Am. First Legal Found. v. DHS, No. 21-2168, 2024 WL 4932041 (D.D.C. Dec. 2, 2024) (Moss, J.)
Am. First Legal Found. v. DHS, No. 21-2168, 2024 WL 4932041 (D.D.C. Dec. 2, 2024) (Moss, J.)
Re: Request for all weekly “‘written reports’” referenced in 2021 Interim Guidance
Disposition: Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment
- Exemption 6; Exemption 7, Threshold; Exemption 7(C): The court relates that “ICE withheld non-citizens’ names; court docket numbers; dates of birth; residential addresses; gang, cartel, and terrorist group affiliation; and monikers pursuant to FOIA Exemptions 6 and 7(C).” “ICE argues that the Spreadsheet Report was compiled for law enforcement purposes and thus falls within the scope of Exemption 7(C), and that, because Exemption 7(C) ‘is more protective of privacy’ than Exemption 6, the Court need consider only whether the agency properly invoked Exemption 7(C).” “[T]he Court agrees.” “[T]he Court has no difficulty concluding that the Spreadsheet Report[, which contains the information at issue,] was compiled for law enforcement purposes.” “The Spreadsheet Report is a comprehensive record of information detailing ICE’s enforcement and removal actions . . . and, accordingly, shares an obvious ‘nexus’ with ICE’s ‘law enforcement duties[]’ . . . .” “The Spreadsheet Report shows ICE ‘investigating and prosecuting’ violations . . . and reveals, among other things, which individuals ICE believes should be subject to enforcement; where, when, and why ICE has taken enforcement action against these individuals; and, in cases in which ICE has not yet acted, enforcement steps it plans to take . . . .” “Moreover, as the Interim Guidance explains, the purpose of collecting these data was to allow ICE leadership to monitor enforcement actions and to ensure the ‘effectiveness’ of ICE’s prioritization scheme.”
“At the outset . . . the parties dispute whether FOIA’s privacy protections apply to non-citizens.” The court finds that “[t]he text of FOIA protects ‘personal privacy’ – it does not distinguish between citizens and non-citizens.” “[Plaintiff], in effect, would have the Court apply a presumption that federal statutes do not apply to non-citizens unless the text says otherwise.” “But, if anything, courts apply the opposite presumption, because when Congress wants to distinguish between citizens and non-citizens, it does so explicitly.” “Accordingly, the Court will balance the individuals’ privacy interest in each category of disputed information against the public interest in disclosure.”
Regarding the names at issue, the court finds that “[i]t is well-established that individuals have a privacy interest in not being publicly associated with law enforcement efforts, even where they are the targets of those efforts.” “In this case, releasing the names of individuals in the Spreadsheet Report would implicate significant privacy concerns.” “Release of that information would identify non-citizens who are subject to removal from the United States.” “As other courts have recognized, ‘undocumented immigrants face a serious risk of “harassment, embarrassment, and even physical violence and reprisal by citizens and law enforcement.”’” “But even putting that risk aside, releasing the names included in the Spreadsheet Report would permit the public to connect the other information that ICE has released without redactions to specific individuals.” “This includes ‘highly personal information,’ . . . such as their ‘immigration status, immigration histories, visa information, DACA and employment authorization information, citizenship, ethnicity, criminal histories’ (including ‘pending and uncharged conduct’), ‘health information and immigration enforcement activities against the non-citizens, as well as information on family members and associates of the non-citizens.’” “[Plaintiff] suggests that these individuals have diminished privacy interests in their names because they are not ‘third parties’ incidentally named in a law enforcement file – they are the subjects of the enforcement actions.” “[Plaintiff] further maintains that ‘many have been convicted of heinous crimes[ ] and [that] their privacy interests (if any) are substantially diminished.’” “The problem with this argument is that this interest – however weak it may be – is only the tip of the iceberg here.” “The information in the Spreadsheet Report is not limited to identifying non-citizens who have public convictions or pleas, nor to non-citizens who were ‘approved’ for ICE enforcement actions (which, presumably, remains confidential until implemented).” “As explained above, disclosure of names would ‘link[ ]’ particular individuals to a trove of highly personal data, not just public proceedings brought against them.” “Having concluded that release of the names contained in the Spreadsheet Report implicates a cognizable privacy interest, the Court must balance that interest against the public interest in disclosure.” The court finds that “[plaintiff] . . . asserts that knowing the non-citizens’ names would allow the public to ‘review other material about [them].’” “Yet [plaintiff] does not explain what ‘material’ the public has an interest in reviewing that is not already captured by the Spreadsheet Report, nor how reviewing such material would help the public assess ICE’s operations.” “The Court therefore concludes that the public interest is outweighed by the unwarranted invasion of privacy that would be caused by releasing the names in the Spreadsheet Report . . . .”
