American Immigration Lawyers Association v. United States Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
AMERICAN IMMIGRATION )
LAWYERS ASSOCIATION )
)
Plaintiff, )
)
v. ) Civ. Action No. 10-1224 (EGS)
)
UNITED STATES DEPARTMENT OF )
HOMELAND SECURITY, et al., )
)
Defendants. )
)

MEMORANDUM OPINION

Plaintiff American Immigration Lawyers Association (“AILA”

or “plaintiff”) brings this action against the United States

Department of Homeland Security (“DHS”) and the United States

Citizenship and Immigration Services, a DHS subdivision (“USCIS”

collectively, “defendants”) under the Freedom of Information Act

(“FOIA”), seeking the release of information withheld by the

USCIS.

Pending before the Court are the parties’ cross-motions for

summary judgment. Plaintiff principally argues that the USCIS

waived its right to withhold or redact certain information

because that information is in the public domain, and that even

if waiver did not occur, certain material was improperly

withheld because FOIA exemption 7(E) does not apply to those

documents. See 5 U.S.C. § 552(b)(7)(E). In a cross-motion for
summary judgment, the USCIS disputes plaintiff’s allegations of

waiver, and argues that all withheld material was properly

exempt from disclosure pursuant to several FOIA exemptions,

including 7(E).

Upon careful consideration of the motions, the responses

and replies thereto, the applicable law, and the entire record,

the Court hereby GRANTS in part the plaintiff’s motion for

summary judgment and DENIES defendants’ cross-motion for summary

judgment without prejudice.

I. BACKGROUND

Plaintiff AILA is an association of over 11,000 attorneys

and law professors who practice and teach immigration law.

Plaintiff’s Memorandum in Support of its Motion for Summary

Judgment (“Pl.’s Br.”), Docket No. 23-2, at 7. Defendant USCIS

is the agency that oversees lawful immigration to the United

States, and is charged with disseminating information regarding

immigration issues, granting immigration and citizenship

benefits, promoting awareness and understanding of citizenship,

and ensuring the integrity of the United States immigration

system. Defendants’ Memorandum of Points and Authorities in

Support of Cross-Motion for Summary Judgment (“Defs.’ Br.”),

Docket No. 25-2, at 2. Among its responsibilities, the USCIS

processes H-1B temporary visa petitions filed by United States

employers seeking to hire non-immigrant alien workers on a

2
temporary basis. Defs.’ Br. at 2. The USCIS carries out this

function pursuant to the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 101(a)(15)(H)(i)(b), which provides for the

admission into the United States of temporary workers to perform

services in a specialty occupation. Pl.’s Br. at 2; Defs.’ Br.

at 2.

A. Plaintiff’s FOIA Requests

Beginning in 2009, AILA submitted three FOIA requests to

the USCIS. The requests were processed by the USCIS’s National

Records Center (“NRC”), in compliance with DHS implementing

regulations found at 6 C.F.R. Part 5 and Management Directive

No. 0460.1. Defs.’ Statement of Material Facts (“Defs.’ SMF”),

Docket No. 25-3, ¶ 1.

By letter dated February 6, 2009, Robert Deasy, AILA’s

Director of Liaison and Information, submitted a FOIA request

(“February 6 Request”) to the USCIS on behalf of AILA for:

Copies of any and all guidance, including, but not
limited to memoranda, standard operating procedures,
and templates used for Requests for Evidence regarding
adjudicating H-1B petitions issued as a result of, in
connection with, in light of, or related to the
Benefits Fraud [Compliance] Assessment Report.

Defs.’ SMF ¶ 7. This request was assigned control number

NRC2009007831. Defs.’ SMF ¶ 8.

By letter dated March 18, 2009, AILA submitted a second

FOIA request (“March 18 Supplemental Request”), in which it

3
requested a document entitled “H1-B Processing Fraud Referral

Sheet” (“H1-B Petition Fraud Referral Sheet”) and petitioned for

expedited processing. Defs.’ SMF ¶ 9. This request was

considered a supplement to the February 6 Request and was

included within it for purposes of processing. See id. ¶¶ 9,

13. The request for expedited processing was denied. Defs.’

SMF ¶ 13.

On April 13, 2009, AILA submitted a third FOIA Request

(“April 13 Request”) to the USCIS, this time seeking “The

Compliance Review Worksheet Mentioned in Comment Request for

Compliance Review Worksheet, 74 FR 15999 (April 8, 2009)”

(“Compliance Review Report”). Defs.’ SMF ¶ 14. The NRC

received the April 13 Request on April 27, 2009. Defs.’ SMF ¶

15. The request was assigned control number NRC2009023483.

Defs.’ SMF ¶ 16. On May 8, 2009, AILA submitted a request to

expedite the April 13 Request, which was denied by letter on May

28, 2009. Defs.’ SMF ¶¶ 17, 18.

Several documents that resulted from USCIS’s searches 1 are

at issue in this case.

1
Although plaintiff initially challenged the adequacy of the
searches conducted by USCIS, that issue is not raised by
plaintiff on summary judgment and plaintiff does not dispute
defendants’ argument in their cross-motion that the searches
were proper.

4
 1. Compliance Review Report

One two-page, preprinted USCIS form entitled “Compliance

Review Report” was deemed responsive to AILA’s April 13 Request.

Defs.’ SMF ¶ 52; Substitute Declaration of Jill A. Eggleston

(“Sub. Eggleston Decl.”), Docket No. 25-5, ¶ 42. 2 On June 9,

2009, the USCIS determined that the document should be withheld

in full pursuant to FOIA exemptions (b)(2) 3 and (b)(7)(E).

Defs.’ SMF ¶ 53. On August 7, 2009, AILA administratively

appealed the decision, which was affirmed on February 18, 2010.

