Adelante Ala. Worker Ctr. v. DHS, No. 17-9557, 2019 WL 1380334 (S.D.N.Y. Mar. 26, 2019) (Woods, J.)

Adelante Ala. Worker Ctr. v. DHS, No. 17-9557, 2019 WL 1380334 (S.D.N.Y. Mar. 26, 2019) (Woods, J.)

Re:  Request for records concerning 'super-recommendations memorandum' referenced in congressional report for 2015 fiscal year

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiffs' motion for summary judgment

• Exemption 5, Deliberative Process Privilege & Litigation Considerations, In Camera Inspection:  The court holds that "in camera review of the Super-Recommendations Memo is appropriate."  "The Super-Recommendations Memo is a scant five pages in length."  "Plaintiffs have pointed to record evidence indicating that a recommendation that, under certain predicate conditions, ICE cease using ECDC to house detainees was made in the Super-Recommendations Memo."  "Defendants deny that such language is in the redacted portions of the Super-Recommendations Memo, despite their contrary representation to Congress."  "Rather than attempt to resolve the conflict between the language of the Report and the agency declarations in the abstract, the Court will review the document in camera."
   
• Exemption 5, Deliberative Process Privilege:  "The Court cannot determine, on the record before it, that the Defendants have not improperly redacted material which constitutes the adopted policy, or working law, of the DHS and/or ICE."  "The Court is also concerned that material which appears likely to be purely factual in nature and severable may nonetheless have been withheld by the DHS."  "However, on the record before it, the Court cannot conclude that Defendants' redactions were improper."
   
• Exemption 6:  "As the public interest in disclosure here is palpable, and the privacy interests at stake are, at most, slight, the Court finds that withholding the identities and professional backgrounds of [certain] Experts pursuant to Exemption 6 is not justified here."  "Defendants have failed to demonstrate a real risk of harassment should the identities and professional backgrounds of the Experts be released, leading the Court to conclude that any privacy interest at stake is slight."  Against that, the court finds that, "[a]s the identity of the Experts and their professional backgrounds are relevant to evaluating the [Office for Civil Right and Civil Liberties's] functionality, as well as how the CRCL is spending taxpayer funds, disclosure here would further the 'core purpose of the FOIA which is [to] contribute[e] significantly to public understanding of the operations or activities of the government.'"