Knight First Amendment Institute at Columbia University v. Department of Homeland Security et al

Filing 158

OPINION & ORDER re: 143 MOTION for Reconsideration in Part of the Court's September 16 and 23 Orders. filed by U.S. Department of State, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services. For the reasons set forth below, Defendants' motion for reconsideration is hereby DENIED. I had enough information from DOS's and USCIS's affidavits to conduct the required de novo review of the agencies' withholdings. I deter mined that the 7(E) exemption did not apply to certain sections of the FAM and the TRIG questions. No supplemental submissions or in camera review is necessary. Defendants have not met the burden to warrant reconsideration of these determinations. Defendants' motion for reconsideration is DENIED in full. (Signed by Judge Andrew L. Carter, Jr on 9/13/2020) (rj)

Case 1:17-cv-07572-ALC Document 158 Filed 09/13/20 Page 1 of 17

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KNIGHT FIRST AMENDEMENT
INSTITUTE AT COLUMBIA
UNIVERSITY,

9/13/20

Plaintiffs,
1:17-cv-7572 (ALC)
OPINION & ORDER

-againstU.S. DEPARTMENT OF HOMELAND
SECURITY, ET AL.
Defendants.

ANDREW L. CARTER, JR., United States District Judge:
Defendants United States Immigration and Customs Enforcement (“ICE”), the
Office of Legal Counsel (“OLC”) with the Department of Justice (“DOJ”), the Department
of State (“DOS”), United States Citizenship and Immigration Services (“USCIS”), United
States Customs and Border Protection (“CBP”), the Department of Homeland Security
(“DHS”), the Department of Justice Office of Public Affairs (“OPA”), and Office of
Information

Policy

(“OIP”)

(collectively

“Defendants)

seek

clarification

and

reconsideration of this Court’s September 13, 2019 opinion and order, Knight First
Amendment Institute at Columbia University v. U.S. Department of Homeland Security, et
al, 407 F.Supp.3d 311 (S.D.N.Y. 2019), and September 23, 2019 opinion and order, Knight
First Amendment Institute at Columbia University v. Department of Homeland Security et
al, 407 F.Supp.3d 334 (S.D.N.Y. 2019). Specifically, Defendants ask the Court to
reconsider its determination that ICE’s search in response to Plaintiff’s FOIA request was
inadequate, and to clarify and reconsider its ruling that FOIA Exemption 7(E) was
inapplicable to several records Defendants withheld.

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For the reasons set forth below, Defendants’ motion for reconsideration is hereby
DENIED.
BACKGROUND
Familiarity with the facts and procedural history of this case as set forth fully in
this Court’s September 13, 2019 opinion, is presumed here. See 407 F. Supp. 3d 311
(S.D.N.Y. 2019). However, I will summarize briefly the matters relevant to this decision.
Through Executive Order 13,780, President Trump directed the Secretary of
State, the Attorney General, the Secretary of Homeland Security, and the Director of
National Intelligence to develop a more robust vetting program for visa applicants and
refugees seeking entry into the United States. Exec. Order No. 13,780, 82 Fed. Reg.
13,209, 13,215 (Mar. 6, 2017). The Executive Order called for, among other things, the
“collection of all information necessary for a rigorous evaluation of all grounds of
inadmissibility or grounds for the denial of other immigration benefits.” Id.
After the President issued E.O. 13,780, Plaintiff filed FOIA requests with various
government agencies, the Defendants, seeking information relating to the consideration
of individuals’ speech, beliefs, or associations in connection with immigration
determinations such as decisions to exclude or remove individuals from the United
States. ICE’s production process particularly is relevant to the instant motion and is
therefore outlined here in more detail.
One of Plaintiff’s requests from ICE was the production of:
1. All directives, memoranda, guidance, emails, or other communications sent by
the White House to any federal agency since January 19, 2017, regarding
consideration of individuals’ speech, beliefs, or associations in connection with
immigration determinations, including decisions to exclude [sic ] or remove
individuals from the United States…ICE released 1,666 pages of records