Sub. Eggleston Decl. ¶¶ 38,40. At some time after this

litigation was commenced on July 20, 2010, USCIS made the

determination that some of the information withheld could be

disclosed, and the USCIS released the document in redacted form

on October 27, 2010. Defs.’ SMF ¶¶ 57, 59; Watkins Decl., Ex.

12. USCIS also released a revised index on that date, pursuant

to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), explaining

USCIS’s basis for withholding portions of the document. See

October 27, 2010 Vaughn Index (“Oct. 27, 2010 Vaughn Index”),

2
The original Declaration of Jill A. Eggleston was filed in
connection with defendants’ initial motion for summary judgment,
see Docket No. 11-5, and is not part of the record for the
renewed motions for summary judgment.
3
Following the Supreme Court’s decision in Milner v. Dep’t
of the Navy, 131 S. Ct. 1259 (2011), defendants have withdrawn
all assertions of exemption b(2) in connection with plaintiff’s
FOIA Requests. Defs.’ Br. at 11, n.10; Sub. Eggleston Decl. ¶
44, n.4.

5
Ex. 21 to the Declaration of Seth A. Watkins in Support of

Plaintiff’s Motion for Summary Judgment, (“Watkins Decl.”), at

4.

2. Neufeld Memorandum

A four-page memorandum by Donald Neufeld, Acting Associate

Director of Domestic Operations, regarding H-1B fraud

initiatives (“Neufeld Memorandum”) was determined to be

responsive to the February 6 Request and the March 18

Supplemental Request. Sub. Eggleston Decl. ¶ 41. The NRC

initially determined that this document should be withheld in

its entirety pursuant to FOIA exemptions (b)(2), (b)(5), and

(b)(7)(E). Defs.’ SMF ¶ 51. On March 11, 2010, AILA

administratively appealed this decision. Defs.’ SMF ¶ 45. The

appeal was still pending when this action was filed.

At some time after this litigation was commenced on July

20, 2010, USCIS made the determination that some of the

information withheld could be disclosed. Defs.’ SMF ¶ 54.

Much, but not all, of the information contained in the Neufeld

Memorandum had been publicly disclosed with the publication of

the H-1B Benefit Fraud and Compliance Assessment (“BFCA

Report”), which is posted on the internet. Defs.’ SMF ¶¶ 54-55;

Watkins Decl., Ex. 2. Moreover, the Neufeld Memorandum was

issued in September 2008 as a final agency determination,

6
rendering FOIA exemption (b)(5) inapplicable as authority for

withholding that document from public viewing. Defs.’ SMF ¶ 56.

The USCIS therefore released the document in redacted form on

October 27, 2010, and the USCIS’s basis for withholding the

document was explained in the October 27 Vaughn Index. Defs.’

SMF ¶¶ 57, 59; Oct. 27, 2010 Vaughn Index, Watkins Decl., Ex.

21, at 1.

3. H-1B Petition Fraud Referral Sheet

A two-page pre-printed USCIS form entitled “H-1B Petition

Fraud Referral Sheet” was also determined to be responsive to

the February 6 Request and March 18 Supplemental Request. Sub.

Eggleston Decl. ¶ 41. NRC made the initial determination that

the document should be withheld pursuant to FOIA exemptions

(b)(2), (b)(5), and (b)(7)(E) and that there were no reasonably

segregable portions for release. Defs.’ SMF ¶¶ 43-44. On

March 11, 2010, AILA administratively appealed that decision.

Defs.’ SMF ¶ 45. The appeal was still pending when this action

was filed.

At some time after this litigation was commenced on July

20, 2010, USCIS made the determination that some of the

information withheld could be disclosed, and the USCIS released

the document in redacted form on October 27, 2010. Defs.’ SMF

¶¶ 57, 59. The October 27, 2010 Vaughn Index explained the

7
basis for withholding portions of the document. Oct. 27, 2010

Vaughn Index, Watkins Decl., Ex. 21, at 2.

B. Initial Cross-Motions for Summary Judgment

After releasing the redacted versions of certain documents,

defendants moved for summary judgment on December 10, 2010,

asserting that they had satisfied all of their obligations with

respect to AILA’s FOIA requests. See Docket No. 11. Plaintiff

filed its opposition to defendants’ motion for summary judgment

and in support of plaintiff’s cross-motion for summary judgment

on January 14, 2011. Docket No. 13. Plaintiff challenged,

among other things, the adequacy of defendants’ searches. When

the USCIS reviewed plaintiff’s summary judgment filing, it

determined it may have missed documents potentially relevant to

plaintiff’s requests. Defs.’ SMF ¶ 60. With plaintiff’s

consent, the USCIS commenced a renewed search for documents

responsive to AILA’s FOIA requests on March 29, 2011. Defs.’

SMF ¶ 61. USCIS made a subsequent production of documents to

plaintiff on May 9, 2011 and submitted a Supplemental Vaughn

Index describing the materials withheld. May 9, 2011 Vaughn

Index (“May 9, 2011 Vaughn Index”), Watkins Decl., Ex. 20; see

Plaintiff’s Statement of Material Facts (“Pl.’s SMF”) ¶ 21.

Plaintiff refers to several of the documents produced on May 9,

2011 as the “newly-identified documents.”

8
 C. Renewed Cross-Motions for Summary Judgment

AILA filed a renewed motion for summary judgment on May 31,

2011. In its motion, AILA alleges that USCIS improperly invoked

exemption 7(E) as to several documents that were produced with

redactions, and that USCIS has waived any ability to withhold

the documents because they are in the public domain. Defendants

filed a cross-motion for summary judgment, asking the Court to

determine that they satisfied their obligations under FOIA as to

all documents produced or withheld, that they properly invoked

exemptions, and that they did not waive its ability to invoke

the exemptions because of information that exists in the public

domain.

