Gahagan v. United States Citizenship & Immigration Services
Filing
20
ORDER AND REASONS denying 6 Motion for Summary Judgment; granting in part and denying in part 18 Motion for Summary Judgment. USCIS is entitled to judgment as a matter of law with respect to the adequacy of its search. But USCIS has failed to carry its burden of demonstrating full FOIA compliance with respect to (1) its referral to the Department of State of four pages of agency records that are responsive to plaintiff's FOIA request and (2) its withholding of certain documents in, i n whole or in part, as discussed more fully in Section III.D of the Court's Order. IT IS ORDERED that within fourteen (14) days of the entry of this Order, USCIS shall produce a new Vaughn index that remedies the deficiencies identified in Section III.D of the Court's Order.. Signed by Judge Sarah S. Vance on 12/2/15. (jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL GAHAGAN
CIVIL ACTION
VERSUS
NO: 15-2540
UNITED STATES CITIZENSHIP
AND IMMIGRATION
SERVICES
SECTION: R
ORDER AND REASONS
This Freedom of Information Act ("FOIA") case involves a dispute
between plaintiff Michael Gahagan, an immigration attorney, and the
United States Citizenship and Immigration Service ("USCIS") regarding
plaintiff's request for agency records concerning his client. Plaintiff alleges
that USCIS has failed to respond adequately to his lawful FOIA requests
and seeks declaratory relief and attorney's fees. USCIS claims that it has
fully complied with its statutory obligations under FOIA. Both parties have
filed cross motions for summary judgment. For the following reasons, the
Court DENIES plaintiff's motion and GRANTS IN PART AND DENIES IN
PART USCIS's motion for summary judgment.
I.
FACTS
In his complaint, plaintiff alleges that he filed a lawful FOIA request
with USCIS seeking three sets of documents: (1) a copy of his client's "entire
immigration file ('A-File')"; (2) "any electronic and/or handwritten notes
written by any USCIS employee" in relation to applications and petitions
filed by his client; and (3) "a copy of any email sent to, or sent from, any
government employee working at the USCIS New Orleans Field Office
which mention [his client's] name or Alien number," including emails from
personal email addresses.1
Plaintiff further alleges that the National
Records Center ("NRC"), a section within USCIS, acknowledged receipt of
his request on April 24, 2015, and that USCIS failed to respond adequately
within 20 business days, as required by law.2 Plaintiff' complaint seeks a
court order mandating that USCIS conduct an adequate search for
documents responsive to his request, an injunction barring USCIS from
withholding responsive documents without lawful authority, and an award
of costs and attorney's fees.3
1
R. Doc. 1 at 7.
2
Id.
3
Id. at 10.
2
On August 11, 2015, plaintiff moved for summary judgment, arguing
that USCIS failed to comply with FOIA and that plaintiff is entitled to
judgment as a matter of law.4 USCIS responded by filing an opposition
brief5 and a declaration by Jill Eggleston.6
Through the Eggleston
Declaration, USCIS stated that its FOIA review process was ongoing but
that it had thus far located 592 pages of responsive agency records.7 Of
those, the agency had decided to release 555 pages in their entirety, while
32 pages were released in part, and one page was withheld in full pursuant
to a FOIA exemption.8 USCIS also stated that it had referred four pages of
responsive records to the Department of State for further processing.9
According to USCIS, that information was provided to plaintiff by letter
dated July 31, 2015.10 Along with the Eggleston declaration, USCIS filed a
chart, called a Vaughn index, which describes various pages of records that
4
R. Doc. 6-2.
5
R. Doc. 9.
6
R. Doc. 9-1.
7
Id. at 5.
8
Id. at 5-6.
9
Id. at 6.
10
Id.
3
USCIS decided to withhold (wholly or partially), cites the applicable FOIA
exemption, and explains why USCIS believes that the exemption applies.11
On October 14, 2015, USCIS filed its own motion for summary
judgment,12 as well as a supplemental declaration by Eggleston.13
The
supplemental declaration stated that USCIS's search was complete and that
the agency had located an additional 32 pages of records responsive to
plaintiff's FOIA request.14 Of those, USCIS released 23 pages in full, while
six pages were withheld in part, and three pages were withheld in full.15
USCIS also submitted a supplemental Vaughn index explaining its
withholding decisions with respect to the newly discovered documents.16
USCIS argues that its two declarations and Vaughn indexes demonstrate
that it has fully complied with its obligations under FOIA and that it is
therefore entitled to summary judgment.17
11
Id. at 8-29.
12
R. Doc. 18-1.
13
R. Doc. 18-3.
14
Id. at 3.
15
Id.
16
Id. at 4-9.
17
R. Doc. 18-1 at 2.
4
Plaintiff contends that USCIS has not met its burden of proving full
FOIA compliance and raises a number of challenges to USCIS's declarations
and Vaughn index entries.18 Specifically, plaintiff argues that: (1) the Court
should strike the Eggleston declaration from the record for lack of personal
knowledge; (2) the Eggleston declarations fail to demonstrate that USCIS
has performed a legally adequate search for responsive records; (3) USCIS's
referral of four pages of records to the Department of State for processing
constitutes a FOIA violation; and (4) the original and supplemental Vaughn
indexes fail to adequately explain USCIS's decision to withhold, in whole or
in part, various documents responsive to plaintiff's FOIA request.
