Union Leader Corp. v. U.S. Dept. of Homeland Security

United States Court of Appeals
For the First Circuit

No. 13-1752

UNION LEADER CORPORATION,

Plaintiff, Appellant,

v.

U.S. DEPT. OF HOMELAND SECURITY,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Torruella, Howard, and Thompson,
Circuit Judges.

Gregory V. Sullivan, with whom Malloy & Sullivan, Lawyers
Professional Corporation was on brief, for appellant.
Michael McCormack, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.

April 18, 2014
 HOWARD, Circuit Judge. In September 2011, as part of a

nationwide enforcement operation, Immigration and Customs

Enforcement (ICE) agents in New Hampshire arrested six aliens who

had prior criminal convictions or arrests. After ICE refused to

divulge the names and addresses of these six individuals, the Union

Leader -- a New Hampshire newspaper and the appellant in this case

-- filed a Freedom of Information Act (FOIA) complaint to compel

disclosure of this information. The district court awarded summary

judgment to ICE, concluding that FOIA exempted this personal

information from disclosure as an unwarranted invasion of the

arrested aliens' privacy. Because we find that the public interest

in disclosure outweighs the arrestees' privacy interests, we

conclude that the withheld information that is subject to this

appeal is not exempt from disclosure and therefore reverse the

district court's grant of summary judgment in part.

I.

In 2011, ICE (a division of the United States Department

of Homeland Security (DHS)) conducted two nationwide "Cross Check"

operations in an endeavor to arrest aliens with prior convictions

or arrests, including "criminal fugitives; criminal aliens who

illegally re-entered the United States after having been removed,

and at large criminal aliens." On September 28, 2011, ICE issued

a press release detailing the 2,901 arrests made as part of the

second Cross Check operation that month. Among the arrests listed

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in the press release were those made in each county of each New

England state, including six arrests made in the state of New

Hampshire.

The following month, the Union Leader contacted an ICE

public affairs officer to request the names and addresses of the

six individuals arrested in New Hampshire. The ICE officer replied

with information including each arrestee's sex, age, nationality,

state of arrest (i.e., New Hampshire), prior convictions, and ICE

custody status, but did not provide the arrestees' names and

addresses.

In February 2012, the Union Leader submitted a FOIA

request to ICE, seeking production of "any and all records and

documents relating to, and/or concerning the six individuals

arrested" by ICE during the second Cross Check operation in New

Hampshire.1 ICE reviewed the request and found some nineteen pages

of responsive documents, consisting of I-213 forms documenting the

arrests of each of the six aliens apprehended in New Hampshire.2

1
The Union Leader had previously filed a FOIA complaint in the
District of New Hampshire, which the district court dismissed for
failure to exhaust administrative remedies (i.e., the Union
Leader's failure to file a formal FOIA request with ICE prior to
filing suit). See Union Leader Corp. v. U.S. Dep't of Homeland
Sec., Immigration & Customs Enforcement, No. 12-cv-18-JL, 2012 WL
1000333 (D.N.H. Mar. 23, 2012).
2
An I-213 form documents the arrest of an alien unlawfully
present in the United States. In addition to the circumstances of
the arrest, the form contains the name, alien number, address, date
of birth, photograph, fingerprints, criminal and immigration
history, and other information about the arrestee.

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In March 2012, ICE provided the Union Leader with copies of the

forms from which the aliens' names, addresses, and other personal

information had been redacted. In an accompanying "Vaughn index,"3

ICE claimed that FOIA exempted this personal information from

disclosure under Exemptions 6 and 7(C), 5 U.S.C. § 552(b)(6) &

(7)(C).

The redacted I-213 forms outlined the criminal histories

and arrest records of the six aliens. The forms revealed prior

arrests and convictions dating as far back as 1993, including,

inter alia, prior notice to appear (NTA) arrests and prior

convictions for entry without inspection, shoplifting, possession

of controlled substances, resisting arrest, criminal trespassing,

and driving under the influence of drugs or liquor. According to

the forms, three of the arrested aliens were processed and served

with warrants of arrest and notices to appear (WA/NTA) for removal

proceedings, while another was ordered removed by an immigration

judge and placed in ICE custody pending removal; two others would

be "NTA-processed and scheduled for a hearing before EOIR [the

Executive Office for Immigration Review] at a later date."