II. LEGAL FRAMEWORK

A. Rule 56

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted if the moving party has shown that

there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);

Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.

2002). In determining whether a genuine issue of fact exists,

the court must view all facts in the light most favorable to the

non-moving party. See Matsushita Elec. Indus. Co. v. Zenith

9
Radio Corp., 475 U.S. 574, 587 (1986). Likewise, in ruling on

cross-motions for summary judgment, the court shall grant

summary judgment only if one of the moving parties is entitled

to judgment as a matter of law upon material facts that are not

genuinely disputed. See Citizens for Responsibility & Ethics in

Wash. v. Dep’t of Justice, 658 F. Supp. 2d 217, 224 (D.D.C.

2009) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.

1975)).

B. FOIA

FOIA requires agencies to disclose all requested agency

records, 5 U.S.C. § 552(a), unless one of nine specific

statutory exemptions applies, id. § 552(b). It is designed to

“pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Dep’t of Air Force v.

Rose, 425 U.S. 352, 361 (1976) (citations omitted). “Given the

FOIA’s broad disclosure policy, the United States Supreme Court

has ‘consistently stated that FOIA exemptions are to be narrowly

construed.’” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)

(quoting Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)).

“FOIA’s ‘strong presumption in favor of disclosure places

the burden on the agency to justify the withholding of any

requested documents.” Dep’t of State v. Ray, 502 U.S. 164, 173

(1991). The government may satisfy its burden of establishing

10
its right to withhold information from the public by submitting

appropriate declarations and, where necessary, an index of the

information withheld. See Vaughn v. Rosen, 484 F.2d 820, 827-28

(D.C. Cir. 1973). “If an agency’s affidavit describes the

justifications for withholding the information with specific

detail, demonstrates that the information withheld logically

falls within the claimed exemption, and is not contradicted by

contrary evidence in the record or by evidence of the agency’s

bad faith, then summary judgment is warranted on the basis of

the affidavit alone.” ACLU v. Dep’t of the Defense, 628 F.3d

612, 619 (D.C. Cir. 2011); see id. (an agency’s justification

for invoking a FOIA exemption is sufficient if it appears

‘logical’ or ‘plausible’) (internal citations omitted).

III. DISCUSSION

In its motion for summary judgment and its response to

defendants’ motion, plaintiff primarily challenges defendants’

redaction of three documents: (1) the Compliance Review Report

Form; (2) The Neufeld Memorandum; and (3) the H-1B Petition

Fraud Referral Sheet. Plaintiff also argues that defendants

waived the right to claim that certain “newly-identified

documents” that were produced on May 9, 2011 are properly

withheld under Exemption 7(E) because they purportedly contain

11
publicly-disclosed information, but plaintiff does not challenge

the applicability of Exemption 7(E) to those documents.

Defendants, in their cross-motion for summary judgment,

seek summary judgment as to the entirety of their searches and

subsequent responses to plaintiff’s FOIA Requests. Defendants

argue that all exemptions were properly invoked and that all

reasonably segregable information was disclosed. Plaintiff, in

its opposition, does not dispute the withholding of material

pursuant to exemption 7(E) other than in connection with the

Compliance Review Report, the Neufeld Memorandum, and the H-1B

Petition Fraud Referral Sheet. Plaintiff also does not respond

to defendants’ arguments regarding the appropriateness of

defendants’ searches as a whole, or the withholding of documents

pursuant to exemptions b(5) or b(6). Therefore, those points

are deemed conceded.

Accordingly, the issues before the Court are 1) whether

defendants waived their right to withhold all or portions of the

Compliance Review Report, the Neufeld Memorandum, the H-1B

Petition Fraud Referral Sheet, and certain “newly-identified

documents” under the “public domain doctrine”; 2) whether

defendants properly sought to withhold the Compliance Review

Report, the Neufeld Memorandum, and the H-1B Petition Fraud

Referral Sheet under Exemption 7(E); and 3) whether defendants’

12
Vaughn indexes and the Substitute Eggleston Declaration properly

indicate whether all reasonably segregable information has been

released.

A. Waiver/Public Domain Doctrine

The threshold issue before the Court is whether the USCIS

waived its right to invoke Exemption 7(E) and withhold redacted

material in several documents it produced pursuant to the AILA’s

FOIA Requests. The public domain doctrine sets a high standard

that a plaintiff must meet in order to establish that the

government has waived an otherwise-valid FOIA exemption.

“[FOIA] bars the courts from prying loose from the government

even the smallest bit of information that is properly

classified.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130

(D.C. Cir. 1983) (Exemptions 1&3). “Under [the] public domain

doctrine, materials normally immunized from disclosure under

FOIA lose their protective cloak once disclosed and preserved in

a permanent public record.” Cottone v. Reno, 193 F.3d 550, 554

(D.C. Cir. 1999) (citing Niagra Mohawk Power Corp. v. Dep’t of

Energy, 169 F.3d 16, 19 (D.C. Cir. 1999) (Exemption 4)); Public

Citizen v. Dep’t of State, 11 F.3d 198, 201-03 (D.C. Cir. 1993)

(Exemption 1); Davis v. Dep’t of Justice, 968 F.2d 1276, 1276

(D.C. Cir. 1992) (Exemptions 3 & 7(C)); Ashfar, 702 F.2d at

1130-34. The logic of this doctrine is that “where information

13
requested ‘is truly public, the enforcement of an exemption

cannot fulfill its purposes.’” Id. (quoting Niagra Mohawk, 169

F.3d at 19). “[A] plaintiff asserting that information has been

previously disclosed bears the initial burden of pointing to

specific information in the public domain that duplicates that

being withheld.” Public Citizen, 11 F.3d at 201 (citing Afshar,

702 F.2d at 1130). The D.C. Circuit has held that “when

information has been ‘officially acknowledged,’ its disclosure

may be compelled even over an agency’s otherwise valid exemption

claim. Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990).

