Tuesday, January 22, 2013
Re: Request for records relating to communications between defendant and certain American embassies, and relating to plaintiff or plaintiff's law firm Disposition: Granting defendant's motion for partial summary judgment
- Exemption 5/Deliberative Process Privilege: The court determines that the deliberative process privilege was correctly applied to protect the Summary of Findings (SOF), which are documents "created to assist the [United States Citizenship and Immigration Services (USCIS)] adjudicator in reaching a decision as to whether immigration benefits will be awarded." The SOFs "contain deliberations and findings associated with the fraud investigations." Additionally, the creators of the SOFs do "not have decision-making authority" because "the sole purpose of a SOF is to determine whether fraud exists and to recommend a course of action." Segregability: "After an in camera review, this Court concludes that the SOFs are 'predominantly evaluative'…and disclosure of the purely factual material 'would reveal the deliberative process of summarization itself by demonstrating which facts' in the fraud investigation process 'were considered significant by the decisionmaker and those assisting her.'"
- Exemption 6/7(C): The court also concludes that "exemption 6 and 7(c) apply to the personal information for both the government investigators and the third parties within the SOFs." "It is clear that government employees in investigative functions have a recognized interest in protecting their identities out of fear of embarrassment or harassment." Additionally "disclosure of their names is not likely to shed light on how the [USCIS] adjudicator conducts the government's business." The court also rejects the plaintiff's assertion that privacy "exemptions should not apply to the applicants for immigration benefits." Although the plaintiff is listed as the counsel of record for the individuals who are the subjects of the SOFs, this status "does not promote the public's interest in disclosure" and the notice of entry of appearance form used by counsel "explicitly states that it may not be used for purposes of FOIA requests." Applicable regulations request submission of consent and plaintiff "has not provided such written consent" from the subjects.
Updated August 6, 2014