Gahagan v. United States Citizenship and Immigration Services

Filing 22

ORDER & REASONS: ORDERED that 17 Second MOTION for Summary Judgment filed by Michael W. Gahagan is DENIED. FURTHER ORDERED that 12 MOTION for Summary Judgment filed by United States Citizenship and Immigration Services r emain HELD IN ABEYANCE until Defendant files into the record a corrected Vaughn Index that more clearly identifies each redaction within the documents and clearly explains the relevance of each applied exemption, in particular exemption (k)(2). Defendant has until 14 days from the date of this order to file an updated Vaughn Index into the record. Signed by Judge Ivan L.R. Lemelle.(cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL W. GAHAGAN

CIVIL ACTION

VERSUS

NO. 15-796

UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES

SECTION "B"(2)

ORDER AND REASONS
I.

NATURE OF THE MOTIONS AND RELIEF SOUGHT
Before the Court are two Motions for Summary Judgment. The

first was filed by the Defendant, United States Citizenship and
Immigration Services (“USCIS”), on July 23, 2015 seeking summary
judgment on the ground that the agency had fully complied with
Plaintiff’s Freedom of Information Act (“FOIA”) request. (Rec.
Doc. No. 12). The Plaintiff, Michael Gahagan, filed a Response in
Opposition. (Rec. Doc. No. 13). This Court then ordered that Motion
held in abeyance pending further filings by the Defendant. (Rec.
Doc. No. 15). Subsequently, Plaintiff filed a Second Motion for
Summary Judgment which is also before this Court. (Rec. Doc. No.
17). Plaintiff’s Motion seeks judgment in his favor with regards
to his FOIA claim and also asks that certain filings by Defendant
be stricken from the record. (Rec. Doc. No. 17). Defendant filed
a Response in Opposition. (Rec. Doc. No. 18). For the reasons set
forth below,

IT IS ORDERED that Plaintiff’s Second Motion for Summary
Judgment (Rec. Doc. No. 17) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment (Rec. Doc. No. 12)

remain

HELD IN ABEYANCE

pending

compliance with this order.
II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On March 11, 2015, Gahagan, an immigration attorney, filed
suit alleging that USCIS violated the Freedom of Information Act,
5 U.S.C. § 552, et seq., in response to a FOIA request that
Plaintiff filed on November 25, 2014. (Rec. Doc. No. 1 at 8). This
case, described in greater detail in previous orders of this
Court,1 centers around Plaintiff’s FOIA request to USCICS seeking
information needed to effectively represent his client in a removal
proceeding. (Rec. Doc. No. 1 at 8). Importantly, 33 of the over
500 requests were referred by USCIS to U.S. Immigration and Customs
Enforcement (“ICE”) for processing. (Rec. Doc. No. 10 at 2).
On April 21, 2015, Plaintiff filed his first Motion for
Summary Judgment (Rec. Doc. No. 7), which this Court denied in an
Order and Reasons that also required the Defendant to

“take

affirmative steps” to ensure that’s its referrals to ICE were being
processed. (Rec. Doc. No. 10 at 18). Defendant then filed the

For a more detailed summary of the factual allegations, see this Court’s
Order and Reasons denying Plaintiff’s first Motion for Summary Judgment.
Gahagan v. U.S. Citizenship and Immigration Services, No. 15-796, 2015 WL
3651220, (E.D. La. June 11, 2015). See also Rec. Doc. No. 15.
1

2

Motion

for

Summary

Judgment

that

is

now

before

the

Court,

presenting a letter from ICE to the Plaintiff (“the ICE letter”)
which USCIS contended was sufficient proof of its duty to ensure
the referrals were processed. (Rec. Doc. No. 12). The letter
explained that portions of the documents coming from ICE were being
withheld pursuant to FOIA exemptions, but the letter did not detail
the specific exemptions that applied to each redacted document.
Rec. Doc. No. 12-2. This Court deemed the ICE letter insufficient,
instead ordering the Motion held in abeyance pending the agency’s
filing of a Vaughn Index. (Rec. Doc. No. 15).
More specifically, this Court found that USCIS’s inclusion of
an unsworn letter with its Motion for Summary Judgment failed to
meet the previous order’s requirement of an “affirmative step”
ensuring the referrals were processed appropriately, because the
letter did not provide a sufficient factual basis to assess whether
ICE had properly redacted the documents it provided. (Rec. Doc.
No. 15 at 14). Relying on Batton v. Evers, 598 F.3d 169, 175 (5th
Cir. 2010), this Court acknowledged that an agency’s supporting
affidavits and declarations are entitled to a “presumption of
legitimacy.” (Rec. Doc. No. 15 at 14). Nevertheless, the documents
provided by USCIS were too “conclusory and generalized” to support
a

motion

for

summary

judgment.

