Documented v. DHS, No. 21-3142, 2024 WL 4650899 (D.D.C. Nov. 1, 2024) (Lamberth, J.)

Documented v. DHS, No. 21-3142, 2024 WL 4650899 (D.D.C. Nov. 1, 2024) (Lamberth, J.)

Re: Request for records concerning Department’s consideration of various countries for Temporary Protected Status (“TPS”) pursuant to 8 U.S.C. § 1254a

Disposition:  Denying defendant’s motion for reconsideration

• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations; Litigation Considerations, Relief:  The court holds that “[defendant] should have made [certain] connection[s] explicitly in its briefing.”  “But more importantly, DHS is incorrect to suggest that these factors escaped the Court’s attention, and the mere fact that the Court did not expressly address each of them one-by-one in its Opinion does not prove as much.”  “First, the mere fact that TPS memos concern consequential governmental decisions with foreign and domestic political implications does not automatically render them so sensitive as to merit withholding.”  “[A]lthough TPS decisions are important . . . the government renders important policy decisions all the time, not all of which are necessarily ‘high-profile’ or ‘sensitive,’ as DHS urges that the Somalia TPS Memo is.” “Second, the fact that TPS designations will have to be made in the future is irrelevant unless DHS can credibly demonstrate that disclosure of the Somalia TPS Memo will impoverish the intra-agency discussions related to those future designations.”  “DHS has not met its burden to show that memo drafters will recoil from putting their thoughts in writing simply because one of their products has been made available to the public through FOIA.”  “The only other plausible reason to fear that disclosure of the Somalia TPS Memo will chill future agency discussions relates to the third fact that DHS alleges the Court failed to consider:  TPS designations have been the subject of recent litigation.” “If the abstract threat that a record may be used in future litigation were enough by itself to satisfy FOIA’s foreseeable harm requirement, that requirement would be reduced to a nullity.” “DHS has not convinced the Court that disclosure of this particular memo will induce such grave apprehension of use in future litigation as to shut down future intra-agency debate regarding prospective TPS designation decisions.”
  
  “Setting aside the fact that much of DHS’s supposedly new material is actually duplicative of arguments that have already been raised and rejected, the Court perceives no reason, at this advanced stage of litigation, to permit DHS to raise for the first time facts or arguments that were known to the agency at the time that it submitted its summary judgment briefing.”  “‘[A] motion for reconsideration is not to be used “as a vehicle for presenting theories or arguments that could have been advanced earlier.”’”  “Moreover, in forecasting that the Court’s Order will work a ‘manifest injustice’ by chilling all future internal discussion of TPS designations, and therefore undermining the quality of future TPS decisions, the agency seems to miss an important point about the scope of the Court’s Opinion.”  “The Court did not hold, and does not now hold, that all TPS memos must necessarily be disclosed in response to a FOIA request.”  “Rather, the Court held that this particular TPS memo must be disclosed because DHS did not meet its burden as a litigant to show that disclosure would result in some significant foreseeable harm.” “Because the agency has not established its entitlement to reconsideration, the Court need not take a position on whether DHS could have met that burden, had it raised its new arguments from the beginning.”