National Council of La Raza v. Depart. of Justice

• Citation: 411 F.3d 350
• Decision Date: 31 May 2005
• Docket Number: Docket No. 04-5474-CV.
• Parties: NATIONAL COUNCIL OF LA RAZA, New York Immigration Coalition, American Immigration Lawyers Association, National Immigration Law Center, National Immigration Forum, National Immigration Project of the National Lawyers Guild, Massachusetts Immigrant and Refugee Advocacy Coalition, American Civil Liberties Union, National Employment Law Project, Plaintiffs-Appellees, v. DEPARTMENT OF JUSTICE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

411 F.3d 350

NATIONAL COUNCIL OF LA RAZA, New York Immigration Coalition, American Immigration Lawyers Association, National Immigration Law Center, National Immigration Forum, National Immigration Project of the National Lawyers Guild, Massachusetts Immigrant and Refugee Advocacy Coalition, American Civil Liberties Union, National Employment Law Project, Plaintiffs-Appellees, v. DEPARTMENT OF JUSTICE, Defendant-Appellant.

Docket No. 04-5474-CV.

United States Court of Appeals, Second Circuit.

Argued: March 29, 2005.

Decided: May 31, 2005.

COPYRIGHT MATERIAL OMITTED

Omar C. Jadwat (Lucas Guttentag, Lee Gelernt, on the brief), American Civil Liberties Union, Immigrants' Rights Project, New York, NY, for American Civil Liberties Union; Michael J. Wishnie, American Civil Liberties Union, Immigrants' Rights Project, New York, NY, cooperating counsel, for American Civil Liberties Union; Christopher Dunn, Arthur Eisenberg, Donna Liberman, of counsel, New York Civil Liberties Union Foundation, New York, NY, for New York Civil Liberties Union Foundation; Linton Joaquin, National Immigration Law Center, Los Angeles, CA, of counsel, for National Immigration Law Center, Plaintiffs-Appellees.

Neil M. Corwin, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, on the brief) for David N. Kelley, United States Attorney for the Southern District of New York, Peter D. Keisler, Assistant Attorney General, Gregory G. Katsas, Deputy Assistant Attorney General, Douglas N. Letter, Irene M. Solet, Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., of counsel, for Department of Justice, Defendant-Appellant.

Before: FEINBERG, SACK, and KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge.

This case calls upon us to consider a conflict between two principles fundamental to our system of government: the public's right to know the policies by which it is governed, and the government's right to obtain frank and confidential counsel as those policies are formulated.

Plaintiffs-appellees, a coalition of advocacy organizations, brought this lawsuit pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking disclosure of an unpublished Office of Legal Counsel memorandum (the "OLC Memorandum" or "Memorandum"). The OLC Memorandum, which was prepared for the Department of Justice in April 2002, analyzes the question of whether state and local law enforcement may lawfully enforce certain provisions of federal immigration law. The district court (Kaplan, J.) held that the Department was required to produce the OLC Memorandum because, while the Memorandum met the threshold requirements for nondisclosure under FOIA's deliberative process exemption, 5 U.S.C. § 552(b)(5), the Department had waived that protection by adopting the Memorandum or incorporating it into official agency policy.

On appeal, the Department argues that it did not expressly adopt or incorporate the OLC Memorandum and that, accordingly, the Memorandum is shielded from disclosure under FOIA's deliberative process exemption. In the alternative, the Department argues that even if the deliberative process privilege does not protect the Memorandum, the Department is nonetheless entitled to withhold the Memorandum on the grounds of attorney-client privilege. We disagree on both counts and hold that: (1) the Department incorporated the OLC Memorandum into agency policy through its repeated reference to, and reliance on, the Memorandum; and (2) in this context, the attorney-client privilege does not shield the Memorandum from disclosure.

BACKGROUND

The instant dispute arose out of a change in policy instituted by the Department of Justice. Beginning in 1996, the Department took the position that state and local law enforcement lacked authority to enforce the civil, as opposed to criminal provisions of federal immigration law.¹ This position was set forth in a 1996 memorandum written by the Department's Office of Legal Counsel and published by the Department, which concluded that state and local police lack legal authority to detain individuals based solely on a suspicion of "civil deportability."