Regarding docket numbers, the court finds that, “[t]o be sure, ‘an agency’s disclosure of public docket numbers for cases that resulted in convictions implicates’ a substantially weaker privacy interest ‘[b]ecause the conviction or plea is already public.’” “But as explained above, disclosing the docket numbers would, in effect, release much more than a public conviction, plea, and underlying court filings.” “An interested person armed with a docket number could link a particular individual to all the other information contained in the Spreadsheet Report that ICE has already released.” “The Court is persuaded that, in this context, release of the docket numbers would constitute an unwarranted invasion of personal privacy.” “On the other side of the balance, [plaintiff] insists that the public interest in the docket numbers is high ‘because those numbers will allow the public to consider the criminal histories of those aliens who ICE officers sought to remove but were required first to receive political approval.’” “As [plaintiff] acknowledges, however, ICE fully released the ‘Criminal History’ column of the Spreadsheet Report, . . . which sets forth ‘complete criminal histories, including uncharged, dismissed, pending and misdemeanor cases[]’ . . . .” “[Plaintiff] nonetheless maintain that this information ‘will not . . . satisf[y]’ public interest in the docket numbers because the public should be able to ‘evaluat[e] the information contained in a whole trial.’” “The public interest that exists in ‘evaluating . . . whole trial[s]’ in order to evaluate ICE’s operations, . . . is at least one step removed from the public interest in understanding how ICE operates; the relevant question for purposes of understanding ICE’s operation is what data and information ICE has before it and not what occurred before a trial court.” “But, in any event, the interest in connecting ICE’s operations to ‘whole trial[s]’ occurring in state or federal court is outweighed by the privacy interests described above.”
Regarding dates of birth, the court finds that “ICE has failed to offer sufficient basis for the Court to conclude that there is a freestanding privacy interest in one’s month and year of birth when it is not linked to a particular individual, nor does ICE argue that it plausibly could be used to identify individuals in the Spreadsheet Report.” “The Court can imagine circumstances in which disclosure of a person’s month and year of birth (along with other information) could be used to identify them, but ICE does not point to any evidence or examples of this in the Spreadsheet Report.” “Indeed, ICE has already released the non-citizens’ ages, presumably because it believed that that information would not allow an observer to discern the non-citizens’ identities.” “The Court is unpersuaded, moreover, that the fact that ICE has already provided non-citizens’ ages relieves it of its obligation to disclose the month and year of non-citizens’ birth dates.” “An agency may not avoid the statute’s mandate to segregate and disclose exempt portions of the record by claiming that the requested information is redundant.” “The Court will, [however], grant summary judgment in favor of ICE with respect to the full dates of birth.” “[T]he Court is persuaded that release of that detailed information, along with other information in the Spreadsheet Report, would be tantamount to releasing the names of those listed in the Spreadsheet Report.”
Regarding non-citizens’ residential addresses, the court relates that, “[s]ensibly, [plaintiff] does not seek non-citizens’ full addresses, but only the city, state, and country information.” “The Court agrees with [plaintiff] that, at least in most circumstances, disclosure of this information would not constitute an unwarranted intrusion on non-citizens’ privacy.” “ICE does not explain how disclosure of this information could be used to identify particular non-citizens.” ‘In light of ICE’s failure to demonstrate a privacy interest in this information, at least in general, the Court will deny ICE’s motion for summary judgment and will grant [plaintiff’s] cross-motion with respect to the wholesale redaction of city, state, and country information.” “But as with non-citizens’ months and years of birth, ICE may redact this information on a case-by-case basis.”
“ICE also redacted ‘non-citizens’ affiliations with gangs, terrorist groups and cartels’ and non-citizens’ ‘monikers’ pursuant to Exemption 7(C).” “Even assuming the privacy interest in one’s ‘rap sheet’ is sufficiently analogous to one’s gang, cartel, and terrorist group affiliation, that privacy interest is implicated only when it is accompanied by identifying information.” “The problem here is that ICE does not explain how anyone could identify an individual non-citizen if it were to release this information.” “The same is true for non-citizens’ monikers: ICE cites no authority for the proposition that individuals have a privacy interest in monikers, . . . and it makes only a conclusory assertion that they ‘could’ be used . . . to identify particular citizens . . . .” “The Court will, accordingly, deny ICE’s motion for summary judgment with respect to the withholding of monikers and gang, cartel, and terrorist group affiliations, and will grant [plaintiff’s] cross-motion with respect to ICE’s wholesale redaction of this information from the Spreadsheet Report.” “To the extent ICE concludes that a particular disclosure would identify a specific individual, ‘it can redact those portions, but it must justify its redactions “with reasonably specific detail.”’”
