Austin Sanctuary Network v. ICE, No. 20-01686, 2022 WL 4356732 (S.D.N.Y. Sept. 19, 2022) (Liman, J.)

Austin Sanctuary Network v. ICE, No. 20-01686, 2022 WL 4356732 (S.D.N.Y. Sept. 19, 2022) (Liman, J.)

Re:  Request for records concerning civil fines and penalties on noncitizens unlawfully present in United States

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  The court holds that “ICE must either conduct a new search that is reasonable and logical based on a fulsome understanding of the FOIA Request or, if it believes that the search it conducted is sufficient to yield the records that are responsive based on the correct reading of the FOIA Request, to provide detailed and reasonable justifications for how each custodian chose to search where she chose to search and with what search terms.”  First, the court finds that “taken together, ICE’s declarations describing the search are sufficiently specific to allow the Court to determine whether the underlying searches were reasonable.”  “Plaintiffs do not appear to contest this point.”  “The central question is therefore whether the underlying search performed by ICE described in those declarations was reasonable.”  “Before delving into the particular arguments that each side makes, the Court first considers the appropriate reading of the FOIA Request.”  “Plaintiffs’ first FOIA request . . . calls for ‘[a]ny and all records relating to current policies, procedures, guidelines, instructions, or other materials concerning when and how civil fines and penalties under INA § 274D, 8 U.S.C. § 1324d, are enforced on individuals who are alleged to have a final administrative removal order, including but not limited to immigrants taking sanctuary.’”  “That language is broad.”  “[I]mportantly, [this request] also is not limited to ‘records relating to’ current policies, procedures, guidelines, and instructions but also captures ‘other materials,’ reflecting the requestor’s intent that the agency produce not only records that relate to formal policies but all materials in its possession concerning when and how civil fines and penalties are enforced on individuals.”  “Moreover, it is clear beyond peradventure that one of the particular focuses of the FOIA Request was to obtain materials concerning when and how civil fines and penalties are imposed on ‘immigrants taking sanctuary’ or ‘immigrants in sanctuary.’”  “With the FOIA request so understood, it is clear that ICE’s failure to search ICE senior leadership was unreasonable in several respects.”  “First, ICE’s claim that communications of ICE personnel with entities outside of ICE, such as the White House and Department of Justice, are beyond the scope of the FOIA Request relies on a fundamental misreading of that Request.”  “Second, ICE acted unreasonably in failing to search the records of ICE senior leadership.”  “It . . . is not sufficient for ICE to search only for records regarding how the final policy was implemented with respect to specific individuals after the policy was adopted.”  “ICE also had to search for records that went to the adoption of the policy in the first place.”  “Thus, while it may be that [the location where ICE searched] would have all of the records regarding how the policies were actually implemented and that the ICE Director’s Office did not intervene in particular enforcement efforts, the assertions in the affidavit do not address whether there would be records in the ICE Director’s Office discussing, for example, the development, implementation, and communication of the policy more generally, even after those policies went into effect.”  “Plaintiffs have also demonstrated that certain ICE senior leadership likely have additional responsive documents to the FOIA Request.”  “ICE senior leadership was included on numerous communications both prior to and after the ICE Directive and Delegation Order went into effect about the civil fines program.” 
  
  Additionally, the court finds that “ICE was also unreasonable in failing to search the Offices of Public Affairs and Partnership and Engagement.”  “ICE’s use of the media appears to have been an important independent component of the civil fines program.”  “ICE does not dispute that the Offices of Public Affairs and Partnership and Engagement would have records concerning the civil fines policy but argues that it need not have searched the Offices of Public Affairs and Partnership and Engagement because the FOIA Request did not seek documents or communications concerning ICE’s public outreach or media messaging.”  “But, for the reasons discussed above, that reads [the first request] too narrowly.”
  
  “Finally, on the record before the Court, ICE’s search for emails and records, where it did search, appears to have been haphazard, inconsistent, incomplete, and inadequate.”  “ICE’s explanations fail to satisfy the standards required before a court will accept a search as being reasonable.”  “ICE provided no explanation for the search terms that were used for particular custodians and, in particular, why certain search terms were not used.”  “ICE has provided no explanation whatsoever for the disparities in searches amongst custodians, including why some employees looked in share drives for records and others did not and why some employees used a relatively large number of search terms while others – sometimes within the same office and holding the same position – used just one search term.”
   
