Council on Am.-Islamic Rels.-Conn. v. USCIS, No. 17-1061, 2023 WL 2971432 (D. Conn. Apr. 17, 2023) (Spector, Mag.J.)
Council on Am.-Islamic Rels.-Conn. v. USCIS, No. 17-1061, 2023 WL 2971432 (D. Conn. Apr. 17, 2023) (Spector, Mag.J.)
Re: Requests for records concerning Executive Orders 13,769 and 13,780; screening processes at United States ports of entry; and certain immigration processing policies and procedures
Disposition: Granting in part and denying in part defendants’ motion for summary judgment; denying plaintiffs’ cross-motion for summary judgment
- Exemption 5, Other Privileges, Foreseeable Harm and Other Considerations & Waiver and Discretionary Disclosure, Waiver: “Based upon its in camera review of the EO Report and its consideration of the DHS and State declarations, the Court cannot discern whether and to what extent the defendants have a viable claim of presidential communications privilege over the report in full.” The court relates that “DHS withheld [“a final copy of the 60-day progress report required by Section 5(b) of Executive Order 13,780 (‘EO Report’)”] in full – except for certain public portions of the Appendix – pursuant to the presidential communications privilege under FOIA Exemption 5.” The court finds that “[t]he EO Report was sent by cabinet-level agency heads to the President at his explicit request in Executive Order 13,780, Section 5(b).” “According to that Executive Order, the EO Report was intended to address the progress of a program ordered by the President ‘to identify individuals who seek to enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry.’” “Specifically, the EO Report advised the President on the progress of an interagency working group formed to establish criteria for immigration screening and vetting procedures; to avoid duplicative and overlapping efforts across multiple agencies; and to ensure that all necessary and appropriate information was sought at United States ports of entry.” “The EO Report discussed the roles that various agencies played in carrying out its objectives; proposed an interagency coordination and governance structure for vetting and screening processes; and recommended changes to existing vetting and screening programs – as well as the development of new programs – designed to achieve the goals established by the Executive Order.”
“The plaintiffs do not dispute that the EO Report is the type of record that the presidential communications privilege typically encompasses; rather, they challenge the defendants’ characterization of the EO Report as ‘closely held,’ and argue that the privilege does not apply because the report ‘has been widely shared within the executive branch.’” “Moreover, the plaintiffs assert that, even if the privilege were to apply to the EO Report, the defendants waived it by publicly disclosing information contained in the report.” Regarding plaintiffs’ first challenge, the court finds that “[a]lthough the Second Circuit has not considered whether the dissemination of a document within the Executive Branch for non-advisory purposes defeats the presidential communications privilege, every court to have considered this issue thus far has held that it does.” “To the extent that the DHS declaration lists agencies with access to the EO Report, it does not name the individual recipients of the EO Report within those agencies.” “Indeed, the defendants fail to identify in the DHS declaration or elsewhere in the record the names of those individuals who received the EO Report, their respective job titles, and the extent to which they advised the President regarding the EO Report, nor do they assert that the recipients of the EO Report were admonished not to share it.” “These omissions are critical to the Court’s assessment of the applicability of the presidential communications privilege, which ‘should not extend to staff outside the White House in executive branch agencies.’” “Rather, the privilege applies only to individuals acting in an advisory capacity, and even then, ‘[n]ot every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege.’” “Moreover, although both the DHS and State declarations explain that the full, unredacted version of the EO Report was distributed on a ‘need-to-know’ basis, they are silent as to whether disclosure was limited to presidential advisers involved in advising the President regarding the report.” “The defendants maintain that they need not provide the names and job titles of everyone who received the EO Report . . . .” “[D]efendants have not identified whether the recipients of the EO Report acted in an advisory capacity to the President.” “This reflects a misunderstanding of the scope of the presidential communications privilege, which extends only to those individuals – not agencies – ‘who have broad and significant responsibility for investigating and formulating advice to be given to the President on the particular matter to which the communications relate.’” “In the absence of more detailed information regarding the DHS, State, and other agency officials that received the EO Report, this Court cannot gauge whether the information contained in the report has been distributed in a manner that undermines application of the presidential communications privilege.”
