UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC., )
)
Plaintiff, )
)
v. ) Civil Case No. 07-506 (RJL)
)
U.S. DEPARTMENT OF HOMELAND )
SECURITY et al., )
)
Defendants. )
tA--
MEMORANDUM OPINION
(September ",-,2010) [#55, #59]
Plaintiff Judicial Watch, Inc. ("Judicial Watch") filed this Freedom ofInformation
Act ("FOIA") lawsuit against the U.S. Department of Homeland Security ("DHS"), the
U.S. Department of Justice ("DOJ" or "defendant"), and the U.S. Department of State
("State Department). 1 Before the Court are plaintiffs and DOl's cross-motions for
summary judgment. Upon review of the pleadings, the entire record, and the applicable
law, defendant's motion is GRANTED, and plaintiffs motion is DENIED.
BACKGROUND
On January 24, 2007, Judicial Watch submitted a FOIA request to the defendant
agencies seeking certain records concerning Osbaldo Aldrete-Davila ("Aldrete-Davila"),
a Mexican national who testified for the Government in the prosecution of two border
patrol agents, Ignacio Ramos ("Ramos") and Jose Alonso Compean ("Compean").
The parties stipulated to dismissal of the claims against the State Department and DHS.
See Joint Stip. of Partial Dismissal, Oct. 26, 2007 [#22]; Joint Stip. of Partial Dismissal, May 20,
2008 [#41].
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CompI. ~~ 7-9. Although the defendant agencies were required to respond to this FOrA
request within twenty days, see 5 U.S.C. § 552(a)(6)(A)(i), they failed to produce any
responsive records within that time frame. CompI. ~~ 10-12. Accordingly, on March 16,
2007, Judicial Watch brought suit in this Court seeking to compel the defendant agencies
to produce the records requested and to pay all attorney's fees and costs. CompI. at 5-6.
On June 15,2007, the Executive Office for United States Attorneys (the
"EOUSA"), a component ofDOJ, informed plaintiff that it was withholding records
pursuant to FOIA Exemptions 6 and 7(C) and Privacy Act Exemption U)(2). Def. 's
Statement of Mat. Facts ("Def.'s Stat.") ~ 10. On November 9,2007, plaintiff filed a
motion for partial summary judgment asking this Court to order DOJ to search for and
produce all non-exempt responsive records and to create a Vaughn index of all exempt
records. DO] filed a cross-motion for summary judgment on March 21, 2008, asserting
that it could withhold the documents under FOIA Exemptions 6 and 7(C). Defendant
argued that it did not need to conduct a document-by-document review because any law
enforcement record mentioning Aldrete-Davila would be categorically exempt from
disclosure, claiming that the privacy interest in the types of documents requested by
Judicial Watch typically outweighed the public interest in their release. On February 25,
2009, the Court granted plaintiffs motion and denied defendant's cross-motion. See
Judicial Watch, Inc. v. Us. Dep't of Homeland Sec., 598 F. Supp. 2d 93, 94 (D.D.C.
2009). The Court ordered defendant to search for and produce any non-exempt
responsive records and to compile a Vaughn index for all exempt records. See id.
On August 24, 2009, the EOUSA made a supplemental release of four pages of
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material, consisting of public information pertaining to Aldrete-Davila. Def.'s Stat. , 12.
The EOUSA withheld in full thirty-five pages of material pursuant to FOIA Exemptions
2,5,6, and 7(C), 5 U.S.C. §§ 522(b)(2), (b)(5), (b)(6), & (b)(7)(C), as well as Privacy
Act Exemption U)(2), 5 U.S.C. §522aU)(2). See id.; Def.'s Ex. I. On November 4,2009,
DOl, on behalf of the EOUSA, filed a Renewed Motion for Summary Judgment.
Plaintiff filed a Cross-Motion for Partial Summary Judgment on December 7, 2009.
ANALYSIS
I. Standard of Review
Summary judgment shall be granted when the record demonstrates "that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter oflaw." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (citing same). In a FOIA case, an agency bears the burden of establishing that
the search was adequate and that each responsive document is either produced,
unidentifiable, or exempt from production. See Weisberg v. Us. Dep 't of Justice, 627
F.2d 365,368 (D.C. Cir. 1980). In this case, Judicial Watch does not contest the
adequacy ofDOrs search for responsive documents or the applicability of Exemption 2,
as asserted by DOJ with respect to portions of withheld documents. Plaintiff does,
however, dispute the applicability ofFOIA Exemptions 5, 6, and 7(C), and Privacy Act
Exemption U)(2), as asserted by defendant.