II.
STANDARD
Summary judgment is available to the defendant in a FOIA case when
the agency proves that it has fully discharged its obligations under FOIA,
and there is no genuine issue of material fact, after the underlying facts and
the inferences to be drawn from them are construed in the light most
favorable to the FOIA requester. See Weisberg v. U.S. Dep't of Justice, 705
F.2d 1344, 1350 (D.C.Cir. 1983). The agency may satisfy its burden of proof
18
R. Doc. 19-2.
5
through the submission of affidavits that identify the documents at issue
and explain why they fall under the claimed exemption. Cooper Cameron
Corp. v. U.S. Dep't of Labor, Occupational Safety & Health Admin., 280
F.3d 539, 543 (5th Cir. 2002). These affidavits must be clear, specific and
reasonably detailed while describing the withheld information in a factual
and nonconclusory manner. Id. Further, the court will not grant summary
judgment if there is contradictory evidence or evidence of agency bad faith.
See Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir .1994) (quoting Halperin v.
CIA, 629 F.2d 144, 148 (D.C. Cir. 1980)). If the agency meets all of these
requirements, the court will normally accord the affidavits substantial
weight.
But a reviewing court may also inspect the content of agency
documents in camera to determine whether they fall under any of the FOIA
exemptions. See 5 U.S.C. ' 552(a)(4)(B).
III. DISCUSSION
A.
Eggleston's Personal Knowledge
USCIS has submitted two declarations by Jill Eggleston in connection
with this case--a declaration dated August 20, 2015, and a supplemental
declaration dated October 5, 2015. In his reply brief in support of his
motion for summary judgment, plaintiff argues that Eggleston's original
6
declaration should be stricken from the record because the declarant lacks
personal knowledge of the declaration's contents.19
He makes no such
claim with respect to the supplemental declaration.
Federal Rule of Civil Procedure 56(c)(4) requires declarations offered
in support of, or in opposition to, summary judgment to be based on
personal knowledge. Fed. R. Civ. P. 56(c)(4); Cutting Underwater Techs.
USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 515 (5th Cir. 2012).
While a declaration need not specifically state that it is based on personal
knowledge, it must include enough factual support for a court to determine
that its averments were based upon the personal knowledge of the
declarant. Fed. R. Civ. P. 56(c)(4); see also Thomas v. Atmos Energy
Corp., 223 Fed. App'x. 369, 374 (5th Cir. 2007).
When considering a
motion for summary judgment, a court disregards any portion of a
declaration that fails to comply with Rule 56(c)(4).
Akin v. Q-L
Investments, Inc., 959 F.2d 521, 531 (5th Cir. 1992).
Although the Fifth Circuit has not addressed the issue, a number of
courts have held that an agency's declarant need not have participated
personally in the FOIA search to meet the personal knowledge requirement.
19
R. Doc. 12 at 3.
7
See Dugan v. Dep't of Justice, 82 F. Supp. 3d 485, 496 (D.D.C. 2015)
(concluding that declarant was competent to testify despite having not
participated directly in processing the FOIA request); Serv. Women's
Action Network v. Dep't of Def., 888 F. Supp. 2d 231, 251 (D. Conn. 2012)
(concluding that an "attenuated supervisor" of the person who conducted
actual FOIA search had personal knowledge to give declaration). Rather, a
declarant in a FOIA case satisfies Rule 56(c)(4) if she attests to her personal
knowledge of the procedures used in handling plaintiff's FOIA request and
her familiarity with the documents in question. See, e.g., Spannaus v. U.S.
Dep't of Justice, 813 F.2d 1285, 1289 (4th Cir. 1987); Gahagan v. U.S.
Citizenship & Immigration Servs., No. CIV.A. 14-1268, 2015 WL 5321749,
at *5 (E.D. La. Sept. 11, 2015); Barnard v. Dep't of Homeland Sec., 531 F.
Supp. 2d 131, 138 (D.D.C. 2008); Berman v. C.I.A., 378 F. Supp. 2d 1209,
1216 n.7 (E.D. Cal. 2005), aff'd, 501 F.3d 1136 (9th Cir. 2007). The Court
finds this precedent persuasive.
Here, the Eggleston declaration satisfies Rule 56(c)(4). Eggleston
states that she is the Assistant Center Director for the FOIA Unit of the
NRC and that she is personally familiar with USCIS's standard process for
8
responding to FOIA requests.20 Eggleston also makes clear that she was
responsible for overseeing and coordinating USCIS's response to plaintiff's
FOIA request, and she attests to her familiarity with USCIS's search for
records responsive to that request.21 Finally, Eggleston states that "the
statements contained in this declaration are based on my personal
knowledge, my review of relevant documents kept by USCIS in the course
of ordinary business, and upon information provided to me by other USCIS
employees in the course of my official duties."22 In sum, Eggleston attests
to her active role in USCIS's search for records responsive to plaintiff's
request, as well as her familiarity with both the search procedures that the
agency used and the documents at issue.
Thus, the Court finds that
Eggleston is competent to testify on the issues at hand, and it will not strike
the Eggleston declaration from the record.
B.