(Rec.

Doc.

No.

15

at

14).

Accordingly, the Order and Reasons mandated that USCIS file a
Vaughn Index detailing the contents of the documents provided and
3

the factual basis for the asserted exceptions. On August 31, 2015,
USCIS supplemented its Motion with a Vaughn Index as requested.
(Rec. Doc. No. 16). Plaintiff responded with his Second Motion for
Summary Judgment requesting judgment in his favor and an order
striking the Vaughn Index from the record. (Rec. Doc. No. 17).
Defendant then filed a response in Opposition. (Rec. Doc. No. 18).
III. THE PARTIES’ CONTENTIONS
Here,

both

parties

seek

summary

judgment.

Defendant

originally sought summary judgment on the ground that the ICE
letter fulfilled its duty to ensure that the referrals to ICE were
processed.2 However, in light of this Court’s August 17, 2015 Order
and Reasons, Rec. Doc. No. 15, the issue now is whether the Vaughn
Index

filed

by

the

Defendant

meets

the

above

standard.

In

Plaintiff’s Second Motion for Summary Judgment, he contends that
the Defendant has not met its burden of proving that it lawfully
withheld

information

because

the

Vaughn

Index

contains

a

declaration made by an individual without personal knowledge of
the

information

Opposition

contained

Memorandum

that

therein.
the

Defendant

declarant’s

responds

in

its

knowledge

of

the

redacted material meets the applicable standard.
IV.

LAW AND ANALYSIS

Defendant’s Motion also addressed the proper standard for interagency
referrals of FOIA requests, but that issue was resolved by this Court’s
August 17, 2015 Order and Reasons, Rec. Doc. No. 15, and thus does not
require further discussion.
2

4

Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate

only

interrogatories,

if
and

“the

pleadings,

admissions

on

depositions,
file,

together

answers

to

with

the

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). See also TIG Ins. Co. v. Sedgwick James of Washington, 276
F.3d 754, 759 (5th Cir. 2002). However, the standard of review in
FOIA cases differs. Cooper Cameron Corp. v. U.S. Dep’t. of Labor,
Occupational Safety, and Health Admin., 280 F.3d 539, 543 (5th
Cir. 2002).
a. Summary Judgment Standard Under the Freedom of Information
Act
The summary judgment standard in the FOIA context differs
because “the threshold question in any FOIA suit is whether the
requester can even see the documents[,] the character of which
determines whether they can be released.” Cooper Cameron, 280 F.3d
at 543. While the Act reflects a “general philosophy of full agency
disclosure,” John Doe Agency v. John Doe Corporation, 493 U.S.
146, 152 (1989), Congress recognized that “public disclosure is
not always in the public interest.” Cent. Intelligence Agency v.
Sims, 471 U.S. 159, 167 (1985). Accordingly, the Act contains nine
specific exemptions to disclosure. Fed. Bureau of Investigation v.
Abramson, 456 U.S. 615, 621 (1982).

5

In

the

withholds

summary

judgment

information

from

context,

disclosure

when

the

pursuant

government

to

one

such

exemption, “the agency has the burden to prove de novo that the
information is exempt from disclosure.” Batton, 598 F.3d at 175.
While an agency’s determination to withhold is entitled to a
“presumption

of

legitimacy,”

“conclusory

and

generalized”

justifications for withholding documents are insufficient grounds
for granting summary judgment. Id. Rather, a court should only
grant summary judgment for an agency if the agency demonstrates
“that the factual information sought falls within the statutory
exemption asserted.” Id. Therefore, the primary issue is whether
Defendant’s Vaughn Index adequately demonstrates that each piece
of

redacted

information

sought

by

Plaintiff

falls

within

a

statutory exemption.
b. The Vaughn Index Submitted by USCIS
“A

Vaughn

Index

is

a

routine

device

through

which

the

defendant agency describes the responsive documents withheld or
redacted and indicates why the exemptions claimed apply to the
withheld material.” Batton, 598 F.3d at 174 (quoting Jones v. FBI,
41 F.3d 238, 241 (6th Cir. 1994). According to the D.C. Circuit,
the federal appellate court with the most experience in this field,
Cooper

