UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
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JUDICIAL WATCH, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 11-606(GK)
)
U.S. DEPARTMENT OF HOMELAND )
SECURITY, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff, Judicial Watch, Inc., brings this action against
Defendant, the Department of Homeland Security (“DHS”), under the
Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiff
seeks material related to certain types of suspensions of
deportation proceedings. This matter is before the Court on
Defendant’s Motion for Summary Judgment [Dkt. No. 19] and
Plaintiff’s Cross-Motion for Summary Judgment [Dkt. No. 20]. Upon
consideration of the Motions, Oppositions, and Replies, and the
entire record herein, and for the reasons set forth below,
Defendant’s Motion for Summary Judgment is granted and Plaintiff’s
Cross-Motion for Summary Judgment is denied.
I. BACKGROUND1
Judicial Watch is a non-profit, educational foundation seeking
to promote “integrity, transparency, and accountability in
government.” Compl. ¶ 3 [Dkt. No. 1]. This case concerns Judicial
Watch’s efforts to obtain records of communications between DHS and
other governmental and non-governmental entities regarding certain
procedures used by the government for suspending deportation
proceedings. On July 2, 2010, Judicial Watch submitted a FOIA
request seeking records of both communications within DHS and
communications between DHS and the White House, Executive office of
the President, and any third parties concerning policies for
“deferred action,” “parole,” and “selective reprieve.” Judicial
Watch sought records from January 1, 2010, to the “present.”
Subsequently, Judicial Watch narrowed its request by substituting
a list of private organizations in place of “any third parties” and
specified the components within DHS that it wanted searched.
In response to the FOIA request, DHS searched the components
identified by Judicial Watch. Further, Immigration and Customs
Enforcement (“ICE”), a component of DHS, searched its own
components most likely to have responsive records. Eventually, DHS
produced 4,235 pages, from both its own components and from ICE’s,
and withheld certain records in part or in full pursuant to
1
Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties’ Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h).
2
Exemptions 5, 6, 7(C), and 7(E). Judicial Watch now challenges
DHS’s refusal to release, in part or in full, twenty documents
totaling approximately eighty-seven pages. Pl.’s Cross-Mot. 3 n.1.
On December 8, 2011, DHS filed its Motion for Summary
Judgment. On January 5, 2012, Judicial Watch filed its Opposition
and Cross-Motion for Summary Judgment. On January 26, 2012, DHS
filed its combined Opposition and Reply [Dkt. No. 22]. On February
2, 2012, Judicial Watch filed its Reply [Dkt. No. 24].
II. STANDARD OF REVIEW
The purpose of FOIA is to “‘to pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny.’” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir.
2007) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976)). FOIA “requires agencies to comply with requests to make
their records available to the public, unless the requested records
fall within one or more of nine categories of exempt material.”
Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996)
(citing 5 U.S.C. § 552(a), (b)). An agency that withholds
information pursuant to a FOIA exemption bears the burden of
justifying its decision, Petroleum Info. Corp. v. Dep’t of the
Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. §
552(a)(4)(B)), and must submit an index of all materials withheld,
referred to as a “Vaughn Index.” Vaughn v. Rosen, 484 F.2d 820,
827-28 (D.C. Cir. 1973). In determining whether an agency has
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properly withheld requested documents under a FOIA exemption, the
district court conducts a de novo review of the agency’s decision.
5 U.S.C. § 552(a)(4)(B).
FOIA cases are typically and appropriately decided on motions
for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of
Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C.
2011); Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d
83, 87 (D.D.C. 2009). Summary judgment will be granted when the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with any affidavits or declarations, 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. See Fed.
R. Civ. P. 56(c).
In a FOIA case, the court may award summary judgment solely on
the basis of information provided in affidavits or declarations
when they (1) “describe the documents and the justifications for
nondisclosure with reasonably specific detail;” (2) “demonstrate
that the information withheld logically falls within the claimed
exemption;” and (3) “are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981). Such affidavits or declarations are accorded “a presumption
of good faith, which cannot be rebutted by ‘purely speculative
claims about the existence and discoverability of other
4
documents.’” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d
1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.
CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. ANALYSIS
As noted above, only twenty documents remain in dispute.
