National Day Laborer Organizing Network et al v. United States Immigration and Customs Enforcement Agency et al

Filing 140

OPINION AND ORDER: Defendants motion for summary judgment is denied and plaintiffs motion for summary judgment is granted. The Clerk of the Court is directed to close these motions [Docket Nos. 125 and 128]. (Signed by Judge Shira A. Scheindlin on 10/24/2011) (ft)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------)(
NATIONAL DAY LABORER
ORGANIZING NETWORK, CENTER FOR
CONSTITUTIONAL RIGHTS, and
IMMIGRATION JUSTICE CLINIC OF
THE BENJAMIN N. CARDOZO SCHOOL
OF LAW,
Plaintiffs,

OPINION AND ORDER
10 Civ. 3488 (SAS)

- against­
UNITED STATES IMMIGRATION AND
CUSTOMS ENFORCEMENT AGENCY,
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, E)(ECUTIVE
OFFICE FOR IMMIGRATION REVIEW,
FEDERAL BUREAU OF
INVESTIGATION, and OFFICE OF
LEGAL COUNSEL,
Defendants.

-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
The National Day Laborer Organizing Network, the Center for

Constitutional Rights, and the Immigration Justice Clinic of the Benjamin N.
Cardozo School of Law bring this action for the purpose of obtaining records,

1

pursuant to the Freedom of Information Act (“FOIA”),1 from the United States
Immigration and Customs Enforcement Agency (“ICE”), United States
Department of Homeland Security (“DHS”), Executive Office for Immigration
Review, Federal Bureau of Investigation (“FBI”), and Office of Legal Counsel
(“OLC”). Specifically, plaintiffs have sought information regarding Secure
Communities, a federal immigration enforcement program launched in 2008. It
has long been the practice for local law enforcement agencies to send the
fingerprints of individuals arrested and booked into custody to the FBI to be
checked against the national criminal history database.2 Under the Secure
Communities program, those fingerprints are also now sent to DHS to be checked
against immigration records.3
A portion of the requested records relates to the issue of whether and
how state and local law enforcement agencies may “opt-out” of participation in
Secure Communities. On January 17, 2011, defendants produced over fourteen
thousand pages of “opt-out” records, withholding all or part of certain records

1

5 U.S.C. § 552 et seq.

2

See Secure Communities, ICE,
http://www.ice.gov/secure_communities/.
3

See id.
2

pursuant to FOIA’s statutory exemptions.4 The parties then cross-moved for
summary judgment on the propriety of the asserted exemptions, and, on July 11,
2011, I issued an Opinion and Order granting in part and denying in part the
parties’ cross-motions.5
With respect to certain documents in that production, I denied
summary judgment without prejudice to both parties, giving them the opportunity
to present additional information in support of their respective positions. Since the
July 11 Opinion and Order was issued, the parties have focused particular attention
on a critical document referred to as the “October 2 Memorandum.” The parties
have now renewed their cross-motions for summary judgment on the October 2
Memorandum. For the reasons stated below, defendants’ motion is denied and
plaintiffs’ motion is granted.
II.

BACKGROUND
Initially, the federal government indicated that participation in Secure

Communities by state and local law enforcement agencies was voluntary and

4

See National Day Laborer Org. Network v. United States Immigration
& Customs Enforcement, No. 11 Civ. 3488, 2011 WL 2693655, at *3 (S.D.N.Y.
July 11, 2011) (“NDLON” or “July 11 Opinion and Order”).
5

See id. The parties subsequently moved for partial reconsideration of
the July 11 Opinion and Order, which I granted in part in a Memorandum Opinion
and Order, dated August 8, 2011 [Docket No. 109].
3

predicated on a Memorandum of Agreement signed by ICE and the authorized
state agency.6 Through at least the beginning of 2010, the federal government
indicated that states and localities were not required to participate in the program.7
As a result, a number of states and localities took steps to remove themselves from
the program’s planned deployment. During a press conference on October 6, 2010,
Janet Napolitano, the Secretary of DHS, said that “DHS ‘does not view [Secure
Communities] as an opt-in, opt-out program.’”8 I discussed this shift in policy in
more detail in the July 11 Opinion and Order, finding that the decision was made
by March 2010.9

6

See ICE Secure Communities Standard Operating Procedure (“SOP”),
http://www.ice.gov/doclib/foia/secure_communities/securecommunitiesops93009.
pdf, at 3 (“Participation in [Secure Communities] at the state level is predicated on
a Memorandum of Agreement (MOA), signed by ICE and the participating [State
Identification Bureau] or other state authorized agency.”); Secure Communities
MOA Template, ICE,
http://www.ice.gov/doclib/foia/secure_communities/securecommunitiesmoatempla
te.pdf; Brian Bennet, States can’t opt out of Secure Communities program, Los
Angeles Times, Aug. 6, 2011.
7

See Secure Communities Frequently Asked Questions, U.S.
Immigration Customs Enforcement, (Jan. 27, 2010) ICE FOIA 102674.001976–83 (“ICE does not require any entity to participate in the information
sharing technology at the state or local level.”).
8

Shankar Vedantam, U.S. Deportations Reach Record High,
Washington Post, Oct. 7, 2010 (quoting Secretary Napolitano’s statement).
9

NDLON, 2011 WL 2693655, at *9.
4

Defendants withheld at least eighteen versions of the October 2
Memorandum under FOIA Exemption 5, primarily on the basis of the deliberative
process privilege and the attorney-client privilege. In their Vaughn index,10
defendants described each version of the Memorandum with variations of “[l]egal
analysis of the mandatory nature of the 2013 Secure Communities deployment.”11
In their initial summary judgment motion, plaintiffs asserted that the October 2
Memorandum lost its predecisional status when the agency relied upon it to change
its policy position, as announced by Secretary Napolitano on October 6. Because
the Memorandum was dated October 2, the statement was made on October 6, and
an individual was congratulated for his “excellent SC paper” on October 8,
plaintiffs inferred that the Memorandum formed the basis for the shift in policy.
Defendants derided this argument as mere speculation, but did not provide
information about the role that the Memorandum did or did not play in the policy
shift. In fact, DHS has failed to acknowledge that there has been any policy shift,
instead insisting that opt-out has never been an option, despite numerous public
statements to the contrary.12

10

See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973).