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responsive to this request, but withheld 1,653 of those pages in full, invoking
FOIA exemptions.
(ECF No. 106 at ¶ 7).
ICE initially responded to that request by searching its Office of Policy and
DPLA only. (ECF No. 113 at ¶¶ 7-8; ECF No. 114 at 2-3). Instead of filing an appeal
challenging this limited response, Plaintiff filed the instant complaint on October 4, 2017.
“Anticipating that plaintiff would file…an administrative appeal challenging the
sufficiency of ICE’s initial search, and further anticipating that ICE would grant such an
appeal, ICE proactively conducted another search between October 2017 and January
2018.” (ECF 144 at 8-9 (citing ECF No. 113 at ¶¶ 13-20)). Plaintiff filed an
administrative appeal seeking review of ICE’s initial response on January 5, 2018. (ECF
No. 113 at ¶ 11). “That is, ICE in effect granted plaintiff’s administrative appeal before
plaintiff even filed one.” (ECF No. 144 at 9 (emphasis in original)). On January 11, 2018,
the parties filed a stipulation of voluntary dismissal without prejudice as to ICE in this
action. (ECF Nos. 30-31). On March 14, 2018, Plaintiff filed an amended complaint
adding ICE back as a defendant. (ECF No. 42).
ICE’s subsequent searches resulted in approximately 14,000 pages of potentially
responsive documents (including those originally identified) based on Plaintiff’s initial
request. (ECF No. 106 at ¶ 11; ECF No. 42-7). On March 7, 2018, ICE informed Plaintiff
that it had processed 560 pages for release. (ECF 42-8). ICE referred 87 of those pages to
other agencies for processing and released the other 463 pages with redactions. (JSR at ¶
25). On April 30, 2018, ICE reached out again, informing Plaintiff it had processed an
addition 1,124 pages. It released 395 pages in full and referred 728 to other agencies.
(ECF No. 106 at ¶¶ 14, 21).

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To expedite the release of the remaining ICE documents, the parties agreed to
narrow the request to only final policy guidance or memoranda, court filings and
opinions, and email correspondence. (Id. at ¶ 15; ECF No. 113 at ¶ 23; ECF No. 42 at ¶
23). ICE “identified only ninety-nine pages of records responsive to the provisionally
narrowed Request. ICE referred forty-nine pages to other agencies for processing and
released fifty pages to [Plaintiff][.]” (ECF No. 106 at ¶ 16).
Plaintiff claimed that the agencies had performed inadequate searches under
FOIA and had improperly withheld certain documents in reliance on inapplicable FOIA
exemptions. See (ECF No. 42).
On February 26, 2019, OLC, ICE, and DOS moved for partial summary
judgment. (ECF No. 90). Specifically, OLC and ICE moved for summary judgment on
Plaintiff’s claims that they had performed inadequate searches, and DOS moved for
summary judgment on Plaintiff’s claim challenging its withholding determinations
pursuant to FOIA Exemptions 5 and 7. (Id.) Plaintiff cross-moved for summary judgment
on the same claims. (ECF No. 101). I resolved these motions in my September 13, 2019
opinion, holding that ICE’s searches were inadequate, OLC’s searches were adequate,
and DOS was entitled to withhold documents pursuant to FOIA exemption 5, but not 7.
See Knight First Amendment Institute at Columbia U. v. Dep’t of Homeland Security, et
al, 407 F. Supp. 3d. 311 (S.D.N.Y. 2019).
On March 15, 2019, ICE and USCIS moved for partial summary judgment on
Plaintiff’s claims challenging both agencies’ decisions to withhold certain documents
pursuant to FOIA exemptions 5 and 7(C), and/or 7(E). (ECF No. 96). Plaintiff cross
moved for summary judgment. (ECF No. 105, corrected by ECF No. 108). I resolved