3
A Vaughn index is a "now standard tool conceived by the
District of Columbia circuit to facilitate resolution of FOIA
disputes," derived from the D.C. Circuit's decision in Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973). Church of Scientology
Int'l v. U.S. Dep't of Justice, 30 F.3d 224, 227 & n.4 (1st Cir.
1994). The index "includes a general description of each document
sought by the FOIA requester and explains the agency's
justification for nondisclosure of each individual document or
portion of a document." Id. at 228.

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 The Union Leader administratively appealed ICE's decision

to redact the arrestees' names and addresses. On March 28, 2012,

the ICE Office of the Principal Legal Advisor, Government

Information Law Division, responded to the Union Leader's appeal

and affirmed ICE's decision to redact the names and addresses.

The Union Leader filed this lawsuit on April 4, 2012,

alleging that ICE incorrectly applied FOIA Exemptions 6 and 7(C)

and that FOIA gave the Union Leader a right of access to the

redacted names and addresses. On cross motions for summary

judgment, the district court granted ICE's motion for summary

judgment on the ground that FOIA Exemption 7(C) protected the

arrestees' names and addresses from disclosure. This appeal

followed.

II.

On appeal, the Union Leader only challenges ICE's

redaction of the arrestees' names, and no longer seeks production

of their addresses or any other personal information. This

distinctly narrower request might be viewed as substantively

different than the broader one with which the district court was

faced -- we do not know how the court would have ruled had it been

presented only with the request that we consider on appeal -- but

the issue is nevertheless preserved. In any event, we review de

novo the district court's determination that the names were exempt

from disclosure. See Carpenter v. U.S. Dep't of Justice, 470 F.3d

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434, 437 (1st Cir. 2006); Church of Scientology Int'l v. U.S. Dep't

of Justice, 30 F.3d 224, 228 (1st Cir. 1994).

The Supreme Court has stated that FOIA was "enacted to

facilitate public access to Government documents" and "designed to

pierce the veil of administrative secrecy and to open agency action

to the light of public scrutiny." U.S. Dep't of State v. Ray, 502

U.S. 164, 173 (1991) (citation omitted) (internal quotation marks

omitted). FOIA's "basic policy of full agency disclosure" furthers

the statute's essential purpose of permitting citizens to know

"what their government is up to." U.S. Dep't of Justice v.

Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)

(citation omitted) (internal quotation marks omitted); see also

Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171

(2004).

This right of access is not absolute, however, as FOIA

exempts certain categories of materials from disclosure in order to

"effectuate the goals of the FOIA while safeguarding the efficient

administration of the government." Carpenter, 470 F.3d at 438; see

also 5 U.S.C. § 552(b) (setting forth the statutory exemptions).

Nevertheless, in keeping with FOIA's underlying presumption in

favor of broad disclosure, the government agency bears the burden

of proving the applicability of a specific statutory exemption.

See Carpenter, 470 F.3d at 438; Church of Scientology, 30 F.3d at

228. "That burden remains with the agency when it seeks to justify

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the redaction of identifying information in a particular document

as well as when it seeks to withhold an entire document." Ray, 502

U.S. at 173. The district court must determine de novo whether the

agency has met this burden. See Reporters Comm., 489 U.S. at 755;

Carpenter, 470 F.3d at 438; Church of Scientology, 30 F.3d at 228.

FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), shields

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."4 In determining whether an invasion of personal privacy

is "unwarranted," courts must balance the implicated privacy

interest against the public interest in releasing the materials.

Favish, 541 U.S. at 171; Reporters Comm., 489 U.S. at 762; see also

Carpenter, 470 F.3d at 438. We address each interest in turn.

