Union Leader Corp. v. U.S. Dept. of Homeland Sec., No. 13–1752.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtHOWARD
Citation749 F.3d 45
PartiesUNION LEADER CORPORATION, Plaintiff, Appellant, v. U.S. DEPT. OF HOMELAND SECURITY, U.S. Immigration and Customs Enforcement, Defendant, Appellee.
Decision Date18 April 2014
Docket NumberNo. 13–1752.

749 F.3d 45

UNION LEADER CORPORATION, Plaintiff, Appellant,
v.
U.S. DEPT. OF HOMELAND SECURITY, U.S. Immigration and Customs Enforcement, Defendant, Appellee.

No. 13–1752.

United States Court of Appeals,
First Circuit.

April 18, 2014.


[749 F.3d 48]


Gregory V. Sullivan, with whom Malloy & Sullivan, Lawyers Professional Corporation was on brief, for appellant.

Michael McCormack, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.


Before TORRUELLA, HOWARD, and THOMPSON, Circuit Judges.

HOWARD, Circuit Judge.

In September 2011, as part of a nationwide enforcement operation, Immigration and Customs Enforcement (ICE) agents in New Hampshire arrested six aliens who had prior criminal convictions or arrests. After ICE refused to divulge the names and addresses of these six individuals, the Union Leader—a New Hampshire newspaper and the appellant in this case—filed a Freedom of Information Act (FOIA) complaint to compel disclosure of this information. The district court awarded summary judgment to ICE, concluding that FOIA exempted this personal information from disclosure as an unwarranted invasion of the arrested aliens' privacy. Because we find that the public interest in disclosure outweighs the arrestees' privacy interests, we conclude that the withheld information that is subject to this appeal is not exempt from disclosure and therefore reverse the district court's grant of summary judgment in part.

I.

In 2011, ICE (a division of the United States Department of Homeland Security (DHS)) conducted two nationwide “Cross Check” operations in an endeavor to arrest aliens with prior convictions or arrests, including “criminal fugitives; criminal aliens who illegally re-entered the United States after having been removed, and at large criminal aliens.” On September 28, 2011, ICE issued a press release detailing the 2,901 arrests made as part of the second Cross Check operation that month. Among the arrests listed in the press release were those made in each county of each New England state, including six arrests made in the state of New Hampshire.

The following month, the Union Leader contacted an ICE public affairs officer to request the names and addresses of the six individuals arrested in New Hampshire. The ICE officer replied with information including each arrestee's sex, age, nationality, state of arrest ( i.e., New Hampshire), prior convictions, and ICE custody status, but did not provide the arrestees' names and addresses.

In February 2012, the Union Leader submitted a FOIA request to ICE, seeking production of “any and all records and documents relating to, and/or concerning the six individuals arrested” by ICE during the second Cross Check operation in New Hampshire.1 ICE reviewed the request and found some nineteen pages of responsive documents, consisting of I–213 forms documenting the arrests of each of the six aliens apprehended in New Hampshire.2 In March 2012, ICE provided the Union Leader with copies of the forms

[749 F.3d 49]

from which the aliens' names, addresses, and other personal information had been redacted. In an accompanying “ Vaughn index,” 3 ICE claimed that FOIA exempted this personal information from disclosure under Exemptions 6 and 7(C), 5 U.S.C. § 552(b)(6) & (7)(C).

The redacted I–213 forms outlined the criminal histories and arrest records of the six aliens. The forms revealed prior arrests and convictions dating as far back as 1993, including, inter alia, prior notice to appear (NTA) arrests and prior convictions for entry without inspection, shoplifting, possession of controlled substances, resisting arrest, criminal trespassing, and driving under the influence of drugs or liquor. According to the forms, three of the arrested aliens were processed and served with warrants of arrest and notices to appear (WA/NTA) for removal proceedings, while another was ordered removed by an immigration judge and placed in ICE custody pending removal; two others would be “NTA-processed and scheduled for a hearing before EOIR [the Executive Office for Immigration Review] at a later date.”

