Schiller v. I.N.S.

• Decision Date: 25 March 2002
• Docket Number: No. CIV.A.SA-01-CA0165FB.,CIV.A.SA-01-CA0165FB.
• Citation: 205 F.Supp.2d 648
• Parties: Dane SCHILLER and San Antonio Express-News, Plaintiffs, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant.
• Court: U.S. District Court — Western District of Texas

Page 648

205 F.Supp.2d 648

Dane SCHILLER and San Antonio Express-News, Plaintiffs, v. IMMIGRATION AND NATURALIZATION SERVICE, Defendant.

No. CIV.A.SA-01-CA0165FB.

United States District Court, W.D. Texas, San Antonio Division.

March 25, 2002.

Mark J. Cannan, Clemens & Spencer, P.C., San Antonio, TX, for Plaintiff.

Gregory J. Ball, U.S. Immigration Service, San Antonio, TX, Robert Shaw-Meadow, U.S. Atty's Office, San Antonio, TX, for Defendant.

ORDER CONCERNING PENDING MOTIONS

BIERY, District Judge.

The parties have asked this Court to resolve their Freedom of Information Act dispute. Concepts of stare decisis and federal appellate precedents require the Court to balance the right of citizens to know the workings of their government against the individuals' and their families' basic human right of privacy and to be left alone. Compare H.R. REP. No.795, at 7-8 (1996), reprinted in 1996 U.S.C.C.A.N. 3448, 3450-51 (discussing evolution of the Freedom of Information Act; President Johnson declared when he signed the Freedom of Information Act into law on July 4, 1966, "This legislation springs from one of our most essential principles: A democracy works best when the people have all the information that the security of the Nation permits. No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.") with Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J. dissenting) ("the right to be let alone-the most comprehensive of rights and the right most valued by civilized men").

Before the Court are the following motions: Defendant's Motion for Summary Judgment, Plaintiffs' Response to Defendant's Motion for Summary Judgment or, Alternatively, Motion for Continuance, and Defendant's Motion for Protective Order and to Quash Deposition Notice.

Background

According to the complaint, in the latter part of November and early part of December of 2000, agents of the Immigration and Naturalization Service (INS) took 15 individuals¹ into custody in the San Antonio area. These individuals were placed under arrest in what the INS labeled "Operation Safe Neighborhoods." This operation was designed to take into custody and deport immigrants with past criminal records under the provisions of the applicable federal statutes. Individuals detained were to remain jailed pending deportation proceedings.

Plaintiff Dane Schiller, a reporter for plaintiff San Antonio Express-News, interviewed INS agents about Operation Safe Neighborhoods. During those interviews, Schiller sought information concerning the individuals taken into custody. He asked for the names of the individuals and the criminal charges which served as the basis for taking these individuals into custody for use in a news story he was preparing. His initial, verbal request was made to officers and agents involved in the Operation, and when his verbal request was denied, he published his story without information concerning the identity of those taken into custody.

Plaintiffs thereafter made a written request for the identifying information under the Freedom of Information Act (FOIA).² That request was denied on December 19, 2000, by the INS through the District Director of the San Antonio Office.³ This determination was appealed, and when no determination was made within 20 days after the receipt of that appeal, this lawsuit was filed. In their complaint, plaintiffs assert their cause of action as follows:

Plaintiffs seek identifying information regarding individuals who have been secretly detained and imprisoned by the United States government. Plaintiffs seek the names and birth dates of those persons and the criminal convictions which allegedly warrant the detention. The information and contents of records sought by the Plaintiffs are not subject to any of the exemptions set forth in 5 U.S.C. § 552(b). The Plaintiffs have exhausted their administrative remedies and are entitled to an order from this Court enjoining the INS from withholding the information and records sought and ordering the production of those records to the Plaintiffs.

In response, defendant maintains the disclosure of the information sought (the names and birth dates) is protected by Exemptions 6 and 7 of the Freedom of Information Act and that all of the information concerning the basis for the arrests, with names redacted, has been provided to the plaintiffs.

