Hamama et al v. Adducci

Filing 295

ORDER Regarding Respondents' Privilege Memorandum (Dkt. 264 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

USAMA J. HAMAMA, et al.,
Petitioners,

Case No. 17-cv-11910
HON. MARK A. GOLDSMITH

vs.
REBECCA ADDUCCI, et al.,
Respondents.
_______________________________/

ORDER REGARDING RESPONDENTS’ PRIVILEGE MEMORANDUM (Dkt. 264)
In the Court’s March 13, 2018 Order, the Court ordered the Government to file a
memorandum supporting its privilege assertions and other grounds for withholding information
responsive to Petitioners’ interrogatories. See 3/13/2018 Order at 9 (Dkt. 254). The Government
has filed its privilege memorandum (Dkt. 264); Petitioners filed their response to the memorandum
(Dkt. 269), to which the Government filed a reply (Dkt. 277). Petitioners have since filed a
supplemental memorandum (Dkt. 293). For the reasons stated below, the Court overrules the
Government’s assertion of the law enforcement privilege in response to Petitioners’ Interrogatory
12.
I. ANALYSIS
In its privilege memorandum, the Government states that the Department of Homeland
Security (“DHS”), and its Immigration and Customs Enforcement division (“ICE”), assert the law
enforcement privilege with respect to a portion of their responses to Interrogatory 12. The
pertinent portion of this interrogatory asks to identify “the name, title, and department of the
government (for both Iraq and the United States) of each individual negotiating the Iraqi
Agreement, including the ‘ongoing diplomatic negotiations’ referenced in the declaration of
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Michael V. Bernacke . . . identification of the individuals authorized to enter into any agreement
reached by the governments regarding the repatriation of Iraqi Nationals, and the date each
individual engaged in the ‘ongoing diplomatic negotiations.’”
The Government provides the declaration of an ICE officer and a DHS undersecretary in
support of the privilege assertion. They assert that disclosure of these negotiators would chill
future negotiations and expose the negotiators to possible harassment or coercive questioning. In
response, Petitioners argue that the requested information does not fall within the scope of the law
enforcement privilege, and that even if it does, a balancing of the relevant factors tips in favor of
disclosure.
“The federal law enforcement privilege is ‘a qualified privilege designed to prevent
disclosure of information that would be contrary to the public interest in the effective functioning
of law enforcement.’” In re Packaged Ice Antitrust Litig., No. 08-01952, 2011 WL 1790189, at
*6 (E.D. Mich. May 10, 2011) (quoting In re Micron Tech., Inc. Sec. Litig., 264 F.R.D. 7, 10
(D.D.C. 2010)). “The purpose of the law enforcement privilege is to prevent disclosure of law
enforcement techniques and procedures, to preserve the confidentiality of sources, to protect
witness and law enforcement personnel, to safeguard the privacy of individuals involved in an
investigation, and otherwise to prevent interference with an investigation.” MacNamara v. City of
New York, 249 F.R.D. 70, 78 (S.D.N.Y. 2008) (internal citations and quotations omitted).
Three requirements must be met by the Government to prevail on its claim of privilege:
“(1) there must be a formal claim of privilege by the head of the department having control over
the requested information; (2) assertion of the privilege must be based on actual personal
consideration by that official; and (3) the information for which the privilege is claimed must be

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specified, with an explanation why it properly falls within the scope of the privilege.” In re Sealed
Case, 856 F.2d 268, 271 (D.C. Cir. 1988).
There is no dispute that the heads of ICE and DHS have invoked the privilege after personal
consideration of the issue. Thus, the Government’s claim turns on the third requirement: whether
the information sought — the identities of certain undisclosed individuals involved in the
negotiation of the Iraqi agreement — falls within the scope of the privilege.
The Government contends that “the disclosure of the withheld information could cause risk
to national security and impact Defendants’ ability to carry out the agency missions or operations
for several reasons.” Gov. Mem. at 7-8. These reasons include the safety of the negotiating
officers, ICE’s ability to engage with foreign governments to repatriate aliens, and the potential
chilling effect on future negotiations. Petitioners argue that the privilege is inapplicable, because
the Government has not demonstrated that any harm will befall the ICE or DHS agents if their
identities are revealed; they note that the Government has already disclosed others involved in the
negotiations with Iraq. They also argue that the type of information sought, the names of those
involved in a diplomatic negotiation, is not the type of information envisioned by the privilege,
and that disclosure of the information will not harm future collaborative relationships.
The Court agrees with Petitioners. As noted above, the law enforcement privilege is meant
to protect law enforcement techniques; confidentiality of sources, witnesses and law enforcement
personnel; the privacy of individuals; and otherwise prevent interference with an investigation.
MacNamara, 249 F.R.D. at 78. Petitioners are not asking for techniques or procedures, the names
of confidential sources, or seeking to interfere in an investigation.
Interrogatory 12 touch on any of that.

