Assadi v. United States Citizenship & Immigration Services

Filing 18

OPINION AND ORDER re: 10 MOTION for Partial Summary Judgment filed by United States Citizenship & Immigration Services. The Court finds that the SOFs were properly withheld under exemption 5. The Court also finds that exemption 6 and 7(C) apply to the personal information for both the government investigators and the third parties within the SOFs. CIS's motion for partial summary judgment is, therefore, GRANTED. The Clerk of the Court is directed to close this motion [Docket No. 10]. (Signed by Magistrate Judge Ronald L. Ellis on 1/22/2013) (mro)

USDCSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

~I

JOHN ASSADI, ESQ.,

DOCUtvIENT
ELECTRONICALLY FILED
DOC#: ____-r~~__­
DATE FILED:
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Plaintiff,
OPINION AND ORDER
- against12 Civ. 1374 (RLE)
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendant.
RONALD L. ELLIS, United States Magistrate Judge:
I.

INTRODUCTION

Plaintiff John Assadi ("Assadi") brings this lawsuit pursuant to the Freedom of
Information Act, 5 U.S.C. § 552 ("FOIA"), to compel production of eight reports prepared and
withheld by the United States Citizenship and Immigration Services ("CIS"), Fraud Detection
and National Security Unit ("FDNS"). Before the Court is CIS's motion for partial summary
judgment pursuant to Federal Rule of Civil Procedure 56. The Parties have consented to this
Court's jurisdiction pursuant to 28 U.S.C. § 636(c).
For the reasons that follow, CIS's motion is GRANTED.
II.

BACKGROUND

Assadi submitted a FOIA request to CIS on October 11, 2011. Compi. 2. The request
sought production of documents relating to communications "from and between the National
Visa Center, Fraud Prevent Unit, the American Embassies/Consulates in Ankara, Istanbul and
Adana, Turkey, the American Embassy in ParisE,] France, and the American Embassy in Abu
Dhabi, United Arab Emirates, relating to John Assadi, John J. Assadi, or Assadi & Milstein,
LLP, but excluding any documents or supporting documents filed or submitted by John Assadi."

Id (emphasis included)
All ofth~ docnm{mt!:! ~t i!:!!me are titled Summary of Finding;s ("SOF") reports. The

reports are developed by FDNS, which is a unit within CIS that "maintains anti-fraud and
screening programs, leads information sharing and collaboration activities, and supports the law
enforcement and intelligence communities." Def.'s Mem. 5.
Applications for immigration benefits are submitted to CIS and assigned to a CIS
Immigration Services Offer ("CIS adjudicator") who is responsible for adjudicating the matter.
Id If a CIS adjudicator suspects that an application is fraudulent, the application is referred to

FDNS for an investigation. Id. "FDNS does not have operational authority and responsibility
with regards to adjudicating immigration applications or petitioner, nor does it exercise any
supervisory authority over the CIS adjudicators and offices that conduct these adjudications."
Id After a referral, the application is investigated by a FDNS Immigration Officer (10). Id.

The 10 memorializes his or her findings or recommendations in a SOF report. Id
On November 21,2011, CIS informed Assadi that twenty-three pages of documents were
responsive to the request but were being withheld pursuant to exemptions under 5 U.S.c. §§
552(b)(5), (b)(6), & (b)(7)(C). Compl. 2. CIS did not include a Vaughn index with its
November 21 letter. 1 Id at 3. Assadi appealed CIS's determination by letter dated November
29,2011. Id at 4. CIS denied Assadi's appeal on January 12,2012, and stated that it had

"determined that the National Records Center properly withheld certain information that is
protected from disclosure under [FOIA] and that this information is not appropriate for
discretionary release." Id Assadi then filed this action to compel CIS to produce the SOFs.

CIS later delivered a Vaughn index to Assadi on June 8, 2012. Def. Mem of Law in
Supp. of Gov't's Mot. for Partial Summ. J. 3.
1

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CIS argues in its summary judgment motion that FOIA exemption 5 is applicable
becnus~ th~

SOFg contain "deliber!.ltiom: !.lbout pm:~ible fraud in connection with specific

applications for immigration benefits," and that the SOFs "reflect the specific analytical methods
and views of the FDNS officer." Def.'s Mem of Law in Supp. ofGov't's Mot. for Partial
Summ. 1. ("Def.'s Mem.") 1. CIS also argues that the SOFs are exempt from production
because exemption 6 and 7(C) apply to the private information of the third-parties which is
included in the SOFs. Id.

