Gahagan v. United States Citizenship & Immigration Services

Filing 53

ORDER AND REASONS granting 50 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 8/8/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL GAHAGAN

CIVIL ACTION

VERSUS

NO. 15-2540

UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES

SECTION “R” (3)

ORDER AND REASONS
Before the Court is the United States Citizenship and Immigration
Service’s (“USCIS”) motion for summary judgment. 1

For the following

reasons, the Court grants USCIS’s motion.

I.

BACKGROUND
This Freedom of Information Act (“FOIA”) case involves a dispute

between plaintiff Michael Gahagan, an immigration attorney, and USCIS,
regarding plaintiff’s request for agency records concerning his client. The
Court has previously ruled on cross-motions for summary judgment, and the
facts of this case are set forth more fully in the Court’s December 2, 2015
order and July 26, 2016 order. 2 As relevant here, on July 26, 2016, the Court
granted in part and denied in part USCIS’s second motion for summary

1
2

R. Doc. 50.
R. Doc. 20; R. Doc. 36.

judgment. The Court found that USCIS was entitled to judgment as a matter
of law with respect to: (1) USCIS’s referral to the Department of State of four
pages of agency records responsive to plaintiff’s FOIA request, and (2)
USCIS’s non-disclosure of four additional pages of agency records identified
in the agency’s Vaughn index and supplemental Vaughn index as Records
#21, #22, #334, and #572. But USCIS failed to show full FOIA compliance
with respect to its non-disclosure of Records #15, #16, #31, and #32.3 The
Court ordered USCIS either to fully disclose Records #15, #16, #31, and #32
to plaintiff or produce a new Vaughn index more fully explaining its decision
to withhold portions of each of the four documents. 4
On August 9, 2016, USCIS filed a revised Vaughn index and a
declaration by Brian J. Welsh, the Deputy Chief of the FOIA Program Branch
for USCIS within the Department of Homeland Security.5 USCIS also filed a
motion asking the Court to deem its supplemental filings sufficient to satisfy
the Court’s July 26, 2016 order.6 USCIS’s revised filings reviewed the
agency’s processing of plaintiff’s FOIA request and more fully explained the
relationship between the redacted materials and the privileges asserted. 7

3
4
5
6
7

R. Doc. 36 at 15.
Id. at 16.
R. Doc. 37-1.
See R. Doc. 37 at 1.
Id.
2

Specifically, USCIS stated that Records #15, #16, #31, and #32 are lawfully
withheld under FOIA exemption five because they fall within the attorneyclient privilege and the deliberative process privilege.8
Plaintiff challenged USCIS’s supplemental filings, arguing that USCIS
did not adequately conduct a segregability analysis of Records #15, #16, #31,
and #32, and that USCIS made conclusory statements for the entries in the
revised Vaughn index.9

Additionally, plaintiff moved to strike Welsh’s

supplemental declaration for lack of personal knowledge. 10 On December 12,
2016, the Court granted plaintiff’s motion to strike and ordered USCIS to
submit a new supplemental declaration. 11
On January 11, 2017, USCIS submitted a revised supplemental
declaration.12 On May 10, 2017, USCIS filed a third motion for summary
judgment, arguing that it has discharged its FOIA obligations and is
therefore entitled to summary judgment. 13 Plaintiff argues that summary
judgment is improper because USCIS has still failed to meet its FOIA burden
of proof concerning the redactions of Records #15, #16, #31, and #32. 14

8
9
10
11
12
13
14

Id. at 4-9.
R. Doc. 38.
R. Doc. 39.
R. Doc. 44.
R. Doc. 45-1.
R. Doc. 50 at 1.
R. Doc. 51-1 at 4.
3

II.

LEGAL 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 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).
4

III. DISCUSSION
A.

Records #15, #16, #31, and #32

USCIS continues to withhold Records #15, #16, #31, and #32 under
FOIA exemption five, and it submits a revised Vaughn index explaining its
decision. 15 Exemption five protects from disclosure “inter-agency or intraagency 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). “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 the Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1, 8 (2001). Exemption five encompasses the
attorney-client privilege, the attorney work product privilege, and the
deliberative process privilege. See Shermco Indus., Inc. v. Sec’y of the Air
Force, 613 F.2d 1314, 1318 (5th Cir. 1980).
USCIS contends that Records #15, #16, #31, and #32, which are email
chains between agency employees, are protected from disclosure under both
the attorney-client privilege and the deliberative process privilege. The
Court addresses the attorney-client privilege first.

15

R. Doc. 45-1 at 4-9.
5

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 the 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)).
The agency’s revised Vaughn index carries this burden. The relevant
index entries explain that the redacted portions of Records #15, #16, #31,
and #32 consist of discussions between USCIS attorney Amisha Sharma and
non-attorney personnel concerning the filing of a Mandamus action in
federal court. 16 Importantly, the entries elaborate on this claim by providing
the source and recipient of the communications, as well as a description of
the matters discussed. See Ctr. For Medicare Advocacy, Inc. v. U.S. Dep’t of
Health & Human Servs., 577 F. Supp. 2d 221, 238 (D.D.C. 2008) (explaining
that identification of the parties to the communications “is critical to the
Court’s assessment of whether the communications are between an attorney

16

Id.
6

and a client”). Specifically, the entries state that the redacted information
includes USCIS attorney’s “brief notification of the filing of a Mandamus
action in Federal court to field office personnel, and requesting initial Agency
action to be taken necessary for consultation with the Assistant United States
Attorney.”17 Additionally, the redacted records contain “information from
Filed [sic] Counsel to field office personnel, and a brief summary of a
discussion . . . on an immigration case as related to the Mandamus suit.”18
USCIS’s detailed index entries show that the redacted portions of Records
#15, #16, #31, and #32 involve confidential communications between USCIS
and its counsel, and also explain the connection between those
communications and a litigation matter.