11

ICE Vaughn Index, attached to 1/28/11 Declaration of Catrina PavlikKeenan, director of ICE’s FOIA office [Docket No. 35] at 39.
12

See NDLON, 2011 WL 2693655, at *9.
5

After I reviewed the document in camera, I held in the July 11 Opinion and
Order that the Memorandum constitutes legal advice and analysis about a Secure
Communities mandate.13 However, I also found that defendants had failed to meet
their burden of establishing the role that the document had played in the
deliberative process. I wrote, “I am unable to determine why the memorandum
was written, and – of particular import for assessing whether it qualifies for
protection under the deliberative process – whether it was written to justify an
already existing policy or to lend support in an intra-agency debate about shifting
the policy.”14 Finding that the other concerns of the deliberative process privilege
would not be implicated by the document’s release, I held that that privilege did
not apply.15
I then considered whether the document was protected by the
attorney-client privilege.16 I noted that the Memorandum contains legal analysis
and that it was written by the Office of the Principal Legal Advisor of ICE and
addressed to Beth Gibson, the Assistant Deputy Director of ICE. I found,

13

See id. at *17.

14

Id.

15

See id. at *18.

16

See id.
6

however, that defendants “failed to establish that the confidentiality of the
document was maintained.”17 I observed that if plaintiffs were correct that the
legal analysis within the document had been shared outside of the agency, then
attorney-client confidentiality was breached and the Memorandum would no
longer be protected by that privilege. Regarding defendants’ assertions of the
attorney-client privilege, I found that “plaintiffs have alleged, with convincing
evidence, that defendants have shared with individuals outside of the agencies at
least some of the information found in the documents that they now withhold as
privileged communications.”18 The attorney-client privilege is waived if the
document or information therein has been shared with other individuals. Finding
that defendants had failed to assert with any specificity that confidentiality was
maintained, I held that they must do so “for each document that defendants seek to
withhold under the attorney-client privilege.”19 I held that “[i]f defendants are not
able to make such a representation as to a particular document, and no other
privileges or FOIA exemptions have been asserted, that document must be

17

Id.

18

Id. at *10.

19

Id.
7

released.”20
I also considered plaintiffs’ contention that the Memorandum should
be released because defendants were misusing FOIA Exemption 5 to conceal the
agency’s policy or “working law.”21 I noted that although the working law
doctrine has been discussed most often in the context of the deliberative process
privilege, the Second Circuit held in National Council of La Raza v. Department of
Justice (“La Raza”) that
Like the deliberative process privilege, the attorney-client
privilege may not be invoked to protect a document adopted as, or
incorporated by reference into, an agency’s policy. In such
circumstances, the principle rationale behind the attorney-client
privilege – to promote open communication between attorneys
and their clients so that fully formed legal advice may be given .
. . evaporates; for once an agency adopts or incorporates a
document, frank communication will not be inhibited.22
Because the issue had been insufficiently briefed, I denied summary
judgment as to both parties, ordering defendants “to provide more information as
to the role that the document played in the deliberative process, and to establish

20

Id.

21

See id. at *17.

22

National Council of La Raza v. Department of Justice, 411 F.3d 350,
360 (2d Cir. 2005) (quotation marks and citations omitted).
8

that the confidentiality of the document has been maintained.”23 I also invited
plaintiffs to submit “any additional proof that the Memorandum has been adopted
or incorporated by reference by the agency, such that it can be considered secret
law that should be released.”24

Finally, I held that factual material in the report

was only protected by the attorney-client privilege to the extent that it was clientsupplied, and ordered defendants to release any factual material that came from
other sources.25
III.

APPLICABLE LAW
A.

FOIA and Summary Judgment
FOIA cases are generally resolved on motions for summary

judgment.26 Like in any other context, however, summary judgment is appropriate
only if the record “show[s] 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.”27 “An issue of

23

Id. at *18.

24

Id.

25

See id. at *19 (citing Coastal States Gas Corp. v. Department of
Energy, 617 F.2d 854, 867 (D.C. Cir. 1980)).
26

See Bloomberg L.P. v. Board of Governors of the Fed. Reserve Sys.,
649 F. Supp. 2d 262, 271 (S.D.N.Y. 2009); Miscavige v. Internal Revenue Serv., 2
F.3d 366, 369 (11th Cir. 1993).
27

Fed. R. Civ. P. 56(c).
9

fact is genuine if ‘the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.’ A fact is material if it ‘might affect the outcome of the
suit under the governing law.’”28 “In ruling on a motion for summary judgment, a
court must resolve all ambiguities and draw all factual inferences in favor of the
nonmoving party.”29 “Inferences and burdens of proof on cross-motions for
summary judgment are the same as those for a unilateral summary judgment
motion. ‘That is, each cross-movant must present sufficient evidence to satisfy its
burden of proof on all material facts.’”30
However, unique to the FOIA context, “[a]ffidavits submitted by an
agency are accorded a presumption of good faith,” and so long as such affidavits
“supply[] facts indicating that the agency has conducted a thorough search and
giv[e] reasonably detailed explanations why any withheld documents fall within an
exemption,” they will sustain the agency’s burden and summary judgment may be

28

Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
29

McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (citing
Anderson, 477 U.S. at 242, 255).
30