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Nor would answering

While the Government argues that ICE agents involved in the negotiations could be subject
to harassment if their identities are revealed, this is belied by the disclosure of other ICE and DHS
officials who have participated in the crafting of the purported Iraqi agreement, and the disclosure
of similar officials in other recent litigation. In this case alone, the Government has identified,
among others, Michael Bernacke, John Schultz, Jr., and Elizabeth Estrada, three senior ICE
officials whose responsibilities include obtaining travel documents from foreign countries and
coordinating repatriation with those countries. See Table of ICE Officials, Ex. 9 to Pet. Resp.
(Dkt. 269-10). In another recent case, the Government has identified Julius Clinton, an ICE official
who coordinates with foreign governments to obtain travel documents. Id. No claims of
harassment of any of those individuals have been reported.
The Government also claims that disclosure would impede ICE’s repatriation efforts, and
chill future negotiations. It contends that “[i]n general, courts have been deferential to the need
for protection of sensitive information, including with foreign governments.” Gov. Reply at 7.
However, it cites no authority where the identity of those involved in diplomatic negotiations was
held to be protected by law enforcement privilege; indeed, it does not cite any cases involving the
law enforcement privilege and foreign policy. It instead relies on conclusory assertions that “the
disclosure of the withheld information could cause risk to national security and impact Defendants’
ability to carry out the agency missions.” The Government’s burden “must be discharged by
presenting those facts that are the essential elements of the privileged relationship and not by mere
conclusory or ipse dixit assertions.”

MacNamara, 249 F.R.D. at 85 (internal citation and

quotations omitted). As a result, the identity of those involved in the negotiation of the Iraqi
agreement does not fall within the scope of the law enforcement privilege.

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Even if this information was covered by the law enforcement privilege, the privilege is
qualified. See In re Sealed Case, 856 F.2d at 272. “The public interest in nondisclosure must be
balanced against the need of a particular litigant for access to the privileged information.” Id. In
order to balance the needs of the Government against a particular litigant, courts in this Circuit
have applied the factors set forth in Tuite v. Henry, 181 F.R.D. 175, 177 (D.D.C. 1998). See In re
Packaged Ice Antitrust Litig., 2011 WL 1790189 at *6.1 The factors are a non-exhaustive list of
issues for courts to consider when determining whether to order disclosure after the law
enforcement privilege has been properly asserted:
(1) the extent to which disclosure will thwart governmental
processes by discouraging citizens from giving the government
information; (2) the impact upon persons who have given
information of having their identities disclosed; (3) the degree to
which governmental self-evaluation and consequent program
improvement will be chilled by disclosure; (4) whether the
information sought is factual data or evaluative summary; (5)
whether the party seeking discovery is an actual or potential
defendant in any criminal proceeding either pending or reasonably
likely to follow from the incident in question; (6) whether the
investigation has been completed; (7) whether any
interdepartmental disciplinary proceedings have arisen or may arise
from the investigation; (8) whether the plaintiff’s suit is
nonfrivolous and brought in good faith; (9) whether the information
sought is available through other discovery or from other sources;
and (10) the importance of the information sought to the plaintiff’s
case.
The applicable Tuite factors weigh in favor of disclosure.2 In its memorandum, the only
Tuite factor addressed by the Government is the second factor — the impact upon those who have

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Other courts use the identical test set forth in Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D.
Pa. 1973), superseded on other grounds by rule change as recognized by Crawford v. Dominic,
469 F. Supp. 260 (E.D. Pa. 1979).
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Some courts weigh the Tuite factors as part of the third requirement set forth in In re Sealed Case,
i.e., whether the information for which privilege is claimed falls within the scope of the privilege,
as opposed to applying the Tuite factors after it has been determined that all three requirements
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given information of having their identities disclosed.

