Judicial Watch, Inc. v. United States Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________
)
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

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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

12
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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