Am. Immigration Council v. U.S. Customs & Border Patrol

• Decision Date: 03 April 2023
• Docket Number: Civil Action 19-2965 (RC)
• Parties: AMERICAN IMMIGRATION COUNCIL, et al., Plaintiffs, v. U.S. CUSTOMS AND BORDER PATROL, et al., Defendants.
• Court: U.S. District Court — District of Columbia

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AMERICAN IMMIGRATION COUNCIL, et al., Plaintiffs, v. U.S. CUSTOMS AND BORDER PATROL, et al., Defendants.

Civil Action No. 19-2965 (RC)

United States District Court, District of Columbia

April 3, 2023

Re Document Nos.: 28, 30, 51

MEMORANDUM OPINION DENYING DEFENDANTS' MOTION FOR RECONSIDERATION AS MOOT; GRANTING IN PART AND DENYING IN PART DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGEMENT GRANTING IN PART AND DENYING IN PART PLAINTIFFS' RENEWED CROSS-MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiffs American Immigration Council and Tahirih Justice Center filed this suit to require Defendants the Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Services (“USCIS”), and U.S. Customs and Border Protection (“CBP”) to respond appropriately to Plaintiffs' Freedom of Information Act (“FOIA”) requests. The requests concern a program for using CBP agents to conduct credible fear interviews, which is a part of the asylum-seeking process. This Court previously granted in part and denied in part the parties' cross-motions for summary judgment and ordered Defendants to submit several FOIA Exemption 5-related documents to the Court for in camera review. Am. Immigr. Council v. U.S. Customs & Border Patrol, 590 F.Supp.3d 306, 335 (D.D.C. 2022). Defendants subsequently submitted these documents, and the parties agreed that the Court could resolve the dispute concerning these documents based on the existing briefing. Having now inspected these documents, the Court will order Defendants to disclose some (but not all) of them.

II. BACKGROUND

The Court assumes familiarity with the facts of this dispute. See Am. Immigr. Council, 590 F.Supp.3d at 315-17. Following the Court's prior decision, Defendants delivered the disputed Exemption 5 documents to the Court for in camera review. Defendants also filed a corrected supplemental Vaughn index explaining their reasons for withholding these documents. See Corrected Suppl. Vaughn Index, ECF No. 50-1. At the June 7, 2022 status conference, the parties agreed that the Court could resolve the propriety of Defendants' Exemption 5 withholdings in these documents without any supplemental briefing. The Court will therefore treat the parties' positions concerning these in camera documents as renewed cross-motions for summary judgment. This dispute is ripe for decision.

Also pending before the Court is Defendants' Motion for Reconsideration. Defs.' Mot. for Reconsideration, ECF No. 51. This motion concerns the Court's prior decision on the issue of the withheld names of U.S. Border Patrol agents under FOIA Exemptions 6 and 7(C). Id. at 1. The parties have since represented to the Court that they settled this issue on their own. See Joint Status Report ¶¶ 1-3 (Feb. 28, 2023), ECF No. 67. Therefore, the Court denies Defendants' Motion for Reconsideration as moot. See Min. Order (Aug. 1, 2022). The sole remaining issue is the propriety of Defendants' Exemption 5 withholdings in the in camera documents.^[1]

III. LEGAL STANDARD

The purpose of FOIA “is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). FOIA was intended “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (internal quotation marks omitted). FOIA requests thus provide individuals with the opportunity to obtain access to federal agency records, except to the extent that such records are protected from public disclosure by one of nine exemptions. See 5 U.S.C. § 552(a)(3), (a)(4)(B), (b), (c); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975); Jud. Watch, Inc. v. U.S. Dep't of Def., 847 F.3d 735, 738 (D.C. Cir. 2017).