The Court identified three requirements to determine whether the

government has waived its right to withhold the sought

information by officially acknowledging it. Specifically,

plaintiff must establish that the information requested is as

specific as the information previously released, must match the

information previously disclosed, and must have already been

made public through an official and documented disclosure.

Fitzgibbon v. CIA, 911 F.2d at 765.

1. Compliance Review Report Form

Plaintiff argues that the Compliance Review Report Form

released in redacted form should be released in full because the

redacted portions are in the public domain. See Pl.’s Br. at 12

(citing Watkins Decl., Ex. 12). The agency produced a redacted

14
version to AILA on October 27, 2010, asserting Exemption

(b)(7)(E) as to the redactions. See Watkins Decl., Ex. 12; see

Oct. 27, 2010 Vaughn Index, Watkins Decl. Ex. 21.

In support of its argument that the redacted portions of

the Compliance Review Report Form are in the public domain,

plaintiff cites to four versions of instructions purportedly

used by on-site investigators to complete the Compliance Review

Report Form. Plaintiff argues that these instructions provide

the same information, and indeed more information, than the

Compliance Review Report. Plaintiff argues that the public

availability of these instructions prevent USCIS from seeking to

withhold the information in the Compliance Review Report Form

under Exemption (b)(7)(E). Pl.’s Br. at 12-14. The versions of

the instructions include (1) a version that was included in the

appendix of a book published by Thompson/West (Watkins Decl.,

Ex. 7); (2) a version of the instructions dated December 5, 2008

that is available on the internet (Watkins Decl., Ex. 8); (3) a

version of the instructions dated July 22, 2009 that was

produced on May 9, 2011 in response to AILA’s FOIA Requests

(Watkins Decl., Ex. 29); and (4) a general description of the

information sought by inspectors during site visits that is

available on the USCIS’s website. Watkins Decl., Ex. 6.

Defendants argue that AILA has failed to establish that any

of the instructions “match” the information that USCIS has

15
withheld. The Court agrees. AILA has not established that any

of these alleged instructions specifically correspond to the

version of the form that it seeks to compel USCIS to produce in

full, which bears an apparent date of June 19, 2009. See

Watkins Decl., Ex. 12. The instructions published by

Thompson/West bear no date, and the other versions of the

instructions are dated December 5, 2008 and July 22, 2009,

respectively. Plaintiff has failed to persuade the Court that

the date is not relevant to the public disclosure analysis.

The general description of site visits (Watkins Decl., Ex.

6) is even less specific than the different versions of the

instructions, giving the reader only a general overview of the

process. Accordingly, plaintiff has failed to meet its initial

burden of pointing to specific information in the public domain

that duplicates what is being withheld. Public Citizen, 11 F.3d

at 201 (plaintiff bears burden of pointing to specific

information in the public domain that duplicates that being

withheld). 4

4
Because plaintiff has failed to meet its initial burden,
the Court need not reach the question of whether any of the
Compliance Review Report Instructions cited by plaintiff were
publicly disclosed. The Court notes, however, that USCIS has
conceded that its disclosure of the July 22, 2009 instructions
in response to AILA’s FOIA Requests was an “official
disclosure.” Defendants’ Reply to Plaintiff’s Opposition to
Defendants’ Cross-Motion for Summary Judgment (“Defs.’ Reply”),
Docket No. 30, at 2.

16
 2. H-1B Petition Fraud Referral Sheet

AILA argues that the H-1B Petition Fraud Referral Sheet,

which was released to AILA in redacted form, is “fully in the

public domain” because it is part of a judicial record in

another litigation. Pl.’s Br. at 14; Watkins Decl., Ex. 11.

AILA also argues that the document is in the public domain

because USCIS agreed it did not need to be filed under seal in

this matter. Pl.’s Br. at 15 (citing Docket No. 16

(“Defendant’s position is that Exhibit[]...15 is publicly

available and therefore not appropriately filed under seal.”).

The parties do not dispute that a version of an H-1B Petition

Fraud Referral Sheet was filed by USCIS as an exhibit on June

24, 2010 in the TechServe Alliance v. Napolitano matter. See

Case No. 10 Civ. 00353 (D.D.C.), Docket No. 16, Ex. 1. The

parties also do not dispute that USCIS agreed that the same

exhibit did not need to be filed under seal in this matter. See

Docket No. 16-3. The parties do dispute, however, the effect of

these filings.

AILA contends that the filing of the H-1B Petition Fraud

Referral Sheet by USCIS on a public docket constitutes a “public

disclosure.” In support of its argument, plaintiff cites

Cottone for the proposition that evidence submitted in court

becomes part of the public domain under FOIA unless and until

destroyed or placed under seal. Pl.’s Br. at 14-15 (citing

17
Cottone, 193 F.3d at 554). Defendants argue that the exhibit

filed in TechServe was an earlier version of the document than

the one at issue in this litigation. Defs.’ Br. at 25.

Defendants further note that the document was attached to

USCIS’s filing because it had been attached to the FOIA request

made by the plaintiff in that case, and was filed by USCIS in

that lawsuit to support USCIS’s arguments that it had properly

asserted exemptions under FOIA, which would distinguish it from

a willful disclosure. See id. Defendants note that a notation

on the bottom of the document indicates that it had been

obtained from an archive entitled “AILA InfoNet,” rather than

from any official USCIS source. Id.