Adequacy of USCIS's Search
Next, the Court considers the adequacy of USCIS's search for records
responsive to plaintiff's FOIA request. Plaintiff argues that USCIS has not
demonstrated that it conducted an adequate search, as mandated by FOIA,
20
R. Doc. 9-1 at 1.
21
Id. at 1-2.
22
Id. at 2.
9
because it has not: (1) described its search methods in a nonconclusory
manner; (2) averred that it searched all files likely to contain responsive
documents; (3) identified which databases and email accounts were
searched; or (4) explained why it searched for documents in some places,
but not in others.23 USCIS responds that the two Eggleston declarations
describe its efforts to locate responsive documents in great detail and
demonstrate that its search complied with FOIA's mandate.24
Under Fifth Circuit law, an agency may demonstrate the adequacy of
its search by showing that it used "methods which can be reasonably
expected to produce the information requested." Batton v. Evers, 598 F.3d
169, 176 (5th Cir. 2010) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d
57, 68 (D.C. Cir. 1990)). The issue "is not whether there might exist any
other documents possibly responsive to the request, but rather whether the
search for those documents was adequate." Weisberg v. U.S. Dep't of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original). To
demonstrate the adequacy of its search, the agency may submit affidavits or
declarations explaining the scope and method of the search in reasonable
detail and in a nonconclusory fashion. Brown v. F.B.I., 873 F. Supp. 2d
23
R. Doc. 19-2 at 7-20.
24
R. Doc. 18-1 at 7.
10
388, 399 (D.D.C. 2012) (citing Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir.
1994)). These documents "are afforded a presumption of good faith, which
cannot be rebutted by purely speculative claims about the existence and
discoverability of other documents." Id. (citing SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)).
Although plaintiff contends that Eggleston's declarations were made
in bad faith, neither of his two arguments for this proposition is persuasive.
First, plaintiff cites Eggleston's statement in her original declaration that
"[a]ll documents responsive to the Plaintiff's FOIA request would be
contained within the subject A-file." Plaintiff argues that this statement
was "untruthful" because plaintiff's FOIA request sought, among other
things, Government employees' emails, and such documents are never
contained within an immigrant's A-file.25 This argument quotes Eggleston
out of context and badly mischaracterizes her declaration.
The two
sentences that follow immediately after plaintiff's quotation state that "the
USCIS's New Orleans Field Office has been . . . tasked to search for hand
written and email communications about [plaintiff's client] that may not
25
R. Doc. 19-2 at 6-7.
11
have been included in the A-file. That search is ongoing."26 Viewed in
context, Eggleston's declaration is most naturally read to mean that all
documents responsive to the first part of plaintiff's request--his request for
USCIS's " immigration file" on his client--would be found in the A-file,
while the notes and emails that plaintiff requested would be in files within
the New Orleans Field Office that remain to be searched. Plaintiff does not
challenge the truthfulness of that assertion, and the Court finds that it does
not evince bad faith.
Second, plaintiff argues that Eggleston's statement in her
supplemental declaration that "six (6) pages are withheld in part, and
twenty-three (23) are released in full" was made in bad faith because that
statement was made on October 5, 2015, and plaintiff did not receive the
documents in question until October 21, 2015. Plaintiff apparently equates
USCIS's statement that documents "are released" with a claim that USCIS
had already sent plaintiff those documents as of the date the statement was
made--a claim that plaintiff contends must have been false, given the
chronology.
But plaintiff gives no explanation for his strained
interpretation of the declaration's language, and it is not clear why the
26
R. Doc. 9-1 at 5.
12
words "are released" should be taken to mean "have already been released."
Eggleston's statement is more naturally read to mean that USCIS had
reached a final decision with respect to plaintiff's FOIA request, whereby
certain documents "are released in full." That a decision had been reached
does not mean that it has been put into operation. Thus, Eggleston did not
falsely state that USCIS had already produced documents in her
supplemental declaration. Because plaintiff fails to overcome the
presumption of good faith, the Court accords the Eggleston declarations
substantial weight in evaluating USCIS's compliance with its FOIA
obligations.
After reviewing the declarations, the Court concludes that USCIS has
shown that it conducted a legally adequate search for documents responsive
to plaintiff's FOIA request.
The first set of documents that plaintiff
requested is USCIS's "entire immigration file ('A-file')" on plaintiff's client.27
USCIS describes its search for the A-file in Eggleston's original declaration.
After describing her position with USCIS and her familiarity with plaintiff's
FOIA request,28
Eggleston states that upon reviewing the request, the
agency determined that the responsive documents "would be located at the
27
R. Doc. 1 at 7.
28
R. Doc. 9-1 at 1-2.
13
USCIS Field Office in New Orleans, Louisiana."29 Eggleston then names the
specific records system that government personnel searched30 and states
that NRC personnel found an A-file bearing the name and identification
number of plaintiff's client.31 Finally, Eggleston states that she is confident
that NRC identified all offices to be searched and that "there is no reason to
presume any of the other USCIS Directorates or program offices would
likely have responsive records."32
The Eggleston declaration establishes that USCIS conducted an
adequate search for plaintiff's client's immigration file. USCIS identifies
which records system it searched by name. It also avers33 that its search
was reasonably designed to locate responsive documents. The Court finds
no reason to doubt USCIS's contention. Clearly, the agency's search for-and discovery of--the requested A-file in the database where A-files are
30
Id. at 4-5 ("NRC conducted a general search for records in the USCIS system of
records referred to as the Department of Homeland Security U.S. Citizenship and
Immigration Services, Immigrations and Customs Enforcement, Customs and Border
Protection - 001 Alien File, Index, and National File Tracking System of Records. . . .").
