National Day Laborer Organizing Network et al v. United States Immigration and Customs Enforcement et al
Filing
196
OPINION & ORDER: On September 14, 2020, the Court issued a lengthy decision resolving, for the most part, the parties' cross-motions for summary judgment regarding plaintiffs' FOIA request. Dkt. 184 ("Decision"). The Court granted partial summary judgment to each side. The Court, however, reserved judgment on a subset of records, as to which it directed defendants to make further filings and submit records for in camera review. The Court has now carefully reviewed the records and affidavits at issue. These fall into four categories: (1) records as to which in camera review was necessary to determine whether the deliberative process privilege under FOIA Exemption 5 was properly invoked; (2) records as to which Exemption 5 applied, but in camera review and submission of an affidavit were necessary to enable the Court separately to determine whether withholding is consistent with the FOIA Improvement Act of 2016; (3) records as to which Exemption 5 applied, but submiss ion of an affidavit, though not in camera review, was necessary to determine whether withholding is consistent with the FOIA Improvement Act of 2016; and (4) records as to which an affidavit was necessary addressing redlines or other markups associat ed with the documents withheld. The Court's orders as to the responsive records in each of these four categories follows. The Court here incorporates by reference the discussion in its September 14, 2020 decision as to these documents, setting o ut here only the additional analysis necessary to explain its outcome, and as further set forth in this opinion. These rulings resolve all outstanding questions regarding plaintiffs' FOIA request. The Clerk of Court is respectfully directed to close this case. (Signed by Judge Paul A. Engelmayer on 12/11/2020) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NATIONAL DAY LABORER ORGANIZING NETWORK,
ASIAN AMERICANS ADVANCING JUSTICE – ASIAN
LAW CAUCUS and the IMMIGRATION CLINIC OF THE
BENJAMIN N. CARDOZO SCHOOL OF LAW,
-v-
Plaintiffs,
UNITED STATES IMMIGRATION AND CUSTOMS
ENFORCEMENT, U.S. CUSTOMS AND BORDER
PROTECTION, UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, and the DEPARTMENT OF
HOMELAND SECURITY’S OFFICE OF CIVIL RIGHTS
AND CIVIL LIBERTIES,
16 Civ. 387 (PAE)
OPINION & ORDER
Defendants.
PAUL A. ENGELMAYER, District Judge:
This lawsuit involves a request under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552 et seq., for records about a since-discontinued federal program governing
immigration enforcement: the Priority Enforcement Program (“PEP”). Plaintiffs are National
Day Laborer Organizing Network, Asian Americans Advancing Justice – Asian Law Caucus,
and the Immigration Clinic of the Benjamin N. Cardozo School of Law (together, “plaintiffs”).
The remaining defendants are U.S. Immigration and Customs Enforcement (“ICE”), U.S.
Customs and Border Protection (“CBP”), the U.S. Department of Homeland Security (“DHS”),
and its Office of Civil Rights and Civil Liberties (together, “defendants”).1 Defendants seek to
1
Defendants U.S. Citizenship and Immigration Services, Executive Office for Immigration
Review, Federal Bureau of Investigation, U.S. Department of Justice (“DOJ”), DOJ’s Office of
Information Policy, and DOJ’s Office of Legal Counsel were previously dismissed.
withhold a number of these records, almost all pursuant to the deliberative process privilege
under FOIA Exemption 5, 5 U.S.C. § 552(b)(5) (“Exemption 5”).
On September 14, 2020, the Court issued a lengthy decision resolving, for the most part,
the parties’ cross-motions for summary judgment regarding plaintiffs’ FOIA request. Dkt. 184
(“Decision”). The Court granted partial summary judgment to each side. The Court, however,
reserved judgment on a subset of records, as to which it directed defendants to make further
filings and submit records for in camera review. Id. Defendants thereafter voluntarily released
some of the records that remained in dispute, including DHS Record Nos. 10, 17, 34, 41, 46, 98,
117, and 118; ICE Record Nos. 34, 78, 79, 85, and 86; and CBP Record No. 1. See Dkt. 187
(“Def. Letter”). As to these records, on November 12, 2020, defendants asked that the Court
find moot its order directing additional filings, and the Court then issued an order to that effect.
