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Emuwa v. DHS, No. 20-01756, 2021 WL 2255305 (D.D.C. June 3, 2021) (McFadden, J.)


Emuwa v. DHS, No. 20-01756, 2021 WL 2255305 (D.D.C. June 3, 2021) (McFadden, J.)

Re:  Request for "'Assessments to Refer' ('Assessments')" from DHS

Disposition:  Granting defendant's motion for summary judgment; denying plaintiffs' cross-motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  "[T]he Court determines that the deliberative process privilege applies to the analysis portions of the Assessments."  The court relates that "[w]hile DHS released the 'factual narrative' section of Assessments to FOIA requesters, it withheld 'the analysis sections.'"  The court finds that "[t]he deliberative process privilege applies to the Assessments."  "In fact, the D.C. Circuit has already answered this question."  "It described an Assessment to Refer as a 'short document prepared by a Department official after interviewing an asylum applicant,' which 'summarizes the asylum interview,' 'assesses the applicant's credibility and consistency,' and 'recommends whether to grant asylum.'"  "The court explained that '[t]he Department official who wrote the Assessment to Refer then forwards it to a supervisor, who in turn decides whether to grant asylum.'"  "The Circuit reasoned that the assessment was predecisional because 'it was merely a recommendation to a supervisor,' as '[t]he supervisor, not the official writing the Assessment, made the final decision.'"  "It was also deliberative because 'it was written as part of the process by which the supervisor came to that final decision.'"  "The document thus 'had no operative effect' on its own."  The court finds that "[t]he analysis portions of the Assessments are predecisional – they do not 'communicate[ ] the agency's settled position' because the agency does not treat them 'as its final view on the matter.'"  "The Assessments are also deliberative, as 'they were prepared to help the agency formulate its position.'"

    Additionally, the court finds that "DHS sufficiently explained why disclosure of the redacted information in the Assessments would cause harm."  "Its declaration states that, because the Assessments 'did not represent the Agency's final decisions and . . . reflect the analysis, opinions, deliberations and recommendations of the asylum officer,' the agency 'determined that releasing the information that was redacted would chill or deter USCIS employees from engaging in the candid and frank discussions that are so important and necessary to the full and proper analysis and fair consideration of these asylum requests on the merits.'"  "Such chilling of candid advice is exactly what the privilege seeks to prevent.'"
  • Litigation Considerations:  The court relates that "Plaintiffs contend [regarding defendant's use of Exemption 5] that they have supplied that 'evidence' here."  "They rely on their attorney's declaration, which conveys that sometime in 'the years 2013 or 2014, [he] talked face-to-face with two former asylum officers' who told him about procedures in the asylum office, including that the Assessments are 'the final decision of the agency.'"  The court finds that "[t]rue, in the FOIA context, the Government's 'FOIA declarants may rely on information obtained through inter-agency consultation.'"  "But it is another matter for a party 'to rely on out-of-court statements from private third-parties' at summary judgment."
  • Litigation Considerations, Vaughn Index/Declaration:  The court finds that "[defendant's declarant's] declaration is appropriate and admissible."  "[Defendant's declarant] declares that she is 'familiar with USCIS's standard process for responding to FOIA requests,' as well as the 'actions taken in response' to Plaintiffs' requests in particular."  "She also asserts that her statements were 'based on [her] personal knowledge, [her] review of relevant documents kept by USCIS in the course of ordinary business, and upon information provided to [her] by other USCIS employees in the course of [her] official duties.'"  "These statements satisfy the personal knowledge requirement."
  • Waiver and Discretionary Disclosure, Waiver:  The court relates that Plaintiffs say that 'DHS routinely released entire assessments to FOIA requesters from 1998-2005' and that doing so caused no harm."  The court finds that "'an agency does not forfeit a FOIA exemption simply by releasing similar documents in other contexts.'"  "Put differently, '[a]lthough an agency may waive the deliberative process privilege as to a particular document by releasing it to the public, an agency does not waive the privilege as to an entire class of documents by voluntarily releasing one document of that type.'"
  • Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court finds that the agency has met its burden on segregability and that Plaintiffs have not submitted evidence to overcome the presumption afforded to the agency."  "DHS' declaration also explains that 'it released all segregable material.'"  "It provides that, as to the material withheld under Exemption 5, '[o]nly predecisional and deliberative material was withheld and all other information was segregated and released.'"
  • Litigation Considerations, Adequacy of Search:  The court relates that "Plaintiffs concede the adequacy of DHS' search."  "In any event, the Court would independently find that the search was adequate."  "DHS determined that any responsive records 'would be located in the [Plaintiffs’] A-Files' – their 'Alien File' where 'all immigration transactions involving a particular individual are documented and stored.'"  "The agency has met its burden to 'show that it made a good faith effort to conduct a search for the requested records.'"
  • Litigation Considerations, Pattern-or-Practice Claim:  The court holds that " [the one plaintiff advancing this claim] has not shown that it is likely to suffer a future injury."  "True, it alleges that it 'helps asylum applicants,' 'has made FOIA request for Assessments of asylum applicants in the past, and will continue to do so in the future.'"  "But mere allegations cannot survive summary judgment."  "The Center submits no evidence showing, for example, that it has other FOIA requests for Assessments pending or that it will submit future requests."  Additionally, the court relates that "Plaintiffs argue that DHS has not adequately trained its FOIA processors on the 2016 FOIA amendment."  "They ask the Court to '[o]rder defendant to revamp and improve its training of officers.'"  "While Plaintiffs do not develop their legal basis for this claim either, the Court construes it as a policy-or-practice claim, as Plaintiffs challenge DHS' alleged policy of not training processors and seek injunctive relief."  "For the reasons just explained, Plaintiffs lack standing to pursue this claim too."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Litigation Considerations, Adequacy of Search
Litigation Considerations, Pattern-or-Practice Claims
Litigation Considerations, Supplemental to Main Categories
Litigation Considerations, Vaughn Index/Declarations
Litigation Considerations, “Reasonably Segregable” Requirements
Waiver and Discretionary Disclosure
Updated November 5, 2021