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Judicial Watch, Inv. v. DOJ, No. 12-01350, 2014 WL 794220 (D.D.C. Feb. 28, 2014) (Howell, J.)
February 28, 2014 Posted by

Re: Request for records concerning the Deferred Action for Childhood Arrivals (DACA) program

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

  • Exemption 5, Deliberative Process Privilege:  The court finds that defendant “has sufficiently demonstrated that the two challenged documents were predecisional and part of the deliberative process, and therefore properly withheld from disclosure under Exemption 5.”  The court first holds that defendant “adequately shows that the records were predecisional and ‘part of a clear ‘process’ leading to a final decision on the issue.’”  The court finds that “[t]he fact that the challenged documents were dated a day before the DHS Secretary publicly announced the DACA program . . . does not automatically render them post-decisional” and, moreover, a review of some of defendant’s internal e-mails indicates that “DACA policy was evolving up until the very date of the announcement.”  Second, the court finds that the “‘flow of the documents [ ] from subordinate to superior,’ is strong evidence that these documents were part of a deliberative process and were considered by those who had the authority to make a final decision.”  Third, the court finds that “the challenged documents contain legal advice, which is typically considered part of a deliberative process.”  Finally, the court finds that “defendants have shown that the challenged documents were created in response to the Secretary’s request for legal advice regarding her DACA decision.”
  • Litigation Considerations, “Reasonably Segregable” Requirements:  The court “finds that DHS has satisfied its burden” regarding its segregability requirement.  The court relates that “defendants have shown that they ‘conducted a document-by-document review, inspecting each document for any non-exempt ‘reasonably segregable’ information’ and that DHS ‘released any such reasonabl[y] segregable information’ and withheld certain documents entirely if ‘DHS determined that any factual information contained in those records was not reasonably segregable because the selection of the facts was an integral part of the legal advice and analysis.’”  Additionally, the court notes that “plaintiff does not address segregability in its briefs and, thus, fails to present ‘some ‘quantum of evidence” to suggest that the defendants did not comply with their obligation.”
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