The New York Times Company et al v. United States Department of Homeland Security

Filing 12

OPINION AND ORDER re: 4 MOTION for Summary Judgment, filed by United States Department of Homeland Security, 7 CROSS MOTION for Summary Judgment, filed by The New York Times Company, Maria Sacchetti. For the foregoing reasons, summary judgment is granted in Plaintiffs' favor and DRS is ordered to disclose the names of the Released Individuals. The Clerk of the Court is directed to close these motions (Docket Nos. 4 and 7) and this case. (Signed by Judge Shira A. Scheindlin on 6/13/2013) (ja)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------)(
THE NEW YORK TIMES COMPANY and
MARIA SACCHETTI,
Plaintiffs,
- againstUNITED STATES DEPARTMENT OF
HOMELAND SECURITY,

OPINION AND ORDER
12 Civ. 8100 (SAS)

Defendant.

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

INTRODUCTION
In Zadvydas v. Davis, the Supreme Court held that individuals who

have been found unlawfully present in the United States and are scheduled for
removal may not be detained for a period longer than six months where there is no
significant likelihood of removal in the reasonably foreseeable future. 1 The New
York Times Co. and its employee Maria Sacchetti, a reporter for the Boston Globe,
(collectively "Plaintiffs") request, pursuant to the Freedom of Information Act
("FOIA"),2 that the United States Department of Romeland Security ("DRS")

533 U.S. 678, 701 (2001).
2

5 U.S.C. § 552 et seq.
1

produce a list of all aliens since 2008 who, after being convicted of a crime and
serving their sentence, were designated for removal but were released from DHS
custody pursuant to Zadvydas. In response to this request DHS produced a list of
6,843 individuals (the “Released Individuals”) along with certain relevant
information, but redacted the individuals’ names pursuant to FOIA Exemptions 6
and 7(C) concerning protection of privacy interests. The parties now cross-move
for summary judgment on the propriety of DHS’s decision to withhold the names
of the individuals.
II.

STATEMENT OF FACTS
When an alien is designated for removal from the United States, DHS,

and specifically Immigrations and Customs Enforcement (“ICE”), generally places
the individual in administrative detention until removal is effected.3 During that
period, an ICE officer works to obtain necessary travel documents from the
individual’s home country.4 Occasionally ICE is unable to obtain the necessary
documents, for example because of the state of U.S. diplomatic relations with the
country or the individual’s medical condition.5 If ICE’s efforts to obtain the

3

See 8 U.S.C. § 1231; Declaration of Ryan Law in Support of
Defendant’s Motion for Summary Judgment (“Law Decl.”) ¶ 7.
4

See Law Decl. ¶ 8.

5

See id. ¶ 9.
2

necessary documentation exceed six months without the likelihood of success in
the foreseeable future, Zadvydas mandates that the individual be released unless
special circumstances exist, i.e., risk of flight or danger to the community.6
As part of a journalistic investigation into the government’s handling
of immigration matters, Sacchetti researched the government’s procedures and
policies for releasing aliens convicted of crimes who were designated for removal
to their home country, but whose administrative detention implicated the Supreme
Court’s ruling in Zadvydas.7 Sacchetti was interested in learning whether, for
instance, “aliens with a history of violent crimes were being released, whether
repeat offenders were being released on more than one occasion, and whether
sentencing decisions that had been affected by the court’s belief that removal
would follow were being undermined by release.”8
Sacchetti submitted a FOIA request to ICE on September 28, 2011,

6

Zadvydas, 533 U.S. at 691.

7

See Declaration of Maria Sacchetti (“Sacchetti Decl.”) ¶¶ 2-6.

8

Plaintiffs’ Memorandum of Law in Support of Their Cross-Motion for
Summary Judgment and in Opposition to Defendant’s Motion for Summary
Judgment (“Pl. Mem.”) at 3 (citing Sacchetti Decl. ¶¶ 4, 5, 9, 12). Sacchetti’s
research revealed that in some cases courts, as well as victims, were told at
sentencing that the defendant would be removed following release, but in fact the
defendant was not removed and the perpetrators victimized those who testified
against them. See Sacchetti Decl. ¶¶ 5, 11-15.
3

which was subsequently modified into a request seeking “a list of convicted
criminal aliens released by ICE, but not deported, since 1/1/2008 due to the 2001
Supreme Court decision in Zadvydas[]” (the “Request”).9 DHS produced a
spreadsheet (the “Spreadsheet”) containing, for each individual, the most serious
crime for which the individual was convicted, the date of release from ICE
custody, and the jurisdiction in which the release took place (the “Area of
Responsibility”).10 The names of the individuals were redacted based on DHS’s
aassertion that the information fell within FOIA Exemptions 6 and 7(C).11 On
February 24, 2012, Sacchetti administratively appealed the redaction of the
names;12 on April 20, 2012, DHS denied the appeal on the grounds that the
Exemptions applied;13 and on November 7, 2012 Plaintiffs initiated this lawsuit.
III.