Def. Letter; Dkt. 190 (“Modification Order”). Defendants further asked that the Court modify
its order directing ICE to release ICE Record Nos. 41–42, 50–52, 83, and to permit ICE to
provide these for in camera review on the ground that they related to DHS Record Nos. 12, 13,
25, which the Court had designated for review in camera. Def. Letter. The Court granted this
request, too. See Modification Order. On November 13, 2020, defendants produced the
outstanding responsive records for in camera review. Dkts. 188–89, 191–95.
The Court has now carefully reviewed the records and affidavits at issue. These fall into
four categories: (1) records as to which in camera review was necessary to determine whether the
deliberative process privilege under FOIA Exemption 5 was properly invoked; (2) records as to
which Exemption 5 applied, but in camera review and submission of an affidavit were necessary
to enable the Court separately to determine whether withholding is consistent with the FOIA
Improvement Act of 2016; (3) records as to which Exemption 5 applied, but submission of an
2
affidavit, though not in camera review, was necessary to determine whether withholding is
consistent with the FOIA Improvement Act of 2016; and (4) records as to which an affidavit was
necessary addressing redlines or other markups associated with the documents withheld.
The Court’s orders as to the responsive records in each of these four categories follows.
The Court here incorporates by reference the discussion in its September 14, 2020 decision as to
these documents, setting out here only the additional analysis necessary to explain its outcome.
I.
Documents Ordered for in Camera Review to Determine if They Are Properly
Withheld Under the Deliberative Process Privilege
The deliberative process privilege “is based ‘on the policy of protecting the decision
making processes of government agencies’” and typically “‘focuses on documents reflecting
advisory opinions, recommendations and deliberations comprising part of [the] process by which
governmental decisions and policies are formulated.’” Brennan Ctr. for Justice at N.Y. Univ.
Sch. of L. v. U.S. Dep’t of Justice, 697 F.3d 184, 194 (2d Cir. 2012) (quoting NLRB v. Sears,
Roebuck, & Co., 421 U.S. 132, 150 (1975)); see also Grand Cent. P’ship, Inc. v. Cuomo, 166
F.3d 473, 482 (2d Cir. 1999) (“The privilege protects recommendations, draft documents,
proposals, suggestions, and other subjective documents which reflect the personal opinions of the
writer rather than the policy of the agency.” (internal quotation marks omitted)). “An inter- or
intra-agency document may be withheld pursuant to the deliberative process privilege if it is:
(1) pre[-]decisional, i.e., prepared in order to assist an agency decision[]maker in arriving at his
decision, and (2) deliberative, i.e., actually related to the process by which policies are
formulated.” Brennan Ctr., 697 F.3d at 194 (alterations, ellipses, and internal quotation marks
omitted).
The privilege “generally does not cover purely factual material. Nor does it cover
records merely peripheral to actual policy formation; the records must bear on the formulation or
3
exercise of policy-oriented judgment.” Nat. Res. Def. Council v. U.S. Env’t Prot. Agency, No. 17
Civ. 5928 (JMF), 2019 WL 4142725, at *5 (S.D.N.Y. Aug. 30, 2019) (internal quotation marks
and citation omitted). Accordingly, “materials related to the explanation, interpretation or
application of an existing policy, as opposed to the formulation of a new policy,” are not subject
to the privilege. Davis v. City of New York, No. 10 Civ. 699 (SAS), 2011 WL 1742748, at *2
(S.D.N.Y. May 5, 2011) (quoting Resolution Tr. Corp. v. Diamond, 137 F.R.D. 634, 641
(S.D.N.Y. 1991)). And where “messaging communications,” such as talking points, “amount to
little more than deliberations over how to spin a prior decision, or merely reflect an effort to
ensure that an agency’s statement is consistent with [a] prior decision, protection would do little
to advance the purposes underlying the [deliberative process] privilege.” New York v. U.S. Dep’t
of Com., No. 18 Civ. 2921 (JMF), 2018 WL 4853891, at *2 (S.D.N.Y. Oct. 5, 2018). However,
where such “communications are of a nature that they would reveal the deliberative process
underlying a not-yet-finalized policy decision,” or a not-yet- announced policy decision,
deliberations about what message to deliver, and how to go about doing so, can fall within the
protections of the deliberative process privilege. Id.; see Decision at 25–28.
