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Advancement Project v. DHS, No. 19-52, 2021 WL 3036723 (D.D.C. July 19, 2021) (Contreras, J.)


Advancement Project v. DHS, No. 19-52, 2021 WL 3036723 (D.D.C. July 19, 2021) (Contreras, J.)

Re:  Request for records concerning series of visa sanctions

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  The court finds that "ICE has adequately justified most of its withholdings under Exemption 5."  The court relates that "ICE claims that the deliberative process privilege protects a variety of materials related to the visa sanction decision."  "Many of the documents it withholds consist of correspondence between ICE's component offices discussing the possibility of sanctions."  "Other records include emails and briefing documents relating to: meetings on agency strategy, interviews with noncitizens to secure documentation to repatriate them, a draft plan and talking points to manage media relations following the sanctions announcement, and analyses of countries' cooperativeness in issuing travel documentation."  "In addition, ICE says that many of the withheld records are merely draft documents."  "Before evaluating ICE's claims of privilege, the Court addresses two general objections from [plaintiff]."  "First, [plaintiff] suggests that many records are postdecisional because they postdate the visa sanctions press release."  "But the deliberative process privilege's application cannot be reduced to determining mechanically whether a record predates or postdates a particular agency action."  "Documents 'dated after' one agency decision 'may still be predecisional and deliberative with respect to other, nonfinal agency policies.'"  "And even documents relating to an already-adopted policy may be privileged if they 'recount or reflect' predecisional discussions about that policy."  "Second, [plaintiff] asserts that any draft document whose position ICE ultimately approved cannot be predecisional."  "But just 'because the decisionmaker ultimately acted in accordance with the recommendation in a deliberative document' does not mean that the agency adopted the document."  "'To adopt a deliberative document, ... the agency must make an "express[ ]" choice to use a deliberative document as a source of agency guidance.'  It must not merely agree with the document's conclusions but also endorse the document's reasoning."  "[Plaintiff] points to no evidence of adoption other than ICE's high-level decision to enact visa sanctions." 
    "Having disposed of [plaintiff's] general objections, the Court determines that most of ICE's withholdings under Exemption 5 were proper."  The court relates that "[t]he majority of the withheld records consist of internal correspondence and draft documents evaluating whether to impose visa sanctions against different countries."  "Those records are predecisional in that they were 'prepared in order to assist an agency decisionmaker in arriving at his decision.'"  "The records are largely deliberative too."  "They comprise 'recommendations, draft documents, proposals, suggestions, and other subjective documents' that 'reflect[ ] the give-and-take of the consultative process.'"  "[F]or those records, ICE satisfied the FOIA Improvement Act's foreseeable harm requirement."  "It reasonably concluded that disclosure would 'discourage the expression of candid opinions' and 'chill[ ] . . . intra- and inter-agency communications.'"  "That is exactly the kind of harm Exemption 5 is meant to prevent."  "A couple kinds of records deserve special mention."  "[Plaintiff] demands the release of records relating to ICE's strategy for communicating with the media about the visa sanctions."  "Determining how to explain an agency decision in response to inquiries from the press, Congress, or members of the public is itself a privileged deliberative process."  Additionally, "because an agency's public relations efforts 'often require a prudent selection and presentation of factual information,' divulging even 'facts' from ICE's communications plans 'would in all likelihood reveal the agency’s deliberations about how to present those facts.'"  "The parties also clash over several sets of briefing materials."  "With some exceptions discussed below, most of the briefing materials advised officials ahead of high-level meetings about how to handle countries that refused to cooperate with U.S. repatriation efforts."  "The briefing materials provided senior officials with subordinates' analyses and recommendations before meetings where participants hashed out decisions."  "Based on the materials' content and the way ICE officials used them, there is little question that they are predecisional and deliberative." 
    "Although ICE adequately justified most of its withholdings under Exemption 5, it failed to do so for a few records."  "Two such records include documents that ICE describes as draft documents but whose file names include the word 'final.'"  "ICE says that, despite the file names' use of the word 'final,' the documents are predecisional because staff sent them as drafts to senior officials for review and approval."  "Otherwise, the agency simply describes the records as 'internal documents' discussing repatriation efforts and proposed visa sanctions against various countries."  "Given that the file names suggest the documents are final, more is required of ICE if it expects to withhold them because they are drafts."  "The agency must do more to withhold a pair of briefing documents too."  "ICE's descriptions suggest that the documents were not 'prepared in order to assist an agency decisionmaker in arriving at his decision' but rather to explain decisions 'already made.'"  "Perhaps that is not the case."  "If so, the agency must make that clear."  "The last record ICE failed to justify withholding under Exemption 5 is an email."  "The agency says that the email 'provides an analysis and general overview' of the interviews, . . . but it does not identify a decisionmaking process the email contributed to or explain how the email's contents helped the agency in that process."  "It has thus failed to demonstrate that the deliberative process privilege protects the email."
