Brennan Ctr. for Justice At N.Y. Univ. Sch. of Law v. U.S. Dep't of State

• Decision Date: 10 January 2018
• Docket Number: 17 Civ. 7520 (PGG)
• Citation: 300 F.Supp.3d 540
• Parties: BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, Defendant.
• Court: U.S. District Court — Southern District of New York

300 F.Supp.3d 540

BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW, Plaintiff,

v.UNITED STATES DEPARTMENT OF STATE, Defendant.

17 Civ. 7520 (PGG)

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

Signed January 10, 2018

Sirine Shebaya, Johnathan James Smith, Muslim Advocates, Andrew Lieb Nellis, Eric Jonathan Rothschild, Americans United for Separation of Church and State, Jaclyn E. Martinez Resly, Mark H. Lynch, Covington & Burling, LLP, Richard B. Katskee, Mayer Brown LLP, Washington, DC, Neil Kenneth Roman, Covington & Burling LLP, New York, NY, for Plaintiff.

Christopher Kendrick Connolly, United States Attorney's Office, New York, NY, for Defendant.

MEMORANDUM OPINION & ORDER

Paul G. Gardephe, United States District Judge

Plaintiff Brennan Center for Justice brings this action against Defendant U.S. Department of State to compel compliance with the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. (Cmplt. (Dkt. No. 1) ¶ 1) Plaintiff seeks documents referenced in President Trump's September 24, 2017 Proclamation¹ entitled "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats[.]" (Id. ¶ 2, Ex. A (Proclamation) (Dkt. No. 1–1); see also Proclamation No. 9,645, 82 Fed. Reg. 45, 161 (Sept. 24, 2017) ) Only six documents are at issue: "two reports (and associated attachments)." (Stein Decl. (Dkt. No. 26) ¶ 9)

On December 22, 2017, Plaintiff moved to expedite this action pursuant to 28 U.S.C. § 1657. (Mot. (Dkt. No. 22) ) Plaintiff seeks an order requiring Defendant "to produce the [requested] documents (or all segregable non-exempt portions thereof) within 21 days[,]" and to provide "written justification for any withheld documents or portions of documents"—commonly referred to as a Vaughn index—within 28 days. (Pltf. Reply (Dkt. No. 27) at 2; Pltf. Br. (Dkt. No. 23) at 13)

BACKGROUND

On January 27, 2017, President Trump issued Executive Order No. 13,769 —" Protecting the Nation from Foreign Terrorist Entry into the United States" ("EO–1"), 82 Fed. Reg. 8977 (Jan. 27, 2017) —which bars entry into the United States of individuals from seven Muslim-majority countries for 90 days, suspends the United States Refugee Admission Program for 120 days, and bans the entry of Syrian refugees indefinitely. See EO–1, 82 Fed. Reg. 8,977, §§ 3(c), 5(a), 5(c). Shortly thereafter, several courts enjoined implementation of this executive order. See, e.g., Washington v. Trump, No. C17-0141 (JLR), 2017 WL 462040, at *3 (W.D. Wash. Feb. 3, 2017). anneal dismissed, No. 17-35105, 2017 WL 3774041 (9th Cir. Mar. 8, 2017) ; Aziz v. Trump, 234 F.Supp.3d 724, 739 (E.D. Va. 2017).

On March 6, 2017, President Trump issued Executive Order 13,780 ("EO–2"), " Protecting the Nation From Foreign Terrorist Entry Into the United States," 82 Fed. Reg. 13,209 (Mar. 6, 2017). EO–2 revokes EO–1 and suspends entry into the United States of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days. See EO–2, 82 Fed. Reg. 13,209, § 2(c). EO–2 also directs a "worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the [Immigration and Nationality Act] ... in order to determine that the individual is not a security or public-safety threat." Id. § 2(a). EO–2 instructs the "Secretary of Homeland Security, in consultation with the Secretary of State and the Director of Intelligence ... [to] submit to the President a report on the results of worldwide review[.]" Id. § 2(b). Several courts also issued nationwide injunctions enjoining implementation of this executive order. See, e.g., Hawai'i v. Trump, 245 F.Supp.3d 1227, 1237 (D. Haw.) ; Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 606 (4th Cir. 2017). On June 26, 2017, the U.S. Supreme Court granted the Government's petition for certiorari to review lower courts' grant of injunctive relief related to EO–2. (Cmplt. (Dkt. No. 1) ¶ 15)

On July 20, 2017, Plaintiff submitted a FOIA request to Defendant for "23 categories of records related to the [Government's] travel bans." (Cmplt. (Dkt. No. 1) ¶ 25; Cmplt., Ex. B (FOIA Request) (Dkt. No. 1–2) ) The FOIA request seeks:

All records pertaining to the worldwide review process conducted under Section 2 of Executive Order 13780 and 17 STATE 72000, including the Report that was submitted to President Trump, copies of instructions to foreign governments regarding the requirements that must be met to avoid travel restrictions, and a list of all countries that have:

i. been designated as providing adequate information to the U.S. government;

ii. been designated as providing inadequate information to the U.S. government; and/or

iii. been designated as being at risk of providing inadequate information to the U.S. government.