The Court agrees with Defendants on this issue. As with

the Compliance Review Report Form discussed previously, the

Court finds that because the fraud referral form filed in the

TechServe matter was a different version than the one at issue

in this case, AILA has failed to meet its burden of pointing to

specific information in the public domain that duplicates what

is being withheld. See Public Citizen, 11 F.3d at 201.

Moreover, even if AILA could establish that the form was the

same form at issue in this matter, AILA has not established that

the form was made public through an official disclosure. See

Fitzgibbon, 911 F.2d at 765. Indeed, it appears the only reason

the form was filed on the public docket in TechServe is because

18
it was attached to the plaintiff’s FOIA request in that matter,

which USCIS then filed as an exhibit to a declaration explaining

the steps taken to respond to that plaintiff’s FOIA request.

AILA has not persuaded the Court that the attachment of the FOIA

request (and the H-1B Fraud Referral Sheet) was done for the

purpose of any desire to officially disclose the document; to

the contrary, it appears that the document was filed in support

of USCIS’s arguments in that case that it had responded

appropriately to the FOIA requests it had received. See Frugone

v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999) (“[W]e do not deem

‘official’ a disclosure made by someone other than the agency

from which the information is being sought.”) (citations

omitted); Valfells v. CIA, 717 F. Supp. 2d 110, 117 (D.D.C.

2010) (noting that FOIA plaintiffs must point to information in

the public domain that was previously disclosed by the same

agency). For the same reasons, the Court is not persuaded that

USCIS has waived its right to withhold the document based on its

agreement that the earlier version of the form did not require

filing under seal because it was part of the record in the

TechServe matter. Therefore, the Court finds that no official

disclosure occurred, and defendants did not waive their ability

to claim Exemption 7(E) for the H-1B Petition Fraud Referral

Sheet.

19
 3. Neufeld Memorandum

AILA contends that “[a]t least some of the redacted

content” in the Neufeld Memorandum is also in the public domain

and should be released. Pl.’s Br. at 15 (citing Watkins Decl.,

Exs. 10 & 21). Specifically, AILA contends that the BFCA Report

serves as the basis for the Neufeld Memorandum. Pl.’s Br. at

16. The parties do not dispute that the BFCA Report has been

publicly disclosed. Defs.’ SMF ¶ 55. Indeed, USCIS stated that

it reconsidered its withholding of the Nuefeld Memorandum

specifically because of the public availability of the BFCA

Report. Defs.’ SMF ¶¶ 54-55.

AILA contends that “fraud indicators” redacted in the

Neufeld Memorandum necessarily include the “fraud indicators”

discussed in the BFCA Report. 5 AILA also claims that the Neufeld

Memorandum makes reference to the BFCA Report “when introducing

5
The final page of the BFCA Report identifies several
primary fraud or technical violation(s) indicators: (1) firms
with 25 of fewer employees have higher rates of fraud or
technical violation(s) than larger-sized companies; (2) firms
with an annual gross income of less than $10 million have higher
rates of fraud or technical violation(s) than firms with annual
gross income greater than $10 million; (3) firms in existence
less than 10 years have higher incidences of fraud or technical
violation(s) than those in existence for more than 10 years; (4)
H-1B petitions filed for accounting, human resources, business
analysts, sales and advertising occupations are more likely to
contain fraud or technical violation(s) than other occupational
categories; and (5) beneficiaries with only bachelor’s degrees
had higher fraud or technical violation(s) rates than those with
graduate degrees. Pl.’s SMF ¶ 3.

20
the guidance concerning fraud indicators.” Pl.’s Br. at 16.

Defendants argue that AILA’s speculation as to the relationship

between the BFCA Report and the Neufeld Memorandum falls short

of the requirement to show that the information in the

memorandum “matches” or is the specific information included in

the BFCA Report. Defs.’ Br. at 25-26. The Court agrees. By

making a general allegation about the relationship between the

BFCA Report and the Neufeld Memorandum, AILA has fallen far

short of showing that the redacted material in the Neufeld

Memorandum is the specific information disclosed in the BFCA

Report or that it matches the material in the BFCA Report.

Accordingly, USCIS has not waived its right to claim an

exemption for this document. See Public Citizen, 11 F.3d at

201.

4. “Newly-Identified Documents”

Plaintiff’s final argument is that “[t]o the extent

defendants’ newly-identified documents...also include segregable

portions which are in the public domain, as discussed above with

respect to the Neufeld Memorandum, defendants should be ordered

to release such portions.” Pl.’s Br. at 16. AILA cites

generally to Exhibits 22 through 25 to the Watkins Declaration,

which are redacted documents produced by USCIS in response to

AILA’s FOIA Requests and were reflected in defendants’ May 9,

21
2011 Vaughn Index. In response, the USCIS argues that AILA has

failed to point to any redactions in those documents that it

contends contain information that was officially released by

USCIS, and AILA also fails to provide any analysis or legal

argument. The Court agrees. Accordingly, the Court finds that

AILA has failed to carry its initial burden of showing that the

specific information contained in any of these documents exists

in the public domain. See Public Citizen, 11 F.3d at 201.

B. Exemption 7(E)

Having found that no waiver occurred, the Court must now

determine whether the agency properly withheld and redacted

material in the Compliance Review Report Form, the H-1B Petition

Fraud Referral Sheet, and the Neufeld Memorandum pursuant to

Exemption 7(E). 6 Plaintiff does not challenge the applicability

of Exemption 7(E) to what it refers to as the “newly-identified

documents” cited in the May 9, 2011 Vaughn Index. See Watkins

Decl., Exs. 22-25.

