughn Index
at

35–36

(discussing

declaration,

Supp.

considered

483–89).)

together,

ICE’s

support

a

Vaughn
finding

index

and

that

ICE

released all segregable information.
IV.

CONCLUSION

For the reasons stated herein, Plaintiff’s Motion for Summary
Judgment (Dkt. No. 126) is granted in part and denied in part, and
Defendant’s Motion for Summary Judgment (Dkt. No. 131) is granted

- 29 -

in part and denied in part. ICE is ordered to disclose non-attorney
client

privileged

messaging

information

redacted

pursuant

to

Exemption 5 on the following pages of the supplemental production:
21, 31–33, 46, 87–89, 104–10, 136–38, 149, 155–63, 199–204, 229–
30, 238, 259, 290–96, 298–300, 337–38, 343, 348, 372, 454–55, 473–
76, 483–89, 494–96, 498–500, 500–01, 506–08, 549, 552–55, 611. ICE
is further ordered to disclose the remaining names of federal
employees redacted pursuant to Exemptions 6 & 7(C).

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: 4/8/2020

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