Ferrara v. DHS, No. 20-650, 2021 WL 2644388 (D.N.M. June 28, 2021) (Vázquez, J.)

Ferrara v. DHS, No. 20-650, 2021 WL 2644388 (D.N.M. June 28, 2021) (Vázquez, J.)

Re:  Request for plaintiff's client's ex-wife to USCIS

Disposition:  Overruling in part and granting in part plaintiff's objection to magistrate judge's report and recommendation; amending report and recommendation in part; granting remainder of defendant's motion for summary judgment

• Litigation Considerations, Waiver of Exemptions in Litigation:  "The Court agrees [with defendant]."  "The relevant cases consistently recognize the principle that an agency does not waive a FOIA exemption by failing to raise it in the administrative process . . . ."  "For these reasons, the Court finds that Defendants may rely on Exemption 6 to support withholding the document[, despite only withholding production of the document at issue pursuant to Exemptions 7(C) and (E) at the administrative level.]"
   
• Exemption 6:  The court relates that "[t]he document at issue is a personal letter written by the ex-wife of Plaintiff's client."  The court first finds that "[h]ere, the letter is maintained by Defendant USCIS for official purposes in Plaintiff's client's Alien file ('A file'), and therefore qualifies as a 'detailed Government record' that 'applies to a particular individual.'"  Next, "[t]he Court . . . concludes that Defendant USCIS properly determined that the letter implicates a substantial privacy interest of the ex-wife, and that if the letter were disclosed, the ex-wife and her family could be subject to 'embarrassment, harassment, or the risk of mistreatment.'"  Finally, "[t]he Court agrees with the Magistrate Judge's conclusion that 'disclosure of the January 31, 2019 letter will do little if anything to further the public's understanding of whether Defendants are properly doing their jobs; rather, the document's disclosure simply furthers Plaintiff's interest in advancing her client's personal case in immigration court.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Having reviewed the withheld document, the Court agrees with Plaintiff that some of the letter can be produced without causing an unwarranted invasion of the ex-wife's privacy and as consistent with Defendants' public description of the letter."  "The Court thus hereby modifies the [report and recommendation] to direct Defendants to comply with § 552(b) by producing to Plaintiff, within seven days of the entry of this Order, a redacted copy of the letter, in which the unredacted portion reveals the non-exempt details that Defendants have already disclosed . . . ."