Detention Watch Network et al v. United States Immigration and Customs Enforcement et al
OPINION AND ORDER re: 95 CROSS MOTION for Partial Summary Judgment filed by Detention Watch Network, Center for Constitutional Rights, 74 MOTION for Partial Summary Judgment filed by Detention Watch Network, Center for Consti tutional Rights, 86 CROSS MOTION for Partial Summary Judgment filed by United States Immigration and Customs Enforcement. For the foregoing reasons, Plaintiff's motion for partial summary judgment is GRANTED, and Defendant's cross-motion for partial summary judgment is DENIED. The Clerk of Court is respectfully directed to close Docket Nos. 74, 86, and 95. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 7/14/2016) (kko)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DETENTION WATCH NETWORK, et al.,
UNITED STATES IMMIGRATION AND
CUSTOMS ENFORCEMENT, et al.,
14 Civ. 583 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
This Opinion address cross motions for partial summary judgment in a Freedom of
Information Act (“FOIA”) action, 5 U.S.C. § 552, et seq. Plaintiffs, the Detention Watch
Network and the Center for Constitutional Rights, move for partial summary judgment seeking
the release of documents and information showing unit prices, bed-day rates and staffing plans in
government contracts with private detention facility contractors. Defendants, the United States
Immigration and Customs Enforcement (“ICE”) and the Department of Homeland Security
(“DHS”), cross-move for partial summary judgment pursuant to Federal Rule of Civil Procedure
56, asserting that the information is properly withheld under FOIA pursuant to 5 U.S.C. §
552(b)(4) (“Exemption 4”) and 5 U.S.C. § 552(b)(7)(E) (“Exemption 7(E)”). For the reasons
stated below, Plaintiffs’ motion for partial summary judgment is granted. Exemptions 4 and 7(E)
do not apply to unit prices, bed-day rates and staffing plans, and the information must be
produced. Defendants’ cross-motion is denied.
A. The FOIA Request and “Unit Prices,” “Bed Day Rates” and “Staffing Plans”
Plaintiffs submitted a FOIA request to DHS and ICE on November 25, 2013, seeking a
range of records related to the “Detention Bed Mandate,” which the Plaintiffs define as a policy,
since 2007, of maintaining a certain numerical level of detention. The records sought include
executed agreements and contract renewals between ICE or DHS and private companies
regarding detention facilities or detention beds. Since at least 2009, Congress has appropriated
money to ICE conditioned on maintaining 34,000 detention beds per day. The Detention Bed
Mandate has been the subject of significant public attention, including legislative efforts to
eliminate the mandate. Plaintiffs, a non-profit, public interest legal organization, and a national
coalition of organizations and individuals working exclusively on detention and deportation
issues, sought the records noting that the public concern about the Detention Bed Mandate has
focused on the profits accruing to private prison corporations and the financial incentives that the
Detention Bed Mandate creates for ICE to detain an increased number of non-citizens and
The issue on these summary judgment motions is whether the Government may withhold
information showing unit prices, “bed-day rates” and “staffing plans” in government contracts
with private detention facility contractors. Contracts between private contractors and ICE contain
the contractors’ pricing and staffing information for the services to be provided. The pricing can
be provided as a fixed monthly amount based on housing an anticipated number of detainees, or
as a “bed-day rate,” representing the contractor’s full cost of operating the facility divided by an
expected number of detainees to be housed and the number of days, to arrive at a per-detainee,
per-day rate. Many contracts also include staffing plans, which detail the number of personnel
working at a particular detention facility, the number of personnel assigned by shift, and how and
where the personnel are posted within the facility. ICE has redacted the bed-day rates and fixed
monthly rates from the contracts under Exemption 4, and has redacted the staffing plans under
Exemptions 4 and 7(E) of FOIA. Plaintiffs challenge those redactions.
B. Relevant Procedural History
On January 30, 2014, Plaintiffs filed the Complaint in the instant action, and on February
11, 2014, a motion for preliminary injunction to compel DHS and ICE to search for and produce
documents responsive to Plaintiffs’ FOIA request. At the time the Complaint and motion were
filed, DHS and ICE had not produced any documents. By Order dated May 16, 2014, ICE and
DHS were directed to produce the requested documents on a rolling basis. By Order dated July 3,
2014, ICE and DHS were required to meet monthly quotas in their document production.
