Knight First Amendment Inst. at Columbia Univ. v. U.S. Dep't of Homeland Sec.

• Decision Date: 23 September 2019
• Docket Number: 1:17-cv-7572 (ALC)
• Citation: 407 F.Supp.3d 334
• Parties: KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Plaintiff. v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

407 F.Supp.3d 334

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Plaintiff.

v.U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

1:17-cv-7572 (ALC)

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

Signed September 23, 2019

Aditya Kamdar, Caroline Decell, Leena M. Charlton, Jameel Jaffer, Knight First Amendment Institute at Columbia University, New York, NY, Catherine Newby Crump, Megan Kathleen Graham, Samuelson Law Technology & Public Policy Clinic U.C. Berkeley School of Law, Berkeley, CA, for Plaintiff.

Jennifer Ellen Blain, United States Attorney's Office, New York, NY, for Defendants.

OPINION & ORDER

ANDREW L. CARTER, JR., United States District Judge

Plaintiff the Knight First Amendment Institute at Columbia University (the "Knight Institute" or "Institute") filed this action under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA") against the United States Immigration and Customs Enforcement agency ("ICE"), the Office of Legal Counsel ("OLC") within the Department of Justice ("DOJ"), the Department of State ("DOS"), the United States Citizenship and Immigration Services ("USCIS"), Customs and Border Protection ("CBP"), Department of Homeland Security ("DHS"), Department of Justice Office of Public Affairs ("OPA"), and Office of Information Policy ("OIP") (collectively "Defendants") seeking records relating to the government's authority to exclude or remove individuals from the United States based on their speech, beliefs, or associations. ECF. No. 42. Pending before the Court are USCIS and ICE motions for summary judgment and Plaintiff's cross-motion for summary judgment. For the reasons set forth below, Defendants' motions are granted in part and denied in part and Plaintiff's cross-motion is granted in part and denied in part.

BACKGROUND

The Court assumes familiarity with the previous summary judgment opinion (the "Opinion") in this matter, which provides a more complete background, and discusses here only those facts necessary for its disposition of the instant motions. See ECF No. 140. In short, Plaintiff seeks information relating to communications between government agencies and the White House concerning its authority to exclude or remove individuals from the United States based on certain beliefs and associations. Am. Compl. ¶ 4, ECF No. 42. The President addressed these concerns in Executive Order 13,780 ("E.O. 13,780"), which directed the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to develop a more robust vetting program for visa applicants and refugees seeking entry into the United States. Exec. Order No. 13,780, 82 Fed. Reg. 13,209, 13,215 (Mar. 6, 2017).¹ In the Opinion, the Court addressed the parties' arguments regarding the adequacy of certain agencies' searches, as well as the lawfulness of certain withholdings and redactions. ECF No. 140.² Defendants and Plaintiff now cross-move for summary judgment regarding the following agency withholdings:

1. ICE

In response to Plaintiff's original FOIA request, ICE produced 2,574 pages of responsive records and withheld certain pages pursuant to Exemptions 5, 6, 7(C), and 7(E). March 15, 2019 Fuentes Declaration ¶ 11 & Exhibit A ( Vaughn Index). Thereafter, ICE re-reviewed the collected documents to identify materials responsive to the Narrowed Request. See ECF. No. 64. Upon re-review, ICE determined that 99 pages of documents were responsive to the Narrowed Request and released 50 pages in whole or in part applying withholdings pursuant to Exemptions 5, 6, 7(C), and 7(E), and referred 49 pages to other agencies, which were released in whole or in part on August 3, 2018.³ See ECF. No. 77; Fuentes Decl. ¶¶ 9-11.

2. USCIS

USCIS determined that documents responsive to the Narrowed Request would include "records related to [USCIS'] enforcement of the Immigration and Nationality Act (INA), particularly its provisions on terrorism-related inadmissibility grounds (TRIG), found in INA § 212, codified in 8 U.S.C. § 1182 [.]" Declaration of Jill A. Eggleston, dated March 14, 2019 ("Eggleston Decl."), ¶ 9. USCIS initially compiled over 2,200 pages of potentially responsive documents and determined that 1,278 pages were responsive to the Narrowed Request. Id. ¶ at 11. On May 30, 2018, and June 29, 2018, USCIS produced 957 pages in their entirety, and withheld 357 pages in part. Id. Specifically, USCIS partially withheld 17 pages pursuant to FOIA Exemption 5, and 256 pages and 33 slides pursuant to FOIA Exemption 7(E). Id. ¶¶ at 11-41. USCIS did not withhold any document in full. Id.