APPLICABLE LAW AND STANDARD
Balancing the objective of “broad disclosure of Government records”

against recognition that such disclosure “may not always be in the public

9

See Ex. B to Law Decl.

10

See Ex. C to Law Decl.

11

See id.; Complaint ¶ 11.

12

See Ex. D to Law Decl.

13

See Ex. E to Law Decl.
4

interest,”14 FOIA provides for nine exemptions from disclosure, which are to be
construed narrowly, with all doubts resolved in favor of disclosure.15 Courts
review de novo the adequacy of an agency’s justifications for withholding
information pursuant to an exemption.16
FOIA cases are generally resolved on motions for summary
judgment,17 which requires that the moving party “show 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.”18 The agency withholding documents or redacting information
responsive to a FOIA request bears the burden of proving the applicability of
claimed exemptions.19 “Summary judgment is appropriate where the agency
[submits] affidavits [that] ‘describe the justifications for nondisclosure with
14

CIA v. Sims, 471 U.S. 159, 166 (1985); American Civil Liberties
Union v. United States Dep’t of Justice, 681 F.3d 61, 69 (2d Cir. 2012) (“ACLU v.
DOJ”).
15

See 5 U.S.C. § 552(b); United States Dep’t of Justice v. Tax Analysts,
492 U.S. 136, 151 (1989); Associated Press v. United States Dep’t of Defense, 554
F.3d 274, 283-84 (2d Cir. 2009).
16

See 5 U.S.C. § 552(a)(4)(B); ACLU v. DOJ, 681 F.3d at 69.

17

See New York Times Co. v. United States Dep’t of Justice, No. 11 Civ.
9336, 2013 WL 50209, at *15 (S.D.N.Y. Jan. 3, 2013) (compiling cases).
18

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

19

See United States Dep’t of State v. Ray, 502 U.S. 164, 173 (1991);
Assoc. Press, 554 F. 3d at 283.
5

reasonably specific detail, demonstrate that the information withheld logically falls
within the claimed exemption, and are not controverted by either contrary evidence
in the record nor by evidence of agency bad faith.’”20 An agency’s affidavits are
viewed with a presumption of good faith.21
ICE withheld the names of the Released Individuals pursuant to FOIA
Exemptions 6 and 7(C). Exemption 6 exempts from disclosure information from
“personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.”22 Exemption 7(C)
exempts from disclosure “records or information compiled for law enforcement
purposes” where disclosing them “could reasonably be expected to constitute an
unwarranted invasion of personal privacy.”23 Because these records are more
closely aligned with Exemption 7(C), which has a lower threshold for what

20

ACLU v. DOJ, 681 F.3d at 69 (quoting Wilner v. National Sec.
Agency, 592 F.3d 60, 73 (2d Cir. 2009)).
21

See Wood v. FBI, 432 F.3d 78, 85 (2d Cir. 2005). This presumption
of good faith, however, does not abrogate the court’s duty to undertake de novo
review of the agency’s decision. See Wilner, 592 F.3d at 69, 73.
22

5 U.S.C. § 552(b)(6). ICE argues that the records at issue constitute
“similar files” within the meaning of Exemption 6 as that phrase encompasses
“‘records on an individual which can be identified as applying to that individual.’”
Memorandum of Law in Support of Defendant’s Motion for Summary Judgment
(“Def. Mem.”) at 5 n.3 (quoting Assoc. Press, 554 F.3d at 291).
23

5 U.S.C. § 552(b)(7)(C).
6

invasion of privacy will trigger the exemption, I assess DHS’s exemption claims
under 7(C).24 When applying Exemption 7(C), courts engage in a two-part test.
First, the court determines “whether there is any privacy interest in the information
sought.”25 If the court answers that question in the affirmative, it then balances the
privacy interest against the public interest in disclosure.26 “Where the privacy
concerns addressed by Exemption 7(C) are present, the exemption requires the
person requesting the information to [show: (1)] that the public interest sought to
be advanced is a significant one [; and (2) that] the information is likely to advance
that interest.”27
IV.