In 2002, however, the Department reversed course, taking the position that state and local law enforcement could, in fact, lawfully enforce the civil provisions of immigration law. The Department's change in policy was announced by then-Attorney General John Ashcroft at a June 5, 2002 press conference unveiling the "National Security Entry-Exit Registration System" ("NSEERS"). As the Attorney General explained, NSEERS is an initiative designed to "expand substantially America's scrutiny of those foreign visitors who may pose a national security concern and enter our country." In connection with this initiative, the Attorney General announced that information concerning aliens who overstay their visas or attempt to evade registration requirements — civil immigration violations — will be entered into the National Crime Information Center ("NCIC") database, a system that state and local police officers regularly check during traffic stops and other routine encounters. The Attorney General explained that state and local law enforcement could then voluntarily arrest those individuals on the basis of their immigration violations and transfer them to the custody of federal immigration officials.

In support of this policy, and during that June 5, 2002 press conference, the Attorney General made the first of a number of references to the OLC Memorandum that the plaintiffs here seek disclosed. Specifically, the Attorney General explained:

When federal, state and local law enforcement officers encounter an alien of national security concern who has been listed in the NCIC ... federal law permits them to arrest the individual and transfer the individual to the custody of the INS.

The Justice Department's Office of Legal Counsel has concluded that this narrow, limited mission we are asking state and local police to undertake voluntarily — arresting aliens who have violated criminal provisions of the Immigration and National[ity] Act, or civil provisions that render an alien deportable, those individuals who are listed on the NCIC — that narrow mission is within the inherent authority of the states.

In a similar vein, in response to a letter from one of the plaintiff organizations inquiring as to the authority of states and localities to enforce the civil provisions of immigration law, the Attorney General, by letter dated March 11, 2003, wrote:

Let me first state clearly the policy of the Department on this issue. The Department's Office of Legal Counsel (OLC) previously opined that state and local law enforcement officials have inherent authority to make arrests for criminal immigration law violations generally. It has now additionally opined that they possess inherent authority to arrest individuals whose names have been entered into the [NCIC database] because they have both (1) violated civil provisions of the federal immigration laws that render them deportable and (2) been determined by federal authorities to pose special risks, either because they present national security concerns or because they are absconders who have not complied with a final order of removal or deportation. Thus, when state and local law enforcement officers encounter an alien who poses special risks and has been listed in the NCIC database for violating the [Immigration and Nationality Act], they may arrest that individual and transfer him to the custody of the Immigration and Naturalization Service (INS). The policy and the authority are no broader than this, and the narrow, limited mission that we are asking state and local police to undertake is a voluntary one.

(emphases added). Similar language appears in at least three other letters, one written by the Attorney General, the other two written by the Acting Assistant Attorney General and submitted to members of Congress.²

In June 2003, Kris Kobach, counsel to the Attorney General, gave what is perhaps the most detailed discussion of the OLC Memorandum during a presentation before the FBI's Criminal Justice Information Services Policy Advisory Board — a presentation attended by, inter alia, representatives from state and local police departments. Kobach began by stating that he would "sort of summarize" the Memorandum and then explained:

So, the question was, it was crystal clear that any criminal violation of the Immigration [and] Nationality Act could be a basis for an arrest by [a] state and local police officer. But what about a civil violation — of the Act? There was some ambiguity on this question. The last time the Office of Legal Counsel had looked at it was back in 1996. And since 1996, Congress had passed several acts all stating pretty clearly that there was no federal preemption. I don't want to get too much into the legalese of this, but [the OLC determined] that there was no federal preemption of state and local assistance for civil violations of the Act versus criminal violations of the Act. In addition, there were several Circuit court opinions in the 10th U.S. court of appeals, and that also raised the question rather, rather, crisply that perhaps we need to resolve this issue and just clear up the ... ambiguity[. I]n a nutshell [the OLC] concluded that there is no federal preemption, there is no difference between civil and criminal with respect to whether state laws are preempted — by the federal.... [T]he authority to make such arrest[s] is an inherent authority possessed by the states.

Later in his remarks, Kobach continued:

But as far as the civil-criminal assumption, there really isn't any legal fiber underneath it in the immigration law, at least. And so in the OLC opinion it came out very clearly, and the Attorney General did announce the summary of what that opinion is.... At this point — well there are two things. One is that the OLC opinion...