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these motions in my September 23, 2019 opinion and order, holding that both ICE and
USCIS had properly relied on exemptions to justify the withholding of portions of some
documents, but improperly withheld portions of other documents citing inapplicable
FOIA exemptions. See Knight First Amendment Institute at Columbia U. v. Dep’t of
Homeland Security, et al, 407 F. Supp. 3d 334 (S.D.N.Y. 2019).
On September 30, 2019, Defendants filed a motion for reconsideration and
clarification. (ECF No. 144). Defendants specifically moved for (1) reconsideration of
my September 13 determination that ICE’s searches were inadequate; (2) clarification as
to which material I determined USCIS to have improperly withheld in reliance on
Exemption 7(E); and (3) clarification as to whether DOS and USCIS are required to turn
over immediately to Plaintiff the documents I determined the agencies improperly to have
withheld pursuant to Exemption 7(E), or alternatively, whether the September opinions
and orders directed the agencies to provide supplemental submissions explaining further
the appropriateness of the withholdings. (Id. at 2). Defendants do not ask that I reconsider
my determination that DOS and USCIS failed to justify adequately their 7(E)-based
withholdings. However, Defendants ask that if my September orders were intended to
direct the agencies to produce the improperly withheld documents to Plaintiff right away,
I reconsider this decision and allow DOS and USCIS to provide supplemental materials
justifying further the withholdings and/or provide me with these documents for an in
camera review. (Id. at 3).

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ANALYSIS
I. Legal Standard
Local Rule 6.3 provides the standard for a motion for reconsideration, “an
extraordinary remedy to be employed sparingly in the interests of finality and
conservation of scarce judicial resources.” Sigmon v. Goldman Sachs Mortgage Co., 229
F. Supp. 3d 254, 257 (S.D.N.Y. 2017) (internal citations omitted). “A motion for
reconsideration should be granted only when the [movant] identifies an intervening
change of controlling law, the availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL
Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (internal quotation marks omitted).
Where a movant seeks only to present “the case under new theories” or take “a
second bit at the apple,” a motion for reconsideration should be denied. Analytical
Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation omitted);
see also Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
II. ICE Search
The agency served with a FOIA request bears the burden of “show[ing] beyond
material doubt that it has conducted a search reasonably calculated to uncover all relevant
documents.” Nat’l Day Laborer Org. Network v. U.S. Immigration & Customs Enf’t
Agency, 877 F. Supp. 2d 87, 95 (S.D.N.Y. 2012) (internal citation omitted); see Seife v.
United States Dep’t of State, 298 F. Supp. 3d 592, 606 (S.D.N.Y. 2018). “[T]he
defending agency [also] has the burden of showing that its search was adequate…”
Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994)).

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ICE was required to “establish the adequacy of its searches by showing that [it]
made a good faith effort to search for the requested documents, using methods reasonably
calculated to produce documents responsive to the FOIA request.” Adamowicz v. I.R.S.,
672 F.Supp.2d 454, 461-62 (S.D.N.Y. 2009) (internal quotation marks omitted).
“Reasonableness must be evaluated in the context of each particular request,” Amnesty
Int’l USA v. C.I.A., 728 F.Supp.2d 479, 497 (S.D.N.Y. 2010), and demands consideration
of the search terms and the type of search performed, the nature of the records system or
database searched, and whether the search was “logically organized.” See Schwartz v.
DOD, No. 15-CV-7077, 2017 WL 78482, at *6 (E.D.N.Y. Jan. 6, 2017). “Although an
agency is not required to search every record system, the agency must set forth in an
affidavit why a search of other some record systems, but not others, would lead to the
discovery of responsive documents.” Amnesty Int’l USA, 728 F.Supp.2d at 497.
Toni Fuentes, the Deputy Officer of ICE’s FOIA Office submitted three
declarations explaining ICE’s response to Plaintiff’s FOIA request. See (ECF Nos. 91,
98, and 113). Fuentes provided that four of ICE’s offices were identified as those
reasonably likely to have responsive records, the Office of Principal Legal Advisor
(“OPLA”), Office of Policy, Enforcement and Removal Operations (“ERO”), and Office
of the Director. (ECF No. 91 at ¶ 17). Five additional divisions within OPLA were
directed to perform searches including the Immigration Law and Practice Division
(“OLPD”), National Security Law Section (“NSLS”), Enforcement and Removal
Operations Law Division (“EROLD”), Field Legal Operations (“FLO”), and Deputy
Principal Legal Advisor (“DPLA”). (Id. at ¶¶ 17, 19).