(Cmplt. (Dkt. No. 1) ¶ 26)

On July 24, 2017, the State Department granted Plaintiff's request for expedited processing and for a fee waiver:

After consideration of your request for expedited processing under the Department's rules governing Freedom of Information Act requests, we have determined that your request does warrant expedited processing. We have considered your request for a fee waiver. Based upon the information provided in your letter, your request for a fee waiver has been granted[.]

(Cmplt., Ex. C (State Department Initial Response) (Dkt. No. 1–3) at 2)

On August 18, 2017, the State Department informed Plaintiff that it expected to make production by October 31, 2017. (Cmplt. (Dkt. No. 1) ¶ 32) To date, however, Plaintiff has received no documents in response to its FOIA request. (Id. ¶ 35)

On September 24, 2017, President Trump issued Proclamation 9,645 (the "Proclamation"). (Id. ¶ 17; Proclamation No. 9,645, 82 Fed. Reg. 45,161 (Sept. 24, 2017) ) The Proclamation restricts entry into the United States of individuals from "six Muslim-majority countries (and two non-Muslim majority countries)": Chad, Iran, Libya, Syria, Yemen, Somalia, Venezuela, and North Korea. (Cmplt. ¶ 18; Proclamation No. 9,645, 82 Fed. Reg. 45,161, §§ 2(a)-(g) )

The Proclamation justifies these entry restrictions on the basis of the "worldwide review" of the "information-sharing practices, policies, and capabilities of foreign governments" directed in EO–2 (See Proclamation No. 9,645, 82 Fed. Reg. 45,161, §§ 1(c), (i) ) The Proclamation states that—after conducting this "worldwide review"—the Secretary of State "engaged with the countries reviewed in an effort to address deficiencies and achieve improvements." (Proclamation No. 9,645, 82 Fed. Reg. 45,161 ) However, "a small number of countries ... remain deficient ... with respect to their identity-management and information-sharing capabilities, protocols, and practices[ and i]n some cases, these countries also have a significant terrorist presence within their territory." ( Id. ) Accordingly, the Proclamation announces "certain conditional restrictions and limitations ... on entry into the United States of nationals of the countries identified [as deficient.]" ( Id. )

The Proclamation cites several reports on which Executive Branch officials relied, including July 9, 2017 and September 15, 2017 reports submitted by the Secretary of Homeland Security to President Trump. (See id. §§ 1(c), (h) )

On October 10, 2017, Plaintiff filed this action, which seeks a subset of the documents sought in its FOIA request—namely, the July 9, 2017 and September 15, 2017 reports, as well as "any other reports detailing the conclusions of [any] ‘worldwide review’ for the eight countries covered by the Proclamation and the sixteen countries that the Secretary of Homeland Security identified as being ‘inadequate,’ to the extent not included in the July and September reports." (Cmplt. (Dkt. No. 1) ¶ 2; see also Pltf. Br. (Dkt. No. 23) at 6.) Defendant has identified six responsive documents: "the two reports (and associated attachments) submitted by the Secretary of the Department of Homeland Security ("DHS") to the President." (Stein Decl. (Dkt. No. 26) ¶ 9)

On November 10, 2017, Jaclyn Martinez Resly—an attorney representing the Brennan Center—sent an email to Assistant U.S. Attorney ("AUSA") Chris Connelly stating that Plaintiff believed that "a rolling production of responsive records and a rolling ‘draft’ Vaughn index are appropriate [because, f]or example, the July 9 and September 15 reports ... are readily identifiable and are reasonably discrete documents that can be reviewed quickly[.]" (Resly Decl. (Dkt. No. 24) ¶¶ 3–4; Resly Decl., Ex. F (November 15, 2017 email chain) (Dkt. No. 24–6) at 2) Resly proposed that the July 9 and September 15 reports be produced first, "along with the justification for withholding any parts of them that are claimed to be exempt." (Resly Decl., Ex. F (November 15, 2017 email chain) (Dkt. No. 24–6) at 2)

In a November 15, 2017 email response, AUSA Connelly states:

We would like to agree to a reasonable schedule for processing the records responsive to your request, producing any non-exempt information, and briefing the government's claimed exemptions. Right now, however, we are still working on determining dates that we can propose. The records in question are highly classified and subject to handling controls that complicate their dissemination and review. Further, the documents contain equities belonging to several different agencies, all of whom will need to be involved in the review process. We are working to coordinate this process so that we can discuss a schedule with you, but unfortunately aren't able to propose a firm date today.

(Id.)

On December 21, 2017, Plaintiff moved to expedite this action. (See Mot. (Dkt. No. 22) ) As noted above, Defendant opposes Plaintiffs request, arguing that Plaintiff's proposed schedule is not "practicable." (See Def. Br. (Dkt. No. 25) ) Defendant proposed no alternative schedule in its...