Adelante Ala. Worker Ctr. v. U.S. Dep't of Homeland Sec. & Office for Civil Rights & Civil Liberties

• Decision Date: 26 March 2019
• Docket Number: 1:17-cv-9557-GHW
• Citation: 376 F.Supp.3d 345
• Parties: ADELANTE ALABAMA WORKER CENTER et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY and Office for Civil Rights and Civil Liberties, Defendants.
• Court: U.S. District Court — Southern District of New York

376 F.Supp.3d 345

ADELANTE ALABAMA WORKER CENTER et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY and Office for Civil Rights and Civil Liberties, Defendants.

1:17-cv-9557-GHW

United States District Court, S.D. New York.

Signed March 26, 2019

Patrick Daniel Llewellyn, Adam R. Pulver, Public Citizen Litigation Group, Washington, DC, Jessica Myers Vosburgh, National Day Laborer Organizing Network, Birmingham, AL, for Plaintiffs.

Samuel Hilliard Dolinger, U.S. Attorney's Office, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge:

Before the Court are cross-motions for summary judgment in this Freedom of Information Act ("FOIA") dispute between the Adelante Alabama Worker Center, the Detention Watch Network, and the Greater Birmingham Ministries (collectively, "Plaintiffs") and the United States Department of Homeland Security (the "DHS") and its component Office for Civil Right and Civil Liberties (the "CRCL," together with the DHS, the "Defendants") that began with a September 8, 2016, request for a so called "super-recommendations memorandum" referenced in CRCL's congressional report for its 2015 fiscal year. Plaintiffs contend that Defendants have inappropriately withheld material which is not protected by the deliberative process privilege, despite Defendants' invocation of FOIA Exemption 5, and that Defendants have inappropriately withheld the identities and professional backgrounds of certain experts who contributed to the report (the "Experts") pursuant to FOIA Exemption 6.

For the reasons that follow, Defendants are entitled to summary judgment as to a portion of the records at issue. However, for the remainder of the records, additional scrutiny is required—either through in camera review, or by subsequent re-review by Defendants. Furthermore, the Experts' slight privacy interests in their identities and professional backgrounds are substantially outweighed by the public's interest in disclosure of that information. Accordingly, for the reasons articulated below, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART, and Plaintiffs' motion for summary judgment is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

On September 8, 2016 Plaintiffs submitted a FOIA request to Defendant CRCL "seeking disclosure of a document identified as a ‘super-recommendations memorandum’ concerning the Etowah Country Detention Center" in Alabama ("the Request"). Pls.' Local Rule 56.1 Statement (ECF No. 43) ("56.1") ¶ 1.¹ That Request was the genesis of the instant litigation.

The CRCL is a component of Defendant DHS and is responsible for "review[ing] and assess[ing] information concerning abuses of civil rights, civil liberties, and profiling on the basis of race, ethnicity, or religion, by employees and officials of" the DHS. 6 U.S.C. § 345(a)(1). In that role, the CRCL conducts on-site investigations at Immigration and Customs Enforcement ("ICE") and ICE-contracted immigration detention facilities. Decl. of James V.M.L. Holzer, May 9, 2018 (ECF No. 40) ("Holzer Decl.") ¶ 16. ICE operates under the jurisdiction of Defendant DHS. "During on-site investigations, CRCL utilizes competitively awarded contracted experts in the areas of medical care, mental health care, correctional security and operations, use of force, and environmental health and safety, as needed, to investigate complaints and make recommendations concerning policies." Id. ¶ 17. The CRCL submits "an annual report ... detailing[, inter alia ,] any allegations of abuses of [civil rights and liberties] ... and any actions taken by the Department [of Homeland Security] in response to such allegations." 6 U.S.C. § 345(b). On June 10, 2016, the CRCL released its report for its 2015 fiscal year (the "Report"). (ECF No 44-1 ).

The Report indicates that the CRCL responded to "numerous complaints" about a detention facility operated by ICE in Alabama, Report at 35, which has subsequently been identified as the Etowah County Detention Center (the "ECDC"). Holzer Decl. ¶ 20. The Report also states that, in response to over fifty complaints received since 2012, the CRCL sent a "super-recommendations memorandum" to ICE in May 2015 (the "Super-Recommendations Memo") "formally notifying [ICE] of [the CRCL's] long-standing and continuing concerns" regarding the ECDC. Report at 35. As described in the Report, the Super-Recommendations Memo highlighted "the seriousness of the problems found in previous investigations [of the ECDC], the continued receipt of additional correspondence raising similar concerns, and CRCL's belief that additional fact-finding is unnecessary as [CRCL's] prior recommendations are likely not being fully implemented." Id. at 28-29. As a result, the Report describes the Super-Recommendations Memo as recommending "that ICE develop a comprehensive plan to address the deficiencies at the facility, address the issues raised in complaints opened since the 2012 site visit, and either transition the facility to the 2011 Performance Based National Detention Standards or cease use of the facility." Report at 35.