III.
A.

DISCUSSION

Summary Judgment Standard and FOIA
"When responding to a FOIA request, a federal agency must 1) conduct an adequate

search using reasonable efforts, 2) provide the information requested, unless it falls within a
FOIA exemption, and 3) provide any information that can reasonably be segregated from the
exempt information." Bloomberg L.P. v. Bd. ofGovernors ofFed. Reserve System, 649 F. Supp.
2d 262, 270 (S.D.N.Y. 2009); accord 5 U.S.c. §§ 5S2(a)(3), 552(b). FOIA is designed 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." Brennan Ctr. for Justice at New York

Univ. Sch. ofLaw v. United States Dep 't ofJustice, ("Brennan Ctr. "), 697 F.3d 184, 194 (2d Cir.
2012). "FOIA strongly favors a policy of disclosure." Id. In light of FOIA's broad disclosure
policy, the exemptions are to be construed narrowly. United States Dep't ofJustice v. Tax

Analysts, 492 U.S. 136,151 (1989).
Summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is "the
preferred procedural vehicle for resolving FOIA disputes." Bloomberg L.P., 649 F. Supp. 2d at
271. Summary judgment is proper "if there is no genuine dispute as to any material fact and the
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moving party is entitled to judgment as a matter oflaw." Brennan Ctr., 697 F.3d at 193 (citing
fed. R. Civ. P. S6(u)). The '\:trong pre~mmption in favor of disclosure places the burden on the
agency to justify the withholding of any requested documents." United States Dep 't ofState v.
Ray, 502 U.S. 164, 173 (1991).
Motions for summary judgment in the FOIA context are unique in that the government's
affidavits are accorded a presumption of good faith. Id. "[S]o long as such affidavits supply
facts indicating that the agency has conduct[ed] a thorough search and givers] reasonably
detailed explanations why any withheld documents fall within an exemption," the burden of
proof will be satisfied and summary judgment is appropriate without discovery. Id.; accord
Carney v. United States Dep't ofJustice, 19 FJd 807, 812 (2d Cir. 1994). An agency's
determination that documents are under an enumerated exemption, however, is afforded no
deference. Bloomberg L.P. v. Bd. ofGovernors ofthe Fed. Reserve Sys., 601 F.3d 143, 147 (2d
Cir.2010).
To carry their burden, agencies also generally submit a Vaughn index, which is an
"itemized listing of the non-disclosed records, describing each record and portion withheld, and
providing a detailed justification for the agency's withholding, specifying the [applicable] ForA
exemption." Nat 'I Day Laborer Org. Network v. United States Immigration Customs
Enforcement Agency, 811 F. Supp. 2d 713, 733 (S.D.N.Y. 2011). "Conclusory assertions of
privilege will not suffice to carry the Government's burden of proof in defending ForA cases."
Coastal States Gas Corp.

V.

Department ofEngery, 617 F.2d 854, 861 (1980). A Vaughn index

allows the opposing party "to contest the affidavit in an adversarial fashion," and to permit a
court to effectively review the agency's redactions. Halpern v. Fed. Bureau ofInvestigation,
181 F.3d 279, 293 (2d Cir. 1999).
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B.

Deliberative Process Privilege

FOIA exemption 5, frequently referred to as the "deliberative process privilege," exempts
"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). Congress
"intended to incorporate into the FOIA all the normal civil discovery privileges." Hopkins v.

United States Dep't ofHous. and Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991). When enacting
FOIA, Congress recognized that "efficiency of Government would be greatly hampered if, with
respect to legal and policy matters, all Government agencies were prematurely forced to operate
in a fishbowl." Id at 84; accord Env 't Prot. Agency v. Mink, 410 U.S. 73, 87 (1973).
Documents within the privilege must be (1) '''predeicisonal,' that is, prepared in order to
assist an agency decisionmaker in arriving at his decision, and [(2)] 'deliberative,' that is,
actually related to the process by which policies are formulated." Hopkins, 929 F.2d at 84. The
privilege thus protects the "decision making processes of government agencies, and focus[es] on
documents reflecting advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated." Nat 'f Labor Relations

Bd v. Sear, Roebuck & Co., 421 U. S. 132, 150 (1975).
Here, the SOFs are protected by the deliberative process privilege. First, the FDNS does
not have decision-making authority

the decision to award immigration benefits lies with the

CIS adjudicator, not the 10. The SOFs have "no operative independent of' the CIS adjudicator's
review of the applicant's petition. See Grumman, 421 U.S. at 187. Thus, because the FDNS
lacks decision-making authority, the SOFs are necessarily predecisionaL See Hopkins, 929 F.2d
at 85. Moreover, according to the appended declarations, SOFs contain deliberations and
findings associated with the fraud investigation that may include professional opinions, which

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are considered predecisional. Id. (holding that documents containing professional opinions and
recommendations as to whether nn ngency should t!lke !letion were predecisional)_ Second, the

sole purpose of a SOF is to determine whether fraud exists and to recommend a course of action,
i.e., considering the application solely on its merits. The SOFs enable the CIS Adjudicator to
consider all relevant facts when determining whether immigration benefits should be awarded.
In light of the role a SOF has in the adjudication process, it is also deliberative and protected by
the privilege. See Grumman, 421 U.S. at 185-86; see also Hopkins, 929 F.2d at 85.
Relying on language found in Coastal States Gas Corp. v. Department ofEngery, 617
F.2d 854, 868 (D.C. Cir. 1980), Assadi argues that CIS has not met its burden because the SOFs
are "[o]pinions about the applicability of existing policy to a certain set of fact." Pl.'s Opp'n 5.
In Coastal States, the court held that internal memoranda detailing the applicability of agency
policy in hypothetical situations were not protected under the deliberative process privilege. The
court held that the memoranda constituted "secret law" and its disclosure was directly within the
purposes of FOIA. 617 F.2d at 867-68. SOFs, however, are distinguishable from the
memoranda at issue in Coastal States. SOFs are created to assist the CIS adjudicator in reaching
a decision as to whether immigration benefits will be awarded, whereas the memoranda in

Coastal States were agency interpretations of regulations that were not made public. Id. at 857.
There is an important distinction between documents that are interpretations of already existing
agency policy and documents developed to assist an agency in reaching a decision. Compare

Coastal States, 617 F.2d at 857, with Azmy v. United States Dep 't qf Defense, 562 F. Supp. 2d
590,604 (S.D.N.Y. 2008).
Finding that the deliberative process privilege applies does not end the analysis. Courts
must determine whether any part of the document at issue is segregable. See 5 U.S.C. § 552(b).
6

Purely factual observations are not protected by the privilege, unless those observations are
"'incxtricably intertwined' with the privileged opinion [or] recommendation[] such that
disclosure would compromise the confidentiality of deliberative information that is entitled to
protection under Exemption 5." Hopkins, 929 F.2d at 85; accord Mink, 410 U.S. at 92).
Determining if any portions of an exempt-document are segregable begins with
consideration of the document as a whole. Lead Indus. Ass 'n, Inc. v. Occupational Safety and

Health, 610 F.2d 70,85. In other words, courts must consider factual "segments in the context
of the whole document and that document's relation to the administrative process which
generated it." Id at 86. Disclosure of factual material is permitted only if it will not
compromise the "private remainder of the document." Id at 85 (qouting Mink, 410 U.S. at 91).
"[T]he agency has the burden of establishing the necessity of keeping its records' factual
observations undisclosed." Id.
CIS's Vaughn index explains that the SOFs contain factual information specifically
chosen by extracting pertinent factual material from a larger body of factual material. Def.' s
Mem, Eggleston Decl., Ex. F, G. It argues that withholding the entire SOF is proper because the
document is predominantly evaluative and contains discussions involving selective factual
material. Reply Mem. of Law in Further Supp. Of Gov't's Mot. for Partial Summ. J. ("Def.'s
Reply") 6.
After an in camera review, this Court concludes that the SOFs are "predominantly
evaluative," see Tigue, 312 F.3d at 82, and disclosure ofthe purely factual material "would
reveal the deliberative process of summarization itself by demonstrating which facts" in the
fraud investigation process "were considered significant by the decisionmaker and those
assisting her." Lead Indus. Ass'n, Inc., 610 F.2d at 85. Each SOF is developed by an 10 charged
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with the task of assisting the CIS adjudicator in rendering a decision by evaluating available
fMtuo.l M(.\t~1'1nl fM ovidonM offr!lud_ All f!lct~ within an SOF

are ~elective and de1iherate, and

disclosure would shed light on an otherwise exempt evaluation process. See id. at 86. The
factual information within a SOF is unsegregable because it is "inextricably intertwined" with
the overall CIS adjudicative process.

C.

The Privacy Exemptions
FOIA exemption 6 prohibits disclosure of "personnel and medical files and similar files .

. . which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.c.

§ (b)(6). Finding that exemption 6 is applicable requires a two step inquiry. First, courts must
determine whether the personal information in dispute is contained in a file that is similar to
personnel or medical record. Files are generally considered "similar" if they contain the type of
information found within personnel or medical records. Wood v. Fed. Bureau ofInvestigation,
432 F.3d 78, 86 (2d Cir. 2005). Second, courts must "balance the public's need for the
information against the individual's privacy interest to determine whether the disclosure of the
names would constitute a 'clearly unwarranted invasion of personal privacy. '" Id. Individuals
have a private interest in their information that is contained in a government document. Amnesty
Intern. US.A. v. Central Intelligence Agency, No. 07 Civ. 5435, 2008 WL 2519908, at * 16
(S.D.N.Y. June 19,2008). The public has an interest in determining how its government
functions.
Exemption 6 is applicable to "all information which applies to a particular individual."
Id.; accord United States Dep't ofState v. Washington Post Co., 456 U.S. 595, 602 (1982). The
exemption precludes disclosure of "names and addresses, the release of which would create a
palpable threat to privacy." Id.
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FOIA exemption 7 exempts "records or information compiled for law enforcement
purposes, but only to thQ ml:tQnt th!J.t the production of mch .

infonnation .

could reasonably

be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C.