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Based on these affidavits, I concluded that ICE had not demonstrated the
adequacy of its searches. In particular, I expressed concern with respect to four major
issues. First, ICE failed to provide an adequate explanation as to why its EROLD
component was not searched, raising “‘serious doubts as to the completeness of the
agency’s search’ as a whole.” 407 F. Supp. 3d at 324 (quoting Nat’l Day Laborer Org.
Network, 877 F. Supp. 2d at 96) (citation omitted). Second, ICE’s affidavits lacked
sufficient detail regarding the scope of the searches, the search terms and methods
employed, how the agency handled an administrative remand, and how the agency
narrowed its search results. Id. at 325-26. In particular, ICE provided no description of
the search terms used by custodians in the ILPD and NSLS. Id. at 325.Third, the searches
run by the Officer of the Director and ERO were too narrow and failed to use critical
keywords. Id. at 325-26.
In their motion for reconsideration, Defendants challenge only the second basis
for finding the search inadequate. (ECF No. 144). Specifically, they argue that I
overlooked the third, supplemental declaration submitted by Fuentes, which demonstrates
that ICE provided the factual details I found lacking. In particular, Defendants note that
the supplemental Fuentes declaration explains the search process and terms both ILPD
and NSLS underwent and used, how ICE handled the administrative remand, and how
ICE narrowed its search after collecting documents responsive to the original FOIA
request. (Id. at 6-10). Defendants are right that the September 13 opinion overlooks the
descriptions of ILPD’s and NSLS’s searches provided in the supplemental declaration.
However, those descriptions do not alter the conclusion that ICE’s overall search was
patently inadequate. The September 13 opinion did not overlook the supplemental

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declaration with respect to its conclusion that ICE failed to provide sufficient detail
regarding how the agency handled the administrative remand and narrowed its search
results.
In stating that ICE failed to provide a description of the search terms used by
custodians in ILPD and NSLS, the September 13 opinion did not account for paragraphs
14 and 15 of the supplemental Fuentes declaration providing that ILPD conducted the
following search:
Between October and November 2017, ILPD tasked the entire division to search
for responsive records. Consistent with ICE’s practice, and as was the case here,
when a plaintiff does not suggest search terms, the ICE FOIA Office suggests
search terms and individual employees then use their knowledge and experience
to choose among the suggested terms and to determine if there are other search
terms which would be helpful. ILPD attorneys and staff searched their
government computers (including personal and shared drives) and Outlook e-mail
accounts, using the following electronic search terms: “endorse,” “espouse,”
“espouses,” “speech,” “beliefs,” and/or “association.”
(ECF No. 113 at ¶ 14). It also omitted consideration of paragraph 15, which explains:
In October 2017, NSLS tasked the entire division to search for responsive records.
Consistent with ICE’s practice, and as was the case here, when a plaintiff does not
suggest search terms, the ICE FOIA Office suggests search terms and individual
employees then use their knowledge and experience to choose among the
suggested terms and to determine if there are other search terms which would be
helpful. NSLS staff searched their government computers (including personal and
shared drives) and Outlook e-mail accounts, using the following electronic search
terms: “endorse,” “espouse,” “foreign policy,” “212(a)(3)(B)(i)(VII),”
“212(a)(3)(C),” and/or “200715919.”

(Id. at ¶ 15).
Defendants argue that both sets of terms were reasonably calculated to return
responsive records, which suggests that ICE’s search was adequate. Defendants are
correct that ICE’s provision of these descriptions indicates that ICE’s overall search was
more adequate than the Court recognized in its September 13 opinion. However, this new

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information is not enough to tip the scale. ICE’s overall search, considered in full, is
inadequate still.
For one, although these search terms are better than none, they do not, as
Defendants erroneously argue, mirror the terms used by OLC and DOS, which I cited
with approval. See (ECF No. 144 at 7 (citing 407 F. Supp. at 325–26)). OLC used the
terms “endorse and espouse,” “endorse or espouse,” “espouse and endorse,” “espouse or
endorse,” “1st Amendment,” “First Amendment,” “would have potentially serious
adverse foreign policy consequences,” “freedom of speech,” “freedom of belief,”
“freedom of association,” “freedom of expression,” or “protected speech,” “potentially
serious adverse,” “serious adverse foreign,” “speech,” “express,” “belief,” “member,”
“association,” “waiver,” “Visa Inadmissibilities,” and “Visa Sanctions,” (ECF No. 93 at
¶¶ 19-23). DOS used the terms “endorse w/3 espouse,” “potentially serious adverse
foreign policy,” “(beliefs OR statements OR associations) w/5 ‘would be lawful,’” “8 w/3
1182,” “8 w/3 1158,” “8 w/3 1225,” “(‘first amendment’ OR speech OR belief OR
association) w/10 (immigrat* OR exclu* OR remov*).” (ECF No. 92 at ¶ 10).
In addition to including more terms, OLC’s and DOS’s searches also permitted
for variations of key words to turn up results by searching, for example, the singular of
the word “belief” and adding asterisks to the roots of important terms.
But even if ILPD’s and NSLS’s terms had been as comprehensive as OLC’s and
DOS’s, they still would not have remedied the other problems I identified with ICE’s
overall search. They would not remedy, for instance, the discussed deficiencies with the
Office of the Director’s and ERO’s search terms, or the fact that EROLD failed to justify
its decision not to conduct a search.

