Am. Immigr. Council v. U.S. Customs & Border Patrol, No. 19-2965, 2022 WL 741864 (D.D.C. Mar. 11, 2022) (Contreras, J.)

Am. Immigr. Council v. U.S. Customs & Border Patrol, No. 19-2965, 2022 WL 741864 (D.D.C. Mar. 11, 2022) (Contreras, J.)

Re:  Request for seven categories of records concerning program where CBP agents conduct credible fear interviews as part of asylum-seeking process

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

• Procedural Requirements, Searching for Responsive Records:  "The first issue is whether CBP should have conducted its own search for items 2–4 and 6–7 on the expedited list."  "According to Defendants, CBP did not search for those documents because, after 'consult[ing] with the individuals most knowledgeable about the potentially responsive records[,] . . . CBP determined that . . . DHS and USCIS were the likely custodians for categories 2–4 and 6–7.'"  "Defendants argue that this makes sense because 'CBP had a limited role—to solely provide personnel to USCIS'—citing a Memorandum of Agreement between CBP and USCIS for support of that limited role."  "Regarding CBP's supposed 'limited role,' Plaintiffs point to language in the Memorandum of Agreement appearing to describe more involvement by CBP."  "Plaintiffs also highlight facts from one of the DHS declarations—and its attached Vaughn indices—suggesting that CBP had a more central role in the pilot."  The court finds that "[p]laintiffs have raised substantial doubts about whether [it] is the case [that CBP has no responsive documents for these categories]."  The court notes that "[b]y providing the personnel alone, CBP played a facially nontrivial role in this program."  "Defendants have not provided sufficient evidence demonstrating that CBP's role was so limited such that failing to have CBP search for categories 2–4 and 6–7 could be reasonably calculated to uncover all relevant documents."  The court further relates that "[t]he [CBP] declaration . . . does not even state that 'the CBP subject matter experts most knowledgeable of the program' affirmatively opined that CBP was unlikely to have responsive records."  "And even if CBP's headquarters personnel may have limited responsive documents, CBP does not explain why the dozens of its personnel that took part in the program would not have responsive documents."   
   
• Litigation Considerations, Adequacy of Search:  "The second issue regarding CBP's search is whether the search was adequately described."  "Plaintiffs argue that Defendants barely describe CBP's search for documents in categories 1 and 5, which turned up only a single document for category 1 and nothing for category 5 despite CBP's participation in 'a ground-breaking program that employed its officers.'"  "Defendants argue that CBP's search was sufficient because it 'rel[ied] on the employee with the relevant knowledge about the records at issue' by 'identifying the subject matter expert' and having that 'employee review[ ] the categories[ ] [and] determin[e] the location of responsive documents.'"  For category 5, "'CBP did not produce documents . . . because expansion of the Pilot Program to include U.S. Customs and Border Protection officers post-dated the date upon which CBP initiated its search in the instant FOIA case.'"  "But, as Plaintiffs argue, this explanation is insufficient on its face at least because records relating to an event may proceed that event."  "The supplemental declaration seems to state that no search for category 5 documents occurred via its oblique statement that 'CBP did not produce documents.'"  "To the extent that CBP did not search for category 5 documents, Defendants have not supported that decision . . . ."  "To the extent that CBP did search for category 5 documents, Defendants have not 'submit[ted] declarations that "denote which files were searched, [and] by whom those files were searched, and [that] reflect a systematic approach to document location."'"  The court further notes that "[the descriptions in the declaration] do not even clearly state that a search occurred, merely implying as much by referencing consultations with subject matter experts, a determination that no documents were responsive to category 5, and CBP's location of one document for category 1."  For category 1, defendant states that "'CBP searched for and produced the July 10, 2019 MOA pursuant to the request . . . .'"  The court relates that "[t]his does not state which files were searched, state who performed the search, or describe a systematic approach."  "In fact, it is framed as stating that CBP searched for one specific document as opposed to searching for all documents responsive to the request . . . ."  "For the reasons given above, Plaintiffs have shown that CBP's search was insufficient as a matter of law."
   
• Exemption 5, Deliberative Process Privilege:  "The parties dispute DHS's withholding of four documents [under deliberative process privilege]."  The court finds that "[n]one of these withholdings are currently justified."  As to an issue paper about the credible fear program, the court finds that "[t]he fact that the document is a non-final draft does not on its own demonstrate that the document is predecisional."  "Defendants do not identify what decision or policy this document was leading towards, or why it does not merely 'embody or explain a policy that the agency adopt[ed].'"  "Even if Defendants had shown that the document was predecisional, the non-final status of the document does not make the document per se deliberative."  Furthermore, the highlighted comments of the "[s]tatuses of action items, without more, could be considered facts that do not necessarily reflect any deliberation or give-and-take." 
  