Ferrigno v. United States Dep’t of Homeland Sec., No. 09 Civ. 5878,
2011 WL 1345168, at *3 (S.D.N.Y. Mar. 29, 2011) (citing Straube v. Florida
Union Free Sch. Dist., 801 F. Supp. 1164, 1174 (S.D.N.Y. 1992) and quoting
United States Underwriters Ins. Co. v. Roka LLC, No. 99 Civ. 10136, 2000 WL
1473607, at *3 (S.D.N.Y. Sept. 29, 2000)).
10

awarded without the need for discovery.31 Nonetheless, “[t]he agency’s decision
that the information is exempt from disclosure receives no deference.”32
Accordingly, a court is required to conduct a de novo review of the record,
deciding “‘whether the agency has sustained its burden of demonstrating that the
documents requested are not agency records or are exempt from disclosure under
the FOIA.’”33
FOIA is intended “to ‘promote honest and open government and to
assure the existence of an informed citizenry in order to hold the governors
accountable to the governed.’”34 At the heart of FOIA is “a policy strongly
favoring public disclosure of information in the possession of federal agencies.”35
31

Carney v. United States Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.
1994) (quotation marks and citations omitted).
32

Bloomberg, L.P. v. Board of Governors of the Fed. Reserve Sys., 601
F.3d 143, 147 (2d Cir. 2010).
33

In Defense of Animals v. National Inst. of Health, 543 F. Supp. 2d 83,
92-93 (D.D.C. 2008) (quoting Assassination Archives & Research Ctr. v. Central
Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003)). See also 5 U.S.C. §
552(a)(4)(B); Carney, 19 F.3d at 812 (“In order to prevail on a motion for
summary judgment in a FOIA case, the defending agency has the burden of
showing that its search was adequate and that any withheld documents fall within
an exemption to the FOIA.”).
34

La Raza, 411 F.3d at 355 (quoting Grand Cent. P’ship. v. Cuomo, 166
F.3d 473, 478 (2d Cir. 1999)).
35

Halpern v. Federal Bureau of Investigation, 181 F.3d 279, 286 (2d

Cir. 1999).
11

However, FOIA provides nine categories of information that are exempt from
disclosure.36 The “exemptions are ‘explicitly made exclusive,’ and must be
‘narrowly construed.’”37
B.

FOIA Exemption 5
Exemption 5 protects “inter-agency or intra-agency memorandums

[sic] or letters which would not be available by law to a party other than an agency
in litigation with the agency.”38 The exemption incorporates “all normal civil
discovery privileges,”39 including the deliberative process privilege and the
attorney-client privilege.40 “The test under Exemption 5 is whether the documents
would be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance.”41
The deliberative process privilege protects from disclosure

36

See id. at 287.

37

Milner v. Department of the Navy, — U.S. —, 131 S.Ct. 1259, 1262
(2011) (quoting Environmental Prot. Agency v. Mink, 410 U.S. 73, 79 (1973) and
Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 630 (1982)).
38

5 U.S.C. § 552(b)(5).

39

Hopkins v. United States Dep’t of Housing and Urban Dev., 929 F.2d
81, 84 (2d Cir. 1991).
40

See National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S.
132, 149-55 (1975); Grand Cent. P’ship, 166 F.3d at 481.
41

Federal Trade Comm’n v. Grolier, Inc., 462 U.S. 19, 26 (1983)
(quoting Sears, Roebuck , 421 U.S. at 148-49).
12

“‘documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are
formulated.’”42 The privilege is intended “‘to enhance the quality of agency
decisions, by protecting open and frank discussion among those who make them
within the Government.’”43
In order to qualify for the privilege, a document must be
“predecisional” and “deliberative.”44 A document is predecisional if it was
“‘prepared in order to assist an agency decisionmaker in arriving at [her]
decision.’”45 The agency claiming privilege “must be able to demonstrate that . . .
the document for which . . . privilege is claimed related to a specific decision
facing the agency.”46 A document is deliberative if it is “‘actually . . . related to the

42

La Raza, 411 F.3d at 356 (quoting Tigue v. United States Dep’t of
Justice, 312 F.3d 70, 76 (2d Cir. 2002)).
43

Tigue, 312 F.3d at 76 (quoting Department of the Interior v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001)).
44

La Raza, 411 F.3d at 356.

45

Id. (quoting Grand Cent. P’ship, 166 F.3d at 482). Such materials
include “recommendations, draft documents, proposals, suggestions, and other
subjective documents [that] reflect the personal opinions of the writer rather than
the policy of the agency.” Grand Cent. P’ship, 166 F.3d at 482.
46

Tigue, 312 F.3d at 80 (citing Sears, Roebuck, 421 U.S. at 151 n.18).
13

process by which policies are formulated.’”47 Factors used to determine whether a
document is deliberative include “whether the document (i) formed an essential
link in a specified consultative process, (ii) reflects the personal opinions of the
writer rather than the policy of the agency, and (iii) if released, would inaccurately
reflect or prematurely disclose the views of the agency.”48 The privilege does not
extend to “‘purely factual’ material”49 or documents later adopted or incorporated
into a final agency opinion.50 “The privilege also does not extend to materials
related to the explanation, interpretation or application of an existing policy, as
opposed to the formulation of a new policy.”51
The attorney-client privilege extends to the governmental context,

47

La Raza, 411 F.3d at 356 (quoting Grand Cent. P’ship, 166 F.3d at

48

Grand Cent. P’ship, 166 F.3d at 482 (quotation marks and citation

482).
omitted).
49

Id. (quoting Hopkins, 929 F.2d at 85). Accord Mink, 410 U.S. at 88
(requiring disclosure of “purely factual material contained in deliberative
memoranda” which is “severable from its context”).
50

See La Raza, 411 F.3d at 356 (citing Sears, Roebuck, 421 U.S. at
161); Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980).
51

Resolution Trust Corp. v. Diamond, 137 F.R.D. 634, 641 (S.D.N.Y.
1991) (citing Mobil Oil Corp. v. Department of Energy, 102 F.R.D. 1, 5 (N.D.N.Y.
1983)).
14

where “the client may be the agency and the attorney may be an agency lawyer.”52
The attorney-client privilege under Exemption 5 “is narrowly construed and is
limited to those situations in which its purpose will be served.”53 “The agency
bears the burden of showing that the information exchanged was confidential.
That is, the agency must show that it supplied information to its lawyers ‘with the
expectation of secrecy and was not known by or disclosed to any third party.’”54
Both the deliberative process privilege and the attorney-client
privilege are “designed to promote the quality of agency decisions by preserving
and encouraging candid discussion between officials.”55 But, as the Supreme
Court has explained, the need to protect honest deliberation from public scrutiny
disappears once an agency has adopted the logic of a document:
The probability that an agency employee will be inhibited from
freely advising a decisionmaker for fear that his advice if adopted,
will become public is slight. First, when adopted, the reasoning
becomes that of an agency and becomes its responsibility to
defend. Second, agency employees will generally be encouraged

52

Tax Analysts v. Internal Revenue Service, 117 F.3d 607, 618 (D.C.

