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ACLU v. DHS, No. 11 Civ. 3786, 2013 WL 4885518 (S.D.N.Y. Sept. 9, 2013) (Berman, J.)

Re: Request for records concerning non-American detainees awaiting removal from the United States who have been held for more than 90 days and detainees who have been held for more than six months Disposition: Granting plaintiff's motion for summary judgment; denying defendant's cross-motion for summary judgment
  • Exemption 5, Deliberative Process Privilege:  The court finds that, "[w]hile [defendant] has indicated that it may assert Exemption 5 in the future, it has not, as noted, presently done so," and, "[t]herefore, the issue is not ripe for adjudication."  However, the court notes that, "[a]ssuming, arguendo, that the issue of [defendant's] redactions on the basis of the litigation privileges exemption were ripe for adjudication, the court would likely find that the exemption does not apply here."  The court agrees with plaintiff's contention that the documents are, "'part of the agenc[y's] routine operating decisions and ... not communications relating to policy formulation.'"
  • Exemption 7(C):  The court finds that, "[t]he information sought by Plaintiff must be disclosed."  The court states that, "[f]or one thing, [defendant] appears to acknowledge that the information categories (alone) sought by Plaintiff do not implicate a privacy interest because the identity of the detainee is not sought or revealed."  The court continues to state that, "[f]or another, Defendants 'mosaic theory,' i.e. that the information sought by [plaintiff] 'is so collectively unique that even without a name or alien number, it is still a personally identifying characteristic,' is, in this case at least, unpersuasive."  The court, "agrees with Plaintiff that identification of an individual detainee from this data 'would require an additional and unlikely chain of events: (1) that the Plaintiffs would take the disclosed information and broadcast it to the small Arizona town, (2) someone in said town would receive the information and be familiar with the Liberian residents in that town and (3) that harm would arise somehow from such recognition.'"  Moreover, the court finds that defendant, "has not adequately explained why individual categories of disputed information—such as the location of the detention facility, arrival dates, or port of entry, etc.—implicate privacy concerns."  The court concludes by stating that, "even assuming, arguendo, that the redacted information did implicate a privacy interest, the privacy exemption would still likely be inapplicable because the public interest in disclosure would appear to outweigh any privacy concerns."  The court explains that, "[t]he public interest in disclosure is particularly compelling here because [plaintiff] seeks to highlight [defendant's] historically troublesome practices of 'prolonged immigration detention—for months, if not years—without adequate procedures in place to determine whether their detention is justified.'"
  • Exemption 7(E):  The court finds that, "[t]he law enforcement information exemption is not available here."  First, the court states that defendant, "acknowledges that its procedure for determining whether to continue detention (contained in the “Continued Detention of Removable Aliens on Account of Special Circumstances” form) is available in 8 C.F.R. § 241.14."  Second, the court, "believes that the release of factual information concerning a (non-identified) detainee's criminal record, which is often publicly available, would not compromise [defendant's] ability to conduct (further) investigations and does not implicate 'techniques and procedures.'"  Moreover, the court reject's defendant's attempt to make use of, "the second clause of [the law enforcement information exemption], which protects 'guidelines for law enforcement investigations or prosecutions'" because "[defendant] has not provided sufficient evidence that the redacted data constitute 'guidelines.'"  However, the court notes that, "[e]ven assuming, arguendo, that [defendant] had demonstrated that the redacted information constituted 'guidelines,'" defendant, "'fails to explain at all how a detainee, given access to his or her own [review] data, after the fact and living in a detention center, could tailor any relevant type of conduct or alter any relevant type of information to accomplish this.'"
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 7(C)
Exemption 7(E)
Updated August 6, 2014