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Emuwa v. DHS, No. 20-01756, 2022 WL 1451430 (D.D.C. May 9, 2022) (McFadden, J.)

Date

Emuwa v. DHS, No. 20-01756, 2022 WL 1451430 (D.D.C. May 9, 2022) (McFadden, J.)

Re:  Request for "asylum documents called Assessments to Refer from the Department of Homeland Security (DHS)"

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

  • Litigation Considerations, Foreseeable Harm Showing:  "After Machado Amadis and Reporters Committee, agencies must make two showings."  "First, the agency must, as always, show that a FOIA exemption applies to withheld information."  "Second, the agency must articulate, in a 'focused and concrete' way, the harm that would result from disclosure, including the basis and likelihood of that harm."  "Here, DHS has submitted a supplemental declaration explaining the foreseeable harm from disclosure of the Assessments."  "[T]he Court easily rejects Plaintiffs' argument that the declaration is 'boilerplate.'"  "Unlike the unmoored agency assertions in this Court's Reporters Committee case, DHS 'specifically focused on the information at issue' in the Assessments and explained how disclosure of that information 'would chill future internal discussions.'"  "Specifically, asylum officers would 'temper their discussions' of a particular applicant and would focus less on 'the substance of the information' in the asylum file."  "And the agency discussed how disclosure would impede agency deliberations in a 'specific context,' . . . namely, 'the full and proper analysis and fair consideration of [ ] asylum requests on the merits.'"  "These robust explanations from DHS carry the agency's burden under the foreseeable harm requirement."  As to plaintiff's assertion that DHS has previously released similar documents, "[a]n agency does not forfeit or waive a FOIA exemption 'as to an entire class of documents by voluntarily releasing one document of that type.'"  "Plaintiffs also dismiss DHS's emphasis on potential fraud as an inappropriate assertion of foreseeable harm."  "According to Plaintiffs, the harm envisioned in Exemption 5—under which DHS asserts the deliberative process privilege—is a lack of candor within agencies, not fraud by bad actors."  "The Court disagrees."  "For one thing, DHS's discussion of the need for candid evaluations . . . is enough to carry the agency's burden without any reference to fraud."  "More, DHS has expressly tied its fraud concerns to candor inside the agency."  "True, DHS mentions fraud, but only because the possibility of fraud would dissuade full and fair deliberation."  "That is a proper assertion of foreseeable harm under Exemption 5."
Court Decision Topic(s)
District Court opinions
Litigation Considerations, Foreseeable Harm Showing
Updated May 26, 2022