As discussed above, the impact of

disclosing the names of the ICE and Iraqi officials in question will be minimal, certainly not
enough to chill future negotiations. That ICE officials engage with foreign governments, and vice
versa, in order to repatriate aliens is well-known, and has been acknowledged by the Government
in this case and others. The Government’s argument is further undermined by the revelation that,
in response to a Freedom of Information Act request by amici Chaldean Community Foundation,
the Government disclosed the names of two Iraqi government officials involved in the repatriation
negotiations at issue. See 3/12/2017 memo, Ex. 3 to Pet. Supp. Mem. (Dkt. 293-4).
In its reply, the Government argues that the third factor – the degree to which governmental
self-evaluation and consequent program improvement will be chilled by disclosure – is also
applicable and weighs in its favor. The Government argues that if other foreign contacts learned
that the names of negotiating partners were disclosed, it would have the potential to chill future
negotiations and inhibit ICE’s immigration and law enforcement missions. It is unclear whether
this factor, meant to protect an agency’s internal communications regarding shortcomings and
ways to improve, applies to an assertion that disclosure will chill future diplomatic negotiations.
Even if this factor is applicable, the remaining relevant factors weigh in favor of
Petitioners. It is clear that this suit merely seeks factual data, as opposed to an evaluative summary,
and is brought in good faith. It is also clear that this crucial discovery information is not available
anywhere else.

have been met. See, e.g., Singh v. S. Asian Soc’y of George Washington Univ., No. 06-574, 2007
WL 1556669, at *3 (D.D.C. May 24, 2007). Because the court in In re Sealed Case addressed the
Tuite factors after it determined the three requirements had been met, this Court chooses to follow
that approach.
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The final factor — the importance of the information sought to Petitioners’ case — weighs
heavily in favor of Petitioners. In its order granting in part Petitioners’ motion for preliminary
injunction, the Court specifically ordered discovery to determine the viability of Petitioners’
Zadvydas claim. It held that the lack of a repatriation agreement with Iraq would entitle the
detainees to release, because there would be no likelihood of removal in the reasonably foreseeable
future. To determine whether such an agreement exists, Petitioners need to speak with those
involved in the repatriation negotiations with Iraq. Disclosing the identity of individuals involved
in the negotiations will allow Petitioners to determine who to depose, and the significance of
certain documents disclosed by the Government. With regard to the identity of the Iraqi officials
involved in the negotiations, this information will help Petitioners determine whether the
agreement is binding on the Iraqi government. If the discussions were held with lower-level
officials without the ability to authorize large-scale or involuntary repatriation, this information
would be pertinent to Petitioners’ Zadvydas claim. This information will also assist Petitioners as
they sort through the voluminous documents that the Government is in the process of disclosing.
For all of these reasons, the Court holds that Petitioners’ need for the names of those involved in
negotiations between the American and Iraqi Governments regarding repatriation outweighs any
interest the Government has in nondisclosure.3
II. CONCLUSION

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The Court briefly addresses the remaining factors that the parties deemed inapplicable. The first
factor does not apply because this case does not involve citizens outside the government divulging
information. The fifth factor, whether the party seeking the discovery is a defendant in a criminal
case, does not apply here. The sixth factor, whether the investigation has been completed, also
does not apply. Even if characterized as an investigation, the Government has not indicated that
the negotiations with Iraq are ongoing. Finally, the seventh factor, whether any disciplinary
proceedings may arise, is not at issue here.
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For the reasons stated above, the Court orders that the Government shall respond to
Petitioners’ Interrogatory 12 within seven days.
SO ORDERED.

Dated: May 31, 2018
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on May 31, 2018.
s/Karri Sandusky
Case Manager

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