In its Decision, the Court ordered in camera inspection of a number of records where
defendants’ Vaughn entries were too vague to enable the Court to determine whether they were
properly withheld under the deliberative process privilege. After having carefully reviewed
these documents in camera, the Court finds the following:
•
DHS Record No. 92: The Vaughn entry for this record describes it as an email
with the subject “SLLE PEP [Talking Points].” Dkt. 167-1 (“DHS Vaughn
Index”), Record No. 92. The defendants invoke FOIA Exemption 5 as their
basis for withholding the portion of this record that the plaintiffs are
challenging. The Court finds that the text of the email itself is properly withheld
under the deliberative process privilege, but that the attachment to the email,
reflecting talking points about PEP, must be partly unredacted. The Court
4
identifies the following parts of that attachment as non-deliberative and so
meriting unredaction: bolded-circle bullet points number 1, 2, 3, 4, 7,
and 8. Those parts of the attachment are to be disclosed. However, all of the
open-circle (subsidiary) bullet points are protected under the deliberative
process privilege.
•
DHS Record No. 104: The Vaughn entry for this record describes it as a
“[d]ocument on engagement with congress by DHS.” Id., Record No. 104. The
Court finds that it is properly withheld in full under the deliberative process
privilege.
•
DHS Record No. 122: The Vaughn entry for this record describes it as an “EA
Status Update.” Id., Record No. 122. The Court finds that it is properly
withheld in full under the deliberative process privilege.
•
DHS Record No. 123: The Vaughn entry for this record describes it as a “One
Year Anniversary of the Executive Actions.” Id., Record No. 123. The Court
finds that it is properly withheld in full under the deliberative process privilege.
•
DHS Record No. 124: The Vaughn entry for this record describes it as a
“11/18/2015 Email FW: Exec Action Anniversary Blog.” Id., Record No. 124.
The Court finds that the contested portions of the text of the email itself are
properly withheld under the deliberative process privilege. The Court,
however, finds that the draft blog post, which discusses past actions rather than
future plans, is not protected under that privilege. Further, because the agency
has not shown that there were changes later made to this draft, and thus that it
is not the final language used, it is not properly withheld as a draft. See Decision
at 29–30 (“[T]he label affixed to the record, here ‘Draft,’ is not dispositive.”
Drafts that are “as close to final as ever existed . . . are not protected by the
deliberative process privilege.”).
•
ICE Record No. 17: The Vaughn entry for this record describes it as “Family
Residential Center Press Release/ICE Actions – Side-by-Side.” Dkt. 168-1
(“ICE Vaughn Index”), Record No. 17. The Court finds that the deliberative
process privilege does not apply to this record and thus it must be produced in
its entirety because the whole document is non-deliberative. It instead relates
to the application of an existing policy, PEP. See Decision at 33.
•
ICE Record No. 29: The Vaughn entry for this record describes it as “Meeting
with Mayor De Blasio – March 15, 2016.” ICE Vaughn Index, Record No. 29.
The Court finds that most of this record does not fall under the deliberative
process privilege, because the talking points generally state facts about and
relate to the application of an existing policy. The Court, however, finds that
the section under “Discussion Points” is protected from disclosure by FOIA
Exemption 5, and the agency’s narrow proposed redactions under FOIA
5
Exemptions 6 and 7 are also properly withheld. Beyond these discrete
redactions, however, the Court orders that this record be produced in full.
•
•
II.
ICE Record No. 30: The Vaughn entry for this record describes it as “Meeting
with Mayor De Blasio – April 3, 2016.” Id., Record No. 30. As above, the
Court finds that this document should be produced with just minimal redactions.
