ACLU of Mass., Inc. v. ICE, No. 22-10407, 2023 WL 5110418 (D. Mass. Aug. 9, 2023) (Saris, J.)

ACLU of Mass., Inc. v. ICE, No. 22-10407, 2023 WL 5110418 (D. Mass. Aug. 9, 2023) (Saris, J.)

Re:  Request for written guidance agency provides its attorneys about performance of their duties

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Exemption 5, Attorney Work-Product Privilege:  “After an in camera review of the pertinent documents, i.e., the Vaughn index, [defendant’s] Declaration, and the unredacted documents, the Court finds that many of the 42 documents are indeed protected by the work-product doctrine, as they were created in anticipation of litigation.”  “For example, many of the documents include ‘practice pointers’ for litigating attorneys or provide critical analyses of caselaw beyond simply summarizing the holdings.”  “However, the Court also finds that ICE has not met its burden of showing that the work-product doctrine, under Exemption (b)(5), applies to certain documents at all, e.g., administrative guidance or protocols.”  “Finally, ICE has only put forward generic, blanket statements asserting that the disclosure of the documents poses foreseeable harm under the FOIA Improvement Act of 2016; in identical language repeated for each document in its Vaughn index, ICE asserts that release could cause a generalized chilling effect that could indirectly harm the adversarial process.”  “ICE states disclosure could ‘chill[ ] . . . the ability of agency attorneys to effectively communicate with each other’ and ‘inhibit the candid discussion of issues between employees.’”  “These effects could in turn ‘hinder’ ICE attorneys’ ‘ability . . . to be fully informed,’ and to ‘assess any future litigation risks,’ weakening the quality of lawyering and finally harming the adversarial process.”