Judicial Watch objects to the withholding of these documents on two
grounds. First, it argues that DHS’s withholding of certain
material under Exemption 5 was improper. Second, it contends that
DHS failed to disclose all reasonably segregable, nonexempt
portions of records otherwise appropriately withheld. Each claim
will be addressed in turn.
A. Exemption 5
Exemption 5 permits an agency to withhold “inter-agency or
intra-agency memorandums or letters which would not be available by
law to a party other than an agency in litigation with the agency.”
5 U.S.C. § 552(b)(5). Exemption 5 “is interpreted to encompass,
inter alia, three evidentiary privileges: the deliberative process
privilege, the attorney-client privilege, and the attorney work
product privilege.” Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir.
2002).
The relevant privilege here, the deliberative process
privilege, “‘covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.’” Dep't
5
of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1,
8-9 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150
(1975)); see also Public Citizen, Inc. v. Office of Mgmt. & Budget,
598 F.3d 865, 874-75 (D.C. Cir. 2010). Because “advice and
information would not flow freely within an agency if such
consultative information were open to public scrutiny,” Exemption
5 “allows agency staffers to provide decisionmakers with candid
advice without fear of public scrutiny[,] . . . helps to prevent
premature disclosure of proposed policies[,] and protects against
public confusion through the disclosure of documents suggesting
reasons for policy decisions that were ultimately not taken.”
Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252,
258-59 (D.D.C. 2004).
To invoke the deliberative process privilege, an agency must
show that the requested material meets two requirements: it must be
“both ‘predecisional’ and ‘deliberative.’” Public Citizen, 598 F.3d
at 874 (quoting Coastal States Gas Corp. v. Dep't of Energy, 617
F.2d 854, 866 (D.C. Cir. 1980)); see also In re Sealed Case, 121
F.3d 729, 737 (D.C. Cir. 1997). Material is “predecisional if ‘it
was generated before the adoption of an agency policy.’” Judicial
Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir.
2006) (quoting Coastal States, 617 F.2d at 866). Accordingly, a
“court must first be able to pinpoint an agency decision or policy
to which these documents contributed.” Morley, 508 F.3d at 1127.
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Material is deliberative if “it reflects the give-and-take of
the consultative process.” Judicial Watch, 449 F.3d at 151
(internal quotation omitted). Deliberative materials “‘reflect[ ]
advisory opinions, recommendations, and deliberations comprising
part of a process by which governmental decisions and policies are
formulated, [or] the personal opinions of the writer prior to the
agency's adoptions of a policy.’” Public Citizen, 598 F.3d at 875
(quoting Taxation With Representation Fund v. IRS, 646 F.2d 666,
677 (D.C. Cir. 1981) (alterations in Public Citizen)). Hence, the
privilege covers information that “reflect[s] the personal opinions
of the writer rather than the policy of the agency.” Morley, 508
F.3d at 1127 (internal quotation omitted). But when the information
at issue is “[f]actual material that does not reveal the
deliberative process,” it is not protected. Id. (quoting Paisley v.
CIA, 712 F.2d 686, 698 (D.C. Cir. 1983)).
In order to withhold a document under the deliberative process
privilege, the agency must make the additional showing that
disclosure would cause injury to the decisionmaking process. Army
Times Publ’g Co. v. Dep’t of the Air Force, 998 F.2d 1067, 1071
(D.C. Cir. 1993); Judicial Watch, 297 F. Supp. 2d at 259.
Therefore, “the agency must ‘show, by specific and detailed proof
that disclosure would defeat, rather than further, the purposes of
FOIA.’” Hall v. U.S. Dep’t of Justice, 552 F. Supp. 2d 23, 29
7
(D.D.C. 2008) (quoting Mead Data Cent. Inc. v. U.S. Dep’t of Air
Force, 566 F.2d 242, 258 (D.C. Cir. 1977)).
DHS offers the Declarations of James Holzer [Dkt. No. 19-1],
the Director for Disclosure and FOIA Operations in the DHS Privacy
Office, and Catrina Pavlik-Keenan [Dkt. No. 19-3], the FOIA Officer
at ICE’s FOIA Office, to explain its decisions to withhold
documents. Each Declaration is supported by a Vaughn Index (“Holzer
Index” [Dkt. No. 19-2] and “Pavlik-Keenan Index” [Dkt. No. 19-4]),
setting out in greater detail the reason for withholding each
document.