6
As discussed more fully below, Exemption 7(E) protects
records or information compiled for law enforcement purposes
from disclosure “to the extent that the production of such law
enforcement records or information . . . would disclose
techniques and procedures for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E).

22
 1. Defendants’ Stated Exemptions

Defendants have set forth the basis for their exemptions in

the October 27, 2010 Vaughn Submission. Defendants describe the

Compliance Review Report as

a questionnaire that is filled out by USCIS/ICE Site
Inspectors, documenting their personal observations.
Items 1-10 are the actual questions asked onsite, and
provide the foundation for any additional impromptu or
follow-up questions that might later be asked. More
important, the decision whether to initiate a more
scrutinizing investigation is, invariably, based upon
the recommendation proffered by the author of the
report.

Oct. 27, 2010 Vaughn Index, Watkins Decl., Ex. 21 at 4. The

USCIS explains that it asserts Exemption 7(E) because

[t]he public disclosure of the questions contained in
this questionnaire will alert all to the precise
nature of conduct, behavior, and conditions that will
draw the attention of law enforcement authorities, and
instruct those so disposed to simultaneously violate
the law and avoid detection by adjusting their
responses to the questions accordingly. Consequently,
the investigative questions...are eligible for [the
7(E) Exemption] since their disclosure would impair
the effectiveness of the fraud detection techniques
revealed therein.

Id.

With respect to the Neufeld Memorandum, USCIS states that

that the document

reveals very particular and sensitive criteria (fraud
indicators) used by adjudicators to determine which
cases of suspected fraud to refer for further
investigation . . . . Anyone in possession of this
document would have, essentially, a roadmap by which
they could follow to avoid attracting attention and
close scrutiny by either ‘doctoring’ their H-1B

23
 applications (or associated forms); ‘staging’ places
of employment; manufacturing employment records; or
engaging in any number of other ploys designed to
deceive immigration and law enforcement authorities.

Id. at 1-2.

The USCIS describes the H-1B Petition Fraud Referral Sheet

as the “companion document” to the Neufeld Memorandum, “employed

to make referrals of suspected fraud cases to the USCIS Center

Fraud Detection Operation (CFDO).” The USCIS states that the

exemption applies because the document

is, literally, a checklist of fraud indicators that
agency adjudicators are required to strictly adhere to
in order to ensure that actionable fraud referrals are
being sent to the Center Fraud Detection Operation
(CFDO)..... [The document could be used] to determine,
with surgical precision and consistent accuracy, the
patterns of conduct and forms of operations to be
avoided by potential defrauders seeking to skirt
closer agency scrutiny and escape detention....
Accordingly, the document is being withheld to
preserve the integrity and effectiveness of certain
techniques and operations of current law enforcement
significance.

Id. at 3-4.

2. Exemption 7(E) Generally

Exemption 7(E) protects records or information compiled for

law enforcement purposes from disclosure “to the extent that the

production of such law enforcement records or information . . .

would disclose techniques and procedures for law enforcement

investigations or prosecutions if such disclosure could

reasonably be expected to risk circumvention of the law.” 5

24
U.S.C. § 552(b)(7)(E). Courts have held that information

pertaining to law enforcement techniques and procedures is

properly withheld where disclosure reasonably could lead to

circumvention of laws or regulations. See, e.g., Skinner v.

Dep’t of Justice, 744 F. Supp. 2d 185, 214 (D.D.C. 2011) (citing

cases). “[A] highly specific burden of showing how the law will

be circumvented” is not required; instead, “exemption 7(E) only

requires that [the agency] ‘demonstrate[] logically how the

release of [the requested] information might create a risk of

circumvention of the law.’” Mayer Brown LLP v. IRS, 562 F.3d

1190, 1194 (D.C. Cir. 2009) (quoting PHE, Inc. v. Dep’t of

Justice, 983 F.2d 248, 251 (D.C. Cir. 1993)). “If an agency’s

affidavit describes the justifications for withholding the

information with specific detail, demonstrates that the

information withheld logically falls within the claimed

exemption, and is not contradicted by contrary evidence in the

record or by evidence of the agency’s bad faith, then summary

judgment is warranted on the basis of the affidavit alone.”

ACLU, 628 F.3d at 619.

While Exemption 7(E)’s protection is generally limited to

techniques or procedures that are not well-known to the public,

even commonly known procedures may be protected from disclosure

if the disclosure could reduce or nullify their effectiveness.

See, e.g., Judicial Watch, Inc. v. Dep’t of Comm., 337 F. Supp.

25
2d 146, 181 (D.D.C. 2004); see Barnard v. Dep’t of Homeland

Sec., 598 F. Supp. 2d 1, 23 (D.D.C. 2009) (rejecting plaintiff’s

argument that because the public is generally aware of security

clearance procedures including marking of travel documents, use

of a computer database, and the use of a “no fly” list, agency

is not required to disclose all details concerning those

procedures); but see Goldstein v. Office of Indep. Counsel, No.

87-2028, 1999 WL 570862, *14 (D.D.C. July 29, 1999) (ordering

disclosure of two documents that were over ten years old and

discussed law enforcement techniques that had since become more

widely known).

Plaintiff makes several general arguments as to why the

Compliance Review Report Form, the H-1B Petition Fraud Referral

Sheet, and the Neufeld Memorandum are not properly redacted

pursuant to Exemption 7(E). AILA principally argues that

because the BFCA Report made public several of the fraud

indicators, those indicators are no longer exempt from

disclosure because they are widely known. In support of that

argument, plaintiff cites to cases that have found Exemption

7(E) does not cover information that is widely known or that

constitutes basic law enforcement techniques. Pl.’s Br. at 16-

18. Plaintiff also argues that certain factors, such as gross

income of a company, the number of employees in the company, and

the number of years the company has been in existence, do not

26
“indicate if and how to circumvent agency regulation” and should

not be exempt. Pl.’s Br. at 18.