The Court's review of an agency's justification for non-disclosure is de novo, see
5 U.S.C. § 552(a)(4)(B), but the Court "may rely on affidavits or declarations submitted
by the agency, if those documents describe 'the justifications for non-disclosure with
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reasonably specific detail, demonstrate that the information withheld logically falls
within the claimed exemption, and are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith. '" Suzhou Yuanda Enter., Co. v. u.s.
Customs & Border Prot., 404 F. Supp. 2d 9, 12 (D.D.C. 2005) (quoting Military Audit
Project v. Casey, 656 F.2d 724,738 (D.C. Cir. 1981». Here, DOJ submitted a Vaughn
index with their Renewed Motion for Summary Judgment, see Def.'s Mot. Attach. 1, and
a revised Vaughn index with their Opposition to plaintiffs Cross-Motion for Summary
Judgment, see Def.'s Opp'n Ex. A (hereinafter, "Vaughn Index"), the latter of which is
referenced in this Opinion. DOJ also submitted three declarations detailing its search for
responsive documents and providing further explanations for its decision to withhold
certain documents. See Def.'s Mot. Attach. 3, Finnegan Decl., Nov. 2, 2009; Def.'s Mot.
Attach. 4, Durbin Decl., Oct. 26, 2009; Def.'s Mot. Attach. 5, Swain Decl., Aug. 21,
2009. For the following reasons, I find there are no genuine issues of material fact as to
the validity of defendant's application of the exemptions in this case.
II. FOIA Exemption 5
FOIA Exemption 5 exempts from disclosure "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). For a document to qualify
for this exemption, "it must fall within the ambit of a privilege against discovery under
judicial standards that would govern litigation against the agency that holds it." Dep 't of
the Interior v. Klamath Water Users Protective Ass 'n, 532 U.S. 1,8 (2001). Courts have
incorporated civil discovery privileges into this exemption, such as attorney work-
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product, attorney-client privilege, and what is called the "deliberative process" privilege.
See Nat 'I Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 148-49 (1975);
Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). In this
case, the defendant asserts the deliberative process privilege for documents 4-9, 11-28,
30, 44, 46, and 51; the attorney-client privilege in conjunction with the deliberative
process privilege for document 32; and attorney work-product in conjunction with the
deliberative process privilege for documents 1,3,45,47-49, and 52-54. 2 See Def.'s Mot.
16-17.
A. Deliberative Process Privilege
The deliberative process privilege exempts from disclosure those documents that
contain deliberations comprising part of a process by which governmental decisions and
policies are made. See Klamath, 532 U.S. at 8. The purpose of the deliberative process
privilege is to protect the decision-making process of government agencies and to
encourage '''the frank discussion of legal and policy issues' by ensuring that agencies are
not 'forced to operate in a fishbowl.'" Mapother v. Dep't ofJustice, 3 F.3d 1533,1537
(D.C. Cir. 1993) (quoting Wolfe v. Dep 't of Health & Human Servs., 839 F.2d 768, 773
(D.C. Cir. 1988) (en banc)). Advice, recommendations, and opinions that are part of the
decision-making process are protected from disclosure as long as they are
"predecisional." See Sears, 421 U.S. at 151-53. Thus, "[ d]ocuments which are protected
by the privilege are those which would inaccurately reflect or prematurely disclose the
2
Judicial Watch does not contest the withholding of document 46, which is marked as
"non-responsive" in the Vaughn Index.
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views of the agency, suggesting as agency position that which is as yet only a personal
position." Coastal States, 617 F.2d at 866. Accordingly, "communications made after
the decision and designed to explain it" are not covered by this privilege. Sears, 421 U.S.
at 152.
Here, DO] asserts the deliberative process privilege over email messages
involving recommendations and evaluations for how to respond to Congressional and
media requests for information on Aldrete-Davila's legal entry into the United States and
the grant of immunity to him. See Finnegan Decl. ~~ 30-31. These email messages were
both intra-agency communications among employees of the U.S. Attorneys Offices
("USAOs") and inter-agency email messages among employees of USA Os, DOl's
Offices of Public Affairs and Legislative Affairs, and DHS's Office of the Inspector
General ("OIG") and the Bureau of Customs and Border Protection. Id.