Simply put, the Declarations and attached Vaughn Indices for
each of the twenty documents in dispute clearly and specifically
explain the reasons that that document is predecisional and
deliberative and why disclosure would harm the decision-making
process. Public Citizen, 598 F.3d at 874; Morley, 508 F.3d at 1127;
Army Times Publ’g Co., 998 F.2d at 1071. The two Vaughn Indices
explain with reasonable detail the agency decision or policy to
which the documents contributed and the reason the documents are
properly considered deliberative. Given the presumption of good
faith to be accorded these submissions, nothing more is required of
DHS. SafeCard Servs., 926 F.2d at 1200; Military Audit Project, 656
F.2d at 738.
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Indeed, Judicial Watch only makes specific challenges to the
withholding of eight documents.2 Pl.’s Cross-Mot. 7-8. Citing to
two cases from the District Court for the Southern District of New
York, Judicial Watch argues that six of these documents (“DHS 1,”
“DHS 2,” “DHS 4,” “DHS 5,” “DHS 6,” and “DHS 7”) are not covered by
Exemption 5 because they concern public relations. In Judicial
Watch’s view, “[d]eliberations about how to present an already
decided policy to the public, or documents designed to explain that
policy to -- or obscure it from the -- public, including documents
in draft form, are at the heart of what should be released under
the FOIA.” Pl.’s Cross-Mot. 7.
In this District, however, courts have routinely found that
drafts and discussions relating to how to respond to press
inquiries are covered by the deliberative process privilege. See,
e.g., Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 796 F. Supp.
2d 13, 31 (D.D.C. 2011); Judicial Watch, Inc. v. U.S. Dep’t of
Homeland Sec., 736 F. Supp. 2d 202, 208 (D.D.C. 2010). Even if the
documents are created after the underlying policy they discuss is
finalized, “these documents are generated as part of a continuous
2
Judicial Watch also makes the general complaint that
“[g]iven the sparse descriptions of the disputed documents that
Defendant has provided Plaintiff with thus far, . . . it is
difficult in many cases for Plaintiff to determine if the withheld
material is in fact both predecisional and deliberative.” Pl.’s
Cross-Mot. 7. To the contrary, as noted above, the Declarations and
Vaughn Indices explain clearly and specifically the bases for
finding the documents in question predecisional and deliberative.
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process of agency decision making, viz., how to respond to on-going
inquiries.” Judicial Watch, 736 F. Supp. 2d at 208.
Further, the fear of public scrutiny may affect an agency’s
consideration of whether to provide a statement to a television
news program just as it may affect consideration of the underlying
substantive policy. See James Madison Project v. CIA, 607 F. Supp.
2d 109, 128 (D.D.C. 2009) (“The critical factor in determining
whether the material is deliberative in nature ‘is whether
disclosure of the information would discourage candid discussion
within the agency.’” (quoting Access Reports v. Dep’t of Justice,
926 F.2d 1192, 1194 (D.C. Cir. 1991))). The documents at issue
here, including drafts and communications relating to press
inquiries, are predecisional to the agency’s determination of how
to present its policy in the press. Judicial Watch, 736 F. Supp. 2d
at 208. Judicial Watch has offered no basis for departing from the
rule governing deliberative process privilege. See, e.g., Public
Citizen, 598 F.3d at 875.
As to the final two documents (“ICE 4” and “ICE 6”), Judicial
Watch argues that they should be disclosed because they “appear to
be merely lists of questions or primarily factual material.” Pl.’s
Cross-Mot. 8. First, Judicial Watch simply ignores applicable case
law in this District that draft questions prepared for a
presentation are protected by the deliberative process privilege.
See Citizens for Responsibility and Ethics in Washington v. U.S.