When ICE produced contracts that ICE had executed with local governments and private
contractors for the operation of immigration detention facilities, some information -- including
terms about unit prices, bed-day rates, and staffing plans -- was withheld pursuant to FOIA
Exemption 4, which protects commercial information that is privileged or confidential and
obtained from a person. After Plaintiffs objected to the redactions, ICE conceded that it had
improperly applied Exemption 4 to unit prices in contracts with public entities. Regarding
contracts with private entities, ICE stated that it would obtain input from private contractors
pursuant to DHS FOIA regulation 6 C.F.R. § 5.8 in deciding whether to release similar
information from contracts with private contractors. ICE later informed Plaintiffs, in June 2016,
that it would continue to invoke Exemption 4 to withhold unit pricing, bed-day rates, and staffing
plans for private contracts.
Plaintiffs challenged these redactions and the parties negotiated a representative sample of
documents relating to six contracts to be used for the present motions for partial summary
judgment. The Government prepared a Vaughn index describing the agency’s rationale for the
assertion of FOIA exemptions regarding those contracts, with the understanding that a ruling
would apply to similar redactions in contracts that ICE has produced or will produce in
connection with this litigation and other documents containing the same information. See
Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973) (requiring the Government to produce
an itemized and indexed document outlining the Government’s justification for asserting FOIA
FOIA was enacted in 1966 to ensure public access to information by creating a judicially
enforceable public right to obtain information from government agencies. See Milner v. Dep’t of
Navy, 562 U.S. 562, 565 (“Congress enacted FOIA to overhaul the public-disclosure section of
the Administrative procedures Act . . . [which had] gradually become more ‘a withholding statue
than a disclosure statute.’”) (quoting EPA v. Mink, 410 U.S. 73, 79 (1973)). By granting access
to such information, the Act sought to promote “an informed citizenry, vital to the functioning of
a democratic society, needed to check against corruption and to hold the governors accountable to
the governed.” John Doe Agency vs. John Doe Corp., 493 U.S. 146, 152 (1989) (quoting NLRB
v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)). “Congress enacted FOIA ‘to pierce
the veil of administrative secrecy and to open agency action to the light of public scrutiny.’”
Cook v. Nat’l Archives & Records Admin., 758 F.3d 168, 173 (2d Cir. 2014) (quoting U.S. Dep’t
of State v. Ray, 502 U.S. 164, 173 (1991)).
At the same time, “Congress realized that legitimate governmental and private interests
could be harmed by release of certain types of information . . . .” John Doe Agency, 493 U.S. at
152. Therefore, while FOIA “strongly favors a policy of disclosure,” an agency may withhold a
record that falls into one or more of the statutorily enumerated exemptions. Long v. Office of
Pers. Mgmt., 692 F.3d 185, 190 (2d Cir. 2012). Congress established nine exemptions in order
“to reach a workable balance between the right of the public to know and the need of the
Government to keep information in confidence to the extent necessary without permitting
indiscriminate secrecy.” John Doe Agency, 493 U.S. at 152.
In interpreting these exemptions, courts have advised that the exemptions should be
“given a narrow compass.” Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601
F.3d 143, 147 (2010) (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989));
see also Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002) (“The Supreme Court has
counseled that these exceptions are to be interpreted narrowly in the face of the overriding
legislative intention to make records public.”).
Challenges to a government agency’s response are usually resolved at summary judgment
in FOIA actions. See, e.g., Carney v. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994).
Summary judgement is appropriate if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In order to prevail on a motion for summary judgment in a FOIA case, “the defending
agency has the burden of showing . . . that any withheld documents fall within an exemption to
the FOIA.” Carney, 19 F.3d at 812. “Affidavits or declarations … giving reasonably detailed
explanations why any withheld documents fall within an exemption are sufficient to sustain the
agency’s burden.” Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 69 (2d Cir. 2009) (quoting Carney,
19 F.3d at 812).
A district court reviewing the government’s assertion of exemptions and decision to
withhold documents reviews the decision de novo. Main Street Legal Services, Inc. v. National
Sec. Council, 811 F.3d 542, 544 (2d Cir. 2016). “The agency’s decision that the information is
exempt from disclosure receives no deference. . . .” Bloomberg, 601 F.3d at 147.
The Government invokes FOIA Exemptions 4 and 7(E) in withholding information
regarding unit pricing, bed-day rates, and staffing plans, and Exemption 7(E) as an additional
ground to withhold staffing plans. Neither exemption applies.