As stated above, Plaintiffs submitted the Request on September 8, 2016 seeking disclosure of the Super-Recommendations Memo. Receiving no response, Plaintiffs submitted an administrative appeal of the "constructive denial" of their FOIA request on October 20, 2016. 56.1 ¶ 2. On October 24, 2016, the DHS informed Plaintiffs that they had located "five responsive pages" to Plaintiff's FOIA request, but that there were withholding all five pages in their entirety "pursuant to exemption 5." Id. ¶ 3. That response mooted Plaintiffs October 20, 2016 appeal on the basis of "constructive denial." Id. ¶ 5.

On November 10, 2016, Plaintiffs filed an administrative appeal as to Defendant DHS's utilization of FOIA Exemption 5. Id. ¶ 4. That appeal was granted on March 13, 2017 "to the extent that the FOIA request was remanded to DHS to provide an ‘adequate explanation’ for its invocation of [E]xemption 5." Id. ¶ 6. On May 23, 2017 the DHS, by letter, informed the plaintiffs that it "had been unable to determine the status of the remand and that DHS's ‘lack of action must be viewed as final, giving [Plaintiffs] the right to pursue an appeal in the appropriate United States District Court. This decision is the final action of DHS concerning [Plaintiffs'] initial FOIA request ... and FOIA [a]ppeal." Id. ¶ 7 (capitalization altered).

Plaintiffs filed this case on December 6, 2017. Subsequently, Defendants released 127 pages of responsive records, containing significant redactions. Those records consist of the Super-Recommendations Memo, the November 2, 2012 CRCL memorandum regarding ECDC, (ECF No. 40-2 ) at 7-22² (the "November 2, 2012 Memo"), as well as the four 2012 expert reports in the areas of corrections, medical care, mental health care, and environmental health and safety which informed the November 2, 2012 memorandum (the "Expert Reports"), and attachments cataloging certain recommendations and detainee complaints (the "Attachments") (collectively, the "Initial Release"). See Initial Release (ECF No. 40-2 ). On February 22, 2018, the Court directed Defendants to produce a Vaughn index no later than April 2, 2018, and for the parties to confer as to outstanding issues and submit a status letter to the Court describing any such issues. That letter was submitted on April 18, 2018. Joint Letter, April 18, 2018 (ECF No. 36) (the "Joint Letter").

The Joint Letter made it clear Plaintiffs do not challenge "the adequacy of Defendants' search." Joint Letter at 2. Rather, Plaintiffs objected to Defendants' invocation of exemptions 5 and 6 to withhold the following categories of information.³

(1) Names and professional backgrounds of subject-matter experts hired by CRCL whose reports are included in the responsive records, which Defendants have withheld citing exemption 6;

(2) Certain recommendations made by CRCL to Immigration and Customs Enforcement and Defendant Department of Homeland Security leadership in CRCL's May 28, 2015 memorandum—specifically, those that have already been publicly disclosed in CRCL's Fiscal Year 2015 Annual Report to Congress—which Defendants have withheld citing exemption 5 and the deliberative process privilege;

(3) The standards and/or methodology sections of the subject-matter experts' respective reports, which Defendants have withheld citing exemption 5 and the deliberative process privilege; and

(4) Factual findings and observations made by the subject-matter experts, which Defendants have withheld citing exemption 5 and the deliberative process privilege.

Joint Letter at 1.

Before the Court are the parties' cross motions for summary judgment as to Defendants' use of FOIA Exemptions 5 and 6 as described above. (ECF Nos. 38, 41). Alongside their motion for summary judgment, Defendants submitted their Vaughn index to the Court. (ECF No. 40-3 ) (the " Vaughn Index").

During the course of briefing, Defendants updated the Initial Release by voluntarily releasing some previously redacted information (the "Subsequent Release" or the "Released Records") (ECF No. 491-1 ). The Subsequent Release narrowed the issues before the Court, but did not fully resolve any of Plaintiffs' four categorical challenges quoted above. Defendants have not submitted an updated Vaughn Index. The motions were fully briefed by August 17, 2018, and are ripe for adjudication.

II. LEGAL FRAMEWORK

A. Summary Judgment Standard

"Summary judgment is the procedural vehicle by which most FOIA actions are resolved." N.Y. Times Co. v. U.S. Dep't of Def. , 499 F.Supp.2d 501, 509 (S.D.N.Y. 2007) (quoting Jones-Edwards v. Appeal Bd. of Nat'l Sec. Agency , 352 F.Supp.2d 420, 423 (S.D.N.Y. 2005) ). A moving party is entitled to summary judgment if it can "show[ ] that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also ...