Cir. 1997).
53

Coastal States, 617 F.2d at 862.

54

Judicial Watch, Inc. v. United States Postal Serv., 297 F. Supp. 2d
252, 267 (D.D.C. 2004) (quoting Mead Data Cent., Inc. v. Department of the Air
Force, 566 F.2d 242, 254 (D.C. Cir. 1977)).
55

La Raza, 411 F.3d at 356.
15

rather than discouraged by public knowledge that their policy
suggestions have been adopted by the agency. Moreover, the
public interest in knowing the reasons for a policy actually
adopted by an agency supports [disclosure].56
Thus, a predecisional document “‘can lose that status if it is adopted,
formally or informally, as the agency position on an issue or is used by the agency
in its dealings with the public.’”57 The same logic applies to documents otherwise
protected by the attorney-client privilege.58 Determining whether an agency has
adopted a legal memorandum as its policy is not always simple. This is
particularly so because “[m]ere reliance on a document’s conclusions does not
necessarily involve reliance on a document’s analysis; both will ordinarily be
needed before a court may properly find adoption or incorporation by reference.”59
Once an agency has adopted a legal analysis as its own, however, that analysis
becomes the government’s “working law,” and the public “can only be enlightened

56

Sears, Roebuck, 421 U.S. at 161.

57

La Raza, 411 F.3d at 356-57 (quoting Coastal States, 617 F. 2d at

866).
58

Id. at 360 (“[T]he attorney-client privilege may not be invoked to
protect a document adopted as, or incorporated by reference into, an agency’s
policy.”).
59

Id. at 358.
16

by knowing what the [agency] believes the law to be.”60
IV.

DISCUSSION
A.

Deliberative Process Privilege
As a preliminary matter, I reaffirm my July 11 ruling that the October

2 Memorandum is not protected by the deliberative process privilege, for the
reasons stated in that opinion.61 Based on the additional evidence presented by
plaintiffs in the instant motion, it is even clearer that the document was used to
justify an already decided policy, rather than to persuade parties debating a policy
shift.
B.

Attorney-Client Privilege
“The attorney-client privilege protects communications (1) between a

client and his or her attorney (2) that are intended to be, and in fact were, kept
confidential (3) for the purpose of obtaining or providing legal advice.” 62 In order
to be eligible for withholding under FOIA Exemption 5, the defendants must
satisfy this test with respect to the October 2 Memorandum.

60

Tax Analysts v. Internal Revenue Serv., 117 F.3d 607, 618 (D.C. Cir.

1997).
61

NDLON, 2011 WL 2693655, at *18.

62

United States v. Mejia, — F.3d —, 2011 WL 3715293, at *4 (2d Cir.
Aug. 25, 2011).
17

The Memorandum is addressed to the Assistant Deputy Director of
ICE from the Deputy Principal Legal Advisor. It is entitled “Secure Communities
– Mandatory in 2013.” It contains an executive summary, provides background
factual information about how Secure Communities operates, discusses the legal
authority for the program, and addresses the merits of legal challenges that may be
brought against the program.
It is undisputed that the memo constitutes communications between a
client (ICE policy makers) and its attorney (the office of the legal advisor).
Plaintiffs argue, however, that first, the document does not contain legal advice and
second, that it was not intended to be and was not kept confidential.
I find that at least one purpose of the memo was to provide legal
advice. Plaintiffs argue that because the Memorandum was written after ICE had
decided to make Secure Communities mandatory, it constitutes only a post-hoc
legal rationale and is thus not protected “legal advice.”63 However, a
communication may still be considered “legal advice” even if the agency has
already taken some action related to the subject matter of the advice.
63

See Plaintiffs’ Memorandum of Law in Opposition to Defendants’
Renewed Motion for Summary Judgment on Its Withholdings Pursuant to
Exemption (b)(5) and Attorney-Client Privilege, and in Support of Plaintiffs’
Renewed Cross-Motion for Summary Judgment on the Inapplicability of
Exemption (b)(5) to Withheld Information in the October 2 Memorandum, or for
Discovery Pursuant to Fed. R. Civ. P. 56(d) (“Pl. Mem.”) at 14.
18

“Fundamentally, legal advice involves the interpretation and application of legal
principles to guide future conduct or to assess past conduct.”64 Thus, the fact that
the agency may have already adopted a policy that Secure Communities would be
mandatory does not mean that a memorandum containing legal analysis of the
Secure Communities mandate does not constitute legal advice.
More persuasive is the plaintiffs’ argument that the content of the
Memorandum was not in fact kept confidential. On this issue, the parties disagree
as to who bears the burden of proof.65 It is well established that the party claiming
the attorney-client privilege “bears the burden of establishing its essential
elements,”66 including that confidentiality was maintained. Furthermore, the text
of FOIA is unambiguous: in civil actions to determine whether a government
record is properly withheld, “the burden is on the agency.”67 That textual evidence
notwithstanding, the defendants argue that “once an agency has shown a logical

64

In re the County of Erie, 473 F.3d 413, 419 (2d Cir. 2007).