4
Both ICE and the district court also recognized the potential
applicability of FOIA Exemption 6, 5 U.S.C. § 552(b)(6), which
protects from disclosure "personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy." Exemption 6 is less
protective of personal privacy than Exemption 7(C), however,
applying only to disclosures that "would constitute a clearly
unwarranted invasion of personal privacy" rather than to
disclosures that merely "could reasonably be expected to constitute
an unwarranted invasion of personal privacy." See Favish, 541 U.S.
at 165-66; Reporters Comm., 489 U.S. at 756. Because the parties
do not dispute that the requested information was "compiled for law
enforcement purposes," the district court analyzed the Union
Leader's claim only under Exemption 7(C), Union Leader Corp. v.
U.S. Dep't of Homeland Sec., Immigration & Customs Enforcement, 940
F. Supp. 2d 22, 27-28 (D.N.H. 2013), and we follow suit.

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 A. Arrestees' Privacy Interests

"FOIA's central purpose is to ensure that the

Government's activities be opened to the sharp eye of public

scrutiny, not that information about private citizens that happens

to be in the warehouse of the Government be so disclosed."

Reporters Comm., 489 U.S. at 774. Accordingly, in applying

Exemption 7(C), the Court has rejected "cramped notion[s] of

personal privacy," id. at 763, and instead has interpreted the

exemption as "protect[ing] a broad notion of personal privacy,

including an individual's interest in avoiding disclosure of

personal matters," Carpenter, 470 F.3d at 438. This privacy

interest "is at its apex" in cases where the subject of the

requested materials is a private citizen, Favish, 541 U.S. at 166

(quoting Reporters Comm., 489 U.S. at 780) (internal quotation

marks omitted). Notwithstanding these general principles, however,

we have declined to "prescribe a formula for measuring the impact

of the privacy invasion resulting from disclosure," and have

instead described the privacy interest as a "variable" that "must

be determined and weighed in light of the particular circumstances

in each case." Providence Journal Co. v. U.S. Dep't of Army, 981

F.2d 552, 569 (1st Cir. 1992).

On appeal, the Union Leader challenges the district

court's conclusion that the arrestees had a cognizable privacy

interest "in not having their identities revealed to the public"

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and that this interest trumped the public interest in disclosure.

Union Leader Corp. v. U.S. Dep't of Homeland Sec., Immigration &

Customs Enforcement, 940 F. Supp. 2d 22, 28 (D.N.H. 2013). We

fully agree with the district court's conclusion that disclosure

would indeed implicate the arrestees' privacy interests; our

quibble is only with the weight that the district court gave that

interest in the Exemption 7(C) balancing.

The Union Leader initially makes the categorical claim

that "[n]o individual has a reasonable expectation of privacy

regarding a public arrest by the government," relying on caselaw

holding that "[n]o constitutional right of privacy is violated even

by the disclosure 'of an official act such as an arrest.'" Am.

Fed'n of Gov't Emps. v. Dep't of Hous. & Urban Dev., 118 F.3d 786,

794 (D.C. Cir. 1997) (emphasis added) (quoting Paul v. Davis, 424

U.S. 693, 713 (1976)). As the district court recognized, this

reliance is misplaced, because "the statutory privacy right

protected by Exemption 7(C) goes beyond the common law and the

Constitution." Favish, 541 U.S. at 170; see also Reporters Comm.,

489 U.S. at 762 n.13 (specifically distinguishing Paul because

"[t]he question of the statutory meaning of privacy under the FOIA

is, of course, not the same as . . . the question whether an

individual's interest in privacy is protected by the

Constitution"). We therefore agree with the district court that

"it is a mistake to assume, as the Union Leader does in this case,

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that a ruling that the Constitution does not require the Government

to withhold the name of an arrested person means that the

government must disclose the same information under the FOIA."