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see, e.g., Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 314 (D.C. Cir. 1988) (concluding that unsubstantiated claims of factual controversies cannot defeat a summary judgment decision in a FOIA case). FOIA cases are typically resolved through summary judgment because in FOIA cases there is rarely any factual dispute; instead, these cases center on how the law is applied to the records at issue. See Pinson v. Dep't of Just., 236 F.Supp.3d 338, 352 (D.D.C. 2017) (“FOIA cases typically and appropriately are decided on motions for summary judgment.” (quoting Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009))). Accordingly, in a FOIA suit, an agency is entitled to summary judgment “if no material facts are genuinely in dispute and the agency demonstrates ‘that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information.'” Prop. of the People, Inc. v. Off. of Mgmt. and Budget, 330 F.Supp.3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F.Supp.3d 172, 181 (D.D.C. 2017)). “This burden does not shift even when the requester files a cross-motion for summary judgment because ‘the Government ultimately has the onus of proving that the documents are exempt from disclosure,' while the ‘burden upon the requester is merely to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.'” Hardy v. ATF, 243 F.Supp.3d 155, 162 (D.D.C. 2017) (brackets omitted) (quoting Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999)).

In a FOIA suit, the court shall determine a motion for summary judgment de novo. See 5 U.S.C. § 552(a)(4)(B); Life Extension Found., Inc. v. IRS, 915 F.Supp.2d 174, 179 (D.D.C. 2013). Therefore, when assessing non-disclosure decisions in a FOIA action, the court may rely solely on “affidavits or declarations if they describe ‘the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'” Life Extension Found., 915 F.Supp.2d at 179 (quoting Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)); see also Pronin v. Fed. Bureau of Prisons, No. 17-cv-1807, 2019 WL 1003598, at *3 (D.D.C. Mar. 1, 2019). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Scudder v. CIA, 254 F.Supp.3d 135, 140 (D.D.C. 2017) (quoting Jud. Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (internal citations omitted)). However, exemptions are to be “narrowly construed,” Bloche v. Dep't of Def., 370 F.Supp.3d 40, 50 (D.D.C. 2019) (quoting Morley v. CIA, 508 F.3d 1108, 1115 (D.C. Cir. 2007)), and “conclusory and generalized allegations of exemptions are unacceptable,” Prop. of the People, Inc., 330 F.Supp.3d at 380 (quoting Morley, 508 F.3d at 1114-15). Accordingly, an agency must do more than provide “summary statements that merely reiterate legal standards or offer ‘far-ranging category definitions for information.'” Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Just., 955 F.Supp.2d 4, 13 (D.D.C. 2013) (quoting King v. U.S. Dep't of Just., 830 F.2d 210, 221 (D.C. Cir. 1987)). “When an agency invokes an exemption, it must submit affidavits that provide the kind of detailed, scrupulous description of the withheld documents that enables a District Court judge to perform a de novo review.” Tokar v. U.S. Dep't of Just., 304 F.Supp.3d 81, 89 (D.D.C. 2018) (cleaned up).

IV. ANALYSIS

Exemption 5 of FOIA protects “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The Supreme Court and the D.C. Circuit have construed Exemption 5 to exempt documents “normally privileged in the civil discovery context.” Sears, 421 U.S. at 149; see also Martin v. Off. of Special Couns., 819 F.2d 1181, 1184 (D.C. Cir. 1987). Exemption 5 thus “‘incorporates the traditional privileges that the Government could assert in civil litigation against a private litigant'-including the presidential communications privilege, the attorney-client privilege, the work product privilege, and the deliberative process privilege.” Brown v. Dep't of State, 317 F.Supp.3d 370, 376 (D.D.C. 2018) (quoting Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (internal quotation marks and citation omitted)); see also Baker & Hostetler LLP v. U.S. Dep't Com., 473 F.3d 312, 321 (D.C. Cir. 2006).

For the deliberative process privilege-the sole privilege at issue here-to apply, the record must “bear on the formulation or exercise of agency policy-oriented judgment.” Petroleum Info. Corp. v. U.S. Dep't of Interior 976 F.2d 1429, 1435(D.C. Cir. 1992). An agency typically cannot withhold “[p]urely factual material . . . unless it reflects an ‘exercise of discretion and judgment calls.'” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 513 (D.C. Cir. 2011) (quoting Mapother v. Dep't of Just., 3 F.3d 1533, 1539 (D.C. Cir. 1993)). The party invoking the privilege must establish that the record is both predecisional and deliberative. See Prop. of the People, 330 F.Supp.3d at 382. “A document is predecisional if it was ‘prepared in order to assist an agency...