Defendants argue that Exemption 7(E) has been properly

invoked for all information withheld from AILA. Defendants

assert that these records fall within the category of

investigatory and prosecutorial guidelines that courts have

found to be protected under Exemption 7(E). Defs.’ Br. at 18

(citing PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 250-51

(D.C. Cir. 1993) (holding that portions of an FBI manual

describing patterns of violations, investigative techniques, and

sources of information available to investigators were protected

by 7(E))). Defendants argue that the application and

interpretation of fraud indicators is not well known to the

public and constitutes internal law enforcement data that 7(E)

was designed to protect. Id. at 20 (citing Barnard, 598 F.

Supp. 2d at 23.

The Court agrees with defendants that exemption 7(E) is

properly invoked as to the Compliance Review Report, the H-1B

Petition Fraud Referral Sheet, and the Neufeld Memorandum, and

the Court notes that plaintiff has not challenged any other

specific documents as improperly withheld under Exemption 7(E).

The Court finds that defendants have met their burden of

demonstrating that the disclosure of the fraud indicators

reasonably could lead to circumvention of laws or regulations.

27
See Skinner, 744 F. Supp. 2d at 214. Specifically, the Court

finds that the explanations provided by defendants indicate that

the particular type of information withheld would provide a

“roadmap” or “guidance” to those looking to circumvent the law,

which would thwart future law enforcement efforts. See

generally Oct. 27, 2010 Vaughn Index, Watkins Decl., Ex. 21.

Furthermore, the Court agrees that plaintiff has not

rebutted defendants’ argument by establishing that those fraud

indicators constitute “basic law enforcement techniques” that

would be excluded from Exemption 7(E). See Barnard, 598 F.

Supp. 2d at 23. The Court disagrees that factors such as the

gross income of a company or the length of time a company has

been in existence are factors that could not logically be used

to circumvent agency regulation. In addition, the mere fact

that the public may know about site visits generally, or may

know some information about fraud indicators does not mean that

defendants must disclose all details concerning fraud

indicators. See id. Accordingly, the Court finds that

defendants have properly asserted Exemption 7(E) with respect to

the Compliance Review Report, the H-1B Petition Fraud Referral

Sheet, and the Neufeld Memorandum.

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 C. Segregability

Even after determination that documents are exempt from

disclosure, FOIA analysis is not properly concluded unless a

court determines whether “any reasonably segregable portion of a

record” can “be provided to any person requesting such record

after deletion of the portions which are exempt.” 5 U.S.C. §

552(b). “So important is this requirement that ‘[b]efore

approving the application of a FOIA exemption, the district

court must make specific findings of segregability regarding the

documents to be withheld.’” Elec. Frontier Found. v. Dep’t of

Justice, --- F. Supp. 2d ----, 2011 WL 5966379, *10 (D.D.C.

2011) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106)).

The Court errs if it “simply approve[s] the withholding of an

entire document without entering a finding on segregability or

the lack thereof.” Powell v. U.S. Bureau of Prisons, 927 F.2d

1239, 1242 n. 4 (D.C. Cir. 1992) (citations omitted).

“It has long been the rule in this Circuit that non-exempt

portions of a document must be disclosed unless they are

inextricably intertwined with exempt portions.” Mead Data

Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir.

1977). The agency should, for example, “’describe what

proportion of the information in [the] documents,’ if any, ‘is

non-exempt and how that material is dispersed through the

document[s].” Elec. Frontier Found., --- F. Supp. 2d at ----,

29
2011 WL 5966379, *11 (citing Mead Data Cent., Inc., 566 F.2d

242, 261 (D.C. Cir. 1977)); see King v. Dep’t of Justice, 830

F.2d 210, 219 (D.C. Cir. 1987) (Vaughn index must sufficiently

identify the withheld material to enable the district court to

make a rational decision whether the withheld material must be

produced without actually viewing the documents). Where an

agency has publicly disclosed information that is similar to

what is being withheld, its Vaughn submission must be

“sufficiently detailed” to distinguish the withheld information

from the public information. Army Times Pub. Co. v. Dep’t of

Air Force, 998 F.2d 1067, 1071-72 (D.C. Cir. 1993).

Defendants argue that they have “established, with

reasonable specificity, that responsive documents were redacted

in part after a line-by-line review and after a determination

that there were no reasonably segregable portions of documents

appropriate for release.” Defs.’ Br. at 23 (citing Sub.

Eggleston Decl. ¶ 60). Defendants conclude that they have

therefore “complied with [their] duty to segregate exempt from

non-exempt information.” Id. The Court disagrees.

1. October 27, 2010 Vaughn Index

The October 27, 2010 Vaughn Index sets forth defendants’

basis for withholding or redacting certain information as

exempt. USCIS states in the Substitute Eggleston Declaration

30
that the documents in the October 27 Vaughn Index were reviewed

for segregability and that USCIS “released all reasonably

segregable, nonexempt, non-privileged portions of the subject

documents.” Sub. Eggleston Decl. ¶ 45.

The Court finds that USCIS’s October 27 Vaughn Index and

the related paragraphs of the Substitute Eggleston Declaration

to be inadequate to establish that all non-exempt, reasonably

segregable portions of the documents disclosed have been

produced. For example, the entries for the Compliance Review

Report and the Neufeld Memorandum state only “[t]he balance of

the document remains eligible for protection under the above-

cited FOIA exemption.” Oct. 27, 2010 Vaughn Index, Watkins

Decl. Ex. 21, at 1. With respect to the H-1B Petition Fraud

Referral Sheet, defendants indicate only that the “[a]gency

continues to withhold balance based on above-cited FOIA

exemption.” Id. at 2. The submissions fail to describe the

proportion of exempt to non-exempt information and fail to

establish that any non-exempt information is “inextricably

intertwined” with exempt information. See Mead Data Cent.,

Inc., 566 F.2d at 260; McGehee v. Dep’t of Justice, 800 F. Supp.