A. Exemption 4
For Exemption 4 to apply, “(1)[t]he information . . . must be a ‘trade secret’ or
‘commercial or financial’ in character; (2) it must be ‘obtained from a person,’ and (3) it must be
‘privileged or confidential.’” Nadler v. FDIC, 92 F.3d 93, 95 (2d Cir. 1996); accord Inner City
Press/Cmty. on the Move v. Bd. of Governors of Fed. Reserve Sys., 463 F.3d 239, 244 (2d Cir.
2006), 5 U.S.C. § 552(b)(4). Defendants have not met their burden of showing that bed-day
rates, unit prices and staffing plans contained in ICE contracts with private companies (1) were
“obtained from a person” and (2) are confidential.
1. The Information is “Commercial or Financial”
For the first prong of the test, “[t]o qualify for the exemption, information itself must in
some fashion be commercial or financial in nature or use.” Intellectual Property Watch v. U.S.
Trade Representative, No. 13 Civ. 8955, 2015 WL 5698015, at *13 (S.D.N.Y. Sept. 25, 2015).
Although the terms “commercial” and financial” have not been precisely defined by the Second
Circuit, see Am. Airlines, Inc. v. Nat’l Mediation Bd., 588 F.2d 863, 870 (2d Cir. 1978) (defining
“commercial” as “pertaining or relating to or dealing with commerce”), commercial includes at
least information that has “commercial value,” that would “jeopardize  commercial interests or
reveal information about  ongoing operations.” N.Y. Pub. Interest Research Grp. v. U.S. E.P.A.,
249 F. Supp. 2d 327, 334 (S.D.N.Y. 2003). The parties do not dispute that unit prices, bed-day
rates, and staffing plans are commercial or financial in nature.
The Information Was Not “Obtained from a Person”
Defendants have not met their burden of showing that the information at issue was
“obtained from a person.” The statute makes clear that a “‘person’ includes an individual,
partnership, corporation, association, or public or private organization,” 5 U.S.C. § 551(2); a
person does not include a government agency. Exemption 4 protects information and data only if
it was not “generated within the Government.” Bloomberg, 601 F.3d at 148 (citing Judicial
Watch, Inc. v. FDA, 449 F.3d 141, 148 (D.C. Cir. 2006) (“Unlike many other types of
information subject to an agency’s control, materials implicating Exemption 4 are generally not
developed within the agency.”)).
In Bloomberg, the Board of Governors of the Federal Reserve System, a federal
government agency, sought to withhold information about loans that the Federal Reserve Banks
made to private banks under Exemption 4. Id. The Second Circuit held that the agency could not
withhold the information because “the fact of the loan (and its terms) cannot be said to be
‘obtained from’ the borrower . . . . [and] [t]he fact that information about an individual can
sometimes be inferred from information generated within an agency does not mean that such
information was obtained from that person within the meaning of FOIA.” Id. (emphasis in
original). The Second Circuit noted that while some courts “have extended the protection of
Exemption 4 to information beyond the raw data gathered from persons by the government,”
these cases did not bear on cases “where what is requested is not merely the information collected
and slightly reprocessed by the government, but disclosure of the agency’s own executive
actions.” Id. at 148-49 (emphasis added). The Bloomberg court noted that while a completed
loan application is “obtained” from an individual, the final loan terms, even where “disclosure of
loan terms allows one to back into information about the borrower,” are not “obtained from” an
individual. Id. at 148. The Second Circuit therefore held that certain terms of the loan
agreements between the Federal Reserve and private banks contained in reports -- the identity of
the borrower, the dollar amount of the loan, the loan origination and maturity dates, and the
collateral securing the loan -- were not protected under Exemption 4.
Here, bed-day rates, unit pricing and staffing plans included in final government contracts
are like the terms of the loan agreements that the Second Circuit held were not exempt from
disclosure in Bloomberg. The Government is incorrect in asserting that, because the unit pricing
was submitted in the contractor’s initial bids, it is “obtained from a person.” In Bloomberg, the
borrowers presumably proposed the loan amount and collateral in their loan applications, just as
the private contractors here proposed pricing and staffing parameters. Yet, that information was
not protected. In Bloomberg, the Second Circuit distinguished between a FOIA request for the
application (or bid) made by the Government’s counterparty, which is information “obtained
from a person,” and other documents reflecting the ultimate contractual terms, which are not
“obtained from a person.” Id. (Plaintiff’s “FOIA request does not seek loan applications; it seeks
documents that show what loans the Federal Reserve Banks actually made . . . . [T]he fact of the
loan (and its terms) cannot be said to be ‘obtained from’ the borrower . . . .”). Plaintiffs do not
seek the initial bid documents, they seek documents that show the ultimate terms of the
government contracts, including the contracts themselves. The terms of those contracts are not
“obtained from” the contractors. See id.