65

See Defendant United States Immigration and Customs Enforcement’s
Renewed Motion for Summary Judgment on Its Withholdings Pursuant to
Exemption (b)(5) and the Attorney-Client Privilege (“Def. Mem.”) at 7; Pl. Mem.
at 12-13.
66

Mejia, 2011 WL 3715293, at *4. Accord von Bulow ex rel. Auersperg
v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987).
67

5 U.S.C. § 552(a)(4)(B).
19

connection between the withheld information and the claimed exemption, the
burden shifts to the requester to prove waiver, adoption, or some other reason why
the exemption should not apply.”68 The defendants seek to radically expand the
government’s ability to resist FOIA requests by importing a low “logical
connection” standard – derived from what is known as the Glomar doctrine69 – that
applies only in rare cases when the very act of confirming or denying the existence
of records “would cause harm cognizable under a[ ] FOIA exception.”70 This
standard, which is primarily applicable in the national security context, is
inappropriate here, where the government has already acknowledged the existence
of the October 2 Memorandum and released parts of it. Furthermore, defendants
misrepresent the Glomar standard itself.71

68

Def. Mem. at 7.

69

See Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C. Cir.

1976).
70

Wilner v. National Security Agency, 592 F.3d 60, 68 (2d Cir. 2009).

71

The Second Circuit first adopted the Glomar doctrine in Wilner. In
addition to inappropriately attempting to apply Wilner to this case, the defendants
misread it. As plaintiffs correctly point out, Wilner still requires an agency to
justify a FOIA exemption with “reasonably specific detail” as set out in agency
affidavits and it does not allow an agency to prevail on summary judgment if its
showing is “controverted by . . . contrary evidence in the record.” Wilner, 592 F.3d
at 73; Pl. Mem. at 11, n. 32. The burden of proof is by no means shifted to the
requester.
20

The correct reading of the case law indicates that in some instances,
courts have assigned the initial burden of production (not the burden of proof) to
plaintiffs who assert that a prior disclosure of attorney-client material has waived
confidentiality.72 That is to say, as the D.C. Circuit has put it, “a plaintiff asserting
a claim of prior disclosure must bear the initial burden of pointing to specific
information in the public domain that appears to duplicate that being withheld.”73
If such information exists, the agency must then meet its burden of proof to
establish the exemption. In the absence of controlling law from either the Second
Circuit or the Supreme Court, I adopt the D.C. Circuit’s reasonable burden-shifting
formula.
Plaintiffs have produced evidence showing that ICE officials

72

“The ultimate burden of persuasion, to be sure, remains with the
government, but a party who asserts that material is publicly available carries the
burden of production on that issue . . . . This is so because the task of proving the
negative – that information has not been revealed – might require the government
to undertake an exhaustive, potentially limitless search.” Davis v. United States
Dep’t of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992) (citing Occidental
Petroleum Corp. v. Securities & Exch. Comm’n, 873 F.2d 325, 342 (D.C. Cir.
1989)). See also Bronx Defenders v. United States Dep’t of Homeland Sec., No. 04
Civ. 8576, 2005 WL 3462725, at *3 (S.D.N.Y. Dec. 19, 2005).
73

Afshar v. Department of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).
Accord Dow Jones & Co. v. United States Dep’t of Justice, 880 F.Supp. 145, 151
(S.D.N.Y. 1995) (“Specificity is the touchstone in the waiver inquiry, and thus,
neither general discussions of topic nor partial disclosures of information constitute
waiver of an otherwise valid FOIA exemption.”).
21

discussed the legal justification for making Secure Communities mandatory with
elected officials, immigrant advocates, and other law enforcement agencies at
various times during 2010 and 2011. Some of these discussions were general,
referring simply to the “Congressional mandate” for information sharing.74
However, a number of these discussions were more specific. For example, ICE
apparently sent the Washington D.C. Metropolitan Police Department a list of
statutes and executive orders that provided legal justification for the policy shift,
including section 534 of Title 28 of the United States Code and section 14616 of
Title 42 of the United States Code, statutes that are discussed on pages four and six
of the October 2 Memorandum.75 On August 5, 2011, John Sandweg, Counselor to
74

See 7/14/11 Email Correspondence, Ex. DD to Declaration of Sonia
R. Lin, Plaintiffs’ Counsel (“Lin Decl.”), in support of Plaintiffs’ Opposition to
Defendants’ Renewed Motion for Summary Judgment and Plaintiffs’ Renewed
Cross-Motion for Summary Judgment or Discovery Pursuant to Fed. R. Civ. P.
56(d) (communications regarding a request for information by the Skagit County,
Washington Sheriff’s Office); 8/11/10 Email, Ex. C to Lin Decl. (communications
with Maryland law enforcement officials discussing the Congressional mandate for
increased information sharing); Undated Draft Letter from David Venturella,
Assistant Director of ICE to Barbara M. Donnellan, County Manager of Arlington,
Virginia, Ex. W to Lin Decl. (explaining that Secure Communities’ information
sharing is “mandated by Congress”). See also Declaration of Sarah Uribe, National
Campaign Coordinator for Plaintiffs National Day Laborer Organizing Network
(“Uribe Decl.”), ¶¶ 15-16 (describing meetings on November 8, 2010 and
November 18, 2010 at which David Venturella and other ICE officials explained,
in general terms, that Congress mandated participation in Secure Communities).
75

See 3/30/11 Email from Matthew Bromeland, Washington D.C.
Metropolitan Police Dep’t, to Amy Loudermilk, D.C. Coalition Against Domestic
22

the Secretary of DHS, participated in a conference call with approximately one
hundred people from the immigrant-rights advocacy community. On that phone
call, when asked about the legal authority for mandating participation in the
program, Sandweg said that agency lawyers had determined that section 1722 of
Title 8 of the United States Code provided the authority for the FBI and ICE to
share information about a person’s criminal history, which is relevant to a person’s
deportability.76 This explanation is a summary of the argument on pages four, five,
and six of the Memorandum.
In addition, much of the precise information in the October 2
Memorandum has already been produced as part of this litigation. In a document
entitled “Overview of Secure Communities,” under a heading entitled “Legal
Background – Appropriations Acts Summaries,” the agency explains that the fiscal
year 2008 appropriations bill provided the funding to start Secure Communities.77
The language explaining that appropriation repeats, nearly verbatim, language
found on page two of the October 2 Memorandum. An undated document entitled