DISCUSSION

24

See United States Dep’t of Defense v. FLRA, 510 U.S. 487, 496-97 n.6
(1994) (Exemption 7(C) “is more protective of privacy than Exemption 6” because
the former “applies to any disclosure that could reasonably be expected to
constitute an invasion of privacy that is unwarranted”). See also Assoc. Press, 554
F.3d at 290-91 (“Because we find that Exemption 7(C) applies to the redactions of
detainees’ identifying information, we do not need to address the applicability of
Exemption 6.”).
25

Assoc. Press, 554 F.3d at 284.

26

See id. at 285. See also FLRA v. United States Dep’t of Veterans, 958
F.2d 503, 509 (2d Cir. 1992) (“Only where a privacy interest is implicated does the
public interest for which the information will serve become relevant and require a
balancing of the competing interests.”).
27

National Archives & Records Admin. v. Favish, 541 U.S. 157, 172

(2004).
7

A.

Disclosure of the Names of Released Individuals Implicates a
Privacy Interest
It is well-established that an individual has a privacy interest in

controlling information concerning his or her person, where release of that
information may cause “embarrassment in their social and community
relationships,” or result in “retaliatory action.”28 At the same time, such privacy
interest may be limited or eliminated entirely where the information at issue is
already public, or where the individual has forfeited the right to control the
relevant information no matter how potentially harmful.29
DHS argues that “[t]he Released Individuals have a strong interest in
avoiding any embarrassment or retaliation that may be caused by the
Government’s publicly identifying them both as convicted criminals and illegal
aliens.”30 Plaintiffs respond that “[a]ny criminal information about the individuals
– specifically, their arrests, convictions, and sentences – is a matter of public
record, and information regarding their immigration status is routinely disclosed in

28

Ray, 502 U.S. at 176-77.

29

See Center for Nat’l Sec. Studies v. United States Dep’t of Justice, 331
F.3d 918, 945-46 (D.C. Cir. 2003) (Tatel, J., dissenting) (“Even though being
arrested subjects a person suspected of criminal activity to embarrassment and
potentially more serious reputational harm, the law is nevertheless clear that no
right of privacy is violated by the disclosure of an official act such as an arrest.”).
30

Def. Mem. at 7.
8

those public proceedings as well.”31 As such, disclosure would simply “make
public what is already a matter of public record” with the sole new information
being that the individual has not been removed from the United States.32
The Supreme Court has confirmed that there is a privacy interest in
not publicizing as “federal compilations” events such as “arrests, charges,
convictions, and incarcerations,” even those which “have been previously
disclosed to the public.”33 The Court recognized that there is a significant
difference, in terms of privacy interests, “between scattered disclosure of the bits of
information contained in a rap sheet and revelation of the rap sheet as a whole.”34
Here too, there is a difference between the “practical obscurity”35 of the existence
of public records regarding individuals’ prior convictions, and records regarding
31

Pl. Mem. at 9.

32

Id.

33

United States Dep’t of Justice v. Reporters Comm. for Freedom of
Press, 489 U.S. 749, 762-63 (1989). Accord American Civil Liberties Union v.
United States Dep’t of Justice, 655 F.3d 1, 8 (D.C. Cir. 2011) (“The Court [in
Reporters Comm.] held ‘as a categorical matter’ that ‘a third party’s request for law
enforcement records or information about a private citizen can reasonably be
expected to invade that citizen’s privacy,’ and that such records may therefore not
be disclosed in the absence of a cognizable public interest.”).
34

Reporters Comm., 489 U.S. at 764. Accord id. at 753 (“Although
much rap-sheet information is a matter of public record, the availability and
dissemination of the actual rap sheet to the public is limited.”).
35

Id. at 762.
9

immigration status, which may be obtained with some effort, and the release of a
spreadsheet compiled by ICE containing a variety of information about an
individual including criminal convictions, status as an illegal immigrant, some
information about that individual’s current location,36 and the fact that he or she
has not been deported.37
B.