STANDARD OF REVIEW

A moving party is entitled to summary judgment when no material facts are in genuine dispute and the moving party 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, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). FOIA cases are generally resolved by cross motions for summary judgment. See NRDC v. United States DOI , 73 F. Supp. 3d 350, 355 (S.D.N.Y. 2014) (citation omitted); Intellectual Prop. Watch v. United States Trade Representative , 344 F. Supp. 3d 560, 567 (S.D.N.Y. 2018). To prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that any withheld documents fall within a FOIA exemption. Carney v. DOJ , 19 F.3d 807, 812 (2d Cir. 1994) (citations omitted). When a requestor challenges an agency decision to withhold responsive records, a district court may review the agency's decision de novo. 5 U.S.C. § 552(a)(4)(B) ; A.C.L.U. v. U.S. Dep't of Justice , 229 F. Supp. 3d 259, 264 (S.D.N.Y. 2017). "[A]ll doubts as to the applicability of the exemption must be resolved in favor of disclosure." N.Y. Times Co. v. DOJ , 756 F.3d 100, 112 (2d Cir. 2014) (quoting Wilner v. NSA , 592 F.3d 60, 69 (2d Cir. 2009) ).

An agency can prevail on summary judgment by submitting affidavits that "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.’ " Wilner , 592 F.3d at 73 (quoting Larson v. Dep't of State , 565 F.3d 857, 862, 385 U.S. App. D.C. 394 (D.C. Cir. 2009) ). These affidavits "are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." Intellectual Prop. Watch, 344 F. Supp. 3d at 567 (quoting SafeCard Servs., Inc. v. S.E.C. , 926 F.2d 1197, 1200, 288 U.S. App. D.C. 324 (D.C. Cir. 1991) (quotation marks omitted)).⁴

DISCUSSION

In the September 13, 2019 Opinion, the Court discussed in detail the statutes relevant to this dispute, including the relevant provisions of FOIA and the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1101 et seq. The Court assumes familiarity with the Opinion but will briefly outline prevailing law.

I. FOIA Exemption 5

A. Deliberative Process Privilege

The deliberative process privilege under FOIA Exemption 5 protects "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Dep't of Interior v. Klamath Water Users Protective Ass'n , 532 U.S. 1, 8, 121 S. Ct. 1060, 149 L. Ed. 2d 87 (2001). To be protected by the deliberative process privilege, a document must be: 1) pre-decisional, that is, prepared to assist an agency decisionmaker in arriving at his decision; and 2) deliberative, that is, related to the process by which policies are formulated. See Hopkins v. HUD , 929 F.2d 81, 84 (2d Cir. 1991).

B. Segregability

FOIA also provides that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). Accordingly, the agency must provide a detailed justification for its decision that non-exempt material is not segregable. Conti v. United States Dep't of Homeland Sec. , 2014 WL 1274517, at *25, 2014 U.S. Dist. LEXIS 42544, at *72 (S.D.N.Y. Mar. 24, 2014) ; Mead Data Cent., Inc. v. U.S. Dep't of Air Force , 566 F.2d 242, 261, 184 U.S. App. D.C. 350 (D.C. Cir. 1977). Agencies are entitled to a presumption that it disclosed reasonably segregable material. Sussman v. U.S. Marshals Service , 494 F.3d 1106, 1117, 377 U.S. App. D.C. 460 (D.C. Cir. 2007). A district court "must make specific findings of segregability regarding the documents to be withheld" before ruling that an agency properly invoked a FOIA exemption. Sussman , 494 F.3d at 1116. An agency may only withhold a document's non-exempt portions if they are "inextricably intertwined" with the exempt portions. Inner City Press/Cmty. on the Move v. Bd. of Governors of the Fed. Reserve Sys. , 463 F.3d 239, 249 n.10 (2d Cir. 2006).

II. Defendants' Exemption 5 Withholdings

A. ICE

Plaintiff challenges ICE's withholdings of several sets of records;⁵ arguing that ICE improperly invoked Exemption 5 to withhold records "bearing on concerns at the heart of the Request—that the government is exercising immigration powers in ways that burden First Amendment rights." See Pl.'s Cross-Mot. Br. 8 n.7. ICE claims that the Fuentes Declarations and accompanying Vaughn Indices justify their application of Exemption 5. ICE further argues that the deliberative process privilege applies to all the challenged records, but the attorney-client and work product privileges only apply to the INA § 235c and First Amendment Concerns Memos. See ECF. No. 118. The Court will address ICE's application of Exemption 5 to each document.

1. Extreme Vetting Memo

ICE withheld portions of the Extreme Vetting Memo that included proposals for "initiatives to meet executive mandates concerning future capabilities of the VSP PATRIOT program," as well as "funding information and a recommended...