Under FOIA Exemption 5, the bullet point in boldface type on the top of the
first page may be redacted. The very limited proposed redactions made under
FOIA Exemptions 6 and 7 are also permitted.
ICE Record No. 46: The Vaughn entry for this record describes it as a “Draft
letter from DHS Deputy Secretary to Sheriff of Oakland County, Michigan.”
Id., Record No. 46. The material in this record, which consists of three versions
of a letter, relates to “the explanation, interpretation or application of an existing
policy, [PEP], as opposed to the formulation of a new policy” and is not covered
by the deliberative process privilege. Davis, 2011 WL 1742748, at *2. Further,
although there are some differences between the letters, indicating that at least
some of them may have been drafts, the agency has not shown that these
documents do not contain the final language used. Nor are there redlines or
other markups on the face of the documents. The Court therefore holds that the
record is not properly withheld under the deliberative process privilege. The
agency is ordered to produce this record in full.
Documents Ordered for in Camera Review with Affidavits Identifying the Harm if
Disclosed
The FOIA Improvement Act of 2016 limits an agency’s ability to withhold documents. 5
U.S.C. § 552 (a)(8)(A)(i) (“An agency shall withhold information . . . only if the agency
reasonably foresees that disclosure would harm an interest protected by an exemption described”
in one of the enumerated exemptions or “disclosure is prohibited by law.”). This law requires an
agency to “release a record—even if it falls within a FOIA exemption—if releasing the record
would not reasonably harm an exemption-protected interest and if its disclosure is not prohibited
by law.” Rosenberg v. U.S. Dep’t of Def., 342 F. Supp. 3d 62, 73 (D.D.C. 2018) (emphasis
added). To satisfy this foreseeable-harm standard, “an agency must explain how a particular
Exemption 5 withholding would harm the agency’s deliberative process.” Nat. Res. Def.
Council, 2019 WL 4142725, at *5 (quotations omitted).
6
For a number of the records as to which the Court found a basis for withholding under
Exemption 5, the agency’s Vaughn entry was nevertheless insufficient to satisfy the additional
requirements of the FOIA Improvement Act. The Court therefore directed the agencies to submit
copies of such records for in camera review, and to supply an affidavit explaining the particular
harm that would come from the records’ production. See Decision at 20–23, 41 (directing in
camera review of DHS Record Nos. 12, 13, 25); Modification Order (allowing in camera review
of the related ICE Record Nos. 41–42, 50–52, 83).
•
DHS Record Nos. 12, 13, 25, 125: The Vaughn entry for DHS Record No. 12
describes it as a “Memorandum for the Deputy Secretary Regarding Civil
Rights Monitoring of Immigration and Customs Enforcement Transfers from
State and Local Law Enforcement Agencies.” DHS Vaughn Index, Record
No. 12. The Vaughn entry for DHS Record No. 13 describes it as “Email
Subject: FW: [Past Due] S2BB - 3.9.15 - Meeting re PEP Monitoring; and
Memorandum for the Deputy Secretary Regarding Civil Rights Monitoring of
Immigration and Customs Enforcement Transfers from State and Local Law
Enforcement Agencies.” Id., Record No. 13. The Vaughn entry for DHS
Record No. 25 describes it as a “Memorandum for the Deputy Secretary
Regarding Monitoring and Addressing Civil Rights Concerns Arising from PEP
and Other Transfers from State and Local Law Enforcement Custody.” Id.,
Record No. 25. And the Vaughn entry for DHS Record No. 125 describes it as
“10/19/2015 Memorandum RE: Non-PEP Transfers from State and Local
Custody to ICE.” Id., Record No. 125. In its Decision, the Court found these
documents were properly withheld pursuant to the deliberative process
privilege because they relate to the development of a policy. See Decision
at 20–22. After careful in camera review of these documents and the associated
agency affidavit explaining the harm of releasing the documents, the Court
finds that the agency’s assertion that their release would chill pre-decisional
discussions and recommendations, and thus inhibit candor within the agencies,
persuasive. The Court therefore finds that these records are properly withheld
in full.