The Union Leader administratively appealed ICE's decision to redact the arrestees' names and addresses. On March 28, 2012, the ICE Office of the Principal Legal Advisor, Government Information Law Division, responded to the Union Leader's appeal and affirmed ICE's decision to redact the names and addresses.

The Union Leader filed this lawsuit on April 4, 2012, alleging that ICE incorrectly applied FOIA Exemptions 6 and 7(C) and that FOIA gave the Union Leader a right of access to the redacted names and addresses. On cross motions for summary judgment, the district court granted ICE's motion for summary judgment on the ground that FOIA Exemption 7(C) protected the arrestees' names and addresses from disclosure. This appeal followed.

II.

On appeal, the Union Leader only challenges ICE's redaction of the arrestees' names, and no longer seeks production of their addresses or any other personal information. This distinctly narrower request might be viewed as substantively different than the broader one with which the district court was faced—we do not know how the court would have ruled had it been presented only with the request that we consider on appeal—but the issue is nevertheless preserved. In any event, we review de novo the district court's determination that the names were exempt from disclosure. See Carpenter v. U.S. Dep't of Justice, 470 F.3d 434, 437 (1st Cir.2006); Church of Scientology Int'l v. U.S. Dep't of Justice, 30 F.3d 224, 228 (1st Cir.1994).

The Supreme Court has stated that FOIA was “enacted to facilitate public access to Government documents” and “designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.”

[749 F.3d 50]

U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (citation omitted) (internal quotation marks omitted). FOIA's “basic policy of full agency disclosure” furthers the statute's essential purpose of permitting citizens to know “what their government is up to.” U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (citation omitted) (internal quotation marks omitted); see also Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004).

This right of access is not absolute, however, as FOIA exempts certain categories of materials from disclosure in order to “effectuate the goals of the FOIA while safeguarding the efficient administration of the government.” Carpenter, 470 F.3d at 438;see also5 U.S.C. § 552(b) (setting forth the statutory exemptions). Nevertheless, in keeping with FOIA's underlying presumption in favor of broad disclosure, the government agency bears the burden of proving the applicability of a specific statutory exemption. See Carpenter, 470 F.3d at 438;Church of Scientology, 30 F.3d at 228. “That burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document.” Ray, 502 U.S. at 173, 112 S.Ct. 541. The district court must determine de novo whether the agency has met this burden. See Reporters Comm., 489 U.S. at 755, 109 S.Ct. 1468;Carpenter, 470 F.3d at 438;Church of Scientology, 30 F.3d at 228.

FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C), shields from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 4 In determining whether an invasion of personal privacy is “unwarranted,” courts must balance the implicated privacy interest against the public interest in releasing the materials. Favish, 541 U.S. at 171, 124 S.Ct. 1570;Reporters Comm., 489 U.S. at 762, 109 S.Ct. 1468;see also Carpenter, 470 F.3d at 438. We address each interest in turn.

A. Arrestees' Privacy Interests

“FOIA's central purpose is to ensure that the Government's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.” Reporters Comm., 489 U.S. at 774, 109 S.Ct. 1468. Accordingly, in applying Exemption 7(C), the Court has rejected “cramped notion [s] of personal privacy,” id. at 763, 109 S.Ct. 1468, and instead has interpreted the exemption as “protect[ing] a broad notion of

[749 F.3d 51]

personal privacy, including an individual's interest in avoiding disclosure of personal matters,” Carpenter, 470 F.3d at 438. This privacy interest “is at its apex” in cases where the subject of the requested materials is a private citizen, Favish, 541 U.S. at 166, 124 S.Ct. 1570 (quoting Reporters Comm., 489 U.S. at 780, 109 S.Ct. 1468) (internal quotation marks omitted). Notwithstanding these general principles, however, we have declined to “prescribe a formula for measuring the impact of the privacy invasion resulting from disclosure,” and have instead described the privacy interest as a “variable” that “must be determined and weighed in light of the particular circumstances in each case.” Providence Journal Co. v. U.S. Dep't of Army, 981 F.2d 552, 569 (1st Cir.1992).

