Am. Civ. Liberties Union of Mass. v. DHS, No. 19-12564, 2023 WL 8789286 (D. Mass. Dec. 19, 2023) (Dein, Mag. J.)

Am. Civ. Liberties Union of Mass. v. DHS, No. 19-12564, 2023 WL 8789286 (D. Mass. Dec. 19, 2023) (Dein, Mag. J.)

Re:  Requests for records concerning defendants’ handling of allegations of gang membership, as well as ICE’s Warrant Service Officer program

Disposition:  Granting defendants’ motion for summary judgment; denying plaintiffs’ cross-motion for summary judgment

• Exemption 7(E):  The court relates that, “[a]t present, the only issue remaining in this case is whether the Defendants have applied appropriate redactions to one particular document they produced, reprocessed, and then re-released in response to the Plaintiffs’ Gang Profile FOIA request and the ongoing discussions.”  “Plaintiffs challenge the redactions applied to the sections of the Gang Handbook which pertain to ICE’s ‘definitions, elements, and criteria for gangs and gang membership’ . . . .”  The court “finds that Exemption 7(E) has been properly applied with respect to each of the following challenged redactions.”  First, “Defendants explain that the challenged redactions in Section 3.3 cover ‘eleven (11) specific factors’ which HSI federal agents use as an ‘analytical tool’ in certain scenarios to evaluate and determine ‘whether an individual is a gang member,’ and that the list of factors ‘lays the foundation for and is therefore inextricably linked to the more robust analysis of gang member identification criteria . . . .”  “Upon review, this court finds that the Identification Criteria at Section 3.3 are specific factors used by federal agents in the course of their investigations that, viewed in context, amount to techniques and procedures used by law enforcement in determining potential gang membership.”  “Viewed with this proper context, the criteria reveal, and provide insight into, ‘how [HSI Special Agents] go about investigating’ potential violations of the law.”  “Because the criteria go beyond mere definitions in that they instruct federal agents not only what to look for but also provide a unique investigative framework for them to make determinations with, the Defendants have met their burden of showing that this first section of redacted text is appropriate under Exemption 7(E).”
  
  Second, the court relates that “Defendants redact the first section of Appendix A’s Section I. ‘Gang’ under Exemption 7(E) on the basis that the reda[c]ted text ‘describes factors that are indicative of a criminal gang’ which HSI Special Agents, in turn, rely on in order “to assess whether a criminal organization constitutes a gang for purposes of investigation and prosecution.”’”  “The Defendants redact the second section for the reason that it sets forth an ‘analytical tool used to evaluate a potential gang’s criminal activity’ which federal agents rely upon ‘to assess whether certain criminal activity signifies an organized criminal gang which warrants investigation and prosecution.’”  “The agency argues, for each of the redactions at issue, that while certain redacted information, characteristics, or factors ‘may be commonly acknowledged,’ it is how federal agents use this information and the manner in which they ‘apply these methods or factors’ that subjects it to protection.”  “Upon review, this court finds that each of the two unredacted sections of text within Section I. ‘Gang’ contain ‘specific investigatory methods’ intended to instruct federal agents on how to conduct their investigations into gangs and related criminal activity, and for that reason, they amount to techniques and procedures.”  “While [ICE’s] investigative techniques and procedures may contain some information that is publicly known, the formulaic manner in which the agency has assembled them, the confidential ‘means’ in which they are used, and the ‘“circumstances”’ in which they are applied render them ‘protected’ under the exemption.” 
  
  Third, the court relates that “[u]nder Exemption 7(E), the Defendants apply redactions to the majority of Section II., which they describe as ‘a more robust analysis, supported by caselaw, of the eleven (11) factors from (Section 3.3[).]’”  “These redacted sections expand on the preceding criteria set forth in Section 3.3, and they enhance Section 3.3's framework by adding curated explanations drawn from relevant case law intended to instruct federal agents in their investigative approach.”  “As evidenced by the unredacted paragraph immediately preceding the redactions in both Section 3.3 and Section II., the redacted information is part of the instructions issued to federal agents as to both when to use the tools and criteria, and how.”  “[The] court’s in camera inspection confirms that the redactions go beyond mere lists, and the Defendants have again carried their burden of showing that this final set of redactions are appropriate under Exemption 7(E).” 
  
  Regarding the risk of circumvention, the court relates that “[i]n [its] declaration, ICE . . . not only provides sufficient justification for application of Exemption 7(E) to each set of redactions but also adequately sets forth the risks in disclosure.”  The court finds that “the declaration and the accompanying Vaughn Index detail, at length and with specificity, the possible security risks inherent with release of the redacted information – namely, that individuals with knowledge of the disclosed techniques and procedures will use that information to manipulate their behavior in order to evade [ICE’s] investigative efforts.”  “Considering the redacted materials and the risks inherent in disclosure, this court finds that the proper nexus can be drawn.”