Also, as a factual matter the Government is incorrect that pricing and staffing terms in the
contracts were “obtained from” the private contractors and simply incorporated into the final
contracts. Declarations in the record confirm that these rates were negotiated and agreed on by
the Government, as one would expect in an arms-length transaction. James Adams, an Assistant
Director in the Office of Acquisition Management at ICE, states, “The bed-day rates included in
the contract are those submitted in the successful contractor’s final offer and as agreed by the
Government” and “staffing plans proposed in either case may be accepted by ICE as is or
modified during negotiations.” Adams Decl. ¶¶ 18, 19. David Venturella, a Senior Vice
President at one of the private contractors states, “The bed-day rates and staffing plans contained
in the contractor’s proposal or bid are incorporated into the final contract, unless they are revised
as a result of subsequent negotiations with ICE.” Venturella Decl. ¶ 13. Russell Harper, the
CEO of another private contractor states, “The bed day rate number . . . is based on a daily rate as
negotiated between ICE and ICA [Immigration Centers of America] . . . . [t]he bed day rate is
proposed by ICA each year, and then ICE and ICA enter into negotiations on the rate.” Harper
Decl. ¶ 8. Even if the bed-day rates and unit prices were not negotiated but merely adopted, akin
to the Government’s argument in Bloomberg, 601 F.3d at 149, that the loans were granted
automatically, the contracts and their terms did not come into existence until each party to the
contract -- the private party and the Government -- took “executive action” to enter into the
contract. Because the bed-day rates, unit pricing and staffing plans contained in the contracts
were not “obtained from a person,” Exemption 4 does not apply.
3. The Information is Not “Confidential”
The requested information fails to qualify for Exemption 4 for the independent reason that
it is not “confidential” under the third prong of the test. A two-part test applies in determining
whether information is “confidential” for the purpose of Exemption 4: disclosure must have the
effect “(1) of impairing the government’s ability to obtain information -- necessary information -in the future, or (2) of causing substantial harm to the competitive position of the person from
whom the information was obtained.” Inner City Press/Community on the Move, 463 F.3d at
244. “To meet that standard, it is not enough for a corporation to state that it ‘would prefer that
[its] information be kept confidential.’” Natural Resources Def. Council v. U.S. Dep’t of Interior,
36 F. Supp. 3d 384, 401 (S.D.N.Y. 2014) (internal citations omitted). “Conclusory and
generalized allegations of substantial competitive harm, of course, are unacceptable and cannot
support an agency's decision to withhold requested documents.” Pub. Citizen Health Research
Grp. v. Food & Drug Admin., 704 F.2d 1280, 1291 (D.C. Cir. 1983). “[T]he government retains
the burden of persuasion that information is not subject to disclosure under FOIA . . . .” Inner
City Press/Community on the Move, 463 F.3d at 245.
Here, the Government does not argue that the disclosure will impair ICE’s ability to
obtain information in the future, but instead maintains that release of the bed-day rates, unit prices
and staffing plans contained in contracts will cause substantial competitive harm to the
contractors. According to the Government, disclosure of the bed-day rates and unit pricing will
allow competitors to “reverse-engineer the contractor’s pricing strategies . . . . [which] in turn
would enable the competitors to underbid the contractor in future bids, causing clear competitive
harm.” Def. Br. at 14.
Merely showing that competition exists or that contractors may face greater competition is
inadequate to show that the information is confidential. “To establish competitive harm, the
Government must show that ‘the person who submitted the information faces both (1) actual
competition and (2) a likelihood of ‘substantial’ competitive injury if the information were
released.” Nat’l Resources Def. Council, 36 F. Supp. 3d at 402 (quoting Inner City Press v. Bd.
of Governors, 380 F. Supp. 2d 211, 219 (S.D.N.Y. 2005), aff’d 463 F.3d 239 (2d Cir. 2006)).
