Nat'l Day Laborer Org. Network v. United States Immigration & Customs Enforcement Agency

• Citation: 811 F.Supp.2d 713
• Decision Date: 08 August 2011
• Docket Number: No. 10 Civ. 3488(SAS).,10 Civ. 3488(SAS).
• Parties: NATIONAL DAY LABORER ORGANIZING NETWORK, Center for Constitutional Rights, and Immigration Justice Clinic of the Benjamin N. Cardozo School of Law, Plaintiffs, v. UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT AGENCY, United States Department of Homeland Security, Executive Office for Immigration Review, Federal Bureau of Investigation, and Office of Legal Counsel, Defendants.
• Court: U.S. District Court — Southern District of New York

811 F.Supp.2d 713

NATIONAL DAY LABORER ORGANIZING NETWORK, Center for Constitutional Rights, and Immigration Justice Clinic of the Benjamin N. Cardozo School of Law, Plaintiffs,

v.UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT AGENCY, United States Department of Homeland Security, Executive Office for Immigration Review, Federal Bureau of Investigation, and Office of Legal Counsel, Defendants.

No. 10 Civ. 3488(SAS).

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

July 11, 2011.Opinion Amending Reconsideration Aug. 8, 2011.

Bridget Kessler, Esq., Peter L. Markowitz, Esq., Immigration Justice Clinic, Benjamin N. Cardozo School of Law, Anthony J. Diana, Esq., Lisa R. Plush, Esq., Jeremy D. Schildcrout, Esq., Mayer Brown LLP, Sunita Patel, Esq., Darius Charney, Esq., Center for Constitutional Rights, New York, NY, for Plaintiffs.

Joseph N. Cordaro, Christopher Connolly, Assistant U.S. Attorneys, New York, NY, for Defendants.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:I. INTRODUCTION

The National Day Laborer Organizing Network (“NDLON”), the Center for Constitutional Rights (“CCR”), and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law (“Clinic”) (collectively, “Plaintiffs”) bring this action for the purpose of obtaining records, pursuant to the Freedom of Information Act (“FOIA”),¹ from the United States Immigration and Customs Enforcement Agency (“ICE”), United States Department of Homeland Security (“DHS”), Executive Office for Immigration Review (“EOIR”), Federal Bureau of Investigation (“FBI”), and Office of Legal Counsel (“OLC”) (collectively, “Defendants”). Specifically, plaintiffs have sought information regarding Secure Communities, a federal immigration enforcement program launched in 2008. It has long been the practice for local law enforcement agencies to send the fingerprints of individuals arrested and booked into custody to the FBI to be checked against the national criminal history database.² Under the Secure Communities program, those fingerprints are also now sent to DHS to be checked against immigration records.³

A portion of the requested records, which has become increasingly central to the instant litigation, relates to the issue of whether and how localities may “opt-out” of participation in Secure Communities.⁴ Plaintiffs and defendants now submit cross-motions for partial summary judgment on the application of certain FOIA exemptions to “opt-out” records produced on January 17, 2011. For the reasons below, plaintiffs' motion is granted in part and denied in part, and defendants' motion is granted in part and denied in part.

II. BACKGROUNDA. The FOIA Requests

In February 2010, plaintiffs submitted identical twenty-one page FOIA requests to each of the five defendant agencies.⁵ Plaintiffs sought a broad range of information about Secure Communities, including

records related to or containing: [p]olicies, [p]rocedures or [o]bjectives of Secure Communities (including overview documents, state and local agreements, Secure Communities inquiry and response procedures, state training or explanatory materials developed by ICE, documents describing the relationship between Secure Communities and other ICE enforcement programs, and racial profiling policy and oversight documents); [d]ata or [s]tatistical [i]nformation (including the number of immigration detainers and removals both before and since the implementation of Secure Communities, the number of United States citizens erroneously identified through Secure Communities, and demographic information for individuals identified through Secure Communities); [i]mmigration and [d]emographic [i]nformation and [r]ecords of [i]ndividuals subject to Secure Communities queries or ICE detainers; [e]vidence of the [f]iscal [i]mpact of Secure Communities (including documentation analyzing the cost of Secure Communities to [s]tate and [l]ocal [j]urisdictions or the [f]ederal [g]overnment, [i]ntergovernmental [s]ervice [a]greements, and contracts with private entities); [c]ommunications [r]ecords (including public statements and speeches related to Secure Communities and the Secure Communities public relations strategy); [p]rogram [a]ssessments of Secure Communities; and Secure Communities [c]omplaint [m]echanisms or [o]versight [d]ocuments.⁶