31
Id. at 5.
32
Id.
33
Plaintiff argues that Eggleston's declaration fails to aver that USCIS searched all
files likely to contain relevant documents. See 19-2 at 14. But paragraph eleven plainly
states: "USCIS/NRC personnel determined that the search was reasonably designed to
locate any responsive documents subject to the FOIA that are in the USCIS's control."
R. Doc. 9-1 at 5. Plaintiff's argument is therefore without merit.
14
maintained demonstrates that its methods were "reasonably expected to
produce the information requested." Batton, 598 F.3d at 176.
In addition to the A-file, plaintiff requested electronic and
handwritten notes concerning various applications and petitions relating to
his client.
He also requested "any emails sent to, or sent from, any
government employee working at the USCIS New Orleans Field Office" that
mention his client's name or identification number.34 USCIS describes its
search for these items in Eggleston's supplemental declaration, dated
October 5, 2015. Eggleston states that a District Director, the Director for
the New Orleans Field Office, and New Orleans counsel received search
taskings in connection with plaintiff's FOIA request and that the Field
Office determined that five individuals "may have responsive records."35
Eggleston provides each person's name and describes where each one
searched for responsive records, which search terms they used, and how
many pages of documents they discovered.36 For example, Eggleston states:
"one page of responsive records . . . [was] located in Mr. Wormser's e-mail
archives and desktop computer [by] searching [plaintiff's client's] name and
34
R. Doc. 1 at 7.
35
R. Doc. 18-3 at 2.
36
Id. at 2-3.
15
a-number."37
Finally, Eggleston states that USCIS and NRC personnel
determined that the search was reasonably designed to locate any and all
responsive documents subject to FOIA that are within USCIS's control.38
These statements establish the lawfulness of USCIS's search for notes
and emails. USCIS describes each step that the New Orleans Field Office
took to locate responsive documents.
It also names every individual
involved in the search and specifically describes each person's search
methods, including the locations searched and the search terms used.
Contrary to plaintiff's assertion, this description is neither vague nor
conclusory. It contains specific details about who searched for records and
how they approached the task, thereby permitting the Court to evaluate the
adequacy of USCIS's efforts. See Oglesby, 920 F.2d at 68 (concluding that
an affidavit "setting forth the search terms and the type of search
performed, and averring that all files likely to contain responsive materials .
. . were searched" is sufficient to allow a court to determine if the agency's
search was adequate); Gahagan, 2015 WL 5321749, at *5 (holding that
agency declarations that describe "the places searched, the persons
37
Id. at 2. Eggleston provides similar information with respect to the other four
individuals identified as possibly having documents responsive to plaintiff's request.
38
Id. at 3.
16
conducting the searches, and the search terms employed" establish a legally
adequate search). Based on USCIS's description and its averment that its
"search was reasonably designed to locate any and all responsive
documents," the Court finds that USCIS conducted an adequate search for
the notes and emails described in plaintiff's FOIA request.
Plaintiff faults USCIS for failing to explain why it limited its search to
the personnel, databases, and files identified in Eggleston's amended
declaration. Citing cases from the District of Columbia, plaintiff argues that
USCIS is required to explain why it searched for responsive records in some
locations but not in others.39 This argument fails for two reasons. First, the
District of Columbia cases upon which plaintiff relies are not binding on
this Court, and plaintiff cites no Fifth Circuit authority holding that an
agency must explain why it declined to take particular steps in conducting
its FOIA-mandated search. Indeed, the Fifth Circuit has held that "[t]here
is no requirement that an agency search every record system," Batton, 598
F.3d at 176, suggesting that an agency's declarant need not identify every
path not taken in order to demonstrate the adequacy of its search.
39
R. Doc. 19-2 at 10-14.
17
Second, Eggelston's amended declaration
closely
resembles
declarations that the Fifth Circuit deemed sufficient in Batton v. Evers.
There, the responding agency submitted two declarations. Id. One stated
that the office searched "internal databases and systems of record"; the
other listed "the particular databases that were searched" and explained
that "these databases contain the type of information requested by
[plaintiff]." Id. The Fifth Circuit held that these declarations sufficed to
prove that the agency performed a lawful search. Id. Like the Batton
declarations, Eggleston's amended declaration identifies specific locations
in which information of the type that plaintiff requested could be located. It
also provides the name of each person whose files were searched and
provides the exact terms that were used to search each person's email
accounts, computer files, and other record systems.
The amended
declaration is therefore sufficient under Fifth Circuit precedent.
For these reasons, the Court finds that USCIS has conducted a lawful
search, using "methods which can be reasonably expected to produce the
information requested" in plaintiff's FOIA request. Id. Insofar as plaintiff's
motion for summary judgment seeks to compel USCIS to complete a more
extensive search, the motion is denied. The Court grants USCIS's motion
for summary judgment with respect to the adequacy of its search efforts.
18
C.