On appeal, the Union Leader challenges the district court's conclusion that the arrestees had a cognizable privacy interest “in not having their identities revealed to the public” and that this interest trumped the public interest in disclosure. Union Leader Corp. v. U.S. Dep't of Homeland Sec., Immigration & Customs Enforcement, 940 F.Supp.2d 22, 28 (D.N.H.2013). We fully agree with the district court's conclusion that disclosure would indeed implicate the arrestees' privacy interests; our quibble is only with the weight that the district court gave that...

To continue reading

Request your trial
19 practice notes
  • Detroit Free Press Inc. v. U.S. Dep't of Justice, No. 14-1670
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 14, 2016
    ...e.g. , id. at 771, 109 S.Ct. 1468 (finding a privacy interest in criminal rap sheets); Union Leader Corp. v. U.S. Dep't of Homeland Sec. , 749 F.3d 45, 53 (1st Cir. 2014) (the names of arrestees); Rimmer v. Holder , 700 F.3d 246, 257 (6th Cir. 2012) (the names and identifying information of......
  • Rojas v. Fed. Aviation Admin., No. 17-17349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 22, 2019
    ...in the FAA’s decision to change its hiring practices. Id. ; see also 941 F.3d 407 Union Leader Corp. v. U.S. Dep’t of Homeland Sec. , 749 F.3d 45, 56 (1st Cir. 2014) (noting that evidence of misconduct was "hardly conclusive evidence of negligence, or other wrongdoing," but was enough to sa......
  • Cameranesi v. U.S. Dep't of Def., No. 14-16432
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 8, 2017
    ...U.S. Department of Homeland Security , a FOIA requester sought the identities of aliens who had been arrested by the government in 2011. 749 F.3d 45, 48 (1st Cir. 2014). The First Circuit held there was a public interest in the aliens' identities because of evidence that the aliens had prev......
  • Cameranesi v. U.S. Dep't of Def., No. 14-16432
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 30, 2016
    ...“there is no evidence of government impropriety in that regard.” Id. at 289 ; see also Union Leader Corp. v. U.S. Dep't of Homeland Sec. , 749 F.3d 45, 56 (1st Cir. 2014) (holding that there was a public interest in disclosing the identities of arrested aliens to determine whether the gover......
  • Request a trial to view additional results
19 cases
  • Detroit Free Press Inc. v. U.S. Dep't of Justice, No. 14-1670
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 14, 2016
    ...e.g. , id. at 771, 109 S.Ct. 1468 (finding a privacy interest in criminal rap sheets); Union Leader Corp. v. U.S. Dep't of Homeland Sec. , 749 F.3d 45, 53 (1st Cir. 2014) (the names of arrestees); Rimmer v. Holder , 700 F.3d 246, 257 (6th Cir. 2012) (the names and identifying information of......
  • Rojas v. Fed. Aviation Admin., No. 17-17349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 22, 2019
    ...in the FAA’s decision to change its hiring practices. Id. ; see also 941 F.3d 407 Union Leader Corp. v. U.S. Dep’t of Homeland Sec. , 749 F.3d 45, 56 (1st Cir. 2014) (noting that evidence of misconduct was "hardly conclusive evidence of negligence, or other wrongdoing," but was enough to sa......
  • Cameranesi v. U.S. Dep't of Def., No. 14-16432
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 8, 2017
    ...U.S. Department of Homeland Security , a FOIA requester sought the identities of aliens who had been arrested by the government in 2011. 749 F.3d 45, 48 (1st Cir. 2014). The First Circuit held there was a public interest in the aliens' identities because of evidence that the aliens had prev......
  • Cameranesi v. U.S. Dep't of Def., No. 14-16432
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 30, 2016
    ...“there is no evidence of government impropriety in that regard.” Id. at 289 ; see also Union Leader Corp. v. U.S. Dep't of Homeland Sec. , 749 F.3d 45, 56 (1st Cir. 2014) (holding that there was a public interest in disclosing the identities of arrested aliens to determine whether the gover......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT