Council on American-Islamic Relations - Conn. v. U.S. Citizenship & Immigration Servs.
| Decision Date | 17 April 2023 |
| Docket Number | 3:17 CV 1061(RMS) |
| Parties | COUNCIL ON AMERICAN-ISLAMIC RELATIONS - CONNECTICUT and MAKE THE ROAD NEW YORK, Plaintiffs, v. U.S. CITIZENSHIP and IMMIGRATION SERVICES, U.S. CUSTOMS AND B PROTECTION, and U.S. DEPARTMENT OF STATE, Defendants. |
| Court | U.S. District Court — District of Connecticut |
RULING ON THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND THE PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT
The plaintiffs-Council on American-Islamic Relations - Connecticut and Make the Road New York-bring this action challenging the defendants'-United States Citizenship and Immigration Services (“USCIS”), United States Customs and Border Protection (“CBP”), and United States Department of State (“State”)-nondisclosure of information requested pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). The parties cross-move for summary judgment. For the reasons stated below, the defendants' motion is granted in part and denied in part, and the plaintiffs' cross-motion is denied.
On April 12, 2017, the plaintiffs submitted FOIA requests to the defendants seeking information regarding, inter alia, Executive Orders 13,769[1]and 13,780[2]; screening processes at United States ports of entry; and certain immigration processing policies and procedures. (Doc. No. 4 at 2-6, 20-25, 52-57).
On June 27, 2017, the plaintiffs initiated the instant case, seeking to compel production of the requested documents. (See Doc. No. 1).
In August 2019, the parties sought-and the Court (Covello, J.) granted-transfer of the instant case to the undersigned for all purposes. (Doc. Nos. 61-63). Over the course of the next two years, the parties resolved almost all their disputes regarding the scope of the plaintiffs' FOIA requests and the appropriate rate of document production by the defendants. The parties agreed that the defendants would provide the plaintiffs with multiple rolling document productions until all responsive documents were produced. (See Doc. Nos. 88, 89). After completing an exhaustive production and review process, the parties ultimately narrowed their dispute to the defendants' withholding of four documents, in part and/or in full: 1) a final copy of the 60-day progress report required by Section 5(b) of Executive Order 13,780 (“EO Report”)[3]; 2) a document entitled “ALDAC: Heightened Screening of Visa Applications - Further Guidance; MRN: 17 STATE 52856” (“State Cable”)[4]; 3) a document entitled “Operational Q&As on 17 STATE 25814 and 17 STATE 52856” (“Operational Q&A”)[5]; and 4) a draft document entitled “Supporting Statement for Paperwork Reduction Act Submission,” related to 82 Fed.Reg. 20,956 (“PRA Supporting Statement”)[6]. (See Doc. No. 211 at 1-2).
On December 13, 2022, the plaintiffs informed the Court that they challenged the withholding of only the EO Report and that they intended to file a motion for summary judgment. (See Doc. No. 208). On December 16, 2022, the plaintiffs represented to the Court that they also challenged the withholding of three additional documents-the State Cable, the Operational Q&A, and the PRA Supporting Statement. (See Doc. No. 210). On December 19, 2022 the parties proposed a briefing schedule that contemplated the plaintiffs' challenge to all four documents, which the Court adopted. (See Doc. Nos. 211, 214). In accordance with that schedule, the defendants provided a redacted copy of the EO Report-but not the other three State documents- for in camera review by this Court.
On January 25, 2023, the defendants moved for summary judgment (see Doc. No. 216), and on February 13, 2023, the plaintiffs cross-moved for summary judgment, (see Doc. Nos. 217-219).
On March 24, 2023, the Court issued an Order stating that it would consider the plaintiffs' challenge to the defendants' withholding of the EO Report and the three additional State documents. (See Doc. No. 224). To aid in its determination of whether the defendants have a valid basis for withholding the three State documents, and whether and to what extent privilege may have been waived the Court directed the defendants to furnish the Court with copies of the State Cable, the Operational Q&A, and the PRA Supporting Statement for in camera review. (See id.). As directed, the defendants supplied the Court with a copy of each of the additional documents.