• Exemption 5, Deliberative Process Privilege:  First, the court relates that “Plaintiffs argue that ICE improperly withheld numerous documents under Exemption 5 that postdated the June 19, 2018 ICE Directive and Delegation Order.”  “According to Plaintiffs, the ICE Directive and Delegation Order constituted ICE’s final policies and, as a result, documents that postdate the ICE Directive and Delegation Order cannot be predecisional as they were applications, clarifications, or interpretations of existing policy.”  “ICE responds that the ICE Directive granted ICE program offices ‘discretion in enforcing applicable laws and regulations’ and provided only high-level guidelines and thus that decisions about how to apply the policies in individual cases were protected because they involved difficult policy judgments.”  The court finds that “[t]he question is . . . what categories of post-June 19, 2018 documents would meet this standard.”  “To start, any post-June 19, 2018 ICE records containing ‘policy-oriented’ deliberations over how to communicate the civil fine policy to the public would plainly meet this standard.”  “In addition, policy-oriented deliberations about how to exercise discretion under the ICE Directive would also likely be entitled to protection under the deliberative process privilege.”  “The ICE Directive (which is only a four-page document) explicitly vested discretion regarding the imposition of civils fine with individual ICE field offices.”  “While the ICE Directive provided some high-level guidance as to the issuance of fines . . . the ICE Directive left open a significant degree of ‘policy-oriented judgment’ to the individual program offices about how generally to determine which individuals within the detailed categories to fine and how to address the imposition of fines, including what mitigating and aggravating factors are relevant.”  “Such policy-oriented discussions about how to apply that discretion – assuming they were had prior to the conclusion of that decision or decision-making process – would fall within the deliberative process privilege.”  “While certain records may qualify as protected on this basis, it is similarly clear that many other types of records that ICE likely generated after the issuance of the ICE Directive and Delegation Order, and which related to the implementation of those policies, would not meet this standard.”  “For example, purely interagency ‘descriptive discussions’ about the already-existing ICE Directive or Delegation Order would not be entitled to the deliberative process privilege.”  “In addition, routine ‘computations’ of fines or discussions about the applicable statute of limitations would not be entitled to protection under Exemption 5.”  “And, perhaps most important here, ‘determinations of how ICE applies’ these general policies in ‘specific cases’ would not fall ‘within the protection of the deliberative-process privilege.’”  “Because there are a multitude of nondeliberative discussions or records that ICE could generate related to the implementation of the ICE Directive and Delegation Order (even despite its broad grant of discretion), the Court rejects ICE’s position that it may merely assert that the deliberative process privilege applies to a particular record postdating June 19, 2018 on the basis that the record relates in some way to the implementation of these final policies.”  The court also finds that “ICE’s description of the bases for its withholdings in [certain] document[s] are not sufficiently detailed to determine if the deliberative process privilege applies.”  As an example, the court relates that “[t]he Vaughn index states that portions of [one] document are withheld on the basis of the deliberative process privilege as these portions relate to ‘legal analysis of a civil fines’ issue’ and ‘legal advice on civil fine penalty amounts.’”  “However, while it is possible that legal advice related to a civil fines issue or civil penalty amounts may require policy-oriented deliberations, they just as easily may not.”
  
  Additionally, the court relates that “Plaintiffs contend that ICE improperly applied the deliberative process privilege to discussions that were actually working law of the agency.”  “Plaintiffs argue that all three documents are working law as many of the discussions, particularly those including . . . ICE leadership, were likely adopted or incorporated by reference in the final civil fines policy.”  The court finds that “[t]his claim, however, is nothing more than ‘speculation,’ upon which Plaintiffs may not rely to meet their burden to show that ‘an agency has actually adopted or incorporated by reference the document at issue.’”  “While discussions involving senior leaders may be more likely to be the denouement of decision-making authority than those involving junior or midlevel employees, it is not the case that discussions in which senior leaders are involved necessarily or even are likely to involve such authority.”
  
  “Plaintiffs also argue that [certain] records . . . concerning how to present the civil fines policy to the public . . . cannot be withheld on deliberative process grounds.”  “According to Plaintiffs, the documents cannot reflect a policy-oriented judgment because the final policy already was generated, and the records are simply iterations of an already-final communications decision.”  “Plaintiffs’ objection to the withholding of these records is squarely addressed and foreclosed by the Second Circuit[] . . . .”  “[T]he court held that ‘an agency’s communications decisions necessarily implicate the agency’s policies and must be informed by those policies’ and that such ‘decisions involve “the formulation or exercise of policy-oriented judgment.”’”  “The court reasoned, ‘[a]n agency’s decision regarding how to communicate its policies and actions to Congress, the public, and other stakeholders can have substantial consequences.”  “A poor communications decision at a congressional hearing might mean the difference between receiving the agency’s requested budgetary appropriation, on the one hand, or inviting intrusive oversight hearings into agency operations, on the other.”  “Thus, ‘an agency exercises “policy-oriented judgment” when communicating its policies to people outside the agency’ and thus ‘records reflecting deliberations – as opposed to merely descriptive discussions – regarding those decisions are protected by the deliberative process privilege.’”
  