Thus, USCIS has adequately

explained its conclusion that the withheld portions of Records #15, #16, #31,
and #32 fall within exemption five, specifically under the attorney-client
privilege.
Additionally, USCIS contends that Records #15, #16, #31, and #32 are
protected from disclosure under the deliberative process privilege. The
purpose of the deliberative process privilege is to enhance the quality of
agency decisions by assuring individuals “who offer information and

17
18

Id. at 6, 9.
Id.
7

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.”

Vaughn v.

Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). 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 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 thereby undermine the agency’s
ability to perform its functions.” Dudman Commc’ns Corp. v. Dep’t of the
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 language of the
exemption do not suffice. Senate of the Commonwealth of Puerto Rico on
Behalf of Judiciary Comm. v. U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C.
Cir. 1987) (citing Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d
8

242, 258 (D.C. Cir. 1977) (noting that the government must show “by specific
and detailed proof that disclosure would defeat, rather than further, the
purposes of the FOIA”)).
Through its amended Vaughn index, USCIS claims that the email
chains contain information reflecting “USCIS staff internal deliberations
relating to a lawsuit filed against the Agency.” 19 It further explains that the
redacted information is predecisional because it is “meant to foster
discussion among agency personnel in order to begin discussions both with
Agency counsel, and Agency personnel in defending the lawsuit.”20 USCIS
asserts that “[t]he redaction[s] of [these] document[s] further[] the goal of
fostering frank internal discussion on Agency matters,” specifically
“defending itself against the lawsuit,” and that “concerns about the public
dissemination of this material may temper candor with a concern for public
appearance.”21 With this newly provided information, USCIS’s Vaughn
index no longer fails for lack of specificity. USCIS’s detailed index entries
show that the redacted portions of Records #15, #16, #31, and #32 involve
initial discussions between USCIS counsel and agency personnel related to
defending a lawsuit. The revised Vaughn index also explains the connection

19
20
21

Id. at 5, 8.
Id.
Id.
9

between those communications and concerns for candid decisionmaking
discussions regarding agency functions. Thus, in addition to the attorneyclient privilege, USCIS has adequately explained that the withheld portions
of Records #15, #16, #31, and #32 also fall under the deliberative process
privilege.
B.

Segregability Analysis

Finally, 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 the 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
through 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. 04-377, 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
10

approve the withholding of an entire document without entering a finding on
segregability, or the lack thereof.” Batton v. Evers, 598 F.3d 169, 178 (5th
Cir. 2010) (citing Schiller v. NLRB, 964 F.2d 1205, 1210 (D.C. Cir. 1992)).
Here, USCIS partially withheld portions of Records #15, #16, #31, and
#32.

Plaintiff argues that USCIS is withholding segregable nonexempt

information and has not conducted an adequate segregability analysis as
mandated by FOIA. 22 As stated above, the records are part of two email
chains from an Immigration Services Officer to USCIS Counsel regarding a
Mandamus lawsuit. 23 USCIS produced a declaration in connection with this
litigation, explaining the agency’s segregability analysis:
In processing the [FOIA] request, the NRC reviewed all
documents it has received for purposes of determining which
documents were responsive to the request and those which were
not responsive to the request. The NRC then reviewed each of
the responsive documents it has received, and determined which
information was or is exempt from disclosure pursuant to the
FOIA exemptions set forth at 5 USC § 552(b). In making this
determination, the NRC considered whether any information
could be segregated and released. 24
Because that statement is generalized, the declaration alone does not prove
that USCIS’s analysis was adequate. See Perry-Torres v. U.S. Dep’t of State,
404 F. Supp. 2d 140, 145 (D.D.C. 2005) (rejecting the agency’s “conclusory”

22
23
24

R. Doc. 38-2 at 6.
R. Doc. 45-1 at 4, 7.
Id. at 2.
11

declaration that the agency performed segregation analysis and noted that
“the explanation must include a specific finding for each document
withheld”); Animal Legal Def. Fund, Inc. v. Dep’t of the Air Force, 44 F.
Supp. 2d 295, 302 (D.D.C. 1999) (“[T]he Defendant shall not offer one
[segregability] finding for all documents.”) (emphasis in original). Thus, the
Court turns to the relevant Vaughn index entries to determine whether
USCIS has provided facts to support its segregability determination.
Entries for Records #15, #16, #31, and #32 in the revised Vaughn index
contain enough detail to support USCIS’s decision to partially withhold the
redacted email chains. The index entries invoke the deliberative process
privilege, explaining that the email chains partially withheld are
“interagency, predecisional, and deliberative document[s] inasmuch as
[they] reflect[] USCIS staff internal deliberations relating to a lawsuit filed
against the Agency.” 25 In addition, the entries specifically describe the
deliberations at issue as interagency communications meant to “begin
discussions . . . in defending the lawsuit.” 26 USCIS also explains that the
redactions further “the goal of fostering frank internal discussion on Agency
matters,” which may be tempered by public dissemination and concern for

25
26

Id. at 5, 8.
Id.
12

public appearance.27 The Court finds that these detailed Vaughn index
entries, combined with USCIS’s declaration that a segregation analysis was
conducted, demonstrate that the documents in question are not further
segregable. See Peter S. Herrick’s, 2005 WL 3274073, at *3 (finding that the
combination of a comprehensive Vaughn index and an affidavit confirming
the agency segregability analysis satisfied the agency’s obligation). Thus,
USCIS has lawfully withheld portions of Records #15, #16, #31, and #32 of
the revised Vaughn index.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS USCIS’s motion for

summary judgment.

8th
New Orleans, Louisiana, this _____ day of August, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

27

Id.
13