“The Court turns next to the plaintiffs’ contention that, even if the EO Report is covered by the presidential communications privilege, the defendants waived that privilege ‘by subsequent disclosure.’” “Here, the plaintiffs have not demonstrated that information in the public domain is duplicative of the information they seek such that no harm would result from its disclosure.” “In support of their position that the presidential communications privilege was waived by official acknowledgment, the plaintiffs cite generally to agency actions ‘related to screening and vetting of visa applicants’; State’s distribution of ‘related guidance’; and Trump Administration officials’ ‘tweets, op-eds, press releases, . . . rallies, . . . [and] public testimony to Congress describing security and vetting changes associated with President Trump’s Muslim Ban.’” “But the plaintiffs have not shown that any of these official acknowledgments reference the EO Report or that they contain information that is as specific as or matching the report’s contents.” “Accordingly, the Court concludes that the presidential communications privilege has not been waived as to the EO Report in its entirety.”
Finally, regarding foreseeable harm, the court relates that “[t]he DHS declaration explains that ‘disclosure of the EO Report would threaten significant harm upon the interests that the Presidential Communications Privilege is designed to protect.’” “The EO Report advised the President on topics such as processes for screening and vetting of visa applicants; admission of aliens into the United States; and methods for combatting threats to public safety.” “Furthermore, the EO Report contained recommendations to the President regarding the potential collection of additional information; systems checks; and interagency collaboration in the screening and vetting of non-citizens.” “The EO Report also contained advice provided by top advisers to the President at his request; described the nature of decision-making processes and the considerations that guide them; and flagged specific issues for further evaluation by the President as he made final policy decisions.” “The DHS declaration explains that disclosure of the EO Report ‘would plainly threaten the President’s ability to receive frank and candid advice concerning the sensitive field of immigration policy and related security reforms. Indeed, the quality of the Presidential decision-making process would be damaged if agency heads in the Executive Branch [were unable to] focus solely on providing comprehensive and candid information about border security and immigration policy to the White House.’” “The Court finds that the defendants have sufficiently articulated the reasonably foreseeable harm that would result from disclosure of the EO Report.”
- Exemption 5, Deliberative Process Privilege & Foreseeable Harms and Other Considerations: The court relates that “DHS also withheld portions of the EO Report under Exemption 5, citing the deliberative process privilege, which applies to ‘decisionmaking of executive officials generally,’ and protects documents containing deliberations that are part of the process by which the government makes decisions.” The court finds that, “[h]ere, the defendants have sufficiently identified the specific decision-making process addressed by the withheld portions of the EO Report, and the report was generated prior to the conclusion of that process.” “Indeed, the defendants assert that the withheld portions of the EO Report pertain to the President’s ‘decision-making process related to border security and immigration policy.’” “These portions of the EO Report ‘were created to advise and assist the President in carrying out national security policies. Specifically, the recommendations and pre-decisional discussion were included in the report to assist the President in making decisions on whether to institute certain new information collections, systems checks, and interagency coordination requirements in the immigration screening and vetting processes, . . . [and] as to proposals of certain agencies for appropriate next steps on these issues.’” “Moreover, the defendants have demonstrated that the withheld portions of the EO Report do not reflect current agency policy, and that ‘[t]he recommendations and discussion in this Report d[o] not constitute the government’s final position on these issues and accordingly do not contain binding policy or other guidance.’” “The withheld portions of the EO Report contain advice and recommendations from the Secretary of DHS and other cabinet-level officials to the President regarding the adequacy of certain immigration security procedures, as well as proposals for improving various screening and vetting processes.” “The DHS declaration explains that disclosure of the withheld portions of the EO Report ‘would likely inhibit Executive Branch decision-making because it would chill frank discussion and collaboration among Executive Branch employees and senior-level decision-makers.’” “This would likely cause Executive Branch employees and officials ‘to refrain from full and candid statements of their views to final decision-makers,’ and ‘would significantly impede the comprehensive discussion of issues that is necessary to reach a well-reasoned and fully vetted final decision in matters of immigration policy and national security . . . . This lack of candor would seriously impair the Executive Branch's ability to foster forthright, internal discussions necessary for efficient and proper decision-making.’” “Moreover, release of the withheld portions of the EO Report could ‘undermine agency efforts to enhance the national security by exposing existing and proposed changes to agency operations’ relating to national security.”