Defendants have claimed that these requests have “the potential to implicate more than one million records within ICE” alone.⁷ Because plaintiffs received no substantive response to their requests, on April 27, 2010, they brought this suit to compel production of responsive records. As a result of subsequent negotiation, defendants produced at least two thousand pages of records between August 2010 and October 2010.⁸

B. The “Opt-out” Controversy

Secure Communities is activated at the state level through Memoranda of Agreement (“MOA”), signed between ICE and state law enforcement agencies. ⁹ Initially, federal government officials suggested that the program was voluntary, in that states or localities could choose not to participate. ¹⁰ As a result, a number of states and localities took steps to remove themselves from the program's planned deployment.¹¹

However, while the instant litigation was pending, the federal government appeared to reverse course. On October 6, 2010, Janet Napolitano, the Secretary of DHS, stated during a press conference that “DHS ‘does not view [Secure Communities] as an opt-in, opt-out program.’ ” ¹² Since that time, the federal government has consistently asserted that there is no way for localities to opt out of the program,

13 and that the program will be mandatory by 2013.¹⁴ Plaintiffs allege that although the federal government only began to take this position publicly in October 2010, it had previously taken the position in non-public negotiations with local officials, citing various laws and regulations in support, as early as March 2010.¹⁵ Plaintiffs allege that the federal government has intentionally concealed its plans for the implementation of Secure Communities, leaving the public in the dark as to the legal basis for mandatory participation in the program and the technological capacity of the federal agencies to enable states or localities to opt out.¹⁶ As a result, the public understanding of and debate over the program has been stifled.¹⁷

Considering the public confusion, and the rapid rate at which MOAs were being signed with the states, plaintiffs shifted their focus in this litigation to prioritize the release of documents that would help to answer whether or not “opt-out” was possible and by what means. On October 28, 2011, plaintiffs moved for a preliminary injunction to require defendants to

promptly search for, process and produce ‘Opt–Out Records,’ which are records that pertain to the existence or [nonexistence] of a procedure for states or localities to decline or limit participation in Secure Communities or, regardless of the existence of such procedures, pertain to the technological capacity of Immigration and Customs Enforcement agency and the Federal Bureau of Information to honor requests to opt-out, opt-in or limit participation in Secure Communities.¹⁸

On December 17, 2010, this Court issued an Order directing defendants to produce to plaintiffs by January 17, 2011,

records relating to the ability of states or localities to decline or limit participation in Secure Communities, including documents, memoranda, manuals, and communications referencing the technological capacity of ICE and the FBI to honor requests to opt-out, opt-in or limit participation in Secure Communities.¹⁹

On January 17, 2011, defendants produced over fourteen thousand pages of “opt-out” records.²⁰ Defendants have withheld all or part of certain records pursuant to FOIA's statutory exemptions. Specifically, ICE withheld records pursuant to Exemptions High 2,²¹ 5, 6, 7(C), and 7(E); DHS withheld records pursuant to Exemptions High 2, 5, and 6; FBI withheld records pursuant to Exemptions High 2, 6, 7(C) and 7(E); and EOIR withheld records pursuant to Exemption 6.²² Defendants now move for partial summary judgment on the propriety of their withholdings pursuant to the above exemptions within the opt-out production.

Plaintiffs have cross-moved for partial summary judgment. They challenge defendants' claims of Exemptions 5, 6, and 7(C) with respect to a set of documents enumerated in Exhibits A–D and F of the Declaration of James Horton. ²³ Plaintiffs allege that defendants have submitted inadequate Vaughn indexes that do not justify the claimed exemptions, and suggest that “patterns of inappropriate withholdings are apparent throughout the production.” ²⁴ They further allege that defendants have performed blanket redactions and failed to appropriately separate non-exempt material from exempt material.²⁵ Accordingly, plaintiffs asked the Court to conduct in camera review of a select number of documents—which I agreed to do—and to order the release of enumerated redacted materials.²⁶

For the reasons stated below, each party's motion is denied in part and granted in part. Defendants are ordered to release certain documents and to submit revised Vaughn indexes justifying certain other redactions.²⁷

III. APPLICABLE LAWA. FOIA and Summary Judgment

FOIA cases are generally and most appropriately resolved on motions for summary judgment.²⁸ Summary judgment in the FOIA context, as in any other, is appropriate if the record “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” ²⁹ “An issue of fact is genuine if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ A fact is material if it ‘might affect the outcome of the suit under the governing law.’ ” ³⁰ “In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party.” ³¹ “Inferences and burdens of proof on...