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Dep’t of Labor, 478 F. Supp. 2d 77, 84-85 (D.D.C. 2007) (finding
that the deliberative process privilege applies to a list of
“questions/issues” prepared for a phone call). Second, Judicial
Watch is wrong when it states that the records “appear to be . . .
primarily factual material.” Id. The Vaughn Index clearly states
that one record contains draft questions for use in a presentation
and the other contains draft language and edits for a memorandum.
In sum, DHS has satisfied its burden of demonstrating that the
withheld records are predecisional and deliberative and that
disclosure would harm the deliberative process. Public Citizen, 598
F.3d at 874; Army Times Publ’g Co., 998 F.2d at 1071. Therefore,
the records covered by the deliberative process privilege are
properly withheld under Exemption 5. Klamath Water Users Protective
Ass'n, 532 U.S. at 8-9; Morley, 508 F.3d at 1126-27.
B. Segregability
Even if a record contains information that is exempt from
disclosure, any reasonably segregable information within that
record must be released after deleting the exempt portions, unless
the non-exempt portions are inextricably intertwined with exempt
portions. 5 U.S.C. § 552(b); Trans-Pac. Policing Agreement v.
United States Customs Serv., 177 F.3d 1022, 1026-27 (D.C. Cir.
1999). Critically, “[i]n order to demonstrate that all reasonably
segregable material has been released, the agency must provide a
‘detailed justification’ for its non-segregability.” Johnson v.
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Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)
(quoting Mead Data Cent., Inc. v. United States Dep’t of the Air
Force, 566 F.2d 242, 261 (D.C. Cir. 1977)). A “blanket declaration”
that documents do not contain segregable material is insufficient.
Wilderness Soc. v. United States Dep’t of Interior, 344 F. Supp. 2d
1, 19 (D.D.C. 2004).
Judicial Watch argues that “Defendant’s justification for
these withholdings is quite sparse,” observing that ten of the
documents in dispute were withheld in their entirety and nine were
largely redacted. Pl.’s Cross-Mot. 5. DHS responds that “the
segregability declarations coupled with the detailed descriptions
of the withheld information suffice to carry DHS’s burden.” Def.’s
Reply 8.
The two Declarations and accompanying Vaughn Indices make
clear with ample specificity that all reasonable segregable
material has been released. Both Declarations indicate that all
withheld documents were reviewed line-by-line to identify
reasonably segregable material. Holzer Decl. ¶ 20; Pavlik-Keenan
Decl. ¶ 39. Additionally, the attached Vaughn Indices demonstrate
DHS and ICE’s efforts to separate the segregable information
identified in each withheld or redacted record.
Two examples will suffice. The “justification/description” for
“DHS 3,” which was partially withheld, reads: “The redacted portion
of this page consists of an email discussing a proposed change to
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agency policy for certain Haitian Orphans. . . . The entire
redacted portion consists of the author’s description of a policy
change that was under consideration at the time of his e-mail.”
Holzer Index at Doc. 3. The “justification/description” for DHS 4,
which was also partially withheld, provides even greater detail. It
goes through the record page-by-page, stating, in part:
The bottom of Page 16 and the top of Page 17
consist of agency personnel providing their
comments on this draft statement. Taking into
account the comments, Matthew Chandler revised
the draft statement and recirculated [it] in
the e-mail set forth on the bottom of Page 15
and the top of page 16. Also included on these
pages are the e-mail headers indicating
precise times that e-mails were sent with
comments, and by whom. . . . After a line-by-
line review, there is no reasonably segregable
non-exempt material in pages 16-19.
Id. at Doc. 4.
Our Court of Appeals has approved precisely the sort of
specific and informative language contained in these Declarations
and Vaughn Indices. Johnson, 310 F.3d at 776. Here, as in Johnson,
“[t]he combination of the Vaughn ind[ices] and the affidavits . .
. are sufficient to fulfill the agency's obligation to show with
‘reasonable specificity’ why a document cannot be further
segregated.” Id. (citing Armstrong v. Exec. Office of the
President, 97 F.3d 575, 578-79 (D.C. Cir. 1996)).
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IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion for
Summary Judgment is granted and Plaintiff’s Motion for Summary
Judgment is denied. An Order shall accompany this Memorandum
Opinion.
/s/
July 30, 2012 Gladys Kessler
United States District Judge
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