  • Exemption 7 Threshold & Exemption 7(E):  The court holds that "[a]ll in all, ICE may withhold under Exemption 7(E) the records related to the agency's computer systems and [ICE's Removal Cooperation Initiative Tool ("RCI Tool")]."  "It will have another chance to explain why the last set of records – which deal with agency operations and facilities – should fall under the exemption's protection."  "At this juncture, however, the agency has failed to explain what law enforcement techniques, procedures, or guidelines the release of those records would reveal."  The court relates that "ICE groups its withholdings under Exemption 7(E) into three sets."  "One set consists of information related to ICE's internal databases and computer systems."  "Another set contains details about 'ongoing and proposed operations and investigations' and contract detention facilities."  "The last set of withheld records pertains to the agency's RCI Tool."  The court relates that "the RCI Tool uses a series of factors to identify how cooperative a country is with ICE repatriation efforts."  First, "[a]ffording ICE due deference, the Court holds that all the records the agency withheld under Exemption 7(E) were compiled for law enforcement purposes."  "Documents in the first set of records include communications instructing ICE personnel how to use case management systems and screenshots from those systems."  "The systems help ICE 'deport[ ] people who are unlawfully in the United States,' so records meant to shed light on them for ICE personnel have a clear and plausible connection to the agency's law enforcement duties."  "ICE staff assembled the second set of records to brief decisionmakers on agency operations and facilities."  "The connection between ICE's law enforcement duties and records created to manage its efforts to detain and remove noncitizens is self-evident."  "Finally, the third set of records describes how the RCI Tool works."  "Because the Tool informs ICE's strategy for repatriating noncitizens subject to orders of removal, these records have an obvious and well-supported connection to the agency's law enforcement duties too."  Second, the court finds that "ICE has demonstrated that at least two of the kinds of records it withholds would reveal law enforcement techniques, procedures, or guidelines."  "It explains that some records describe the 'procedural steps' officials take to use internal case management systems or consist of screenshots depicting those systems."  "ICE's internal methods of managing, collecting, and organizing law enforcement data qualify as techniques, procedures, or guidelines for the purposes of Exemption 7(E)."  "The records discussing the RCI Tool satisfy Exemption 7(E)'s second requirement too."  "ICE uses the Tool to gauge countries' cooperativeness with its efforts to enforce immigration law and respond accordingly."  "While ICE has explained how the release of two sets of records would divulge law enforcement techniques, procedures, or guidelines, it has failed to do so with respect to the remaining set."  "Recall that the last group of records contains information about 'ongoing and proposed operations and investigations' and ICE detention facilities."  "ICE says that the withheld information 'includes the location of an operation, the purpose of the operation, who is being targeted, whether it is a joint venture between other federal or state and local agencies, [and] the number of staff and bed space in a detention facility.'"  "But releasing those pieces of information would not necessarily reveal anything about a law enforcement technique, procedure, or guideline."  "Or at least, if it would, ICE has not spelled out how."  Third, regarding circumvention, the court finds that "ICE has [met its burden] – at least for the two sets of records that remain live issues."  "With respect to the records related to ICE's internal case management systems, the agency asserts that a wrongdoer could misuse information to breach its systems and alter or delete data."  "The Court agrees."  "Likewise, ICE has shown how releasing records related to the RCI Tool would logically lead to circumvention of the law."  "It explains that making public the factors it considers when assessing a country's cooperativeness could encourage countries to game or contest its assessments."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "ICE has met its segregability obligations."  "It produced a detailed Vaughn index that describes each of the records it withheld along with corresponding exemptions."  "Agency staff conducted a 'line-by-line review' of withheld records to ensure that ICE had turned over all segregable, nonexempt information."  "And ICE's declarant maintains that the agency 'did not withhold any non-exempt information on the grounds that it was non-segregable.'"
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 7(E)
Exemption 7, Threshold
Updated August 12, 2021