- Exemption 7, Threshold; Exemption 7(E) & Waiver and Discretionary Disclosure, Waiver: The court holds that “[b]oth DHS and State withheld portions of the EO Report pursuant to Exemption 7(E) . . . .” “Having conducted an in-camera review of the EO Report, the Court finds that the DHS and State declarations adequately explain the nature of the information withheld under Exemption 7(E), as well as the rationale for those withholdings.” “[The] Court concludes that the information withheld from the EO Report by DHS and State under Exemption 7(E) concerns screening processes used in the law enforcement context, and as such, fall squarely within the exemption.” “The Court agrees with the defendants’ position that the EO Report was compiled for law enforcement purposes since it discusses both existing and proposed law enforcement procedures relating to border security.” “The withheld portions of the EO Report constitute both ‘guidelines’ and non-public ‘techniques.’” “The DHS declaration explains that ‘[t]he [EO] Report’s discussion of certain screening and vetting processes can be considered “guidelines” because they identify threshold issues that may trigger additional screening, and thus focus law enforcement[’s] efforts in specific circumstances.’” “Moreover, the information in the EO Report withheld under Exemption 7(E) concerns law enforcement ‘techniques because it describes and highlights processes that would enable the agency to identify persons presenting fraudulent information or having criminal or terroristic intent.’” “Although the plaintiffs maintain that the ‘descriptions of withheld categories are so vague and general . . . as to deprive [them] of the ability to meaningfully challenge the withholdings,’ they simultaneously assert that the defendants waived their right to withhold information under Exemption 7(E) because the information is already in the public domain.” “But the plaintiffs’ position is belied by the DHS and State declarations, both of which explain that none of the publicly available information cited by the plaintiff duplicates those portions of the EO Report that were withheld under Exemption 7(E).”
- Exemption 1 & Litigation Considerations, Vaughn Index/Declaration: The court relates that “[p]ortions of the EO Report were withheld by the ODNI, CIA, and NSA pursuant to FOIA Exemption 1 . . . .” The court relates that defendant “explains that the information his agency withheld from the EO Report pursuant to Exemption 1 is currently and properly classified at the ‘SECRET’ level, and is owned by and under the control of the Government.” “Furthermore, the information falls within one of the categories listed in section 1.4(c) of Executive Order 13,526, 75 Fed. Reg. at 708, since it concerns ‘intelligence activities (including covert action), [or] intelligence sources and methods.’” “Release of the withheld information ‘could reasonably be expected to result in at least serious damage to the national security’ because it would reveal ‘what type of information the [intelligence community] uses, and how, to provide classified vetting support to adjudicative agencies (such as DHS and State) involving foreign applicants for entry into the United States.’” “‘This information, if released, could be used by nefarious actors to obfuscate their identity and/or intentions and avoid detection by the U.S. Government, potentially gaining unlawful entry into the United States.’”
Additionally, the court relates that “[defendant’s declarant] conferred with the CIA and NSA and was informed by both agencies that the information they withheld from the EO Report is properly classified at the ‘SECRET level.’” “Release of the withheld CIA information threatens ‘serious damage to the national security by exposing the specific role(s) that the CIA plays in the vetting program.’” “‘If disclosed, this information could provide the Nation’s adversaries with insight into the means by which the CIA supports other departments and agencies under the program, which they in turn could exploit to undermine both the vetting program and the CIA’s clandestine intelligence mission.’” “Similarly, release of the withheld NSA information in the EO Report ‘reasonably could be expected to cause serious damage to the national security by exposing the specific role(s) that NSA plays in the vetting program,’ which ‘could provide the Nation’s adversaries with insight into the means by which the NSA supports other departments and agencies under the program, which they in turn could exploit to undermine both the vetting program and the NSA’s foreign signals intelligence mission.’” The court finds that “[defendant’s] assertions in support of the withholdings by the CIA and NSA are based on hearsay statements of individuals outside of the ODNI.” “Although the Second Circuit has not ruled on the admissibility of a hearsay statement made in an agency declaration by a party outside that agency, at least one court has deemed such evidence inadmissible.” “Concerns regarding the reliability of an agency declaration reliant upon hearsay are amplified where, as here, the hearsay declarant states that another agency withheld information that was marked as classified under the incorrect section of Executive Order 13,526.” However, “[t]he Court is satisfied with the justification offered by [defendants] for the ODNI’s withholdings under Exemption 1.” “Insofar as the CIA and NSA withholdings are identical to the ODNI withholdings, the Court need not decide whether the CIA and NSA properly withheld portions of the EO Report under Exemption 1.”