  As to a draft briefing memo, "[a]s with the issue paper above, Defendants do not describe what decision or policy this document was leading towards, nor the nature of any deliberations or give and take."  "If Defendants believe this document led to the beginning of the pilot program, they would need to at least provide evidence that it pre-dated the beginning of that program."  "Although the document has redline edits, comments, and internal discussions among employees, no detail is given about their nature."  "These could be of a non-deliberative nature, such as fixing mistakes, as opposed to the 'back-and-forth exchange of ideas, constructive feedback, [or] internal debate.'"  As to a draft outline, DHS explains that it "has portions that were 'not populated/left open for further input' and 'reflects internal discussions between DHS employee[s] how to address the crisis at the Southern Border, including information DHS may have determined was confidential and not appropriate for release.'"  "As with the [previous] documents [], Defendants do not describe what decision or policy this document was leading towards, nor the nature of any deliberations or give and take."  "The earlier declaration's statement . . . might have been sufficient to show that the document was predecisional ('how to address the crisis at the Southern Border') and deliberative ('reflects internal discussions'), but that text appears to have been withdrawn in the subsequent declaration."  Finally, as to "'an internal DHS document entitled "Issues for Discussion between CBP and USCIS,"'"  the court finds that "[t]he earlier declaration's reference to 'potential topics of discussion between CBP and USCIS,' might have demonstrated both that the document was predecisional (have not yet decided on the topics) and deliberative (describing as 'potential' implies that they are part of a give-and-take)."  "But this description appears to have been withdrawn."  "With the document described merely as 'topics of discussion' and 'internal communications pertaining to a number of immigration programs and initiatives,' it is not clear that this document is predecisional or deliberative." 
  
  "The parties [also] dispute USCIS's withholding of three groups of documents."  The court finds "[n]one of these withholdings are currently justified."  As to the first group of documents, USCIS argues that "these documents contain 'information shared during the deliberative process regarding development of the Credible Fear Task Force Pilot Program,' the disclosure of which 'would reveal the deliberative process used to evaluate the Pilot Program, the status of such an internal review, and the methods utilized to conduct such review.'"  However, "Defendants have not clarified what role these documents played in any deliberative process leading to those decisions."  "There is no indication of whether the two documents describing how the pilot program would work ended up being adopted by the agency, in which case they would not necessarily continue to be predecisional."  For the third document, "it is not clear how, based on the index's descriptions of the documents, these documents could 'reveal the deliberative process used to evaluate the Pilot Program, the status of such an internal review, and the methods utilized to conduct such review.'"  "The documents are described as documenting how the pilot program, including its training, would work; there is no indication that they contain the drafters’ impressions or evaluations of the program." 
  
  As to the second group of documents [discussing talking points], "[t]here may be sufficient information provided to show that this document is predecisional."  "The supplemental Vaughn index states that this document contains 'information between the USCIS Office of the director and staff employees who are working on developing talking points with respect to asylum facts and stats.'"  "The document therefore appears to be working towards a final decision about what to include in a set of talking points and was therefore 'generated before the adoption of an agency policy.'"  "Plaintiffs’ argument that this document is not predecisional because it post-dates the decision to implement the pilot program, [] is irrelevant because Defendants identify a different decision:  finalizing talking points."  "Regardless, Defendants do not describe how this document was deliberative."  "The Court does not doubt that a document of this kind—facts and statistics provided at the request of the USCIS Office of the Director to assist development of talking points regarding asylum facts and statistics—could reveal the give and take of the consultative process."  "But insufficient information has been provided by Defendants . . . ." 
  
  As to the third group of documents [discussing a media inquiry and talking points],  the court relates that "the documents are predecisional in the sense that they were building towards final versions—a final response to the media inquiry and final talking points—but it is possible under Defendants’ explanations that these documents 'embody . . . a policy that the agency adopt[ed].'"  "Defendants may believe that these documents reflect such consideration about what to present externally, as opposed to reflecting deliberation on the policies themselves."  "But Defendants have not been perfectly clear on this front."
   
• Exemption 5 & Litigation Considerations, Foreseeable Harm Showing:  "The parties dispute whether Defendants have sufficiently demonstrated that disclosure of the above documents withheld under Exemption 5 would cause reasonably foreseeable harm."  "[T]he Court holds that Defendants have not made such a demonstration."  "Defendants’ opening brief argues merely that disclosing DHS's deliberative process withholdings 'would be misleading[ ] and inhibit the candid discussion of issues between employees' . . . ."  "Regarding USCIS's deliberative process withholdings, they similarly argue that disclosure 'would chill or deter USCIS employees from engaging in the candid and frank discussions that are so important and necessary when employees are working and sharing ideas to put together accurate agency information which will ultimately be provided to the public once that information is final.'"  "Defendants' only response to Plaintiffs’ characterization of their supposed harms as 'boilerplate or nebulous' is to argue that using the same language to describe the harm for each document is understandable because the records all relate to the same issue, and that the harm in the agencies' declarations is not generalized because 'the agency assessed the harm document by document, commenting about the foreseeable harm in the respective Vaughn indices.'"  The court finds that "[DHS's descriptions] do not 'contain[ ] thoroughgoing . . . explanation as to the importance and deliberative value of the specific information in those records in the particular decisional context in which they arose, as well as the precise damage to the relevant agency operations that would result from their release.'"  The court further contends that USCIS's position "is close to arguing that any material covered by the deliberative process privilege also meets the foreseeable harm standard," "[b]ut the foreseeable harm requirement imposes a 'meaningful burden on agencies.'"  "Additionally, as explained above, Defendants have not shown that disclosure would in fact reveal deliberative material, making it difficult to see 'the particular sensitivity of the types of information at issue or the role that they play in the relevant agency decisional processes (and, therefore, whether and how their release would harm similar deliberations in the future).'" 
                   