•
ICE Record Nos. 41, 42, 50, 51, 52, 83: The Vaughn entry for ICE Record
No. 41 describes it as a “Briefing on CRCL Monitoring of ICE PEP – March
10, 2015.” ICE Vaughn Index, Record No. 41. The Vaughn entry for ICE
Record No. 42 describes it as a “Civil Rights Monitoring of Immigration and
Customs Enforcement Transfers from State and Local Law Enforcement
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Agencies.” Id., Record No. 42. The Vaughn entry for ICE Record No. 50
describes it as “Protocol for PEP Complaints and Concerns Involving State or
Local Law Enforcement Agencies.” Id., Record No. 50. The Vaughn entry for
ICE Record No. 51 describes it as “DHS Oversight of ICE’s PEP - CRCL
Implementation Plan.” Id., Record No. 51. The Vaughn entry for ICE Record
No. 52 describes it as “PEP Civil Rights Monitoring.” Id., Record No. 52. And
the Vaughn entry for ICE Record No. 83 describes it as “Monitoring and
Addressing Civil Rights Complaints and Concerns Arising From Such
Transfers from State and Local Law Enforcement Custody.” Id., Record
No. 83. The Court finds that these documents are substantially similar to DHS
Records No. 12, 13, 25, and that they should be treated the same. The Court
therefore finds that these records, too, are properly withheld in full under the
deliberative process privilege.
III.
Documents Requiring an Affidavit Explaining the Harm that Would Result from
Their Release
For a number of the records that the Court found a basis for withholding under
Exemption 5, and for which the agency’s Vaughn entry was insufficient to satisfy the additional
requirements of the FOIA Improvement Act, the Court directed the agencies to supply an
affidavit explaining the particular harm that would come from the records’ production. See
Decision at 36–38, 41. The agencies did so, and also submitted these records for in camera
review.
•
•
CBP Record No. 4: The Vaughn entry for CBP Record No. 4 describes it as
“Draft I-247 D and I-247 N Forms.” Dkt. 166-1 (“CBP Vaughn Index”),
Record No. 4. In its Decision, the Court found that this document was protected
by the deliberative process privilege. Decision at 38. Upon review of the
unredacted document in camera and the supplemental affidavit explaining the
harm that would come from the release of this document, specifically why the
“release of CBP Doc. No. 4 would have a chilling effect on written exchanges
of draft materials and related discussions between agency officials,” Dkt. 189
at 3, the Court finds the risk of harm if disclosed persuasive. The Court
therefore holds that the entire record is properly withheld under Exemption 5.
DHS Record Nos. 21, 22, 23, 24, 27, 94: The Vaughn entries for DHS Record
Nos. 21–24, 94 describe each as “Draft I-247 Forms” or “Draft I-247 form.”
DHS Vaughn Index, Record Nos. 21–24, 94. And the Vaughn entry for DHS
8
•
IV.
Record No. 27 describes it as “DHS Request for Cooperative Custody
Assistance.” Id., Record No. 27. In its Decision, the Court found that these
documents are protected by the deliberative process privilege because they are
iterative drafts of forms implementing PEP. Decision at 38. Upon in camera
review of these documents as well as the affidavit submitted explaining the
potential of harm were these iterative drafts disclosed, the Court finds that these
records are properly withheld. In particular, the Court found persuasive the
agency’s explanation that if the records were disclosed, there would be a
chilling effect on the agency’s deliberations that could preclude “frank
discussion of policy alternatives.” Dkt. 192 at 8.
DHS Record No. 44: The entry for DHS Record No. 44 describes it as
“7/9/2015 Email from Esther Olavarria - Subject: RE: PEP ‘third form.’” DHS
Vaughn Index, Record No. 44. This record is a draft version of I-247 forms and
related correspondence. The Court finds that, for the same reason above, this
record is also properly withheld.
Documents Requiring an Affidavit as to Whether They Were Marked-up
Finally, in its Decision, the Court found that where “records include redline edits in the
form of track changes and/or comment bubbles, or in-line comments, [t]he Court has no
difficulty finding that such records are protected by the deliberative process privilege—they
represent a snapshot in time of the ‘agency’s group thinking in the process of working out its
policy and determining what its law shall be.’” Decision at 36 (citing Sears, 421 U.S. at 153).
