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Am. Immigration Council v. DHS, No. 12-856, 2013 WL 3186061, (D.D.C. June 24, 2013) (Boasberg, J.)
June 24th, 2013 Posted by

Re: Request for records concerning access to counsel during interactions with United States Immigration and Customs Enforcement authorities

Disposition: Denying defendants’ motion for summary judgment

  • Adequacy of search: The Court finds that defendants have not submitted enough information for the Court to determine whether an adequate search for responsive records has been conducted.  “Defendants have not indicated that all those offices and records systems likely to contain responsive records have been searched.”  “ICE has only stated that it identified certain offices as ‘most likely to possess records responsive to [Plaintiff's] request.’”  “While this averment may seem a technical requirement, the facts of this case demonstrate its importance.  Plaintiff argues that certain offices, sub-offices, and filing systems should have been searched . . . but the Court cannot begin to analyze such a contention until it knows ICE’s position on whether any of those locations have potentially responsive documents.”  The Court also finds that defendants have not submitted a “sufficiently detailed” description of the searches conducted.  The “supplemental declaration describes searches of particular databases without explaining what those databases are and the documents they contain.”  For those instances where responsive records were found, the first declaration “does describe the nature of those records systems in some detail [but] does not discuss the searches performed on those record systems.”

    Nonetheless, the Court does note that it “does not agree that the countervailing evidence Plaintiff has identified, on its own demonstrates that the search was inadequate.”  Plaintiff offered evidence of documents it knows at one time existed and evidence of other documents referenced in the materials released by defendant but not disclosed to plaintiff.  As the Court explains, “identifying a general handful of documents that the agency failed to uncover does not, in itself, demonstrate that the search was inadequate.”  “Nor is the government required to examine every document that is cross-referenced by the records that have been reviewed.”  Furthermore, “[t]he existence of particular undisclosed documents is not conclusive because any individual document may have been lost, destroyed, or not retained in the first place.”  Noting that plaintiff has not provided evidence that these undisclosed documents were saved and that “[t]he evidence does not reveal particular category of files or a particular department whose records the agency failed to search,” the Court finds the plaintiff’s arguments to be “largely speculative.”

  • Vaughn Index: The Court holds that ICE’s Vaughn Index and declaration were insufficient.  “If the government chooses to submit a short Vaughn index containing abbreviated descriptions, it must supplement the index with detailed affidavits that do more than merely repeat the same generalized categorization of content.”  The Court notes that “[a] substantial number of ICE documents that remain in contention have either been heavily redacted or withheld in their entirety.”  “In general, the text that has been made public does not suffice to allow Plaintiff to glean adequate context or engage in the type of advocacy that FOIA seeks to encourage.”  Furthermore, the index “does not offer a useable point of reference to negotiate nearly 600 pages of withholdings.”
  • Exemption 5/Threshold/Adequacy of Vaughn Index: As an initial matter, the Court finds that “[d]efendants’ documentation is insufficient for the Court to determine whether the records withheld under Exemption 5 satisfy the inter-agency or intra-agency memoranda test.”  The Court notes that “neither the summary Vaughn index nor the accompanying document” give any “indication as to the identities of the agency personnel and other individuals involved in a particular exchange.”

    In addition, the Court finds that the defendants have not shown that the materials withheld meet the requirements of the deliberative process privilege, attorney work-product privilege, or attorney-client privilege.  With respect to the deliberative process privilege, the Court finds that defendants have failed to meet their burden of proof.  For example, one entry claims that certain materials reflect the agency decision making process and are deliberative “without offering any description of this process, the identities of either the drafters or the recipients of the documents, or their respective positions within the agency ‘chain of command.’”

    The Court further notes that the defendants analyzed “attorney-client and work-product documents together, offering practically indistinguishable justifications for the use of both prongs.”  “The work-product prong of Exemption 5 requires that agencies make a good faith effort to describe the nature of each individual document and the particular circumstances that make its use in litigation foreseeable.”  As the Court explains, in order to discharge its burden with respect to the attorney-work product privilege, the government must “1) provide a description of the nature and contents of the withheld document, 2) identify the document’s author or origin (by job title or otherwise), 3) describe the factual circumstances that surround the document’s creation, and 4) provide some indication of the type of litigation for which the document’s use is at least foreseeable.”  Without these details, the Court finds that it has insufficient information to grant summary judgment to defendants with respect to its work-product withholdings.  Similarly, “[n]one of Defendants’ submissions offers a document-specific analysis of their attorney-client privileged withholdings, as required.”  The government must show that “(1)[T]he holder of the privilege is, or sought to be, a client; (2) the person to whom the communication is made is a member of the bar or his subordinate and, in connection with the communication at issue, is acting in his or her capacity as a lawyer; (3) the communication relates to a fact of which the attorney was informed by his client, outside the presence of strangers, for the purpose of securing legal advice; and (4) the privilege has been claimed by the client.”  Finally, “a ‘fundamental prerequisite to the assertion of the privilege is ‘confidentiality both at the time of the communication and maintained since.’”  The explanations provided here, however, “do not provide any of the factual detail necessary to discharge the government’s burden for proof,” and again the Court concludes that it cannot grant summary judgment to defendants with respect to its attorney-client withholdings.

  • Exemption 7 Threshold: The Court holds that ICE may not rely upon its status as a law enforcement agency as sufficient to establish that its “records and documents are necessarily produced for law enforcement purposes.”  The Court finds that “[a]t a minimum, Defendants must provide an itemized list of their withholdings and redactions pursuant to 7(E) accompanied by a description of the circumstances in which the records were compiled.”
  • Exemption 7E: The Court notes that it need not reach the defendant’s Exemption 7(E) withholdings because the threshold requirement has not been met.  However, the Court notes that the Vaughn Index “fails to adequately describe the nature of the underlying techniques and procedures.”  The Court notes that it does not expect “such full disclosure as to defeat the purpose of the exemption,” and that “[d]efendants may opt to submit confidential affidavits for in camera review if such a course of action is necessary to prevent the disclosure of protected law enforcement techniques.”
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