- Exemption 3: The court relates that “[p]ortions of the EO Report were also withheld by the ODNI, CIA, and NSA under FOIA Exemption 3 . . . .” “In the ODNI declaration, [defendant] explains that the ODNI withheld portions of the EO Report pursuant to the National Security Act, which provides that ‘the Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.’” “The National Security Act has been recognized as a withholding statute under Exemption 3.” “[Defendant] further explains in the ODNI declaration that the information the ODNI withheld from the EO Report pursuant to Exemption 3 involves ‘descriptions of data sources, including categories of intelligence holdings and types of checks, that the [intelligence community] uses to provide classified vetting support to adjudicative agencies (such as DHS and State).’” “Regarding the CIA withholdings, [defendant] states that the CIA information withheld under Exemption 1 is properly withheld coextensively under Exemption 3 pursuant to the National Security Act because, ‘if exposed, that information could reveal specific intelligence sources and methods,’ and because it ‘describes the specific role(s) that CIA plays in the vetting program.’” “[Defendant] does not identify the source of this information within the CIA, however.” “[Defendant] further states in the ODNI declaration that he consulted with the NSA and is informed that the NSA information withheld from the EO Report pursuant to Exemption 1 is properly withheld coextensively with Exemption 3 pursuant to Section 6 of the NSA Act of 1959, 50 U.S.C. § 3605 (‘NSAA’), which provides that ‘[n]othing in this chapter or any other law . . . shall be construed to require the disclosure of the organization or any function of the [NSA], or any information with [respect] to the activities thereof.’” “Insofar as the NSAA prohibits disclosure of NSA activities, it, too, is a statute of exemption as contemplated by Exemption 3.” “[Defendant] explains that the NSA withholdings from the EO Report under Exemption 3 were proper because the withheld information ‘would disclose information relating to NSA activities.’” “The Court is satisfied with the justification offered by [defendant] for the ODNI’s withholdings under Exemption 3.” “Insofar as the CIA and NSA withholdings are identical to the ODNI withholdings, the issue of whether those portions of the EO Report were properly withheld by the CIA and NSA under Exemption 3 is moot.”
- Exemption 7(E); Waiver and Discretionary Disclosure, Waiver & Litigation Considerations, “Reasonably Segregable” Requirements: The court relates that “State withheld portions of [“a document entitled ‘ALDAC: Heightened Screening of Visa Applications – Further Guidance; MRN: 17 STATE 52856’ (‘State Cable’)”] and the Operational Q&A pursuant to Exemption 7(E).” “In the State declaration, [defendant] explains that both documents satisfy the threshold requirement for this exemption in that they were compiled for law enforcement purposes.” “Specifically, both the State Cable and the Operational Q&A address ‘the processes for identifying and flagging certain ineligibilities or potential ineligibilities in a database, including circumstances where certain types of investigations are required and procedures for collecting information required for those investigations.’” “As such, the documents were compiled ‘for the law enforcement purpose of enforcing the [Immigration and Nationality Act].’” “In both documents, State withheld non-public law enforcement techniques and guidelines, the disclosure of which reasonably could result in circumvention of the law.” “In the State Cable, State withheld non-public information, including the ‘specific information to collect, and procedures for such collection, as part of screening for terrorism- and other security-related ineligibilities.’” “Similarly, in the Operational Q&A, State withheld information relating to law enforcement techniques, including ‘non-public information discussing and describing the processes for collecting applicants’ information and identifying and flagging certain ineligibilities or potential ineligibilities,’ as well as ‘procedures for reviewing and assessing potential fraud in a visa application.’” “State also withheld guidelines in the Operational Q&A regarding ‘circumstances where certain types of investigations are required,’ . . . and in the State Cable relating to ‘factors that trigger certain kinds of investigations’ in the screening and vetting contexts.” “[Defendant] explains in the State declaration that disclosure of the information withheld from the State Cable and the Operational Q&A under Exemption 7(E) could enable terrorists and other bad actors to circumvent ‘the security checks put in place to ensure that [they] cannot gain visas into the United States.’” “The Court is unpersuaded by the plaintiff’s arguments regarding State’s withholdings from the State Cable and the Operational Q&A.” “By explaining the specific function of each of these documents, the State declaration demonstrates that they were created for law enforcement purposes in that they address specific investigative procedures in the immigration context. Moreover, the State declaration is sufficiently specific in explaining the types of information withheld under Exemption 7(E).”