Here, Defendants have not shown that disclosure of bed-day rates, unit prices, or staffing
plans would likely cause substantial competitive harm. In support of their argument, Defendants
submit declarations that offer speculative explanations and conclusory statements about the
competitive nature of the industry and the ease with which competitors could reverse-engineer
pricing information from bed-day rates and unit prices, leading to competitive harm as
competitors underbid them on future bids. Contrary to these assertions, the record shows a
limited competitive market for detention services and does not show that prices, or more
importantly, profit, could be derived with the specificity needed to meet Defendants’ burden of
showing competitive harm.
The Government divides its contracts with private companies into three kinds -- (a)
contracts for Service Processing Centers (“SPCs”), facilities that are owned by ICE and usually
operated by small business contractors; (b) contracts for Contract Detention Facilities, which are
privately owned and operated currently by one of two large contractors; and (c) contracts through
Intergovernmental Service Agreements (“IGSAs”), which are contracts with local governments to
use state and local jails as detention facilities operated by private subcontractors. The
Government argues that the competitive considerations are different for each of the three contract
types. The first two are subject to a competitive bidding process; the IGSAs are not, although
ICE does receive unsolicited proposals for IGSAs. For all of the contract types, the Government
asserts that disclosure of bed-day rates, unit prices and staffing plans would allow competitors to
reverse engineer the contractor’s pricing strategies with a fair amount of precision.
The Government’s argument is not persuasive because, based on the record, a competitor
could not reverse engineer pricing strategies without knowledge of a large number of
unascertainable variables. The bed-day rate, as Defendants and contractors admit, is a composite
number, based on a number of facts, including “wages and associated costs, general and
administrative costs, and profits.” Def. Br. at 13-14. Pricing is complex and requires contractors
to make multiple assumptions and calculations. As one contractor described:
When pricing these contracts, APSS must first develop a staffing plan based on all
required security posts (from an “example” provided by the government). Then
we must pare down our staffing in order to be competitive by substituting
technology where possible (such as additional remote surveillance cameras and
electronic wrist bands). Once staffing is determined, our pricing is based on
anticipated ‘productive’ (i.e., working) hours based on the applicable collective
bargaining agreements’ listed hourly wages and benefits (e.g., health insurance
and pension) and anticipated ‘unproductive’ hours such as vacation, sick leave,
and training. In addition to direct employee costs, we must take into account
employer-paid employment taxes and insurance, General & Administrative
(G&A) costs, and profit. (G&A costs include corporate expenses such as salaries,
mortgages, utilities, legal fees, office supplies, general liability insurance, and
other overhead expense not directly attributed to a contract . . . .) These aggregate
costs are then divided by the ‘guaranteed’ number of beds per year to derive a
‘bed day rate’; or, in the current round, added together and divided by 12 months
to get a monthly firm fixed rate.
Gates Decl. ¶ 12. Similarly, another contractor explained:
A contractor’s . . . bed-day or per diem rate is an amount composed of several
elements – (1) labor charges for non-exempt, hourly staff used to operate the
facility, (2) labor charges for exempt, salaried staff in management and
supervisory positions, (3) medical services and supplies, food service, inmate
expenses, security expenses, utilities (based on local research on rates), program
expenses, repairs and maintenance, leases, insurance, professional fees, personnel
expenses, travel expenses, administration expenses and appropriate taxes, and (4)
Venturella Suppl. Decl. ¶ 8.
Defendants provide one declaration that attempts to articulate in detail how a competitor
could reverse-engineer per diem rates to undercut competitors, arguing that knowledge of per
diem rates “would allow . . . competitors to determine [the contractor’s] estimated per diem rate”
and then “submit a rate lower than [the contractor’s] expected rate.” Venturella Suppl. Decl. ¶¶
9-21. However, this complex, multi-step process relies on estimations and assumptions at every
step of the analysis: “The first step is to evaluate the labor portion of the incumbent’s per diem
bed-day rate,” “[n]ext, the competitor would develop its own staffing plan and expected labor
costs,” “[t]he next step involves estimated the annual salaries,” “[t]he next steps involves
estimating non-labor expenses including medical services and supplies, food service, inmate
expenses, security expenses, utilities . . ., program expenses, travel expenses, administration
expenses and appropriate taxes.”. Venturella Suppl. Decl. ¶¶ 12-19.