Violence, (“Bromeland Email”), Ex. GG to Lin Decl. (forwarding a list of
information sharing initiatives received from ICE).
76

See Uribe Decl. ¶¶ 18-21; Declaration of Sarang Sekhavat, Federal
Policy Director at the Massachusetts Immigrant and Refugee Coalition, ¶¶ 8-9.
77

See Overview of Secure Communities, ICE FOIA 10-2674.0002925.
23

“Secure Communities Briefing Notes,” which was produced by the FBI as part of
this litigation, describes in detail how Secure Communities uses the federal
government’s IDENT/IAFIS Interoperability information sharing program.78 This
information replicates the factual description on pages two and three of the
Memorandum. An undated document disclosed by ICE entitled “‘Opt-Out’
Background” describes the agreement between ICE Assistant Director David
Venturella and the FBI on information sharing and the 2013 deadline.79 This
precise information is repeated on page three of the Memorandum. The Opt-Out
Background document also includes a discussion of sub-sections 534(a)(1) and (4)
of Title 28 of the United States Code,80 the exact sub-sections that are discussed on
page four of the Memorandum. The Opt-Out Background document goes on to
discuss whether Secure Communities can be mandatory, in light of the Tenth
Amendment and the Supreme Court’s ruling in Printz v. United States.81 This
analysis is similar to the analysis found on pages six, seven, and eight of the
Memorandum, although the conclusion – “SC’s position that participation in the

78

See Secure Communities Briefing Notes, Ex. EE to Lin Decl.

79

See ‘Opt-Out’ Background, ICE FOIA 10-2674.0002927.

80

See id.

81

See id. (discussing Printz v. United States, 521 U.S. 898 (1997)).
24

‘Secure Communities initiative’ is voluntary is supported by applicable case-law”
– is the opposite of that found in the October 2 Memorandum.82 Finally, the OptOut Background document explains that sections 1373 and 1644 of Title 8 of the
United States Code and City of New York v. United States do not support
mandatory participation in Secure Communities.83 This discussion is found, in
slightly longer form, on page nine of the Memorandum.
Nearly every component of the October 2 Memorandum appears in
some public document or statement by the defendants. This includes nearly all of
the factual background, specific references to and discussions of all of the statutes
upon which the Memorandum relies, and even significant components of the legal
discussion regarding the strengths and weaknesses of the agency’s position. In
short, plaintiffs have produced extensive specific evidence of waiver.
In the July 11 Opinion and Order, I held that in order to secure
exemption from FOIA disclosure, defendants must “establish that the
confidentiality of the document has been maintained.”84 In response, ICE counsel
and FOIA officers, working through the agency’s program offices, obtained from

82

Id.

83

See id. (discussing City of New York v. United States, 179 F.3d 29 (2d

Cir. 1999)).
84

NDLON, 2011 WL 2693655, at *18.
25

the senders and recipients of all allegedly privileged documents either verbal or
written confirmation that “they had not disseminated the withheld documents to
any non-Agency personnel.”85
Given the extensive specific evidence of waiver produced by the
plaintiffs, I find that the Declaration of Ryan Law, Deputy FOIA Officer at ICE, is
insufficient to carry the agency’s burden of proving that ICE has maintained the
confidentiality of the Memorandum. According to Law’s declaration, only senders
and recipients who were named on the face of a withheld document were asked
whether they had disseminated it outside of DHS and its component agencies.86
That is to say, only the nominal author of the memo (ICE’s Deputy Principal Legal
Advisor) and its recipient (Beth Gibson) were asked about its confidentiality.
According to emails that I reviewed in camera, at least ten other ICE employees, in
addition to the two named on the face of the memo, received the final version of
the Memorandum. These individuals were not queried about whether they kept the
document confidential. Nor were any individuals who received hard copies of the

85

Declaration of Ryan Law, Ex. D to Declaration of Christopher
Connolly, Defendants’ Counsel, in Support of Defendant United States
Immigration and Customs Enforcement’s Renewed Motion for Summary Judgment
On Its Withholdings Pursuant to Exemption (b)(5) and the Attorney-Client
Privilege, ¶ 9.
86

See id. ¶¶ 5-7.
26

document asked about waiver.
Furthermore, Gibson and the Deputy Principal Legal Advisor were
only asked whether they had circulated the document to any non-DHS personnel.
This question fails to reflect the appropriate legal standard for attorney-client
privilege, which extends only to “agents or employees of the organization who are
authorized to act or speak for the organization in relation to the subject matter of
the communication.”87 If any one of the dozen individuals who received the
document by email sent it – or the legal analysis contained in it – to an agent or
employee who was not authorized to speak on behalf of ICE about the mandatory
nature of Secure Communities, the document lost its privileged status. Defendants
had the burden of showing that no such disclosure happened and this Court has
given them ample opportunity to make such a showing.
The defendants’ effort to verify confidentiality could have and should
have been significantly more robust. Given the extensive and specific evidence
produced by plaintiffs showing that the factual information, legal analysis, and
legal conclusions in the Memorandum have been disclosed to the public, I find that
ICE has failed to meet its burden of proving that confidentiality was maintained.

87

Mead Data Central, Inc. v. United States Dept. of Air Force, 566 F.2d
242, 253 n.24. (D.C. Cir. 1977).
27

C.