The court also finds that, “[t]o the extent that the plaintiffs argue that information withheld under Exemption 7(E) entered the public domain by way of unofficial disclosures such as leaks, such unauthorized disclosures are not official acknowledgments that would otherwise waive applicable exemptions.”
“As a final matter, the Court does not share the plaintiffs’ concern that State failed to consider whether any withheld information was non-exempt and reasonably segregable.” “The State declaration adequately explains that the agency ‘ensured that any reasonably, non-segregable information within [the State Cable and the Operational Q&A] was disclosed and determined that no further information from withheld or partially withheld responsive documents could be released without revealing information warranting protection under the law.’” “That the defendants are willing to re-review their previous disclosures to the plaintiffs and to release additional material ‘bolsters the Government’s declarations with respect to segregability.’”
- Exemption 5, Attorney-Client Privilege, Foreseeable Harm and Other Considerations, Deliberative Process Privilege: The court relates that “State withheld [“a draft document entitled ‘Supporting Statement for Paperwork Reduction Act Submission,’ related to 82 Fed. Reg. 20,956 (‘PRA Supporting Statement’)”] in full pursuant to the attorney-client privilege under FOIA Exemption 5.” “The PRA Supporting Statement, a draft version of State’s submission to the Office of Management and Budget (‘OMB’), was authored by employees of the Bureau of Consular Affairs in consultation with attorneys at State regarding supplemental questions for visa applicants, an emergency request for additional visa screening, and an application for immigrant visa and alien registration.” “The Court disagrees with the plaintiffs’ view that the attorney-client privilege does not apply to the PRA Supporting Statement.” “The defendants are not required to identify the document’s authors or to provide as much detail as the plaintiffs suggest.” “Rather, ‘[d]efendants need only indicate that the documents withheld as attorney-client communications are, indeed, confidential communications seeking or providing legal advice from government attorneys to their clients.’” “The State declaration explains that the draft of the PRA Supporting Statement ‘contains comments and questions from attorneys in the [State] Department’s Office of the Legal Adviser in the Offices of Consular Affairs, Management, and Human Rights and Refugees’ that were specifically intended for their policy clients.” “The State declaration further states that the draft ‘was only circulated between the attorneys and their policy clients, namely the Bureau of Consular Affairs and other bureaus within the [State] Department with equities in the document.’” “Moreover, although the plaintiffs speculate that the purpose of the communications contained in the PRA Supporting Statement may have been political, strategic, or policy-oriented, the State declaration explicitly explains that the communications were intended to provide confidential legal advice.” “Finally, disclosure of the PRA Supporting Statement would foreseeably harm ‘the ability of responsible Executive Branch officials to consider the collection of particular information in visa applications, as well as the justification for such collection, and formulate final opinions by inhibiting candid discussion and the expression of recommendations and judgments regarding draft language and courses of action.’”
“State also withheld the PRA Supporting Statement in full pursuant to the deliberative process privilege under Exemption 5.” “The defendants argue that the PRA Supporting Statement is deliberative because it is predecisional (i.e., it is a redline draft that predates the final version of the submission); it ‘reflects proposed language for the submission, including edits and comments on [its] substance’; and disclosure would ‘reveal the details of intra-agency discussions regarding the development of the submission to OMB.’” “Moreover, as explained in the State declaration, disclosure of the PRA Supporting Statement ‘would foreseeably harm the ability of responsible Executive Branch officials to consider the collection of particular information in visa applications, as well as the justification for such collection, and formulate final opinions by inhibiting candid discussion and the expression of recommendations and judgments regarding draft language and courses of action.’” “Considering the harm that reasonably could result from the release of draft agency documents, courts have routinely held that such documents are protected by the deliberative process privilege, particularly where, as here, they contain redlines and comments, the hallmarks of a draft in progress.”