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Defendants argue that the September 13 opinion’s finding that ICE “omit[ted] key
details about…how the agency handled the administrative remand, and how the agency
narrowed its search results” is erroneous because it failed to consider relevant sections of
the supplemental Fuentes declaration. (ECF No. 144 at 5). With respect to remand,
Defendants’ position is fundamentally flawed. By Defendants’ own admission, ICE
conducted all searches by January 2018, before the administrative remand was requested
let alone granted. Accordingly, the information provided in the supplemental declaration
does not address ICE’s response to the remand.
Defendants additionally take issue with the September 13 opinion’s finding that
ICE “omit[ed] key details about…how the agency narrowed its search results.”
Defendants contend that the supplemental Fuentes declaration explained how ICE’s
“Government Information Law Division (‘GILD’) manually reviewed” documents
searching for “final policy memoranda or guidance, thus removing emails, the vast
majority of collected documents,” and ultimately identified only ninety-nine pages
responsive to the narrowed Request.” (ECF No. 113 at ¶¶ 21, 23-24). Defendants point
out that the supplemental declaration further provides:
This “narrowing” of records resulted in a corruption of the electronic files within
the database containing the records; as a result, ICE requested plaintiff to provide
CDs of the produced documents for comparison purposes when drafting the
Vaughn indices. GILD determined that 99 pages were responsive to the narrowed
request. On July 3, 2018, ICE produced in full or in part 50 pages, and referred 49
pages to DHS and USCIS. On August 3, 2018, DHS and USCIS responded to
plaintiff, withholding those pages in full.
(ECF No. 144 at 10 (quoting Id. at ¶ 24)).
Defendants’ reconsideration argument here is that the information provided by
Fuentes is a detailed enough description of how ICE narrowed its search and was

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overlooked by the Court. The parties briefed this issue in their summary judgment
memos. Plaintiff argued that ICE did not explain adequately why it did not review email
attachments in its narrowed search, which Plaintiff argues could have contained
documents responsive to the narrowed requests. (ECF 117 at 3). I agree with Plaintiff that
ICE’s search description was inadequate. Although the supplemental Fuentes declaration
explains the physical processes ICE took to locate responsive documents, it does not
explain how choices were made regarding where to look for those documents. A more
detailed description was needed.
Defendants’ motion for reconsideration as to the inadequacy of ICE’s searches is
DENIED.
III. DOS and USCIS Withholdings
Defendants seek clarification regarding my findings that DOS and USCIS failed
to justify adequately their withholding of documents pursuant to FOIA exemption 7(E).
Defendants inquire as to whether the September 13 and September 23 opinions directed
them to turnover immediately the improperly withheld materials, or alternatively, to
submit supplemental submissions to the Court further explaining why withholding is
appropriate. (ECF No. 144 at 11). In the event the decisions ordered the first directive,
Defendants ask that I reconsider this ruling and permit DOS and USCIS to supplement
the record with additional declarations or review the relevant documents in camera. (Id.
at 12). With respect to USCIS, Defendants also seek clarification regarding which
documents and information the September 23 order concluded constitute improperly
withheld “TRIG questions.” (Id. at 11).