But, although the Vaughn index description for some records state that these included draft
language, that conclusory statement alone did not establish whether such records “in fact contain
deliberative redlines and edits to the content, or if instead they were circulated for additional
input.” Id. at 30 (quotations omitted). The Court thus ordered defendants to file an affidavit
stating whether any of those records contain “deliberative redlines” or other markup on their
faces such that they could be properly withheld as drafts. Id. at 31–32. Defendants thereupon
released some of these records voluntarily. See Def. Letter; Modification Order. The Court has
9
since reviewed the rest—DHS Record Nos. 1, 3, 4, 14, 15, 16, 100 and CBP Record No. 3—
along with defendants’ related affidavits, in camera. The Court holds as follows:
•
DHS Record Nos. 1, 3, 4: The Vaughn entry for DHS Record No. 1 describes
it as “Meeting with LA City Attorney Mike Feuer.” DHS Vaughn Index,
Record No. 1. The Vaughn entries for DHS Record Nos. 3, 4 describe both
records as “Mayors Summit on Immigration Implementation.” Id., Record
Nos. 3, 4. DHS withheld these records as drafts of talking points circulated for
additional input and comments, and stated in their Vaughn index that the records
“include[d] deliberative redlines and edits.” Id. In its Decision, the Court found
that the messaging material contained in these records was not protected by the
deliberative process privilege, but that the documents might still be properly
withheld as drafts. Decision at 28–29. The Court, however, noted that it
remained a question as to whether the records contained “deliberative redlines
and edits to the content,” or if instead they “were circulated for additional input,
which may have included redlines and edits.” Id at 30. If “the records were
circulated for feedback, . . . that such feedback may have included markups, is
not relevant to the question of whether these documents should be produced.
If, on the other hand, these records themselves contain markup, they are
properly withheld as drafts under Exemption 5.” Id. After in camera review
of the documents and the agency’s affidavit, the Court finds that the records do
not contain the requisite markup to be protected as “drafts” under FOIA
Exemption 5 and thus must be produced in their entirety.
•
DHS Record Nos. 14, 15, 16, 100: The Vaughn entries for DHS Record
Nos. 14, 15, 16, and 100 describe the documents as, respectively, “Meeting
With Council Member Dan Garodnick,” “Meeting With Council Speaker
Melissa Mark-Viverito,” “Meeting with Mayor de Blasio,” and “Remarks on
Immigration/status of executive action.” DHS Vaughn Index, Record Nos. 14–
16, 100. DHS argued that these records merited withholding because they are
drafts of talking points circulated for additional input and comments, and
included “deliberative redlines and edits.” Id. The Court ordered that they be
submitted for in camera review to determine whether they contained the
requisite “deliberate redlines” or other markup to be properly withheld as drafts.
After in camera review of the documents and agency affidavit, the Court
determines that, because these documents do contain markups on their face,
they are properly withheld as drafts under FOIA Exemption 5.
•
CBP Record No. 3: The Vaughn entry for CBP Record No. 3 describes the
document as “Draft remarks by the CPB commissioner for Major Cities Chiefs
Association in June 2015.” CBP Vaughn Index, Record No. 3. The Court
10
found that the messaging materials contained in this document are not protected
by the deliberative process privilege. Decision at 31–32. But, the entry’s
Vaughn index description also noted that it was a draft, and thus the Court found
in its Decision that if the document contained “‘deliberative redlines’ or other
markup on the face of the record,” it could be properly withheld. Id. After in
camera review, the Court finds that the record is properly withheld under FOIA
Exemption 5 as a draft.
These rulings resolve all outstanding questions regarding plaintiffs’ FOIA request.
The Clerk of Court is respectfully directed to close this case.
SO ORDERED.
PaJA.�
____________________________
Paul A. Engelmayer
United States District Judge
Dated: December 11, 2020
New York, New York
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