Cameron

Corp.,

280

F.3d

at

543,

there

are

three

indispensable elements of a Vaughn Index: 1) it must be contained
in one complete document; 2) it must adequately describe each
6

redaction or each withheld document; and 3) it must identify the
claimed exemption and explain its relevance. Founding Church of
Scientology of Washington, D.C., Inc. v. Bell, 603 F.2d 945, 949
(D.C. Cir. 1979). See also Davis v. C.I.A., 711 F.2d 858, 861 (8th
Cir. 1983); White v. I.R.S., 707 F.2d 897, 899 (6th Cir. 1983);
Chilivis v. S.E.C., 673 F.2d 1205, 1208 n.9 (11th Cir. 1982). While
the

descriptions

need

not

be

so

detailed

as

to

reveal

the

information sought to be withheld, “they must be sufficiently
specific to permit a reasoned judgment as to whether the material
is actually exempt under FOIA.” Founding Church of Scientology,
603 F.2d at 949. The Vaughn Index submitted by USCIS will be
analyzed under these guidelines.
The Index submitted by USCIS is a table consisting of five
columns which in turn identify: 1) the page number of the withheld
or redacted document; 2) the exemptions applied; 3) a description
of the document; 4) a description of the redacted information and
the statutory authority for it; and 5) the disposition of the
document. (Rec. Doc. No. 16-1) Accompanying the Index is the signed
declaration of Fernando Pineiro, the Deputy FOIA Officer at ICE,
attesting to the accuracy of the information provided in the Index.
(Rec. Doc. No. 16-1). While Plaintiff’s Second Motion for Summary
Judgment does not take issue with the substance of the Vaughn Index
itself

(Rec.

Doc.

No.

17),

the

justifications

provided by USCIS do present significant concerns.
7

for

redaction

Take for instance the Index’s first entry, which addresses
the redactions from page number one. The second and fifth columns
of the entry explain that page one is only partially withheld
pursuant to exemptions (k)(2), (b)(6), and (b)(7)(c).3 The third
column

then

describes

the

document

as

the

“Filing

Request”

contained within the Alien File, which includes “Case Information”
and a “Notice of Filing.” The problem arises with the fourth column
that is supposed to describe the redacted information and the
relevant exemption.
That

column

clearly

indicates

that

particular

names,

signatures, and initials of ICE attorneys and legal assistants are
redacted pursuant to exemptions (b)(6) and (b)(7). Further, the
document adequately explains the relevance of those exemptions to
the redacted material. However, the initial paragraph in that
column also explains that the entire document is potentially exempt
from

release

material

pursuant

compiled

for

to
law

exemption
enforcement

(k)(2)

as

purposes.

investigatory
What

remains

unclear is whether any other information was actually redacted
pursuant to (k)(2). If so, USCIS would need to describe that
information in more detail in the fourth column, rather than simply
saying that “[a]ll information contained within this system of
records is exempt from release.” If no other information was

3

These are shorthand for 5 U.S.C. §552a (k)(2), 5 U.S.C. §552(b)(6), and 5 U.S.C. §(b)(7).

8

redacted pursuant to (k)(2), then it should not be listed as one
of the applied exemptions. This concern is not isolated to the
first entry.
Every single entry in the Vaughn Index includes (k)(2) as an
applied exemption, but not one entry includes specifics as to the
type of information redacted pursuant to (k)(2). All of the entries
include, word-for-word, the same generic language addressing the
relevance

of

(k)(2).4

The

entries

adequately

describe

the

information redacted pursuant to all applicable exemptions other
than (k)(2). The Pineiro declaration sheds no light on the issue
either. In fact, it muddles the issue even more. Pineiro states in
his

declaration

that

(k)(2)

was

applied

to

personnel

identification information such as “the names, initials, email
addresses, and/or phone numbers” pertaining to a range of ICE
employees. (Rec. Doc. No. 16-1at 6-7). Yet, in the Vaughn Index
itself, those redactions are attributed to (b)(6) and (b)(7)(C).
(Rec. Doc. 16-1).
Ultimately, the document fails to communicate the necessary
information. First, it does not make clear if all of the redacted
information is described, let alone described adequately. Second,
it only explains the relevance of exemption (k)(2) in conclusory

4

“This document is investigatory material compiled for law enforcement purposes related to removal proceedings
and is maintained in the Alien File, Index, and National File Tracking System of Records. All information contained
within this system of records is exempt from release per (k)(2).”