Union Leader, 940 F. Supp. 2d at 28.5

The Supreme Court's decision in Reporters Committee makes

clear that the arrestees do indeed have a privacy interest

concerning their underlying convictions and arrests. In holding

that Exemption 7(C) barred the disclosure of an alleged organized

crime figure's FBI "rap sheet," the Reporters Committee Court

explained that disclosure would implicate the individual's privacy

interest even though the underlying events of his criminal history

were matters of public record:

According to Webster's initial definition,
information may be classified as "private" if
it is "intended for or restricted to the use
of a particular person or group or class of
persons: not freely available to the public."
Recognition of this attribute of a privacy
interest supports the distinction, in terms of
personal privacy, between scattered disclosure
of the bits of information contained in a rap

5
For similar reasons, we respectfully decline to rely on
Tennessean Newspaper, Inc. v. Levi, 403 F. Supp. 1318, 1321 (M.D.
Tenn. 1975), which the Union Leader cites for the proposition that
privacy interests are insubstantial in the case of "persons
arrested or indicted for federal criminal offenses." The
Tennessean court reasoned that such individuals "are essentially
public personages" whose lives "are no longer truly private"; in an
accompanying footnote, it drew an analogy to "the public personage
idea derived from the [privacy] tort cases." Id. at 1321 & n.1.
We question the validity of that analogy in light of the Supreme
Court's subsequent distinction of FOIA privacy interests from tort-
law privacy interests in Reporters Committee, 489 U.S. at 762 n.13.

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 sheet and revelation of the rap sheet as a
whole. The very fact that federal funds have
been spent to prepare, index, and maintain
these criminal-history files demonstrates that
the individual items of information in the
summaries would not otherwise be "freely
available" either to the officials who have
access to the underlying files or to the
general public. Indeed, if the summaries were
"freely available," there would be no reason
to invoke the FOIA to obtain access to the
information they contain. Granted, in many
contexts the fact that information is not
freely available is no reason to exempt that
information from a statute generally requiring
its dissemination. But the issue here is
whether the compilation of otherwise
hard-to-obtain information alters the privacy
interest implicated by disclosure of that
information. Plainly there is a vast
difference between the public records that
might be found after a diligent search of
courthouse files, county archives, and local
police stations throughout the country and a
computerized summary located in a single
clearinghouse of information.

489 U.S. at 763-64. "In sum," the Court later concluded, "the fact

that an event is not wholly private does not mean that an

individual has no interest in limiting disclosure or dissemination

of the information." Id. at 770 (citation omitted) (internal

quotation marks omitted).

Nevertheless, although the Reporters Committee Court

recognized a privacy interest in an individual's criminal history,

it did not have occasion to consider the strength of that privacy

interest. Instead, the Court simply found no countervailing public

interest, stating that the requesting party did not "intend to

discover anything about the conduct of the agency that has

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possession of the requested records" and that "disclosure would not

shed any light on the conduct of any Government agency or

official." Id. at 773 (emphasis added). Accordingly, the Court

categorically held that a "request for law enforcement records or

information about a private citizen can reasonably be expected to

invade that citizen's privacy, and that when the request seeks no

'official information' about a Government agency, but merely

records that the Government happens to be storing, the invasion of

privacy is 'unwarranted.'" Id. at 780.

This case does not fall within that categorical holding,

because, as we explain below, the Union Leader has identified a

public interest in disclosure of the arrestees' names. We must

therefore assess the strength of the arrestees' privacy interests

in order to appropriately balance those interests against the

public interest in disclosure. In so doing, we take our guidance

from the Court's subsequent statement in Ray that "whether

disclosure of a list of names is a significant or a de minimis

threat [to privacy] depends upon the characteristic(s) revealed by

virtue of being on the particular list, and the consequences likely

to ensue." 502 U.S. at 176 n.12 (citation omitted) (internal

quotations omitted).

The Union Leader directs our attention to the Southern

District of New York's decision in New York Times Co. v. U.S.

Department of Homeland Security, 959 F. Supp. 2d 449 (S.D.N.Y.

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2013), which found Exemption 7(C) inapplicable in circumstances

roughly similar to those of this case. The New York Times and a

reporter submitted a FOIA request to ICE, seeking production of "a

list of all aliens since 2008 who, after being convicted of a crime

and serving their sentence, were designated for removal but were

released from DHS custody pursuant to Zadvydas [v. Davis, 533 U.S.