- Exemption 7(E): First, the court relates that “ICE invokes Exemption 7(E) to ‘protect from disclosure information pertaining to law enforcement gathered and located residential addresses and attempts to locate at-large non-citizens.’” “‘Specifically, the information identifies specific locations that ICE is aware of where at large non-citizens may be located,’ it ‘includes ICE[’]s next enforcement steps in locating the non-citizens at issue,’ and it reveals ‘how many officers will be utilized, when and how the location will be targeted[,] and how the enforcement action will take place.’” “The Court agrees that the disclosure of the precise addresses at which non-citizens targeted for removal ‘may be located’ would reveal procedures for law enforcement investigations – that is, the specific targets of future enforcement actions – that could invite circumvention of the law.” “But ICE fails to explain how disclosure of only the city, state, and country would pose such a risk.” “ICE stands on firmer ground with respect to its withholdings related to its past and future attempts to locate non-citizens.” “ICE redacted details regarding enforcement actions it took in the past, as well as ‘the particular enforcement action that was to take place and how that enforcement action was going to be executed.’” “ICE asserts that disclosure could ‘compromis[e] the security of ICE enforcement actions, should bad actors learn the specific location of planned enforcement activities and how those activities will be executed.’” “The Court concludes that ICE has explained how disclosure would reveal a law enforcement investigation procedure and has ‘demonstrate[d] logically’ how the release of this information could assist those seeking to circumvent the law.” “Information regarding ICE’s enforcement operations – such as their operational plans for enforcement and the number of officers involved – could allow a bad actor to counter those operations.”
“ICE also invokes Exemption 7(E) ‘to protect from disclosure information pertaining [to] the specific apprehension locations of non-citizens attempting to enter the U.S. illegally.’” “The withheld information includes ‘mile markers, roadway addresses and locations, specific lanes of entry at points of entry utilized by the subject non-citizens, as well as the indications utilized by border patrol’ that helped identify specific non-citizens.” “ICE argues that the withheld material contains information ‘used in furtherance of maintaining border security,’ which ‘could reveal techniques and procedures, as well as guidelines for law enforcement investigation or prosecutions,’” . . . and that ‘disclosure risks circumvention of the law because bad actors could learn “of border security vulnerabilities [and] where DHS is focusing its attention[]”’ . . . .” “[Plaintiff] acknowledges that this ‘could be true’ with respect to certain ‘mile markers, roadway addresses, [and] specific lanes of entry at points of entry,’ but maintains that it is not true for all locations.” “[Plaintiff’s] argument misses the mark.” “Although any given location standing alone may not reveal much about ICE’s techniques and procedures, the compilation of these data ‘might create a risk of circumvention of the law.’” “By comparing the rate of apprehension at different locations, for example, one could determine ‘where staffing is located and focused,’ as well as ‘strengths and weaknesses at individual points of entry,’ which would ‘allow bad actors to target or avoid certain places to illegally enter the United States.’” “This is true even for ‘unsurprising’ apprehension locations, when the data are considered in the aggregate.” “The Court, accordingly, concludes that this information is exempt under Exemption 7(E).”
“Finally, ICE invokes Exemption 7(E) to justify its withholdings of ‘the names of specific gang, cartel and terrorism groups, of which the non-citizens are alleged to be affiliated with, as well as monikers that the non-citizens utilize in connection with that affiliation.’” “The Court agrees with [plaintiff] that ICE has not adequately carried it burden to justify its invocation of Exemption 7(E) with respect to this information.” “Without further explanation, the Court fails to see how disclosure of affiliations and monikers would reveal how ICE went about collecting that information – or would reveal any other technique, procedure, or guideline for law enforcement investigations or prosecutions.” “As with ICE’s invocation of Exemption 7(C), however, the Court recognizes that there could be exceptions.” “If divulging this information would compromise ICE’s sources inside a certain gang, or reveal that it has infiltrated a criminal organization, that would likely reveal sensitive law enforcement techniques or procedures and would likely permit bad actors to circumvent those activities.” “But ICE has not made this claim, and [defendant’s] Declaration does not explain the connection between the affiliations and monikers themselves and the methods used to obtain them.”
- Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing: The court finds that “[h]ere, ICE argues – and [plaintiff] does not dispute – that disclosing the otherwise exempt information in the Spreadsheet Report (as determined above) would cause foreseeable harm to the interests protected by Exemption 7 – that is, protecting personal privacy and law enforcement procedures.” “The Court, accordingly, agrees that release of the exempt information in the Spreadsheet Report would cause foreseeable harm.”