§ 552(b)(7)(C). Although both exemption 6 and 7 are aimed at protecting the privacy of
personal information, "the standard for evaluating the privacy interests implicated in records
compiled for law enforcement purposes under Exemption 7(C) is 'somewhat broader' than that
applicable under Exemption 6 to personnel, medical, or other files." Associated Press v. United

States Dep't ofJustice, 549 F.3d 62, 65 (2d Cir. 2008); accord United States Dep't ofJustice

v.

Reporters Comm.for Freedom ofthe Press, 489 U.S. 749, 756 (1989). The withholding agency
has the burden of showing that a document falls within the exemption. Associated Press I, 549
F.3d at 65. "Reasonably detailed affidavits or declarations explaining why any withheld
documents fall within a particular exemption are sufficient to sustain the agency's burden." Id
The threshold question of whether the SOFs are "similar" records under FOIA was
addressed by the Second Circuit in Wood. The court held that "[e]xemption 6 applies to any
personal information contained in files similar to personnel or medical files, such as
administrative investigative records." Wood, 432 F.3d at 86. Here, the SOFs are administrative
investigative records.
Once a file is considered "similar," the balancing test must be applied, where the private
interest is balanced against the public interest. An individual's privacy interest is construed
broadly and "encompass[es] all interest involving 'the individual's control of information
concerning his or her person.'" Hopkins, 929 F.2d at 87. The public's interest, on the other
hand, is construed narrowly and only considers "the extent to which disclosure of the
information sought would shed light on an agency's performance of its statutory duties or

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otherwise let citizens know what their government is up to." Wood, 432 F.3d at 88. Disclosure
of a government employee's privilte information depends on the likely com:equences: of
disclosing the information. Id. The employee's rank can either heighten or diminish the public's
interest. Id.; see also Nat 'I Day Laborer Org. Network, 811 F. Supp. 2d at 748.
CIS argues that H[d]isclosure of the authors' and subjects' identities would associate
them with fraud suspicions and could result in unwarranted contact or harassment from members
of the public or media, or a stigmatizing effect on their personal or professional character."
Def.'s Mem 13, Eggleston Decl., Ex. F. It is clear that government employees in investigative
functions have a recognized interest in protecting their identities out of fear of embarrassment or
harassment. See Wood, 432 F.3d at 88-89; see also Halpern, 181 F.3d at 297. The presumption
of good faith afforded to CIS's declarations is not disputed by Assadi.
The competing public interest does not outweigh an la's private interest because
disclosure will not "shed light" on how the government conducts business. Given las are
responsible for only investigating and creating documents that summarize and evaluate their
findings, and the lack of decision-making authority afforded to them, disclosure of their names is
not likely to shed light on how the CIS adjudicator conducts the government's business. "The
public's interest in knowing the identities of the [investigators] ... is insufficient to overcome
the employees' interest in preventing the public disclosure of their names." Wood, 432 F.3d at
88.
Assadi argues that the private exemptions should not apply to the applicants for
immigration benefits. He maintains that disclosure is appropriate because he is the attorney of
record for the applicants and that the "CIS Form G-28, Notice of Entry of Appearance as
Attorney or Accredited Representative, gives consent to the disclosure of any record pertaining

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to the applicant in any system of records of USC IS, USCBP, or US ICE, to the attorney of record
on the form." PI. Opp'n. 6. The Court disagrees.

Assadi's status as counsel of record to the individuals who are the subjects of the SOFs
does not promote the public's interest in disclosure. See id Moreover, CIS Fonn G-28
explicitly states that it may not be used for purposes of FO IA requests. See Dec!. of Rakhel
Speyer Milstein, Ex. A, Fonn G-28 at 2. Requesting infonnation of a third party is governed by
6 C.F.R. § 5, which requires written consent from the third party or proof of death. See 6. C.F.R.
§ 5.3. Assadi has not provided such written consent.

IV.

CONCLUSION

The Court finds that the SOFs were properly withheld under exemption 5. The Court
also finds that exemption 6 and 7(C) apply to the personal information for both the government
investigators and the third parties within the SOFs. CIS's motion for partial summary judgment
is, therefore, GRANTED. The Clerk of the Court is directed to close this motion [Docket No.
10].

SO ORDERED this 22nd day of January 2013
New York, New York

The Honorable Ronald L. Ellis
United States Magistrate Judge

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