Am. Immigration Council v. DHS, No. 12-856, 2014 WL 842311 (D.D.C. Mar. 5, 2014) (Boasberg, J.)

Am. Immigration Council v. DHS, No. 12-856, 2014 WL 842311 (D.D.C. Mar. 5, 2014) (Boasberg, J.)

Re: Request for records concerning individuals' access to counsel during interactions with ICE

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "[b]ecause [defendants] have not provided a declaration averring that ICE searched 'all files likely to contain responsive materials' to [plaintiff's] FOIA request, . . . the Court must deny summary judgment on this point."  Additionally, the court advises that "[d]efendants 'must, in the future, aver that all departments and files likely to contain responsive records were searched and must describe its search procedures in sufficient detail for the Court to determine whether the search was reasonable.'"
   
• Litigation Considerations, Vaughn Index/Declaration:  The court finds that "[d]efendants offer no response, let alone explanation, for why [one] record does not appear in their Vaughn Index."  The court holds that "[w]ithout a Vaughn entry describing the contents of the document or the applicability of the claimed exemptions, the government has not carried its burden to show the appropriateness of its decision to withhold it."
   
• Exemption 5, Deliberative Process Privilege:  The court finds that "[d]efendants properly redacted [certain documents] under the deliberative-process privilege."  The court explains that "the deliberative-process privilege protects agency deliberations about how to respond to media inquiries regarding prior agency actions [and] the Court sees no reason why it should also not protect agency deliberations about how to respond to NGO inquiries regarding prior agency actions."  Additionally, the court explains that one document at issue is "a draft legal opinion, which 'contains 'red-lined' edits within the text as well as comments provided by an ICE attorney discussing his/her opinion of a legal holding and its implications,'" and finds that this "is enough for the Court to conclude that it is 'predecisional' with respect to the agency's decision on a final legal opinion."  Also, the court disagrees with plaintiff's argument that "[d]efendants have not established that the records withheld in this case reflect deliberations over new policies rather than explanations of current ones."  The court also finds that defendant's "impressively detailed account, combined with the Court's own examination of the records, is sufficient to establish the deliberative character of [two of the documents at issue]."
   
• Exemption 5, Attorney Work-Product Privilege:  The court relates that "[t]he Vaughn entry for [one document] explains that the record 'consists of hand written notes by an ICE attorney that discusses the particulars of specific cases involving aliens,' . . . and Defendants' brief adds that the notes 'analyz[e] specific cases involving aliens and the attorney's legal conclusions.'"  The court finds that "[a]lthough this description is thin enough to give the Court pause, it does identify the document's author by job title and provides some explanation about the document's creation'" and this, "[c]oupled with the Court's own in camera review of the record, . . . is just enough to convince the Court that [the document at issue] was properly withheld under the attorney work-product privilege."
   
• Exemption 5, Attorney-Client Privilege:  The court finds that the one document at issue "is protected by the attorney-client privilege."  The court explains that "the material reflects legal advice and recommendations regarding agency action."  Additionally, "[t]he Court's in camera review of the record reveals a confidentiality notice at the bottom of the email in question that clearly reflects the parties' expectation that the discussion would remain confidential."
   
• Exemption 7(E):  The court "concludes that Defendants properly redacted [certain documents] under FOIA Exemption 7(E)."  The court first explains that "[i]nsofar as premise descriptions and operation phases are part and parcel of the law-enforcement techniques, procedures, and guidelines at issue—and the Court's in camera review of the materials convinces it that, in this case, they are—a FOIA defendant need not tag them with specific labels."  The court next finds that "the enforcement of immigration laws relates to law-enforcement “investigations” and “prosecutions,” as does the detention of those suspected of violating such laws.  Additionally, the court finds that "on their face, these records contain information not generally known to the public" and "[t]his inference is further bolstered by the Court's own in camera review of the materials."
   
• Litigation Considerations, Reasonably Segregable Requirement:  The court finds that "[f]ortunately for Defendants, . . . the Court's in camera review of the materials suffices to persuade it that there are no segregability problems in this case."  However, the court takes issue with defendant's brief and finds that it "parrots almost exactly the same language that this Court previously described as insufficient: '[ICE] reviewed each record line-by-line to identify information exempt from disclosure ... to ensure that all non-exempt information was released.'"  The court also finds that defendants did not "'provide descriptions of excerpts deemed to be non-segregable, with explanations as to those decisions.'"