The emails discussing the grant of immunity to Aldrete-Davila are from 2006 and
later. See Vaughn Index Doc. Nos. 6, 13-17. Plaintiff argues that because they post-date
the original grant of immunity in 2005, they cannot be pre-decisional. See PI.' s Cross-
Mot. 7. However, DO] indicates that these documents contain discussions of how to
respond to inquiries from the press and Congress. See Finnegan Decl. ~ 31. More
specifically, Aldrete-Davila was captured for smuggling drugs subsequent to the Ramos-
Compean trial, giving rise to the question whether his original grant of immunity would
apply. See Def.'s Opp'n 4. Because the handling of Aldrete-Davila's case was
controversial, it is understandable that, as the defendant asserts, numerous discussions
involving the controversy took place and required multiple decisions. Furthermore,
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because these documents are generated as part of a continuous process of agency decision
making, viz., how to respond to on-going inquiries, they are pre-decisional and, given
their deliberative nature, I find they were properly withheld under Exemption 5. See
Access Reports v. Dep 't ofJustice, 926 F.2d 1192, 1196 (D.C. Cir. 1991) (recognizing
that smaller policy decisions may make up major policy positions); see also Citizens for
Responsibility & Ethics in Wash. v. Us. Dep't ofHomeland Sec., 514 F. Supp. 2d 36, 45
(D.D.C. 2007) (finding agency's declaration that the withheld materials concerned
deliberations regarding on-going response to Hurricane Katrina to be sufficient
identification of deliberative process involved); Citizens for Responsibility & Ethics in
Wash. v. Us. Dep 't of Labor, 478 F. Supp. 2d 77, 83 (D.D.C. 2007) (finding discussions
regarding how to respond to a media report commenting on agency's policies was
predecisional and deliberative).
Similarly, although the emails discussing Aldrete-Davila's legal entry into the
United States post-date Aldrete-Davila's incarceration in February 2006, see Vaughn
Index Doc. Nos. 4-5, 7-9,11-12,18-23,44,51, these documents discuss how to respond
to on-going inquiries from the press and Congress regarding Aldrete-Davila's mUltiple
entries into the United States. See Finnegan Decl. ~ 31; Def.'s Opp'n 5. DO] also
indicated that it withheld Documents 24-28 and 30, which contained consultations with
DHS OIG, because they contained deliberations among government personnel for how to
respond to Congressional and media inquiries related to the investigation and prosecution
of Ramos and Compean. See Finnegan Decl. ~ 31. Again, Plaintiffs chronological
argument that these documents cannot be pre-decisional is unconvincing given the
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complexity surrounding the defendant's handling of the entire Aldrete-Davila situation.
In addition, I agree with defendant's assertion that disclosure of this information is likely
to interfere with the candor necessary for open and frank discussions regarding the
preferred course of action in responding to these inquiries. See Coastal States, 617 F.2d
at 866. Accordingly, I uphold the defendant's classification of the documents as subject
to the deliberative process privilege and therefore exempt from disclosure under
Exemption 5.
B. Attorney-Client Privilege
The attorney-client privilege encompasses "confidential communications between
an attorney and his client relating to a legal matter for which the client has sought
professional advice." Mead Data Cent., Inc. v. u.s. Dep't ofAir Force, 566 F.2d 242,
252 (D.C. Cir. 1977). "Its purpose is to assure that a client's confidences to his or her
attorney will be protected, and therefore encourage clients to be as open and honest as
possible with attorneys." Coastal States, 617 F.2d at 862. In this case, defendant asserts
the attorney-client privilege, in conjunction with the deliberative process privilege, over
Document 32, which consists of email messages from a DHS special agent to a DHS OIG
attorney seeking confidential legal advice regarding the way in which Aldrete-Davila
entered into the United States. See Finnegan Dec!. ~ 32; Vaughn Index Doc. No. 32.
Because such communications clearly fall within the protection of the attorney-client
privilege, I find that this document was properly exempted from disclosure.
C. Attorney Work-Product
The attorney work-product privilege protects disclosure of materials prepared by
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attorneys, or non-attorneys supervised by attorneys, in contemplation of litigation, that
reveal information about an attorney's preparation and strategy relating to a client's case.
See Coastal States, 617 F.2d at 866. This privilege aims to protect the adversary trial
process by providing attorneys a '''zone of privacy' within which to think, plan, weigh
facts and evidence, candidly evaluate a client's case, and prepare legal theories." Id. at
864. Here, defendant invokes the attorney work-product privilege, in conjunction with
the deliberative process privilege, over records that were "prepared by or at the request or
direction of an AUSA, in anticipation of or during litigation." See Finnegan Decl. ~ 33.