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A. DOS 7(E) Exemptions
DOS invoked Exemption 7(E) to withhold sections of its Foreign Affairs Manual.
The September 13 opinion denied Defendants’ motion for summary judgment as to these
withheld documents, granted Plaintiffs cross motion and stated: “Defendants are Ordered
to turnover these categories of documents.” 407 F.Supp.3d at 332. Defendants argue that
this clear directive was confused by later language in the opinion addressing Plaintiff’s
request for an in camera review of Defendants’ withheld and redacted documents. (ECF
No. 144 at 11). In denying this request, the opinion found “that in camera review is
unnecessary and [o]rder[ed] the Government to supplement its submissions in accordance
with [the] Opinion.” 407 F. Supp. 3d at 333–34. Defendants argue this sentence is at odds
with the Court’s previous directive to State to turn over the withheld documents. (ECF
No. 144 at 11). It is not. As explained, the latter directive appears in a completely
different section of the opinion than the first and simply orders the Defendants to comply
with all submission directives provided in the above opinion, including the order for DOS
to turn over the improperly withheld documents.
In short, the September 13 opinion ordered DOS to turn over the disputed sections
of the Foreign Affairs Manual promptly because, based on the information Defendants
provided, application of Rule 7(E) was not appropriate.
USCIS withheld 256 pages of records and 33 PowerPoint slides pursuant to FOIA
Exemption 7(E). (ECF No. 97 at ¶ 11-41). Plaintiff challenged Defendants’ application of
Exemption 7(E) to many of these documents, including the various versions of the
USCIS BASIC Instructor Guide on TRIG, USCIS BASIC Participant Guide on TRIG,
USCIS TRIG Training PowerPoint Course 234, USCIS TRIG Instructor Guide, USCIS

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TRIG Participant Guide, the officer training manual entitled TRIG EXEMPTIONS—
Group-Based Exemptions/Situations Exemptions; and the manual entitled USCIS RAIO
Officer Training –Combined Training Manual on National Security.1 (ECF 108 at 17 n.
11). Specifically, Plaintiff challenged the withholding of two categories of information
contained in these records: (1) questions that should be asked in immigration interviews
to assess whether applicants had TRIG bars to admission; and (2) information related to
determining whether applicants qualify for exemptions to TRIG bars. (Id. at 17-21).
The September 23 opinion concluded that USCIS was not entitled to rely on
Exemption 7(E) to withhold the TRIG questions, but that the agency had properly
withheld information related to the TRIG exemption qualifications in reliance on the
same. 407 F. Supp. 3d at 353-54.
In their motion for clarification and reconsideration, Defendants assert that they
are unclear how to differentiate between improperly withheld information concerning
TRIG Questions and properly withheld information concerning TRIG exemptions.
Defendants contend that, often, the two sets of information overlap because
“[i]mmigration officers ask questions to elicit an applicant’s terrorist ties in order to
determine whether an exemption to the terrorist bar applies. While the agency can isolate
‘questions’ in the materials, it is not always clear how questions designed to determine

1

USCIS BASIC Instructor Guide on TRIG, versions dated Nov. 2015, 2012, and 2010, see Eggleston Decl.
¶¶ 22, 32, 36; USCIS BASIC Participant Guide on TRIG, versions dated 2012 and 2010, see Eggleston
Decl. ¶¶ 33, 37; USCIS TRIG Training PowerPoint, Course 234, versions dated Mar. 21, 2017, Nov. 2015,
May 9, 2012, and May 2010, see Eggleston Decl. ¶¶ 30–31, 34–35, 38; USCIS TRIG Instructor Guide,
versions dated May 2017 and Mar. 2017, see Eggleston Decl. ¶¶ 28, 39; USCIS TRIG Participant Guide,
versions dated May 2017 and Mar. 2017, see Eggleston Decl. ¶¶ 29, 40; TRIG Exemptions – Group-Based
Exemptions / Situational Exemptions (officer training manual), see Eggleston Decl. ¶ 26; USCIS RAIO
Office Training – Combined Training Manual on National Security, versions dated Jan. 24, 2013 and Oct.
26, 2015, see Eggleston Decl. ¶¶ 27, 41.