The Public Interest in Disclosure Outweighs the Privacy Interests
Having concluded that there is a privacy interest, albeit a diminished

one, in the information contained in the Releasee Spreadsheet, the Court must
weigh that privacy interest against the public interest in disclosure.38 There is
“only one relevant public interest, that of ‘open[ing] agency action to the light of

36

“The only remotely geographical information provided on the
Releasee Spreadsheet is the administratively created Area of Responsibility, each
of which covers a large geographical area[], often several states.” Pl. Mem. at 9. In
fact, most Areas of Responsibility appear to be metropolitan areas.
37

See Reporters Comm., 489 U.S. at 764 (“The very fact that federal
funds have been spent to prepare, index, and maintain these criminal-history files
demonstrates that the individual items of information in the summaries would not
otherwise be ‘freely available’ either to the officials who have access to the
underlying files or to the general public. Indeed, if the summaries were ‘freely
available,’ there would be no reason to invoke the FOIA to obtain access to the
information they contain.”).
38

See Favish, 541 U.S. at 172 (“Where the privacy concerns addressed
by exemption 7(C) are present, the exemption requires the person requesting the
information to establish a sufficient reason for disclosure.”). See also Long v.
Office of Pers. Mgmt., 692 F.3d 185, 193 (2d Cir. 2012).
10

public scrutiny.’”39
The public has an interest in knowing how ICE handles aliens
convicted of crimes who are required to be released pursuant to Zadvydas when
their detention period exceeds six months. This is “[o]fficial information that
sheds light on an agency’s performance of its statutory duties.”40 The Spreadsheet
captures relevant information about how ICE is handling its obligations under
Zadvydas – for example, the most significant crime committed permits evaluation
of whether a special circumstance such as threat to safety might have warranted an
exception to the six month limitation period. The question, then, is whether
inclusion of the names of the releasees would shed additional light on agency
practices and whether that additional light justifies the concomitant invasion of
privacy.41

39

Assoc. Press, 554 F.3d at 288 (quoting Reporters Comm., 489 U.S. at
772) (alterations in original).
40

Reporters Comm., 489 U.S. at 773 (holding that such information
“falls squarely within [FOIA’s] statutory purpose”).
41

See Buffalo Evening News, Inc. v. United States Border Patrol, 791 F.
Supp. 386, 400 (W.D.N.Y. 1992) (agreeing “that disclosure of the statutory basis
for excluding a certain alien based on ideological grounds, combined with
disclosure of the alien’s occupation and country of origin, enables the public to
assess much about the government’s practice and policy toward ideological
exclusion” but finding that in that case “disclosure of the purely personal
information redacted pursuant to Exemption 7(C) would not shed much light on
agency practice to any degree sufficient to outweigh the strong privacy interests
11

Plaintiffs do not assert a direct public interest in knowing the names of
individuals being released pursuant to Zadvydas. Rather, they argue that disclosure
of the names of the Released Individuals would permit them to obtain information
that “would shed further light on critical aspects of the government’s handling of
its removal duties.”42 Plaintiffs contend that “the Globe could more fully monitor
how often courts gave lesser sentences to aliens because prosecutors and judges
mistakenly believed that removal was to follow sentence [and] how often DHS
failed to seek longer detentions for individuals who, according to court records,
posed a risk to the community.”43 In support of this, Plaintiffs cite examples of
where Sacchetti was able to learn through “diligent reporting despite the secrecy
imposed by DHS” of several questionable exercises of DHS’s discretion under
Zadvydas.44

involved”).
42

Pl. Mem. at 15. Accord Compl. ¶ 15 (learning names of Released
Individuals would allow plaintiffs to learn “whether [ICE] is making considered
judgments as to whether a convicted alien is likely to commit a crime again”).
43

Pl. Mem. at 15-16 (emphasis added).

44

Examples of what Sacchetti’s research uncovered include: DHS
released McCarthy Larngar shortly after ICE declared in writing that he was a
danger to the community, after which he committed another crime and returned to
jail; DHS released Huang Chen without warning a prior victim, and he eventually
stalked and killed that victim; Antonio Rodrigues was released after obtaining a
reduced criminal sentence based on expected deportation and now faces new
12

The Second Circuit has observed that “assertions of a public interest
in ‘monitoring’ governmental operations ‘have not been viewed favorably by the
courts,’” but accepted this interest as “within the ambit of public interests.”45 In
Associated Press, which involved requests for information about Guantamo Bay
detainees, the Second Circuit found a similar argument – “that the names and
identifying information would allow the public to track these detainees’ treatment .
. . including transfer and release decisions” – plausible but ultimately insufficient
in light of the privacy interests in question.46 The court also separately considered
the “derivative use” theory – that is “that the public interest can be read more
broadly to include the ability to use redacted information to obtain additional as yet
undiscovered information outside the government files.”47 Recognizing that the

charges of shooting a man between the eyes. See Pl. Mem. at 15.
45

Hopkins v. United States Dep’t of Hous. & Urban Dev., 929 F.2d 81,
88 (2d Cir. 1991) (quoting Heights Cmty Cong. v. Veterans Admin., 732 F.2d 526,
530 (6th Cir. 1983)).
46