USCIS's Referral of Responsive Documents to the
Department of State
The Court now considers whether USCIS improperly referred four
pages of responsive records to the U.S. Department of State.
Plaintiff
submits to the Court four completely redacted pages of documents that he
received from USCIS, each of which bears the notation, "Referred to U.S.
Department of State."40 Plaintiff argues that it is unlawful under FOIA to
refer responsive agency records to another agency for longer than 20 days.41
USCIS admits that it referred four pages of responsive documents to the
Department of State, rather than releasing them to plaintiff, but contends
that the referral is lawful under the circumstances of this case.42
It axiomatic that "[i]f an agency receives a FOIA request for
documents within its possession, the agency is responsible for processing
the request and cannot simply refuse to act on the ground that the
documents originated elsewhere."
Unrow Human Rights Impact Litig.
Clinic v. U.S. Dep't of State, No. 13-CV-1573 (KBJ), 2015 WL 5730606, at
*11 (D.D.C. Sept. 29, 2015) (quoting Keys v. Dep't of Homeland Sec., 570 F.
40
R. Doc. 12-1 at 4-7 (Exhibit One to Reply Brief in Support of Plaintiff's Motion for
Summary Judgment).
41
R. Doc. 12 at 10.
42
R. Doc. 18-1 at 9-10.
19
Supp. 2d 59, 66 (D.D.C. 2008).
Although the Fifth Circuit has not
addressed the issue, the D.C. Circuit has held that "an agency may adopt
procedures by which documents in the agency's possession, but which did
not originate with the agency, may be referred to the originating agency for
processing." Keys, 570 F. Supp. 2d at 66-67 (citing McGehee v. CIA, 697
F.2d 1095, 1110 (D.C. Cir. 1983)). The lawfulness of an agency's referral
procedure is "best determined on the basis of [its] consequences."
McGehee, 697 at 1110. A referral system constitutes a "withholding" under
FOIA "if its net effect is significantly to impair the requester's ability to
obtain the records or significantly to increase the amount of time he must
wait to obtain them." Id. A withholding of this sort "will be deemed
improper unless the agency can offer a reasonable explanation for its
procedure." Id. The Court finds the D.C. Circuit's analysis persuasive and
adopts it here. Because plaintiff's only argument in favor of summary
judgment is that referral of documents responsive to a FOIA request is per
se unlawful,43 plaintiff's motion is denied with respect to referral.
Under the standards articulated by the D.C. Circuit, USCIS's motion
for summary judgment fails as well. To demonstrate its entitlement to
43
R. Doc. 12 at 10 ("FOIA simply does not allow an agency to withhold agency
records for more than 20 working days, via a so-called 'referral' or for any other
reason.").
20
judgment as a matter of law, USCIS must show that it has complied fully
with its FOIA obligations. USCIS first argues that because it referred only
four out of 592 responsive pages of documents in its possession, its referral
does not constitute an improper withholding.44 The page count, however, is
not dispositive. USCIS is not absolved of its FOIA obligation with respect to
records that originated with the Department of State merely because it
happens to have many internally-produced documents on hand as well.
Instead, the issue is whether USCIS's referral procedure significantly delays
or impairs plaintiff's ability to obtain those records that were referred
instead of released. Id.
USCIS next contends that inter-agency referrals are "quite common"
and that in past cases in which USCIS has acquitted itself of a FOIA request
by referral, the referred-to agency has processed and released the records in
a timely manner.45 This argument is also unavailing. Each case stands on
its own facts, and, as the party moving for summary judgment, USCIS bears
the burden of showing that its referral procedure is "reasonable under the
circumstances." Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1118 (D.C.
Cir. 2007) (citing McGehee, 697 F.2d at 1110). Here, USCIS informed
44
R. Doc. 18-1 at 9-10.
45
Id.
21
plaintiff that it had referred four pages of documents to the Department of
State on July 31, 2015. Plaintiff contends that those documents had not
been processed as of October 25, 2015. USCIS has not explained, in light of
these circumstances, why its referral will not significantly delay plaintiff's
FOIA request or impair his ability to obtain responsive agency records.
Therefore, the Court denies USCIS's motion for summary judgment with
respect to documents that it referred to the Department of State.
D.
The Vaughn Index
Next, the Court considers the adequacy of USCIS's Vaughn indexes.
A Vaughn index, named for Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973), 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)). An adequate
Vaughn index must provide a "detailed justification" for each of the
agency's claimed exemptions to disclosure. Stephenson v. I.R.S., 629 F.2d
1140, 1145 (5th Cir. 1980). While resort to a Vaughn index is discretionary,
a district court "abuses its discretion by refusing to order a Vaughn index or
similar procedure when it relies 'upon agency affidavit in an investigative
context when alternative procedures . . . would more fully provide an
22
accurate basis for decision.'" Batton, 598 F.3d at 178 (quoting Stephenson,
629 F.2d at 1145-46).
USCIS has produced two Vaughn indexes in connection with this
case--an initial index, dated August 20, 2015, and an October 5, 2015
supplemental index.
Together, these documents describe 51 pages of
documents that USCIS wholly or partially withheld and explains why each
document was not produced. USCIS contends that its indexes conclusively
demonstrate the lawfulness of each withholding.46 Plaintiff argues that the
Vaughn indexes are deficient in several respects.