Adoption of the Memo as Agency Working Law
Plaintiffs have produced significant evidence suggesting that ICE

adopted the logic and conclusion of the October 2 Memorandum and used the
document in its dealings with the public. Because the defendants have produced
no evidence rebutting the claim of adoption – indeed, because the defendants have
failed to even dispute plaintiffs’ claim that adoption took place – I find that there is
no dispute of material fact on this issue.
On the issue of adoption, as on the issue of waiver, the plaintiffs and
defendants disagree about which party bears the burden of proof. Defendants
incorrectly seek to apply the same minimal “logical connection” standard, gleaned
from the Glomar context, that they sought to apply to waiver.88 The defendants
also cite to two cases in which the District Court for the District of Columbia
refused to place a burden of persuasion on the government to show that withheld
documents had never been adopted.89 Plaintiffs, in turn, point to a collection of
cases placing the burden on the government.90

88

Def. Mem. at 7.

89

Electronic Privacy Info. Ctr. v. Department of Justice, 584 F. Supp.
2d 65, 78 (D.D.C. 2008) and Trans Union LLC v. Federal Trade Comm’n, 141 F.
Supp. 2d 62, 70 (D.D.C. 2001).
90

Pl. Mem. at 18 (citing, inter alia, Afshar, 702 F.2d at 1143; Arthur
Andersen & Co. v. Internal Revenue Serv., 679 F.2d 254, 258 (D.C. Cir. 1982); Lee
28

The holdings of these cases can be reconciled. In both Electronic
Privacy Information Center and Trans Union LLC, the cases that the government
cites, the courts found that there was “no evidence” suggesting adoption of the
withheld documents and reasonably refused to require the government to prove a
negative in the absence of such evidence.91 In the cases that plaintiffs cite,
however, the requesters did present evidence that such adoption may have occurred
and the ultimate burden of persuasion was placed on the government.92 As in the
context of waiver, the burden-shifting formula that courts have relied upon (with
different degrees of clarity) is a reasonable approach. It places the ultimate burden
on the agency to prove exemption, as clearly required by the text of FOIA, but
requires that if plaintiffs are to defeat the agency’s initial assertion of exemption,
they must show some evidence of agency adoption.
In this case, plaintiffs have presented the following evidence that ICE
adopted the October 2 Memorandum: On September 9, 2010, ICE Assistant

v. Federal Deposit Ins. Corp., 923 F. Supp. 451, 456 (S.D.N.Y. 1996)).
91

Electronic Privacy Info. Ctr., 584 F. Supp. 2d at 78; Trans Union
LLC, 141 F. Supp. 2d at 71.
92

See, e.g., Afshar, 702 F.2d at 1143 (explaining that “since this record
raises a genuine issue of fact as to whether the portions of the memoranda withheld
. . . were expressly adopted by the agency,” the government could not prevail on
summary judgment without showing that the documents were not so adopted).
29

Deputy Director Beth Gibson sent an email to Peter Vincent (ICE’s Principal Legal
Advisor) and assigned him the task of “gathering the legal support for the
‘mandatory’ nature of [Secure Communities] participation in 2013.”93 By that
time, as I held in my July 11 Opinion and Order, it had been approximately six
months since ICE had decided that Secure Communities would become
mandatory.94 Vincent’s task, therefore, was to lay out the legal justification for the
agency’s policy choice. Simultaneously, John Morton, the head of ICE, asked
Vincent to compile “a binder of the legal underpinnings” for the mandatory
policy.95 In late September, Gibson directed the legal staff to “rewrite” an early
version of the memo “to argue for the ‘mandatory’ participation in 2013.”96 She
was given a new version of the memo to review on October 4, at which time the
author of the memo was changed from an Associate Legal Advisor to the Deputy
Principal Legal Advisor and the recipient of the memo was changed from Vincent
(the Principal Legal Advisor) to Gibson (the Assistant Deputy Director).97 By
October, 8 the Memorandum had been reviewed very favorably by DHS Principal
93

9/9/10 Email, Ex. J to Lin Decl.

94

NDLON, 2011 WL 2693655, at *9.

95

9/29/10 Email, Ex. M to Lin Decl.

96

9/29/10 Email, Ex. N to Lin Decl.

97

10/4/10 Email, Ex. T to Lin Decl.
30

Deputy General Counsel David Martin.98
On October 6, DHS Secretary Napolitano made the first unequivocal
public statement confirming the mandatory nature of Secure Communities.99
Beginning at that time and continuing though 2011, ICE officials have repeatedly
explained to members of Congress, local law enforcement agencies, and the public,
that participation in the program is mandatory and required by federal law.100
In National Council of La Raza, the Second Circuit considered
whether the Department of Justice had adopted a memorandum from its Office of
Legal Counsel. The court noted that the Attorney General had made references to
the legal interpretation of OLC and that his chief counsel had made public remarks
summarizing the memorandum itself. As the court explained, “the Department
publicly and repeatedly depended on the Memorandum as the primary legal
authority justifying and driving [its change in policy.]”101
There is no bright-line test to determine adoption, and “courts must
examine all the relevant facts and circumstances in determining whether express

98

10/8/10 Email, Ex. V to Lin Decl.

99

Shankar Vedantam, U.S. Deportations Reach Record High,
Washington Post, Oct. 7, 2010.
100

See Pl. Mem. at 8-9 and the evidence cited therein.

101

La Raza, 411 F.3d at 358.
31

adoption or incorporation by reference has occurred.”102 In this case, the evidence
is unambiguous that ICE adopted the conclusions of the October 2 Memorandum –
that there is sufficient legal support to make Secure Communities mandatory in
2013. However, in La Raza, the court cautioned that “[m]ere reliance on a
document’s conclusions does not necessarily involve reliance on a document’s
analysis; both will ordinarily be needed before a court may properly find adoption
or incorporation by reference.”103
There is significant direct evidence that the agency adopted the
analysis of the October 2 Memorandum: on September 29, the Assistant Deputy
Director instructed her legal department to make specific arguments in the
Memorandum and on October 8, ICE’s Principal Legal Advisor called the
Memorandum “excellent” (praise that almost surely refers to the memo’s legal
analysis, not just its conclusions) and relayed praise for the Memorandum from the

102

Id. at 357.