• Exemption 6:  "The parties do not focus on the details of this particular document, instead focusing on the general propriety of withholding the names of CBP officers who participated in the credible fear program."  "[T]he CBP officers’ names are used in connection with their upcoming job duties, making this document similar to a personnel file.  Concerning the CBP officer's privacy interest, the court finds that "[a]lthough this standard 'is not very demanding,' [] it is not met here."  "Here, all that the redacted information would reveal is the CBP officers' names and that they participated in the credible fear program."  "Given that, as Plaintiffs point out, Defendants did not redact 'names and email addresses for approximately thirty USCIS asylum officers,' [] who . . . [were] also [] involved in the program, any privacy interest related to being associated with performing this asylum function appears to be de minimis."  "The only privacy interest articulated in Defendants' opening brief beyond generic allusions to 'invasion of the employee's personal privacy' is the potential exposure 'to physical harm.'"  "But no detail is provided in the brief to support this fear."  "And, again, Defendants made no effort to explain why CBP officers performing this function would be more exposed to harm or harassment than their USCIS counterparts."  
  
  "Even if there were a substantial privacy interest, these redactions would fail the subsequent balancing test."  "Plaintiffs have put forth a public interest that significantly outweighs any potential privacy interest in this case."   "Namely, disclosure of CBP officers' names would show 'whether the officer who conducted a credible fear interview was a Border Patrol officer' such that asylum seekers can explore legal relief and the public can 'understand the full scope of who was injured by the program.'"  "In other words, Defendants prevented asylum seekers from learning whether their interviewers were USCIS or CBP officers."  "This is not a case of a poorly reasoned justification for disclosing officers' names."  "Here, the names appear to be necessary for the public to understand the government's operations."  "[Defendants] argue that there is no evidence that specific CBP officers engaged in misconduct."  However, the court finds that "disclosure would aid public understanding of whether the agency acted improperly and the extent of any harm caused."  "Second, Defendants argue that releasing the names of the CBP officers would not bear on 'whether the pilot program was inconsistent with the Administrative Procedure Act or the Immigration and Nationality Act,' in part because those officers 'played no role in the crafting of the pilot program.'"  The court notes that "[t]he latter is not relevant; as explained above, there is a public interest in understanding how the government operated here beyond how the program was created."  "Regarding the former, Defendants do not dispute Plaintiffs' argument that the public interest is served by giving asylum seekers the information they need to try and challenge negative determinations."  "It is therefore not dispositive whether revealing the names would show whether the program violated certain statutes."    
   
• Exemption 7, Threshold & Exemption (7)(C):  "Plaintiffs argue that this record was not created for law enforcement purposes because the CBP agents 'were performing duties that encompass the adjudication of asylum claims, a humanitarian form of immigration relief, which is not a law enforcement function.'"  "[Plaintiffs] cite [a] recent opinion which explains that DHS regulations and USCIS guidelines require the asylum interviews to be nonadversarial."  "Additionally, the Memorandum of Agreement between CBP and USCIS requires CBP to '[e]nsure that [Border Patrol Agents] and [Supervisory Border Patrol Agents] are not exercising their law enforcement officer duties while on the [credible fear task force] assignment.'"  "Overall, it remains unclear whether this document was compiled for law enforcement purposes."
  
  "However, even assuming that the document at issue was compiled for law enforcement purposes, it still fails the next requirement—the balancing test."  "For the same reasons given above for Exemption 6, any possible privacy interest at stake here is outweighed by the public interest in disclosure such that it could not 'reasonably be expected to constitute an unwarranted invasion of personal privacy.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Plaintiffs challenge only the Exemption 5 withholdings on segregability grounds."  "Here, Defendants are already required to supplement their Vaughn indices with further detail to justify their Exemption 5 withholdings or release the disputed records."  "'As the agenc[ies] will have another opportunity to supplement [their] declarations as to Exemption 5, the Court need not address the issue of whether further segregation of the redacted information from information that may be disclosed is possible.'"  "However, it is worth noting that, as Plaintiffs point out, Defendants' own descriptions of some of their documents suggest that they contain nontrivial amounts of factual information."
   
• ​​​​​​​Litigation Considerations, In Camera Inspection:  "To encourage the speedy resolution of these questions, the Court orders Defendants to produce the Exemption 5 documents for in camera inspection" as "[t]here are a relatively small number of documents at issue here."