In his opposition to
USCIS's motion for summary judgment, plaintiff identifies five specific
defects in USCIS's indexes and argues that USCIS should be required to
provide more information on its decision to withhold certain documents.47
For reasons that follow, the Court concludes that four of plaintiff's
arguments have merit. Therefore, USCIS's motion for summary judgment
is denied with respect to the withholdings identified below.
Within
fourteen (14) days of the entry of this Order, USCIS must file a new Vaughn
46
Id. at 7-8.
47
R. Doc. 19-2 at 20-21.
23
index that remedies the deficiencies identified in this section of the Court's
Order.48
1.
FOIA Processing Notes
First, plaintiff contends that USCIS fails to adequately explain its
reason for withholding portions of several emails responsive to his
request.49
This argument is factually incorrect.
USCIS's supplemental
Vaughn index contains entries for each of the emails in question.50 Each
entry explains that the "redacted portion" or the "redaction in [the] upper
right corner" is a "note made in FOIA processing and is not responsive to
the Plaintiff's request."51
Plaintiff does not challenge USCIS's
characterization of any of these documents; nor does he argue that the
agency's FOIA processing notes are, in fact, responsive. Instead, plaintiff
appears to argue that USCIS's explanation is per se inadequate because it
does not cite any of the nine statutory exemptions to disclosure under
48
USCIS filed its two Vaughn indexes after plaintiff moved for summary judgment.
Thus, to the extent that plaintiff's motion sought an order compelling the agency to
produce an index explaining its withholdings, the motion is denied as moot.
49
R. Doc. 19-2 at 21 ("In addition, USCIS is unlawfully withholding information on
the tops of responsive agency records numbered 11, 15, 17, 21-23, 25, 28, and 31 without
citing a lawful FOIA exemption.").
50
R. Doc. 18-3 at 2-9 (supplemental Vaughn index entries 2-9).
51
Id.
24
FOIA.
This argument fails.
Because "an agency has no obligation to
produce information that is not responsive to a FOIA request," Menifee v.
U.S. Dep't of the Interior, 931 F. Supp. 2d 149, 167 (D.D.C. 2013), USCIS's
explanation that the redacted notations are non-responsive suffices to
justify its decision not to produce that information. Thus, USCIS lawfully
withheld the FOIA processing notes from the documents listed in entries
two through nine of the supplemental Vaughn index.
2.
Responsive Agency Record #572
Next, plaintiff contends that USCIS's Vaughn indexes fail to explain
USCIS's withholding of portions of "responsive agency record #572," a
partially redacted document which he files as Exhibit Four to his opposition
to USCIS's motion for summary judgment.52 Neither USCIS's original nor
its supplemental Vaughn index refer to this document, much less provide a
"detailed justification" for USCIS's decision to partially withhold its
contents.
Stephenson, 629 F.2d at 1145.
Because the Court cannot
determine why USCIS believes this document is partially protected from
disclosure, the agency has failed to demonstrate that it has complied fully
52
R. Doc. 19-2, 20; see R. Doc. 19-3 (Exhibit Four to Plaintiff's Opposition to
USCIS's Motion for Summary Judgment).
25
with FOIA's mandate. USCIS must submit a new Vaughn declaration that
addresses this defect.
3.
Responsive Agency Record #334
Plaintiff also challenges the adequacy of USCIS's explanation for its
decision to withhold portions of "responsive agency record #334."53 That
document, which plaintiff files as Exhibit Four to his opposition to USCIS's
motion for summary judgment, contains four redactions.54 Beside the first
and third redaction, USCIS identifies the statutory exemption that is claims
for the withholding. No such markings appear beside redactions two and
four, which prevents the Court from determining USCIS's alleged basis for
withholding that information.
USCIS's Vaughn index does not clarify
matters. Although that document explains that "the information redacted
from this document under (b)(7)(E) reflects the manner in which USCIS
conducts background checks,"55 it does not indicate whether redactions two
and four fall within that category of "information." USCIS must provide
more explanation for its decision to partially withhold this document's
contents.
53
R. Doc. 19-2 at 21.
54
R. Doc. 19-3.
55
R. Doc. 9-1 at 18.
26
4.
FOIA Exemption Five
In addition, plaintiff challenges the applicability of FOIA exemption
five to two pages of documents,56 which entry number five of USCIS's
supplemental Vaughn index describes as a "2 page email chain, dated
March 26, 2015, from Cindy N. Gomez, Subject: RE: [plaintiff's client's] I751 mandamus lawsuit."57 FOIA exemption five protects from disclosure
"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). "To qualify, a document must thus satisfy
two conditions: its source must be a Government agency, and it must fall
within the ambit of a privilege against discovery under judicial standards
that would govern litigation against the agency that holds it." Dep't of
Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001).
The Fifth Circuit has interpreted exemption five to encompass the
attorney-client privilege, the attorney work product privilege, and the
deliberative process privilege. Shermco Indus., Inc. v. Sec'y of the Air
Force, 613 F.2d 1314, 1318 (5th Cir. 1980).