Two months after the lawsuit was filed, defendant filed its motion for summary judgment. Defendant contends the sole issue for this Court to determine is whether the Freedom of Information Act requires the disclosure of the names, birth dates and convictions of the 12 people arrested during Operation Safe Neighborhoods or whether Exemptions 6 and 7(C) shield this information. To assist the Court in this determination, defendant submitted under seal "Defendant's In Camera Submission of Documents Responsive to Plaintiffs' FOIA Request." A total of 72 pages of documents were submitted and all were copied from INS Administrative files commonly known as "A-files" pertaining to each of the twelve individuals arrested,⁴ and copies of the convictions were submitted to plaintiffs in redacted form. The defendant explains its position in this case concerning the release of this information is not based on any desire to protect convicted sex offenders. Instead, the defendant is moving to have these individuals deported and permanently excluded from the United States. However, defendant is not convinced that the release of the documents protected by the Privacy Act to a third-party news organization-which could result in the public humiliation in the newspapers of these individuals and their families-is a logical or appropriate collateral consequence of the deportation proceedings. Moreover, many of the conviction records contain the names of child victims.

In response, plaintiffs believe summary judgment for the defendant is not warranted because the defendant has mischaracterized the nature of plaintiffs' FOIA request and misanalyzed the case. Plaintiffs also believe that consideration of defendant's motion might be better made at the same time as plaintiff's motion and with a basic factual record before the court and therefore, plaintiffs request consideration of defendant's motion be continued until preliminary discovery is conducted which is necessary to establish a factual predicate for summary judgment.

Plaintiffs' Motion for Continuance and Defendant's Motion for Protective Order and to Quash Deposition Notice

Plaintiffs maintain that any determination as to defendant's motion for summary judgment should be postponed pursuant to rule 56(f) of the Federal Rules of Civil Procedure pending the following:

(a) initial discovery to establish the basic policies and procedures under which Operation Safe Neighborhoods operated; and

(b) adequate time for Plaintiffs' Motion for Summary Judgment to be filed based upon the anticipated factual predicate provided by the discovery sought.

Plaintiffs further maintain that discovery will establish facts as to the following matters:

(1) Whether the information sought can be characterized as derived from "personal and medical files and similar files" so as to trigger the FOIA exemption in 5 U.S.C. § 552(b)(6).

(2) Whether the information sought is such that it was "compiled for law enforcement purposes" as to trigger the FOIA exemption in 5 U.S.C. § 552(b)(7)(C).

(3) Whether the policies and procedures of the INS with respect to the Operation Safe Neighborhoods program and/or the implementation of those policies and procedures are consistent with a claim of invasion of privacy for release of identifying information of individuals arrested.

(4) The extent to which arrests under the Operation Safe Neighborhoods program were an appropriate exercise of prosecutorial discretion under the guidelines issued by the INS in November of 2000.

At a minimum, plaintiffs contend the discovery will establish that the withholding of the identities of the individuals arrested is inconsistent with the policies and procedures of the INS, and the performance of the INS as illustrated by its selection of individuals to target for arrest, detention, and deportation is a legitimate matter of public concern and inquiry. To achieve this end, plaintiffs initiated discovery⁵ prior to the filing by defendant of its motion for summary judgment which prompted defendant to file its Motion for Protective Order and to Quash Deposition Notice.

In the motion for protective order and to quash, defendant asserts this case is a simple Freedom of Information Act lawsuit in which plaintiffs seek documents (1) identifying information concerning the twelve individuals arrested by the INS as part of Operation Safe Neighborhoods in November of 2000, and (2) the underlying sexual offense convictions which warranted the arrest. Defendant maintains plaintiffs did not make any request for the "policies, procedures and operation guidelines for the Operation Safe Neighborhoods program nor have they requested `facts and circumstances regarding the apprehension and detention of [these] individuals,' the policies and procedures whereby individuals apprehended...are brought...for removal proceedings," or "facts and circumstances surrounding any removal proceedings involving [these aliens]." Therefore, defendant contends plaintiffs have gone far beyond their original FOIA request in their noticed deposition as set forth above. Moreover, to facilitate the quick resolution of this cause, defendant has submitted to the Court for in camera inspection the responsive documents.

Although plaintiffs share the view that the matter before this Court is relatively straight forward, plaintiffs also believe certain initial discovery is needed to establish even the undisputed factual basis for such a motion. Agreeing that discovery may be limited in FOIA...