9

and generalized terms. Therefore, it does not allow this Court to
make a reasoned judgment as to whether the withheld material is
actually exempt under FOIA. Consequently, the second and third
“indispensable elements” of a Vaughn index are not met here. See
Founding Church of Scientology, 603 F.2d at 949. The inadequacy of
the Vaughn Index prevents summary judgment in Defendant’s favor.
To succeed on the Motion for Summary Judgment, Defendant must
resubmit

its

Vaughn

Index

with

the

above

issues

corrected.

Plaintiff’s Second Motion for Summary Judgment contends that the
Defendant has not carried its burden of proof because the Pineiro
declaration does not meet the personal knowledge requirement of
Fed R. Civ. P. 56(e).
c. The Pineiro Declaration
As mentioned above, USCIS included with its Vaughn Index a
declaration from Fernando Pineiro, the Deputy FOIA Officer at ICE
who allegedly compiled the document. Including such affidavits
with a Vaughn Index is common practice, as it allows the courts to
more effectively evaluate the factual nature of the disputed
information. John Doe Agency, 493 U.S. at 149 n.2. Here, however
Plaintiff challenges the sufficiency of the declaration and the
accompanying Index due to Pineiro’s alleged lack of knowledge of
the facts stated in the Index.
Plaintiff contends that the Declaration and Index are not
based on Pineiro’s personal knowledge as required by Fed. R. Civ.
10

P.

56(e)

because

information

Pineiro

contained

states

therein

in

is

the

based

document
upon

that

his

the

personal

knowledge, his review of documents, and information provided by
other ICE employees. (Rec. Doc. No. 16-1 at 2) (emphasis added).
Plaintiff relies on this language to assume that Pineiro lacked
personal knowledge of the facts included in the Vaughn Index, but
he fails to explore the issue further. As Defendant’s Memorandum
in Opposition points out (Rec. Doc. No. 18 at 6-7), numerous
federal

courts

have

found

that

FOIA

declarants

may

include

information obtained in the course of their official duties within
their affidavit. “A declarant is deemed to have personal knowledge
if he has a general familiarity with the responsive records and
procedures used to identify those records.” See, e.g., Barnard v.
Dep’t of Homeland Sec., 598 F. Supp. 2d 1, 19 (D.D.C. 2009) (citing
Londrigan v. Fed. Bureau of Investigation, 670 F.2d 1164, 1174
(D.C.

Cir.

1981)).

Accordingly,

Pineiro’s

reliance

on

the

information provided by ICE employees in the regular course of
business falls within the meaning of personal knowledge.
Moreover, the individual coordinating a search for records is
not only a permissible individual to complete the affidavit, but
is

the

“most

appropriate

person

to

provide

a

comprehensive

affidavit.” SafeCard Services, Inc. v. S.E.C., 926 F.2d 1197, 1201
(D.C. Cir. 1991)(emphasis added). See also Spannause v. U.S. Dep’t
of Justice, 813 F.2d 1285, 1289 (4th Cir. 1987); Meeropol v. Meese,
11

790 F.2d 942, 951 (D.C. Cir. 1986). As Mr. Pineiro is responsible
for the management and supervision of the ICE FOIA office, he is
undoubtedly qualified to provide an affidavit for this purpose.
Accordingly, there is no lack of personal knowledge requiring that
the

documents

be

stricken

from

the

record.

However,

the

deficiencies in the Vaughn Index do require correction.
V.

CONCLUSION
In light of the foregoing,
IT IS ORDERED that Plaintiff’s Second Motion for Summary

Judgment (Rec. Doc. No. 17) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment remain HELD IN ABEYANCE until Defendant files into the
record a corrected Vaughn Index that more clearly identifies each
redaction within the documents and clearly explains the relevance
of

each

applied

exemption,

in

particular

exemption

(k)(2).

Defendant has until 14 days from the date of this order to file an
updated Vaughn Index into the record.

New Orleans, Louisiana, this 4th day of November, 2015.

____________________________
UNITED STATES DISTRICT JUDGE
12