56
R. Doc. 19-2 at 24-25.
57
R. Doc. 18-3 at 6 (Supplemental Vaughn Index entry 5).
27
USCIS's supplemental Vaughn index states that the email chain is
protected from disclosure under both the attorney-client privilege and the
deliberative process privilege.58
The index, however, does not contain
enough information to permit the Court to determine whether either
privilege applies. In the context of a FOIA request, "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,
796 F. Supp. 2d 13, 33 (D.D.C. 2011) (citing In re Lindsey, 148 F.3d 1100,
1105 (D.C.Cir. 1998)). To invoke the privilege, the agency "must show that
the withheld document (1) involves confidential communications between
an attorney and [the agency] and (2) relates to a legal matter for which the
[agency] has sought professional advice." Id. (quoting Wilderness Soc'y v.
U.S. Dep't of the Interior, 344 F.Supp.2d 1, 16 (D.D.C. 2004)). Here, the
supplemental Vaughn index explains the agency's assertion of the attorneyclient privilege as follows: "This email provides internal discussion between
USCIS counsel to USCIS personnel on litigation against the agency."59
Plaintiff contends, however, that neither of the individuals that the
supplemental Vaughn index names as participants in the email chain are
58
Id. at 6-7.
59
Id. at 7.
28
attorneys. USCIS does not dispute this assertion. Nor does it explain why
it characterizes an email chain between two non-attorneys as involving a
"discussion between USCIS counsel to USCIS personnel." Without further
explanation, the Court cannot evaluate whether USCIS's assertion of the
attorney-client privilege is lawful.
USCIS's deliberative process privilege explanation fails as well. The
purpose of the deliberative process privilege is to enhance the quality of
agency decisions by assuring individuals "who offer information and
opinions to the Government that their communications will be kept in
confidence." Shermco, 613 F.2d at 1318. For the privilege to apply, a
document must be both "predecisional" and "deliberative."
Rosen, 523 F.2d 1136, 1144-44 (D.C. Cir. 1975).
Vaughn v.
A document is
"predecisional" if it was generated before the adoption of an agency policy.
Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir.
1980); see also Shermco, 613 F.2d at 1319. It is "deliberative" if it "it
reflects the give-and-take of the consultative process." Judicial Watch, Inc.
v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (quoting Coastal
States, 617 F.2d at 866). In other words, the document must be such that
public disclosure "would expose an agency's decisionmaking process in
such a way as to discourage candid discussion within the agency and
29
thereby undermine the agency's ability to perform its functions." Dudman
Commc'ns Corp. v. Dep't of Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987).
The burden is on the agency to "establish[] what deliberative process is
involved, and the role played by the documents in issue in the course of that
process." Coastal States, 617 F.2d at 868. Conclusory assertions that
merely parrot the legal test do not suffice.
Senate of the Com. of Puerto
Rico on Behalf of Judiciary Comm. v. U.S. Dep't of Justice, 823 F.2d 574,
585 (D.C. Cir. 1987).
Through its amended Vaughn index, USCIS claims that the email
chain contains "internal Agency discussion points concerning a litigation
matter."60 It further explains that "[t]he information redacted from this email chain raises issues as to internal Agency discussions relating to
possible litigation issues. . . . Public disclosure of this document would chill
open communication between agency personnel."61
While USCIS's
reference to "potential" litigation matters demonstrates that the email chain
is predecisional, its description of its deliberative process is too vague to
justify the agency's claim to exemption five protection. See Mead Data
Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 257 (D.C. Cir. 1977)
60
Id.
61
Id.
30
(noting that "[p]redecisional materials are not exempt merely because they
are predecisional"). For instance, the supplemental Vaughn index does not
provide any details about the type of information that the document
contains or how the redacted discussion contributed to the agency's
deliberations on litigation strategy. See Hall v. U.S. Dep't of Justice, 552 F.
Supp. 2d 23, 29 (D.D.C. 2008) (concluding that agency's justification for
withholding portions of email was insufficient when agency failed to
describe the role that the email played in the agency's deliberations).
Moreover, the index's assertion that disclosure of the withheld information
"would chill open communication" is conclusory and lacks factual support.
Thus, the supplemental Vaughn index fails to demonstrate that the
deliberative process privilege applies.
Upon reviewing USCIS's Vaughn indexes, the Court finds that two of
the agency's other exemption explanations are inadequate for a similar
reason. Entries three and nine of the supplemental Vaughn index give
vague and conclusory explanations for USCIS's decision to withhold
information responsive to plaintiff's FOIA request. With respect to each of
these documents, USCIS shall produce a new Vaughn index that provides a
more detailed justification for the agency's claimed FOIA exemption.
31
5.
Segregability Analysis
Finally, plaintiff challenges the adequacy of USCIS's segregability
analysis, as explained in the agency's Vaughn indexes and its declarations.
FOIA requires that "[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of the portions
which are exempt."
5 U.S.C. ' 552(b).
Accordingly, once an agency
identifies a document that it believes qualifies for a FOIA exemption, "it
must undertake a segregability analysis, in which it separates the exempt
from the non-exempt portions of the document, and produces the relevant
non-exempt information." Edmonds Inst. v. U.S. Dep't of Interior, 383 F.