678 (2001)]." Id. at 450. After ICE provided a spreadsheet

containing each alien's criminal convictions, date of release, and

immigration status, the New York Times and the reporter filed suit

to obtain the aliens' names, which ICE had redacted under Exemption

7(C). The Southern District of New York recognized that disclosure

of the names would implicate a privacy interest under Reporters

Committee -- specifically, "that of convicted criminals in not

releasing in compiled form information which is already public" --

but found that interest "significantly diminished" given the public

availability of the underlying information. Id. at 455.

We find the New York Times court's reasoning apposite,

and we also note that The Buffalo Evening News, Inc. v. United

States Border Patrol, 791 F. Supp. 386 (W.D.N.Y. 1992), a case

cited by the district court and relied upon by ICE, is partly

distinguishable in its analysis of the implicated privacy interest.

Although Buffalo Evening News also involved a FOIA request for

personal information redacted from I-213 forms detailing the

apprehension of illegal aliens, the request was far broader in

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scope than the Union Leader's, with the plaintiff newspaper seeking

not only the apprehended aliens' names but also, inter alia, their

addresses, passport and social security numbers, and the names and

addresses of their spouses, parents, and employers. Id. at 396.

Moreover, the Buffalo Evening News court presumed that "the News

intend[ed] to contact the aliens, their families or those third

parties mentioned in furtherance of its investigation of the

[United States Border Patrol]'s activities," raising the specter of

"possible confrontation with the aliens, their families or third

parties." Id. at 398; see also New York Times, 959 F. Supp. 2d at

456 ("[P]laintiffs do not propose to contact the individuals in

furtherance of their investigation -- a derivative use which the

Second Circuit held 'dramatically increases the already significant

threat to the privacy interests that disclosure of this information

would entail.'" (citation omitted) (internal brackets omitted)).

Here, as in New York Times, the Union Leader has stated that it has

no intention of contacting the individuals, and that it only seeks

to review the public records of their prior arrests and

convictions.

We therefore conclude that although the arrestees have a

cognizable privacy interest in their names, that interest is

attenuated both by the status of their underlying convictions and

arrests as matters of public record and by the limited nature of

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the Union Leader's proposed investigation. Having filled the first

pan of the Exemption 7(C) scales, we now turn to the second.

B. Public Interest in Disclosure

In assessing whether the public interest in disclosure

outweighs the arrestees' countervailing privacy interests and

therefore warrants an invasion of their privacy, we must consider

"the nature of the requested document and its relationship to the

basic purpose of the Freedom of Information Act to open agency

action to the light of public scrutiny." Reporters Comm., 489 U.S.

at 772 (citation omitted) (internal quotation marks omitted); see

also Carpenter, 470 F.3d at 440. That purpose is served by

disclosure of "[o]fficial information that sheds light on an

agency's performance of its statutory duties," but not "by

disclosure of information about private citizens that is

accumulated in various governmental files but that reveals little

or nothing about an agency's own conduct." Reporters Comm., 489

U.S. at 773; see also Carpenter, 470 F.3d at 440-41.

Accordingly, where Exemption 7(C) privacy concerns are

implicated, the requesting party must show "[f]irst, . . . that the

public interest sought to be advanced is a significant one, an

interest more specific than having the information for its own

sake," and "[s]econd, . . . [that] the information is likely to

advance that interest." Favish, 541 U.S. at 172. "Otherwise, the

invasion of privacy is unwarranted." Id. Moreover, where "the

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public interest being asserted is to show that responsible

officials acted negligently or otherwise improperly in the

performance of their duties, the requester must establish more than

a bare suspicion in order to obtain disclosure," and instead "must

produce evidence that would warrant a belief by a reasonable person

that the alleged Government impropriety might have occurred." Id.

at 174; see also Ray, 502 U.S. at 178-79; Sussman v. U.S. Marshals

Serv., 494 F.3d 1106, 1115 (D.C. Cir. 2007).

