Documented v. DHS, No. 21-3142, 2024 U.S. Dist. LEXIS 169893 (D.D.C. Sept. 20, 2024) (Lamberth, J.)
Documented v. DHS, No. 21-3142, 2024 U.S. Dist. LEXIS 169893 (D.D.C. Sept. 20, 2024) (Lamberth, J.)
Re: Request for all of Secretary of Homeland Security’s “Decision Papers” dating back to January 1, 2017
Disposition: Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment
- Litigation Considerations, Evidentiary Showing, Vaughn Index/Declaration: The court relates that, “[a]fter working together to narrow the scope of the dispute, the parties now only contest DHS’s decision to redact three records responsive to [plaintiff’s] FOIA request.” “As a preliminary matter, [plaintiff] has found – on a public docket pertaining to unrelated litigation – an unredacted version of [one of the contested memorandums,] a memo discussing Haiti’s TPS designation.” “DHS disclosed an almost entirely redacted version of this memorandum to [plaintiff] earlier in this lawsuit.” “Based on a comparison between the version it received from DHS and the version found on the public docket, [plaintiff] believes that DHS too aggressively redacted the version that it sent to [plaintiff].” “Although [plaintiff] is not requesting that DHS duplicatively produce a record already in its possession, [plaintiff] argues that this revelation is relevant for a different reason: it should cause the Court to view with heightened skepticism DHS's claims for deliberative-process privilege and its representations that it has made reasonable efforts to segregate non-exempt material.” “[Plaintiff’s] find is simply not enough for the Court to abandon the usual presumption of good faith to which an agency is entitled in the FOIA context.” “First, DHS’s redaction of the Haiti TPS memo is no longer a live dispute in this litigation, as [plaintiff] concedes.” “Second, and more importantly, even if the publicly available version of the Haiti TPS memo showed that DHS had been too aggressive in its redactions of that record, that isolated data point does little to suggest that DHS has also been too aggressive in redacting the records still disputed in this litigation.” “[I]t may be frustrating to [plaintiff] that, ‘[b]ecause FOIA requesters lack access to the withheld records, they will often be unable to “rebut[] th[e] presumption”’ of good faith to which an agency’s segregability averments are entitled.” “But this difficulty is a feature of FOIA, not a bug.” “It embodies a fundamental compromise inherent in the statutory scheme: requiring an overly detailed demonstration of compliance with FOIA’s requirement would risk defeating ‘the purpose of the FOIA exemption[s].’”
- Exemption 5, Deliberative Process Privilege: The court relates that “[plaintiff] argues that because the Duke Honduras Memo[, another of the three withheld memoranda at issue,] communicates the Acting Secretary’s official decision to her subordinates, it constitutes ‘the quintessential dissemination of “already-determined agency policy,”’ which is not covered by deliberative-process privilege and therefore unprotected by FOIA Exemption 5.” The court finds that “[plaintiff] is partially correct.” “According to DHS’s representations, part of the redacted section of the memo discusses the Acting Secretary’s reasons for her then-final decision to allow Honduras’s TPS designation to automatically extend.” “This discussion is not covered by the deliberative-process privilege.” “However, another part of the redacted section portends a future decision that the Acting Secretary had not yet made, and hints at the Secretary’s decision-making process for that decision, content that may be properly withheld under FOIA Exemption 5.” “The unredacted portions of the Duke Honduras Memo make clear that the Acting Secretary was still gathering information to inform her future decision on Honduras’s TPS status.” The court finds that that material “might be relevant to the future decision on Honduras’s TPS designation that she had yet to make.” “This is precisely the sort of predecisional content that the deliberative-process privilege is meant to protect. DHS has also articulated how disclosing the Acting Secretary’s evolving thought process would inhibit frank discussion of the complex factual and diplomatic considerations that inform TPS designations and discourage her from ‘provid[ing] candid advice and direction to Senior Leaders and staff’ in the future.”
“[Plaintiff] raises two counterarguments in support of disclosure.” “First, [plaintiff] argues that deliberative-process privilege does not protect documents that originate from a superior and flow downward to her subordinates.” “But while it may be descriptively accurate that final opinions ‘typically flow from a superior with policy-making authority to a subordinate who carries out the policy,’ the D.C. Circuit has clarified that ‘[t]here is no . . . directional precondition to protection under the deliberative process privilege,’ and when ‘an internal agency dialogue is underway, communications by both the giver and the taker can fall within the privilege.’” “Where, as here, the agency’s decision-maker is providing a glimpse into her thought process with respect to a future decision, it makes little difference that the beneficiaries of that glimpse happen to be her subordinates.” “Second, [plaintiff] argues that the deliberative-process privilege covers only information internal to the government, and does not encompass information gleaned from communications with third parties.” The court finds that “[a]lthough a document’s ‘source must be a Government agency’ to be protected by deliberative-process privilege, . . . it does not follow that all substantive information contained within such a document must also originate from an agency to be protected.”
- Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The court finds that “DHS has asserted that it conducted a ‘page-by-page, line-by-line’ review of the Duke Honduras Memo to separate and disclose non-exempt materials . . . .” “However, it did so under the erroneous belief that the Acting Secretary’s comments on her consultations with other Executive Branch stakeholders were privileged.” “Now that the Court has clarified that they are not, the Court will order DHS to either disclose the non-exempt information about consultations within the Executive Branch, or else file a supplemental affidavit explaining why that material cannot be segregated from the properly exempted content concerning DHS’s relationship and future plans with the Honduran government.”
- Exemption 5, Deliberative Process Privilege; Litigation Considerations, Evidentiary Showing, Foreseeable Harm Showing: The court relates that “[plaintiff] concedes that the Somalia TPS Memo is predecisional but argues that it should be at least partially unredacted because, by DHS’s admission, it contains factual material.” “Moreover, although DHS claims that disclosure of the memo would cause reasonably foreseeable harm, [plaintiff] argues that DHS’s proffered harms are too ‘generic,’ . . . and that the agency has failed to specifically articulate ‘why this disclosure would be particularly harmful,’ as FOIA requires.” The court finds that “[plaintiff] is incorrect that the factual material contained within the Somalia TPS Memo is ineligible for protection under the deliberative-process privilege.” “However, [plaintiff] is correct that DHS has not met its burden to specifically articulate a reasonably foreseeable harm that would transpire if the Somalia TSP memo were disclosed in full, so the memo must be disclosed.” “Regarding [plaintiff’s] first argument,” the court finds that “[i]n its declarations and Vaughn index, DHS depicts the Somalia TPS Memo as a curated collection and synthesis of factual materials and a discussion of how those facts relate to the agency’s legal obligations and policy priorities.” “Content such as this is eligible for protection under the deliberative-process privilege.”
Regarding plaintiff’s argument concerning the foreseeable harm showing, the court finds that “DHS’s logical chain is missing a link.” “It has explained why good TPS memos are important to good policymaking, and it has explained why a lack of candor may produce bad TPS memos.” “Crucially, however, DHS has not explained why the disclosure of documents like the Somalia TPS Memo would cause agency personnel to shrink from expressing their views candidly.”
“The final document at issue is the [Migrant Protection Protocols (“MPP”)] Memo.” “There is no dispute that this memo, which presents the Acting Secretary with alternative options for managing two MPP facilities, is predecisional.” “Nevertheless, [plaintiff] argues that the memo should be unredacted, first because the redacted options detailed in the memorandum constitute non-exempt factual material; second, because the redacted paragraph explaining why a Secretary-level signature is required is a ‘quotidian explanation of the existing law,’ rather than a deliberation; and third, because DHS has not articulated a foreseeable harm that would result if the redacted list of options were disclosed.” “The Court disagrees on each score and concludes that DHS properly invoked the deliberative-process privilege to justify its redactions.” “First, alternative courses of action that an agency may take in the future may be withheld under the aegis of the deliberative-process privilege.” “[Plaintiff’s] theory – that the privilege shields the discussion of an agency’s options, but not the content of the options themselves – is incompatible with precedent in this Circuit.” “Second, [plaintiff’s] argument that the redacted signature-level justification paragraph is nothing more than a ‘quotidian explanation of the existing law’ entirely ignores DHS's stated reason for withholding it. DHS represents that the redacted paragraph contains the ‘preferred recommended action’ that the memo’s drafter advises the Secretary to take with respect to the two MPP facilities.” “Such an ‘advisory opinion[]’ or ‘recommendation[]’ goes to the very core of what the deliberative-process privilege means to shield from public scrutiny.” “Third, DHS has provided the Court with a sufficiently particularized articulation of the foreseeable harms likely to result from disclosure.” “Unlike the Somalia TPS Memo, DHS claims that the MPP Memo concerns a ‘highly controversial and sensitive’ government initiative, an assertion corroborated by the abundance of litigation surrounding the MPP program.” “And although the MPP itself may never be re-implemented, DHS plausibly suggests that the agency will likely have to make similar ‘[d]ecisions regarding immigration hearing infrastructure’ in the future.” “It is reasonably foreseeable that if agencies are forced to divulge memoranda that identify and analyze potential courses of action related to highly controversial programs, agency personnel tasked with such analyses may be less inclined to put their opinions into writing candidly, if at all.” “And it stands to reason that depriving decision-makers of high-quality written memoranda will ‘result in less informed decisions,’ . . . a harm that the deliberative-process privilege is intended to prevent.”
- Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: The court finds that “DHS asserts that it has conducted a ‘page-by-page, line-by-line review’ of the MPP Memo and released all reasonably segregable non-exempt material to [plaintiff].” “[Plaintiff] has proffered no reason for skepticism of DHS’s claim that it has made an adequate, good faith effort to comply with FOIA’s segregability requirement, a presumption to which DHS is entitled.” “The fact that large parts of the memo are unredacted – e.g., the identities of the senders and recipients, as well as the memo's sections on ‘purpose,’ ‘background,’ and ‘timeliness’ – buttresses this conclusion.” “DHS therefore properly redacted the MPP memo pursuant to the deliberative-process privilege.”