Even assuming that a competitor could reverse engineer a contractor’s pricing structure
with accuracy, Defendants have not shown that a competitor would be able to use that
information to underbid a competitor. As an ICE official stated, “Bed-day rates quoted by private
contractors vary because they have different costs (overhead, general and administrative, salaries,
staff) and profit margins.” Adams Decl. ¶ 17. An individual contractor’s costs and the profit
margin it needs to earn may make underbidding an impossibility. An ICE official explained in
the context of SPCs, “the prices proposed by SPCs while competing against one another are
dependent upon a multitude of factors, such as how well it understands the requirements and local
working environment; balances risk and profit; innovates to save costs; has learned from past
performance at other location, in particular past mistakes, and how eager it is for business.”
Adams Decl. ¶ 13.
The record also shows that past contracts will not necessarily dictate an approach to a
future contract. Although it is possible that a company may have one overall algorithm structure
that it adapts for bids around the country, the assumptions input into the algorithm would likely
vary dramatically between a detention center in metropolitan New York and one in rural Texas.
For example, while a detailed staffing plan may aid in estimating past labor costs at one facility, it
is unclear how helpful that information would be in bidding on a future contract, possibly in a
different geographic location, in the midst of an ever-changing labor market.
Disclosure of pricing information, in particular, is consistent with the purposes of FOIA.
The contract prices at issue
[A]re not mere offer or bid prices; they are prices that the government agreed to
pay, and that it did pay, for specified services that it purchased from the company.
Disclosure of such information permits the public to evaluate whether the
government is receiving value for taxpayer funds, or whether the contract is
instead an instance of waste, fraud, or abuse of the public trust . . . . Such
disclosure thus comes within the core purpose of FOIA: to inform citizens about
‘what their government is up to.’
McDonnell Douglas Corp. v. U.S. Dep’t of Airforce, 357 F.3d 1182, 1195 (D.C. Cir. 2004)
(Garland, J., dissenting); Canadian Commercial Corp. v. Dep’t of Air Force, 514 F.3d 37, 43
(D.C. Cir. 2008) (Tatel, J., concurring) (“[G]iven that FOIA's primary purpose is to inform
citizens about ‘what their government is up to,’ it seems quite unlikely that Congress intended to
prevent the public from learning how much the government pays for goods and services.”)
(internal citations omitted). At issue in this case is the disclosure of financial information
underlying government policy regarding immigration detention and incarceration, a controversial
area of public debate where the public has the right to be informed. See Brennan Ctr. for Justice
at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Justice, 697 F.3d 184, 194 (2d Cir. 2012) (“Consistent
with its purpose 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, FOIA strongly
favors a policy of disclosure.”) (internal quotation marks omitted)).
For these reasons, the unit prices, bed-day rates and staffing plans in government contracts
with private detention facility contractors are neither “obtained from a person” nor confidential,
and therefore are not protected from disclosure under Exemption 4.
B. Exemption 7(E)
In its cross-motion, the Government asserts an additional ground for withholding staffing
plans, arguing that they are compiled for law enforcement purposes and therefore protected under
Exemption 7(E). This argument fails under a plain reading of the statute.
Exemption 7(E) protects from disclosure “records or information compiled for law
enforcement purposes, but only to the extent that the production of such law enforcement records
or information . . . would disclose techniques and procedures for law enforcement investigations
or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions
if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. §
552(b)(7) (emphasis added).
The Government argues that the staffing plans were (1) “compiled by ICE for law
enforcement purposes,” Def. Br. at 25, and (2) reflect law enforcement techniques and
procedures, “to wit, how ICE implements detention facility security standards for the use and
allocation of personnel at detention facilities.” Def. Reply Br. at 15 (quoting Supp. Pineiro Decl.
¶ 9). However, the Government does not even attempt to show what investigations or
prosecutions are occurring within the detention centers or how a staffing plan constitutes a
technique or procedure used for law enforcement investigations or prosecutions. As a result,
Defendants cannot withhold information in staffing plans pursuant to Exemption 7(E).
For the foregoing reasons, Plaintiff’s motion for partial summary judgment is
GRANTED, and Defendant’s cross-motion for partial summary judgment is DENIED. The Clerk
of Court is respectfully directed to close Docket Nos. 74, 86, and 95.
Dated: July 14, 2016
New York, New York
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