Buzzfeed, Inc. v. DHS, No. 19-3295, 2022 WL 3976099 (D.D.C. Sept. 1, 2022) (Kelly, J.)

Buzzfeed, Inc. v. DHS, No. 19-3295, 2022 WL 3976099 (D.D.C. Sept. 1, 2022) (Kelly, J.)

Re:  Request for records concerning “‘Risk Classification Assessment,’” “an algorithm that ‘generate[s] custody determinations at the time of intake and at other points in time during the alien’s detention lifecycle’”

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

• Exemption 5, Deliberative Process Privilege & Litigation Considerations, Foreseeable Harm Showing:  First, regarding “an ‘internal draft’ concerning the ‘medical and mental health classification of detainees,’” the court finds that defendant’s description “says nothing about ‘the roles of the document drafters and recipients.’”  Also, “[t]here are also practically no details about ‘where . . . within the broader deliberative process . . . the withheld material operates,’ or ‘how . . . the withheld material facilitated agency deliberation.’”  “Finally, Defendants seem to conflate previously withheld documents with this one when they describe the document as including ‘comments,’ ‘redline edits,’ and ‘questions.’”  “Defendants’ earlier Vaughn index described other (now undisputed) documents as including those characteristics.”  “But the Vaughn index entry for this document says nothing of the sort – only that it is a ‘draft . . . recommendation.’”  Additionally, the court finds that “[e]ven if the Court could find that the document is predecisional and deliberative, Defendants have not adequately shown that reasonably foreseeable harm would follow this document’s release.”  “According to the updated Vaughn index, release would ‘lead[ ] ICE officials to believe that every idea that they propose in a draft document may be released to the public, thus curbing the candid exchange of ideas between ICE officials and curtailing creativity in the compilation and implementation of important policy.’”  “But that is the sort of ‘cookie-cutter formulation[ ]’ of harm courts have rejected time and again."
  
  The court relates that “[t]he second document concerns ‘Secure Communities,’ a program that helps ICE identify aliens ‘in the custody of another law enforcement agency.’”  “Defendants say that the document was created ‘pursuant to a request by Congress to prioritize the removal of aliens who were convicted of certain crimes.’”  The court finds that “[a]s with the first document, the Court is left wanting.”  “Again, there is no information about ‘the roles of the document drafters and recipients,’ – ‘nothing about the nature of the decisionmaking authority vested in the officer or person issuing the disputed document, or the relative positions in the agency’s chain of command occupied by the document’s author and recipient . . . .’”  “Defendants do not fully describe the ‘deliberative process’ of which the document is a part.”  “And neither the updated Vaughn index nor the declarations really detail ‘how’ or ‘where’ the document operated in any deliberative process.”  “Finally, although Defendants claim it includes ‘comments,’ ‘redline edits,’ and ‘questions,’ . . . the Vaughn index says otherwise . . . .”  “That said, Defendants have provided a more detailed description of this document to weigh whether the deliberative process privilege applies.”  “Specifically, its discussion of different ‘approaches’ for setting crime levels and inclusion of ‘the pros and cons of each approach,’ . . . seem to depict more clearly ‘the type of back-and-forth exchange of ideas, constructive feedback, and internal debate that sits at the heart of the deliberative process privilege.’”  “But again, even if Defendants had made the requisite showing for the deliberative process privilege, they still have not shown that reasonably foreseeable harm would follow the document’s release.”  The court finds that defendants descriptions on that front “are tantamount ‘to arguing that any material covered by the deliberative process privilege also meets the foreseeable harm standard,’ which cannot be if the ‘foreseeable harm requirement’ is to ‘impose[ ] a “meaningful burden on agencies.”’”
   
• Litigation Considerations:  “[The court] will also grant Defendants’ motion for summary judgment as for the searches and withholdings not in dispute.”