  The court then considers “Plaintiffs[’] . . . claim that [a government misconduct exception exception] applies as the Government has used this policy to retaliate against women immigrant activists through selective enforcement against them.”  The court relates that, “[a]t oral argument, the Government explained, without disagreement from Plaintiffs, that the policy is the subject of ongoing litigation where it is challenged as having been illegal.”  “But that the Government has adopted a policy that a court determines is illegal, even if ‘egregious’ as Plaintiffs put it, does not alone deprive the Government of the benefit of the deliberative process privilege.”  “Public servants of good meaning can debate and deliberate (in good faith) even an egregious public policy; their deliberation may even mitigate the harshest of government policies.”  “The relevant consideration ‘to trigger the exception is the egregiousness of the contents of the discussion, not the egregiousness of the underlying conduct that the discussion concerns.’”  “Many policies that are the subject of FOIA requests are controversial and subject to legal challenge.”  “If these facts alone triggered the exception, ‘the exception would soon swallow the privilege whole.’”  “Here, Plaintiffs point to no evidence that any of the particular documents ICE withheld under the deliberative process privilege were themselves egregious.”  “The government misconduct exception does not apply.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court relates that “ICE produced a Vaughn index describing each record withheld . . . and confirmed that it conducted a line-by-line review of each document for segregable content and that no such additional content exists.”  The court finds that “‘[t]his is the type of affirmation that is entitled to the presumption of reliability and upon which courts often rely’ to find that the government has complied with its obligation to disclose reasonably segregable material.”  “The presumption is corroborated by the Court’s in camera review of the challenged documents; from that review, and with the exception stated below, there is no good reason to believe that the agency did not properly apply the rules with respect to segregability.”  The court notes that it conducted an in camera inspection of one document where defendant stated that it “contain[ed] ‘background’ information.”  However, “[h]aving reviewed the documents in camera, the Court can conclude that all withholdings . . . were properly withheld on the basis of the deliberative process privilege.”
   
• Exemption 5, Attorney-Client Privilege:  The court relates that “Plaintiffs assert that ICE improperly withheld records on grounds of attorney-client privilege.”  “It asserts that ICE applied attorney-client privilege to documents where confidentiality may not have been maintained and where the predominant purpose of the communication was not to convey legal advice but to provide policy input.”  The court holds that “[h]ere, ICE has withheld numerous documents on the basis of attorney-client privilege; while counsel asserted it at argument, ICE fails to establish through supporting documentation that these documents were confidential ‘both at the time of the communication and maintained since.’”  “Specifically, while ICE has made representations about the confidential nature of the communications at the time they were made, they make no representations that such confidentiality was maintained.”  “Moreover, Plaintiffs present some evidence that ICE kept third parties outside of the agency apprised of the development of the civil fine policy, indicating that not all of the privileged information was necessarily kept in confidence . . . .”  “ICE nonetheless attempts to argue that it is Plaintiffs’ burden to provide evidence that ICE waived the privilege by sharing the legal advice it received with third parties.”  “But this argument gets the standard backward.”  “‘The burden is on the agency to demonstrate that confidentiality was expected in the handling of these communications and that it was reasonably careful to keep this confidential information protected from general disclosure.’”  “The Court, however, rejects Plaintiffs’ argument that ICE improperly invoked the attorney-client privilege over documents that contain policy advice, rather than legal advice.”  “In declarations, which are entitled to a presumption of good faith, ICE attested that it had only applied withholdings on this basis to communications ‘containing legal advice and proposed legal strategy’ as well as to discussions ‘for the purpose of obtaining and rendering legal advice.’”  “Plaintiffs’ ‘purely speculative claims’ that certain documents may contain policy advice do not undermine these assertions.”
   
• Exemption 6 & Exemption 7(C):  The court holds that the motion for summary judgment based on the Exemption 6 and 7(C) withholdings must be denied.”  The court relates that “Plaintiffs also challenge the withholding, under Exemptions 6 and 7(C), of certain names and email addresses of federal officials.”  “Plaintiffs clarified that they are not seeking the names of mid-level and low-level government employees or the names of people who have been impacted by the policy.”  “In their briefing, Plaintiffs do not appear to dispute that the documents here are the type of records that could be withheld under Exemption 6 or Exemption 7.”  “In other words, they do not contest that such records are information compiled for purposes of law enforcement or that they are files ‘similar’ to personnel or medical files.”  “Instead, they only argue that the public interest in disclosure of such information outweighs any individual privacy interests.”  “Accordingly, Plaintiffs have waived any argument with respect to whether these records are of the type that are subject to Exemption 6 and Exemption 7.”  The court then finds that “courts have come to recognize that even public servants retain some privacy interest in their names upon entering public service.”  “At the same time, as the Government appears to have recognized, there is a public interest in the names of at least some persons involved in crafting and administering an important government policy.”  “ICE has recognized that proposition by disclosing the names of what it characterizes as SES personnel or otherwise high-level policy-making individuals in the contested exhibits in response to Plaintiffs’ motion for summary judgment.”  “Those disclosures indisputably serve an interest FOIA was intended to further.”  “The problem is that two of ICE's withholdings are improper on their face and, with respect to the remainder, ICE has not justified the names it has withheld in a manner that permits the Court to conduct the balancing that Exemptions 6 and 7(C) require.”  Also, “ICE has not stated how it defined SES or high-level personnel and thus has not stated what types of names were disclosed and what names were not.”  “Nor has ICE stated, except in the most conclusory fashion, how, if at all, the disclosure of the names of even mid-level employees, without on-the-ground law enforcement duties, would lead to harassment or attack.”