Gatore v. DHS, No. 15-459, 2018 WL 4053374 (D.D.C. August 24, 2018) (Walton, J.)

Gatore v. DHS, No. 15-459, 2018 WL 4053374 (D.D.C. August 24, 2018) (Walton, J.)

Re:  Assessments prepared by asylum officers in connection with requesters' applications for asylum

Disposition:  Denying defendant's reviewed motion for summary judgment; denying plaintiffs' motion for class certification; sua sponte granting summary judgment to the individual plaintiffs

•  Exemption 5, Deliberative Process Privilege: After reviewing the assessments in camera, "the Court agrees with the plaintiffs that a number of factual introductory paragraphs in each assessment do not qualify for protection under Exemption 5."  While the court acknowledges the defendant "is correct that the paragraphs 'are not a verbatim transcript of information provided by the plaintiffs,'" the court finds no support that "these paragraphs 'reflect a selective recording of information that the asylum officers deemed particularly pertinent to the plaintiffs' requests for asylum.'"  The court also "concludes that these paragraphs are not 'inextricably intertwined with exempt portions,' and as such are reasonably segregable and must be produced."  Because the court concludes, "the factual introductory paragraphs in each assessments are reasonably segregable and must be produced," the court orders release of these paragraph to the individual plaintiffs. 
   
• Litigation Considerations, Standing: The court finds that the plaintiff has standing to bring two "policy-or-practice" claims that the defendant employs "a blanket policy and practice of never providing any part of an assessment to a FOIA requester" and "a blanket policy and practice of not even attempting to determine if there are reasonably segregable portions of an assessment."  The court explains that the requester "has proffered an abundance of evidence," including "the defendant's instructions to FOIA reviewers to 'withhold assessments in full,'" the "denial of more than forty requests for assessments since 2012," and the defendant's representations in response to administrative appeals that "an asylum officer's written assessment is exempt from disclosure."  The court also explains that the requester has several pending requests and will continue to make future requests likely to be impacted by the alleged policy or practice. 
   
• Exemption 5, Segregability:  The court relies on similar arguments in denying the government's motion for summary judgment on the plaintiff's policy-or-practice claims, explaining, "the record contains a significant amount of contradictory evidence suggesting that the defendant does indeed have a policy of withholding assessments in full as a matter of course."  Additionally, the requester "has identified specific evidence demonstrating that many, if not all, assessments contain reasonably segregable factual material that must be disclosed under the FOIA."  The court also denies the defendant's motion for summary judgment "on the plaintiff's claim that the defendant has a policy or practice of not even attempting to determine if there are reasonably segregable portions of an assessment."  The court acknowledges that the parties do not dispute that such a practice would violate the FOIA and explains, "the evidence of the defendant’s alleged policy or practice of not providing any part of an assessment to FOIA requesters gives rise to the reasonable inference that the defendant also has a policy or practice of not even attempting to determine if there are reasonably segregable portions of assessments." 
   
• Litigation Considerations, Standing: The court denies class certification to the individual plaintiffs because they "failed to demonstrate that they are members of the putative class or that they have standing to obtain prospective injunctive or declaratory relief."