In the Union Leader's estimation, "[t]he names of the

[arrestees] are necessary in order for Union Leader to undertake

the important and vital task of reviewing the performance of

governmental actors and agencies, both federal and state." More

specifically, the Union Leader claims that obtaining the names will

enable it and the public "to monitor the processing of the

[arrestees] by the agencies and courts responsible for immigration

policy." For instance, in the case of one of the aliens, who was

ordered removed by an immigration judge in 1988 and convicted of

criminal trespassing in 1993, the Union Leader states that without

this individual's name, it "cannot determine what communication, if

any, was transmitted to or from ICE or any other state or federal

agency, and what proceedings, if any, took place subsequent to that

removal order in 1988" such that this alien still remained in New

Hampshire 23 years later.

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 The Union Leader raised the same argument before the

district court during a hearing on the parties' cross motions for

summary judgment.6 In granting ICE's motion for summary judgment,

the district court rejected the Union Leader's proffered "public

interest" as based "entirely on speculation about what the public

might learn if the names and addresses of the arrestees were

disclosed" -- i.e., the possibility that "the public might be able

to use the names and addresses to discover additional relevant

information." Union Leader, 940 F. Supp. 2d at 29. The district

court found this case controlled by the Supreme Court's holding in

Ray, which rejected an asserted public interest based merely on

"the hope that respondents, or others, may be able to use [the

requested] information to obtain additional information outside the

Government files" and concluded that "[m]ere speculation about

hypothetical public benefits cannot outweigh a demonstrably

6
ICE suggests that the Union Leader has proposed these
specific uses for the arrestees' names for the first time on this
appeal. We disagree. Although the Union Leader's appellate brief
is more detailed insofar as it explains the importance of each
individual arrestee's name, the Union Leader's argument before the
district court was essentially identical to its argument on appeal.
The Union Leader stated before the district court that the redacted
documents revealed a "pattern of inefficiency . . . whereas these
people have been . . . arrested and convicted over and over again
here in New Hampshire over a ten year period" and posited that
disclosure of the arrestees' names could "expose incompetence,
inefficiency," enabling the Union Leader to discover why the
individuals were "allowed to stay in the United States" for so long
after their convictions.

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significant invasion of privacy." 502 U.S. at 178-79; see also

Favish, 541 U.S. at 174.7

In reaching this conclusion, the district court noted

that it "join[ed] several other district courts that have upheld

the redaction of identifying information from I-213 forms under

Exception 7(C) of the FOIA." Union Leader, 940 F. Supp. 2d at 29-

30 (citing Unidad Latina en Acción v. U.S. Dep't of Homeland Sec.,

253 F.R.D. 44, 51 (D. Conn. 2008); Schiller v. Immigration &

Naturalization Serv., 205 F. Supp. 2d 648, 664 (W.D. Tex. 2002);

Buffalo Evening News, 791 F. Supp. at 400). Each of these cases

found an insufficient public interest to warrant an invasion of the

apprehended aliens' privacy. In Buffalo Evening News, which

provides the most thorough and cogent analysis, the plaintiff

newspaper contended that disclosure of the apprehended aliens'

redacted personal information was "necessary to test the veracity

of the [Border Patrol's] conduct." 791 F. Supp. at 398. However,

the plaintiff could point to no evidence of governmental misconduct

or mendacity. In keeping with Ray and Favish, the court found that

this "mere allegation of government misconduct is not enough to

circumvent an otherwise facially proper exemption," noting that

7
The Ray Court declined, however, to adopt a "categorical
rule" altogether excluding such "derivative uses" from the public
interest calculus, and relied simply on the fact that there was no
evidence showing that the proposed derivative use "would produce
any relevant information that is not set forth in the documents
that have already been produced." 502 U.S. at 178-79.

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"[o]therwise, a requesting party disappointed with a response to

its FOIA inquiry could avoid the statutory exemptions to disclosure

by raising the specter of government misconduct." Id. at 399.