Supp. 2d 105, 108 (D.D.C. 2005) (citing Vaughn, 484 F.2d at 825). To
prevail in a motion for summary judgment, the agency must demonstrate
that it has satisfied its segregability analysis obligation, which it may do by
using its Vaughn index in conjunction with an agency declaration. See e.g.,
Peter S. Herrick's Customs & Int'l Trade Newsletter v. U.S. Customs &
Border Protection, No. CIV.A. 04-003777 JDB, 2005 WL 3274073, at *3
(D.D.C. Sept.22, 2005). Under Fifth Circuit law, "[i]t is error for a district
court to simply approve the withholding of an entire document without
entering a finding on segregability, or the lack thereof." Batton, 598 F.3d at
178 (citing Schiller v. NLRB, 964 F.2d 1205, 1210 (D.C.Cir. 1992)).
32
Here, USCIS has withheld two documents62 in their entirety,
indicating that it believes that neither document is subject to reasonable
efforts to separate exempt from non-exempt information.
Plaintiff
challenges this conclusion with respect to both documents, arguing that
USCIS has failed to prove that it conducted an adequate segregability
review. The first document is described in entry 19 of the Vaughn index as
a "1 page memorandum from the New Orleans Field Office to the Acting
Director."
The second is a three-page document, which supplemental
Vaughn index entry one describes as a "draft decision memorandum
prepared by USCIS personnel for review by Agency decision makers." The
Court finds that while USCIS has failed to carry its segregability burden
with respect to the first document, it has met its statutory obligation with
respect to the second.
As noted, USCIS has produced two declarations in connection with
this litigation. Both contain an identical, one-sentence explanation of the
agency's segregability analysis: "It has been determined that no further
segregation of meaningful information in the withheld documents is
62
Despite plaintiff's argument to the contrary, the four pages of documents that
USCIS referred to the Department of State were not "withheld." Rather, they were
referred to the Department of State for further processing. While USCIS is required to
provide additional information concerning its referral noted in Section III.C above, it
need not necessarily incorporate that information into its Vaughn index.
33
possible without disclosing information that warrants protection under the
law."63
Because that statement is generalized and conclusory, the
declarations alone do not prove that USCIS's analysis was adequate. See
Animal Legal Def. Fund, Inc. v. Dep't of Air Force, 44 F. Supp. 2d 295, 301
(D.D.C. 1999) (finding that an agency's declaration was "patently
insufficient" when it merely parroted FOIA's statutory language). Thus, the
Court turns to the relevant Vaughn index entries to determine whether
USCIS has provided facts to support its non-segregability determination.
With respect to the first document, USCIS explains its withholding
decision in entry 19 of its original Vaughn index, which states: "the portion
of this document withheld as deliberative is comprised of predecisional case
specific information reelecting the thought process of Agency Officers."64
That the agency describes a "portion" of the document as being exempt
suggests that other portions might not contain protected information. The
index does not indicate whether USCIS considered this possibility. Nor
does it provide any explanation for the agency's conclusion that the
document must be withheld in full, rather than being partially disclosed.
Therefore, USCIS's segregability analysis is deficient with respect to the
63
R. Doc. 9-1 at 6; R. Doc. 18-3 at 3.
64
R. Doc. 9-1 at 14.
34
document described in Vaughn index entry 19. The Court orders USCIS to
produce a new Vaughn index that more fully explains its non-segregability
determination.
By contrast, entry 1 of the supplemental Vaughn index contains
enough detail to support USCIS's decision to withhold the three-page "draft
decision memorandum" in its entirety.
The index entry invokes the
deliberative process privilege, explaining that the document "is comprised
of a predecisional memorandum reflecting the recommendations and
thought processes of Agency Officers."65 In addition, the entry specifically
describes the deliberations at issue: "The matter discussed relates [to] a
decision on [plaintiff's client's] immigration benefit."66 It also explains the
memorandum's role in USCIS's deliberation process, noting that the
memorandum contains "proposed language to be used to notify an
immigrant of an Agency decision."67 The Court finds that this detailed
Vaughn index entry, combined with USCIS's declaration that no further
segregation is possible, demonstrate that the document in question is not
segregable.
See Peter S. Herrick's, 2005 WL 3274073, at *3 ("[T]he
65
R. Doc. 18-3 at 4-5.
66
Id.
67
Id.
35
combination of a comprehensive, reasonably-detailed Vaughn index and an
affidavit confirming that a line-by-line review of each document determined
that no redacted information could be disclosed will satisfy the agency's
obligation.").
Thus, USCIS has lawfully withheld in full the document
described in entry one of the supplemental Vaughn index.
IV.
CONCLUSION
For the foregoing reasons, the Court DENIES plaintiff's motion for
summary judgment and GRANTS IN PART AND DENIES IN PART
USCIS's motion for summary judgment. USCIS is entitled to judgment as a
matter of law with respect to the adequacy of its search. But USCIS has
failed to carry its burden of demonstrating full FOIA compliance with
respect to (1) its referral to the Department of State of four pages of agency
records that are responsive to plaintiff's FOIA request and (2) its
withholding of certain documents in, in whole or in part, as discussed more
fully in Section III.D of the Court's Order.
36
IT IS ORDERED that within fourteen (14) days of the entry of this
Order, USCIS shall produce a new Vaughn index that remedies the
deficiencies identified in Section III.D of the Court's Order.
2nd
New Orleans, Louisiana, this ___ day of December, 2015.
_____________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
37
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