DO] attests that these records reflect trial preparation, trial strategy, interpretations, and
personal evaluations and opinions in connection with the criminal prosecution of Ramos
and Compean. See id. More specifically, the records include evaluations and
interpretations regarding the extent of Aldrete-Davila's immunity in connection with
prosecution of Ramos and Compean; draft court papers and a prosecution memorandum;
and deliberations regarding how to respond to media inquiries, including discussion of
witness credibility and biases, attorney opinions on Aldrete-Davila's entry into the United
States, and the extent of his immunity, in connection to the prosecution of Ramos and
Compean. See Vaughn Index Doc Nos. 1,3,45,47-49, 52-54.
It is clear that most of these documents clearly fall within the realm of attorney
work-product, as they involve the details of an AUSA's preparation for a criminal
prosecution. See Coastal States, 617 F.2d at 864. Perhaps plaintiffs strongest argument
against DOJ's assertion of the attorney work-product privilege is that Documents 52-54
are email messages that were sent after the conclusion of the Ramos-Compean
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prosecution. See PI.'s Reply 6. As such, Judicial Watch argues that these documents
could not have been prepared in anticipation of or during that litigation. See id.
However, defendant's Vaughn Index indicates that although the discussions of how to
respond to media and Congressional requests in Documents 52-54 did occur subsequent
to the trial, those discussions involved "deliberations prior" in connection with the
Ramos-Compean prosecution. Vaughn Index Docs. 52-54. In other words, Documents
52-54 contained internal deliberations that included consideration of privileged attorney
work-product from the prior prosecution. See Finnegan DecI. ,-r 33. Thus, I agree that
these documents were exempted from disclosure under the attorney work-product
privilege in conjunction with the deliberative process privilege. Accordingly, I find that
the DOJ properly applied Exemption 5 to the documents at issue in this case.
II. FOIA Exemption 7(C)3
FOIA Exemption 7(C) exempts from disclosure "records or information compiled
for law enforcement purposes, but only to the extent that the production of such law
enforcement records or information ... could reasonably be expected to constitute an
unwarranted invasion of personal privacy." 5 U.S.c. § 552(b)(7)(C). In determining
whether this exemption applies to particular material, the Court must balance the interest
in privacy of the individuals mentioned in the records against the public interest in
disclosure. See us. Dep 't ofJustice v. Reporters Comm. for Freedom of the Press, 489
3
The DO] cited Exemption 6 in conjunction with Exemption 7(C). See Def.'s Mot. 28.
Because the Court finds that the defendant properly asserted Exemption 7(C) over the withheld
information, it need not determine whether that same information is protected under Exemption
6. See Singh v. Fed. Bureau of Investigation, 574 F. Supp. 2d 32, 47 n.4 (D.D.C. 2008).
Similarly, the Court also need not consider the applicability of the Privacy Act to this case.
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u.s. 749, 763 (1989). "[T]he only public interest relevant for purposes of Exemption
7(C) is one that focuses on 'the citizens' right to be informed about what their
government is up to.'" Davis v. u.s. Dep 't ofJustice, 968 F.2d 1276, 1282 (D.C. Cir.
1992) (quoting Reporters Comm., 489 U.S. at 773). The public interest "sought to be
advanced [must be] a significant oneL] more specific than having the information for
[one's] own sake." Nat'/ Archives & Records Admin. v. Favish, 541 U.S. 157, 172
(2004).
In this case, defendant asserts Exemption 7(C) over the information contained in
documents that fall into four categories: (1) personal information pertaining to Aldrete-
Davila, see Vaughn Index Doc Nos. 1,3-10,12-23,36,44,50; (2) names and identifying
data of federal law enforcement and support personnel, see id. Doc. Nos. 24-35, 40, 43,
45-46, 51; (3) names and/or identifying information pertaining to third parties merely
mentioned, see id. Doc Nos. 36, 38-41,46; and (4) names and/or identifying information
pertaining to third parties of investigative interest to the Government, see id. Doc. Nos.
34,47-49, 51-53. These records "were all compiled during the conduct of a criminal
investigation and prosecution by the DHS OIG and the USAO," Finnegan Decl. ~ 36, and
it is undisputed that they meet the threshold for Exemption 7(C). Furthermore, I find that
the defendant properly evaluated the privacy interest inherent in each piece of withheld
information against the public interest in shedding light on DOJ's performance of its
statutory duties as required by Exemption 7(C). How so?
As to the personal information pertaining to Aldrete-Davila, the defendant has
identified a strong privacy interest in non-public details pertaining to the grant of
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immunity given to him as a government witness, as well as non-public details of his entry
into the United States in the context of a government prosecution. See Finnegan Decl.