2d 220, 238 (D.D.C. 2011) (“Defendant’s declarant’s statement

that every effort was made to provide plaintiff with all

material in the public domain and with all reasonably segregable

portions of the releasable material falls far short of the

31
specificity required to justify non-segregation. Therefore,

Defendant has not carried its burden of demonstrating that all

segregable material has been disclosed.”) (citing Johnson v.

Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir.

2002) (internal quotation marks omitted)).

Furthermore, because the BFCA Report and the Compliance

Review Report Instructions share a common subject matter (fraud

indicators) with the documents that USCIS has redacted and

listed in the October 27, 2010 Vaughn Index, the Court finds

that USCIS is required to specifically explain the difference

between what it has deemed appropriate for public disclosure and

what remains withheld. Specifically, defendants must specify

how the redacted information differs from the BFCA Report and

the Compliance Review Report Instructions. See Army Times Pub.

Co. v. Dep’t of Air Force, 998 F.2d 1067, 1071-72 (D.C. Cir.

1993) (requiring Vaughn submission to be “sufficiently detailed”

to distinguish between the information being withheld and any

similar publicly-available information).

2. May 9, 2011 Vaughn Index

The May 9, 2011 Vaughn Index sets forth defendants’ basis

for withholding information from documents located in searches

conducted during this litigation. With respect to those

documents, the Substitute Eggleston Declaration states that

32
“[a]ll responsive documents were reviewed with an eye toward

providing the fullest disclosure and, in furtherance of this

goal, received a line-by-line examination in an effort to

identify all reasonably segregable, unprivileged, nonexempt

portions for release to plaintiff.” Sub. Eggleston Decl. ¶ 60.

The Court finds the May 9 Index to also be inadequate.

First, the index is inadequate because none of the entries and

the accompanying portions of the Substitute Eggleston

Declaration specify the relationship between any exempt and non-

exempt information in the documents. The Court emphasizes that

this requirement applies to all information withheld under any

exemption, and not only the documents withheld under exemption

7(E). See McGehee, 800 F. Supp. 2d at 238. Furthermore, with

respect to the documents exempted under 7(E), the Court finds

that the May 9 Index and accompanying portions of the Substitute

Eggleston Declaration fail to specifically explain how the

exempted information differs from the publicly-disclosed

Compliance Review Report Instructions and the BFCA Report. For

example, the document referenced on page 2 as “H-1B Primary

Fraud Indicators for Referral (Rev. 08-28-08, D12)” appears from

its description to relate to fraud indicators. See May 9, 2011

Vaughn Index, Watkins Decl., Ex. 20, at 2. The accompanying

description does not, however, explain how the redacted

information differs from information that the defendants have

33
chosen to publicly disclose. As explained above, the Court

finds that USCIS is required to specifically explain the

difference between what it has deemed appropriate for public

disclosure and what remains withheld, in light of the existence

of the publicly-disclosed BFCA Report and the Compliance Review

Report Instructions. Specifically, for any documents that

relate to the subject matter discussed in the BFCA Report and

the Compliance Review Report Instructions, defendants must

specify how the information redacted differs from what has been

officially disclosed.

D. Resolution

Having found the USCIS’s Vaughn submissions inadequate, the

Court has several options regarding how to now proceed in the

case, including whether to inspect the documents in camera,

requesting further affidavits, or allowing the plaintiff

discovery. See Elec. Frontier Found., 2011 WL 5966379, at *11

(citing Spirko v. USPS, 147 F.3d 992, 997 (D.C. Cir. 1998)).

Because a district court should not undertake in camera review

of withheld documents as a substitute for requiring an agency’s

explanation of its claims exemptions in accordance with Vaughn,

see id., the Court finds that the best approach is to direct

defendants to submit revised Vaughn submissions. See Army Times

Pub. Co., 998 F.2d at 1071-72. The Court notes that the USCIS’s

34
revised Vaughn submissions must be sufficiently detailed such

that the Court and plaintiff can conduct their own reviews of

the segregability of the non-exempt information, particularly in

light of the previously-disclosed information regarding fraud

indicators in the BFCA Report (Watkins Decl., Ex. 2) and the

Compliance Review Report Instructions produced by defendants in

response to plaintiff’s FOIA Requests (Watkins Decl., Ex. 29).

The Vaughn submissions should contain a segregability analysis

for each document withheld in part or in full, identifying the

proportion of exempt and non-exempt information, and

specifically explaining why the withheld information cannot be

produced.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that

defendants’ Vaughn submissions and accompanying Substitute

Eggleston Declaration fail to set forth a sufficient basis that

“any reasonably segregable portion” of the documents defendants

seek to withhold have been provided to plaintiff. See 5 U.S.C.

§ 552(b). Accordingly, defendants’ cross-motion for summary

judgment must be DENIED without prejudice, and plaintiff’s

motion for summary judgment must be GRANTED insofar as it

challenges the segregability analysis set forth by defendants.

Defendants are hereby directed to file revised Vaughn

submissions that take into account the deficiencies identified

35
by the Court by no later than April 30, 2012. The parties are

directed to file a joint recommendation for further proceedings

by no later than May 31, 2012. An appropriate order accompanies

this Memorandum Opinion.

It is so ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
March 30, 2012

36