The Union Leader suggests that this case is closer to New

York Times, where the district court found a sufficient public

interest to warrant disclosure. The plaintiffs in that case did

not "assert a direct public interest in knowing the names of

individuals being released" from DHS custody, but rather contended

that the names would lead to additional information that "would

shed further light on critical aspects of the government's handling

of its removal duties," allowing the newspaper to "more fully

monitor how often courts gave lesser sentences to aliens because

prosecutors and judges mistakenly believed that removal was to

follow sentence and how often DHS failed to seek longer detentions

for individuals who, according to court records, posed a risk to

the community." 959 F. Supp. 2d at 454-55 (internal brackets and

quotation marks omitted). In support of this argument, the

plaintiffs pointed to several instances in which they were "able to

learn through diligent reporting despite the secrecy imposed by DHS

of several questionable exercises of DHS's discretion under

Zadvydas." Id. at 455 & n.44 (internal quotation marks omitted).

In light of that evidence, the court concluded that the newspaper's

allegations of governmental impropriety were based on more than

"bare suspicion" (thereby satisfying Favish's requirement) and that

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"disclosure of the names would further the legitimate public

interest in knowing how government agencies make decisions." Id.

at 456.

We believe that this case falls closer to New York Times

than to Buffalo Evening News, and we therefore conclude that the

district court gave inadequate weight to the public interest in

disclosure. Like the New York Times, the Union Leader can point to

"evidence that would warrant a belief by a reasonable person" that

such negligence might have occurred: namely, the redacted I-213

forms ICE has already produced, which document the apprehension of

aliens who had been convicted of crimes and/or ordered removed from

the United States as long as 23 years before their 2011 arrests.

Favish, 541 U.S. at 174. Although that delay is hardly conclusive

evidence of negligence, or other wrongdoing on the part of ICE, we

believe that it is at least enough to warrant a reasonable belief

"that the alleged Government impropriety might have occurred." Id.

(emphasis added).

Disclosure of the redacted names will enable the Union

Leader to investigate public records pertaining to the arrestees'

prior convictions and arrests, potentially bringing to light the

reasons for ICE's apparent torpor in removing these aliens.8 Cf.

8
We note, however, that reviewing the performance of state
governmental entities is not a valid public purpose under FOIA,
which "applies only to federal executive branch agencies." Philip
Morris, Inc. v. Harshbarger, 122 F.3d 58, 83 (1st Cir. 1997); see
also, e.g., Rimmer v. Holder, 700 F.3d 246, 258-59 (6th Cir. 2012)

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Citizens for Responsibility and Ethics in Washington v. U.S. Dep't

of Justice, No. 12-5223, 2014 WL 1284811, at *6 (D.C. Cir. Apr. 1,

2014) ("Disclosure of the records would likely reveal much about

the diligence of the FBI's investigation and the DOJ's exercise of

its prosecutorial discretion: whether the government had the

evidence but nevertheless pulled its punches."). The redacted

names are therefore more than mere "information about private

citizens that is accumulated in various governmental files but that

reveals little or nothing about an agency's own conduct."

Reporters Comm., 489 U.S. at 773. Instead, their disclosure will

forward the legitimate public interest in "knowing what [the]

Government is up to," id. -- a public interest that ICE itself

implicitly acknowledged in its issuance of a press release

trumpeting the Operation Cross Check arrests. That public interest

outweighs the arrestees' attenuated privacy interests in their

underlying arrests and convictions, which are already matters of

public record. We therefore hold that Exemption 7(C) is

inapplicable in these circumstances.

("FOIA is concerned only with shedding light on misconduct of the
federal government, not state governments. . . . [J]ust as there is
no FOIA-recognized public interest in discovering evidence in
federal government files of a private party's violation of the law,
there is no FOIA-recognized public interest in discovering
wrongdoing by a state agency." (citations omitted) (internal
quotation marks omitted)). We therefore reject the Union Leader's
argument that disclosure of the arrestees' names also serves a
cognizable public interest in reviewing the performance of state
courts and agencies.

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 III.

For the foregoing reasons, we reverse in part the

district court's order granting ICE's motion for summary judgment

and remand for further proceedings consistent with this opinion.

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