On April 5, 2023, the Court heard oral argument from the parties on their cross-motions for summary judgment. (See Doc. No. 228).
Summary judgment is warranted “if the movant shows that that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). A “genuine issue as to any material fact” exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “material fact” is one which, under the governing law, may affect the outcome of a case. Id. The moving party must establish the absence of a genuine dispute of material fact by citing to particulars in the record. Fed.R.Civ.P. 56(a), (c); Celotex, 477 U.S. at 322-25; Koch v. Town of Brattleboro, 287 F.3d 162 (2d Cir. 2002). If the movant satisfies this burden, then the opposing party must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). When deciding a motion for summary judgment, a court must view the record in the light most favorable to the non-moving party, see O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 61 (2d Cir. 2002); however, speculation and conclusory assertions are insufficient to defeat summary judgment, see Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 2003).
FOIA, which was enacted to promote honest and open government, “calls for broad disclosure of Government records.” N.Y. Times Co. v. DOJ, 756 F.3d 100, 111 (2d Cir. 2014) (“N.Y. Times I”) (quotation marks and citation omitted). Under certain circumstances, however, other interests-such as national security, foreign policy, and law enforcement-outweigh the need for transparency. Where one of the limited exemptions from FOIA's disclosure requirements applies, the government need not disclose agency records upon request. “These exemptions are explicitly made exclusive, and must be narrowly construed.” Ctr. for Effective Gov't v. Dep't of State, 7 F.Supp.3d 16, 22 (D.D.C. 2013) (internal quotations and citations omitted).
The government bears the burden of showing that a requested record falls within one or more of the FOIA exemptions. See 5 U.S.C. § 552(a)(4)(B). Where an exemption applies to only a portion of a requested record, the government must disclose all reasonable segregable nonexempt portions. See 5 U.S.C. § 552(b). “Affidavits or declarations . . . giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden.” Carney v. DOJ, 19 F.3d 807, 812 (2d Cir. 1994). “[A]ffidavits submitted by an agency are accorded a presumption of good faith,” and that presumption “cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir. 1999) (internal quotations omitted). “[A]n agency may invoke a FOIA exemption if its justification ‘appears logical or plausible.'” ACLU v. DOJ, 681 F.3d 61, 69 (2d Cir. 2012) (“ACLU I”) (quoting Wilner v. NSA, 592 F.3d 60, 73 (2d Cir. 2009)).
That said, all doubts as to the applicability of an exemption must be resolved in favor of disclosure. N.Y. Times I, 756 F.3d at 112 (quotation marks and citation omitted).
An agency's withholdings are reviewed de novo, see 5 U.S.C. § 552(a)(4)(B), and as such, a “decision that the information is exempt from disclosure receives no deference,” Bloomberg, L.P. v. Bd. of Governors of the Fed. Rsrv. Sys., 601 F.3d 143, 147 (2d Cir. 2010).
DHS withheld the EO Report in full-except for certain public portions of the Appendix- pursuant to the presidential communications privilege under FOIA Exemption 5.
Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). “Stated simply, agency documents which would not be obtainable by a private litigant in an action against the agency under normal discovery rules . . . are protected from disclosure under Exemption 5.” Tigue v. DOJ, 312 F.3d 70, 76 (2d Cir. 2002) (footnote and citation omitted).
The presidential communications privilege “is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.” United States v. Nixon, 418 U.S. 683, 708 (1974). The privilege applies not only to the President, but also to his immediate White House advisers acting in their advisory capacities and to “members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given to the President on the particular matter to which the communications relate.” In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997). Communications authored-or solicited and received-by these advisers are protected because they “are close enough to the President to be revelatory of his deliberations or to pose a...
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