Assoc. Press, 554 F.3d at 289-90 (holding that “the speculative nature
of the result is insufficient to outweigh the detainees’ privacy interest in nondisclosure”).
47

Id. (citations omitted) (discussing Ray, 502 U.S. at 177, wherein “the
FOIA requester argued that the public interest would be served by disclosure of the
Haitian returnees’ names because that information would allow the public to
conduct its own interviews of the returnees to see if they corroborated the
information in the State Department’s interview transcripts”).
13

Supreme Court left open “‘whether a derivative use theory would ever justify
release of information about private individuals,’” the court found a derivative use
theory insufficient in Associated Press but declined to foreclose the theory
altogether.48
The privacy interest at issue in this case – that of convicted criminals
in not releasing in compiled form information which is already public – is
significantly diminished compared to those at issue in Associated Press
(Guantanamo Bay detainees)49 or Ray (“Haitian nationals who had attempted to
emigrate illegally to the United States and were involuntarily returned to Haiti”).50
Although release of the names in this case would not “reveal[] something directly
about the character of a government agency,”51 plaintiffs do not propose to contact
the individuals in furtherance of their investigation – a derivative use which the
Second Circuit held “dramatically increases the already significant threat to the []
privacy interests that disclosure of this information would entail.”52 Rather,
48

Id. at 290 (quoting Ray, 502 U.S. at 179).

49

See id. at 280.

50

502 U.S. at 166.

51

Hopkins, 929 F.2d at 88 (emphasis in original) (citing Reporters
Comm., 489 U.S. at 774).
52

Id. Of course there is always the possibility that, if the individual
names are disclosed, Plaintiffs or someone other than Plaintiffs could contact the
14

plaintiffs argue that disclosure of individual names would permit “monitoring of
whether repeat offenders are on the list” and “identif[ication] through public court
document [of] those countries with a track record of avoiding or resisting
repatriations.”53
Plaintiffs have established that they would use the individual names in
combination with other public information to draw conclusions about the
performance of the DHS – information which the government agency, for whatever
reason, is disinclined to disclose on its own.54 They have refuted DHS’s contention
that allegations of impropriety by government actors are based on “bare

individuals personally. However, that is always a possibility when information is
disclosed – the inquiry is whether the stated purpose of the FOIA request justifies
the possible intrusion on privacy. Moreover, because these records are already
public, it is already possible, albeit more difficult, to contact the Released
Individuals, as Sacchetti’s reporting proves. The requested disclosure would not
release additional information that would facilitate personal intrusions because
unlike in Hopkins, the individuals’ addresses are not the subject of a disclosure
request. See 929 F.2d at 88 (declining to release individual names and addresses).
53

Pl. Mem. at 16.

54

There is merit in plaintiffs’ argument that DHS cannot dismiss the
value of the Globe’s inquiry by asserting that the troubling cases “do not indicate
any failing on the part of the agency” but refuse to provide the data that would
refute the Globe’s suspicions about the practices pursuant to Zadvydas. See Pl.
Mem. at 16 (quoting Def. Mem. at 9-10). See also id. at 17 (“DHS cannot have it
both ways: It cannot keep secret the very information that would [directly] answer
a dispositive question in this case and then criticize the Globe for failing to scale
the wall of secrecy that DHS itself has built.”).
15

suspicion,,,55 and have established that disclosure of the names would further the
legitimate public interest in knowing how government agencies make decisions.
Thus, DRS has not carried its burden of showing that this diminished privacy
interest outweighs the public interest in "facilitat[ing] an investigation of [DRS's]
performance.,,56

V.

CONCLUSION
For the foregoing reasons, summary judgment is granted in Plaintiffs'

favor and DRS is ordered to disclose the names of the Released Individuals. The
Clerk of the Court is directed to close these motions (Docket Nos. 4 and 7) and this
case.

A. Scheinplin
\
'
.J."
Dated:

New York, New York
June 13,2013

55

Favish, 541 U.S. at 174.

56

Hopkins, 929 F.2d at 88.
16

- Appearances For Plaintiffs:
David Edward McCraw, Esq.
Stephen Nathaniel Gikow, Esq.
The New York Times Company
620 Eighth Avenue
New York, NY 10018
[phone]
For Defendants:
Cristine Irvin Phillips
Assistant U.S. Attorney
United States Attorney Office, SDNY
86 Chambers Street
New York, NY 10007
[phone]

17