103

Id. at 358 (citing Renegotiation Bd. v. Grumman Aircraft Eng’g
Corp., 421 US 168 (1975)). Accord Wood v. Federal Bureau of Investigation, 432
F.3d 78, 84 (2d Cir. 2005) (“There is no evidence in the record from which it could
be inferred that the DOJ adopted the reasoning of the Memo, and . . . this failure is
fatal.”) (emphasis added); Access Reports v. Department of Justice, 926 F.2d 1192,
1197 (D.C. Cir. 1991) (explaining that reference to a report’s conclusion does not
equal adoption of its analysis).
32

Principal Deputy General Counsel of the Department of Homeland Security.104 In
addition, as I detailed in my analysis of waiver above, the agency has repeatedly
reiterated the arguments of the October 2 Memorandum in other documents and in
discussions with the public.105 This is not an instance “like Grumman, where an
agency, having reviewed a subordinate’s non-binding recommendation, makes a
‘yes or no’ determination without providing any reasoning at all . . . .”106 Rather, it
is an instance where the agency has continually relied upon and repeated in public
the arguments made in the Memorandum.
As persuasive as the direct evidence is the circumstantial evidence: in
September 2010, high-level ICE officials sought to gather into one memorandum
the legal support for a policy that they had decided to implement in March 2010;
that Memorandum was produced and revised according to the officials’
specifications; four days after the Memorandum was complete, for the first time
ever, Secretary Napolitano articulated the conclusions of the Memorandum – that
Secure Communities would be mandatory – and her agency began reiterating her
message and asserting its legal legitimacy. Defendants affirm that the October 2

104

9/29/10 Email, Ex. N to Lin Decl.

105

See supra notes 74 to 83 and accompanying text.

106

La Raza, 411 F.3d at 359.
33

Memorandum was the final version of the document, despite its “draft” status.107
And unless the defendants have unlawfully withheld other legal memoranda from
plaintiffs and this Court, it was the only document comprehensively laying out the
legal authority for making Secure Communities mandatory. Thus, the analysis in
the Memorandum seems to be the only rationale that the agency could have relied
upon and adopted as the legal basis for the policy.
In the face of this significant evidence, defendants fail to even assert
that the October 2 Memorandum was not adopted by the agency. Instead, they
argue simply that plaintiffs have failed to meet their burden of proving adoption.
Defendants have offered no testimonial or documentary evidence showing that the
Memorandum’s arguments were not adopted by the agency.
As the Second Circuit has explained, an agency’s view “that it may
adopt a legal position while shielding from public view the analysis that yielded
that position is offensive to FOIA.”108 In this case, defendants have been given
ample opportunity to submit evidence showing that the October 2 Memorandum is
exempt from disclosure. In the face of plaintiffs’ specific evidence of waiver, the
declaration of Ryan Law is insufficient to show that the agency maintained
107

NDLON, 2011 WL 2693655, at *18; 4/20/11 Email, Ex. S to Lin.

108

La Raza, 411 F.3d at 360.

Decl.

34

confidentiality of the Memorandum. And in the face of significant direct and
circumstantial evidence suggesting that ICE adopted the Memorandum as its
policy, the defendants have chosen to submit no affidavits or documentary
evidence showing otherwise. In order to withhold the Memorandum from
disclosure, the defendants must meet their burden of persuasion on both issues.
They have done neither.
D.

Early Drafts of the Memorandum
Defendants have produced eighteen versions of the October 2

Memorandum. The early versions of the Memorandum contained the same legal
conclusion as that in the ‘Opt-Out’ Background document that ICE produced in
unredacted form (that is, that ICE’s “position that participation in the ‘Secure
Communities initiative’ is voluntary is supported by applicable case law.”).109
Later versions of the Memorandum accord with the instruction of Assistant Deputy
Director Beth Gibson to the legal staff to “rewrite” the document “to argue for the
‘mandatory’ participation in 2013.”110 The early versions of the Memorandum
were clearly not adopted by the agency as working law; their arguments and
conclusions were revised precisely because they did not comply with the policy

109

ICE FOIA 10-1674.0002927.

110

9/29/10 Email, Ex. N to Lin Decl.
35

determination made by the agency. Much of the material in the early drafts of the
Memorandum replicates material in the final version of the document; some of the
material was eliminated from the final version and does not appear to replicate
material that is publicly available.
Defendants are ordered to release the final version of the October 2
Memorandum, redacting only the final paragraph of page 3 and its accompanying
footnote, which are covered by the deliberative process privilege. Defendants are
also ordered to release all earlier drafts of the October 2 Memorandum, redacting
only information that does not appear in the final version of the document, in the
‘Opt-Out’ Background document, or in any other publicly-available document.
Defendants may also redact the names of employees other than agency heads and
high-level subordinates that appear in the final Memorandum or the earlier drafts.
All documents shall be released by November 1, 2011.
V.

CONCLUSION
For the reasons stated above, defendants’ motion for summary

judgment is denied and plaintiffs’ motion for summary judgment is granted. The
Clerk of the Court is directed to close these motions [Docket Nos. 125 and 128].

36

Dated:

New York, New York
October 24, 2011

37

- Appearances For Plaintiffs:
Sonia Lin, Esq.
Peter L. Markowitz, Esq.
Immigration Justice Clinic
Benjamin N. Cardozo School of Law
55 Fifth Ave., Rm 1154
New York, New York 10003
[phone]
Anthony J. Diana, Esq.
Lisa R. Plush, Esq.
Jeremy D. Schildcrout, Esq.
Mayer Brown LLP
1675 Broadway
New York, New York 10019
[phone]
Sunita Patel, Esq.
Darius Charney, Esq.
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, New York 10012
[phone]
For Defendants:
Joseph N. Cordaro
Christopher Connolly
Assistant U. S. Attorneys
86 Chambers Street, 3rd Floor
New York, New York 10004
[phone]/2761

38