~ 38. I agree with the DOl that releasing these previously undisclosed details could
reasonably be expected to result in stigmatizing public attention and embarrassment by
engendering comment and speculation about Aldrete-Davila. See Finnegan Decl. ~ 41;
see also The Nation Magazine v. Us. Customs Serv., 71 F.3d 885, 894 (D.C. Cir. 1995)
(stating that witnesses and informants who provided information during the course of an
investigation have an "obvious privacy interest cognizable under Exemption 7(C)");
Fitzgibbon v. Cent. Intelligence Agency, 911 F.2d 755, 767 (D.C. Cir. 1990) ("It is surely
beyond dispute that the mention of an individual's name in a law enforcement file will
engender comment and speculation and carries a stigmatizing connotation.") (internal
quotation marks omitted). Despite Judicial Watch's argument to the contrary, the fact
that Aldrete-Davila has been mentioned in previously disclosed law enforcement records
and published reports does not obviate all of his rights to privacy. See Fitzgibbon, 911
F.2d at 767 (citing Reporters Comm., 489 U.S. at 762-64); Bast v. Us. Dep't of Justice,
665 F.2d 1251, 1255 (D.C. Cir. 1981). Furthermore, the Court agrees with defendant that
the passage of time has not diluted the privacy interest at stake and, if anything, has
actually increased his privacy interest as the events surrounding the Ramos-Compean
prosecution have faded from memory. See Finnegan Decl. ~ 39.
Conversely, plaintiff has failed to identify a sufficient public interest in disclosure
of Aldrete-Davila's personal information that would outweigh his privacy interests.
Indeed, Judicial Watch has made no showing of a "significant" public interest as is
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required, see Favish, 541 U.S. at 172, only obliquely asserting that the information
sought would "open[] up government action to the light of public scrutiny." P!.'s Cross-
Mot. 15. Plaintiff has not alleged any government misconduct in the Ramos-Compean
prosecution nor identified any other significant reason to disclose Aldrete-Davila's
personal information. See Safe Card Servs., Inc. v. Sec. Exchange Comm'n, 926 F.2d
1197, 1206 (D.C. Cir. 1991). Therefore, as to that category of information, I find that
disclosure would constitute an unwarranted invasion of personal privacy and thus that
defendant properly applied Exemption 7(C) to the withheld information.
As to the second category of information, the names and identifYing data of
federal law enforcement and support personnel, defendant asserts that release of this
information "may seriously impair their effectiveness in conducting future
investigations," "could trigger hostility towards" these individuals, and could cause them
to become "targets of harassing inquiries for unauthorized access to investigative
information." Finnegan Dec!. ,-r,-r 45-46. I agree. It is well-established that information
identifYing law enforcement and support personnel can be withheld pursuant to
Exemption 7(C). See Amuso v. Us. Dep 't ofJustice, 600 F. Supp. 2d 78, 96 (D.D.C.
2009); Singh, 574 F. Supp. 2d at 49. Once again, Judicial Watch has not asserted a
significant public interest that would be served in the disclosure of this information.
Therefore, DOJ properly asserted Exemption 7(C) over this information as well.
As to the final two categories of information, which pertain to third parties either
merely mentioned or of investigative interest to the government, the privacy interests at
stake are substantial. For third parties merely mentioned, I agree with the DOJ that "[t]he
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mention of their names in the context of a federal criminal investigation could cast them
in an unfavorable or negative light if released to the public." Finnegan Decl. ~ 47. For
third parties who were of investigative interest, I also agree with defendant that "[t]o
release the identity of these individuals to the public as a subject or suspect of a criminal
investigation could subject them to harassment or embarrassment, as well as undue public
attention." Jd. ~ 49. Furthermore, releasing this information serves no public interest
because these email addresses would not reveal agency conduct. See Nation Magazine,
71 F.3d at 894 (quoting Reporters Comm., 489 U.S. at 773). To the contrary, release of
the withheld information would constitute a clearly unwarranted invasion of privacy of
private citizens. See Amuso, 600 F. Supp. 2d at 96; Singh, 574 F. Supp. 2d at 49. Thus,
the DOJ also properly withheld this information under Exemption 7(C). Finally, the
Court finds that all reasonably segregable, non-exempt material was provided to Judicial
Watch. See Finnegan Decl. ~ 57.
CONCLUSION
For all of the foregoing reasons, defendant's Renewed Motion for Summary
Judgment is GRANTED, and plaintiffs Cross-Motion for Partial Summary Judgment is
DENIED. An Order consistent with this decision accompanies this Memorandum
Opinion.
United States District Judge
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