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the existence, extent, and nature of an applicant’s terrorist ties can be neatly categorized
as reflecting ‘TRIG questions’ as opposed to ‘TRIG Exemptions.” (ECF 144 at 12). Thus,
Defendants ask the court to clarify which materials the court defines as “TRIG
Questions” as opposed to “TRIG Exemptions.”
I understand TRIG Questions to be “the questions and follow-ups” “designed to
elicit” information from applicants “that would shed light on…whether the applicant[s]
ha[ve] any ties to terrorist organizations and activities.” (ECF No. 118 at 15) (emphasis
added)). TRIG Exemptions, by contrast, are the criteria USCIS uses to evaluate
applicants’ answers. The latter material is internal to the agency and protectable, whereas
the former material is, by definition shared, specifically with applicants. See 407 F. Supp.
3d at 353-54.
Although the September 23 opinion did not order as clearly as the September 13
opinion Defendants to turn over the improperly withheld records, it also did not provide
for supplemental submissions and was intended to order USCIS to turnover these records,
the TRIG Questions, to Plaintiff.
Defendants cite no intervening changes in controlling law, newly available
evidence, or clear error warranting reversal of my decisions to order production of
improperly withheld FOIA materials as opposed to permitting supplemental agency
submissions attempting to further support withholding. Instead, Defendants cite several
cases to support their argument that “[d]istrict courts typically allow the Government to
make supplemental submissions, rather than ordering disclosure, where they find an
agency’s submissions insufficiently detailed to justify application of a FOIA exemption.”
(ECF No. 144 at 12-13) (citing N.Y. Legal Assistance Grp. v. U.S. Dep’t of Educ., No. 15

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Civ. 3818, 2017 WL 2973976, at *7-8, 10 (S.D.N.Y. July 12, 2017); ACLU v. U.S. DOJ,
210 F. Supp. 3d 467, 485-86 (S.D.N.Y. 2016); Intellectual Prop. Watch v. U.S. Trade
Representative, 134 F. Supp. 3d 726, 746-47 (S.D.N.Y. 2015); N.Y. Times Co. v. U.S.
DOJ, 915 F. Supp. 2d 508, 545-46 (S.D.N.Y. 2013), supplemented by 2013 WL 238928
(S.D.N.Y. Jan 22, 2013); Adm. Civil Liberties Union v. Office of the Dir. of Nat.
Intelligence, No. 10 CIV. 4419, 2011 WL 5563520, at *13 (S.D.N.Y. Nov. 15, 2011).
Defendants misunderstand the grounds upon which I found the agencies’ 7(E)
withholdings to be justified inadequately. DOS and USCIS submitted sufficiently
detailed justifications for withholding the FAM sections and TRIG questions
respectively. I understood the agencies’ arguments and was not persuaded. In the
majority of cases cited by Defendants, supplemental submissions were requested where
courts determined that they did not have enough information to decide whether an
exemption applied. See, e.g. American Civil Liberties Union v. United States Dep’t of
Justice, 210 F. Supp. 3d 467, 483, 485-86 (S.D.N.Y. 2016) (where section of DOJ
asserted deliberative process privilege and attorney work product privilege to justify
withholding document but failed to “provide the Court with sufficient information to
determine whether work product protection applies” the court granted DOJ opportunity to
enhance its submissions regarding work product privilege and deferred ruling on the
applicability of the deliberative process exception); Intellectual Property Watch v. U.S.
Trade Representative, 134 F. Supp. 3d 726, 745-47 (S.D.N.Y. 2015) (to justify
exemption, agency provided conclusory statements that were not document-specific so
court asked for supplemental submissions “in order to provide ‘a sufficient degree of
detail’ as to withholdings and redactions”); N.Y. Times Co. v. U.S. DOJ, 915 F. Supp. 2d

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508, 545-46 (S.D.N.Y. 2013) (requiring additional submissions from agency where court
did not have enough information to reach a conclusion about the duplicative process
privilege); Am. Civil Liberties Union v. Office of the Dir. of Nat. Intelligence, No. 10
CIV. 4419, 2011 WL 5563520, at *13 (S.D.N.Y. Nov. 15, 2011) (ordering supplemental
submissions where “faced with conclusory or otherwise insufficient agency affidavits”).
I had enough information from DOS’s and USCIS’s affidavits to conduct the
required de novo review of the agencies’ withholdings. I determined that the 7(E)
exemption did not apply to certain sections of the FAM and the TRIG questions. No
supplemental submissions or in camera review is necessary. Defendants have not met the
burden to warrant reconsideration of these determinations.
CONCLUSION
Defendants’ motion for reconsideration is DENIED in full.

SO ORDERED.
Dated: September 13,
2020 New York, New York
__________________________________
ANDREW L. CARTER, JR.
United States District Judge

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