Hawkinson v. ICE, No. 20-10189, 2021 WL 3604845 (D. Mass. Aug. 12, 2021) (Saylor, C.J.)

Hawkinson v. ICE, No. 20-10189, 2021 WL 3604845 (D. Mass. Aug. 12, 2021) (Saylor, C.J.)

Re:  Request for certain EOIR and ICE training materials, as well as communications concerning those materials

Disposition:  Granting defendant's motion for summary judgment

• Exemption 5, Deliberative Process Privilege; Exemption 5, Attorney Work-Product Privilege & Exemption 5, Attorney-Client Privilege:  The court first considers "e-mails . . . from [an] Assistant Chief Immigration Judge [("ACIJ")] . . . to court staff at the Boston and Hartford immigration courts."  "More specifically . . . all three e-mails 'consist[ ] of . . . e-mails (with attachments) from [the] ACIJ . . . to immigration judges and court staff in Boston and Hartford advising how and when to implement the requirements imposed by the Court in [prior] litigation.'"  The court finds that "[t]he advice contained in the redactions to the three e-mails in question does appear to have been 'prepared prior to a final decision in order to assist an agency decisionmaker in arriving at his decision.'"  "'Thus, the advice and guidance given are interim in nature and therefore deliberative, pending final outcome of the case and appeals and/or direction from other sources . . . .'"  "In addition, defendants have shown that the redacted information from the three e-mails concerned an 'agency decision' – that is, how to implement the requirements the court announced in [prior litigation]."  "The redactions in the e-mails also appear to be 'a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters.'"  "As for the two attachments to those e-mails that EOIR withheld, it contends that it was entitled to do so pursuant to the work-product doctrine and attorney-client privilege."  " The attachments are documents or tangible things, and they were prepared in anticipation of litigation because they provide guidance on how court staff and judges should handle bond hearings and alternatives to detention."  "And, as noted, they are provided by attorneys to 'their Agency clients.'"
  
  Regarding certain email chains, the court finds that "it is implicit from the subject matter of the e-mails, which mainly focuses on litigation strategy for the appeal of the [prior] case and compliance with the order, that the communications were made in confidence between EOIR and ICE – the clients – and their attorneys within DOJ OIL."  "Therefore, the e-mails are protected by the attorney-client privilege."  "In addition, the e-mails are protected by the work-product doctrine, because they are 'tangible thing[s]' prepared in anticipation of litigation – that is, the appeal of [the prior order] and compliance with the order in existing cases – prepared by or for the party (ICE and EOIR)."
  
  Regarding "redacted text from [one] document contain[ing] 'potential strategies to pursue when conducting bond hearings under the [new] standard [articulated by a prior case],'" the court finds that "[u]nlike the three e-mails released by EOIR, which were described as 'interim' and 'pre-decisional,' it is not clear that this document was 'prepared prior to a final decision "in order to assist an agency decisionmaker in arriving at his decision."'"  "[Defendant] does not directly describe the instructions on how to handle the bond hearings as interim or pre-decisional."  "In any event, however, the '[prior case] Strategy Session' document clearly meets the requirements of the work-product doctrine."  "The redacted information provides training materials because it contains 'potential strategies to pursue when conducting bond hearings under the [prior case] standards.'"  "Furthermore, it was prepared by OPLA OCC Boston for ICE attorneys."
  
  Regarding several remaining emails and draft documents, the court finds that "they are clearly drafted for a party in anticipation of further litigation in the [prior litigation] case."  "In addition, they are pre-decisional because they are in draft, non-final form, and they are deliberative because they contain comments for consideration."
   
• Exemption 7, Threshold:  The court holds that "the information plaintiff seeks was clearly compiled for 'law enforcement purposes.'"  "As noted, the information released to plaintiff involved documents and e-mails about . . . the appeal of a court decision – and documents and e-mails that contained advice to ICE attorneys on how to handle . . . enforcement of a law."
   
• Exemptions 6 & 7(C):  The court first notes that "because the records or information at issue were compiled for law-enforcement purposes, and because '[e]xemption 7(C)'s privacy language is broader than the comparable language in [e]xemption 6,' the Court will focus its analysis on the terms of exemption 7(C)."  Then, "the Court finds that the redactions of the names, telephone numbers, and e-mail addresses in question were proper under exemption 7(C)."  The court first notes that "[c]ourts have recognized that ICE attorneys have a privacy interest in not having their names and e-mail addresses revealed."  The court relates that "plaintiff has not made [the public interest] showing."  "He asserts generally that 'knowing the who in "who is doing what" is an enormous part of understanding what the government is up to.'"  "But that reasoning would apply in every case, and he has not identified any public interest or benefit specific to the disclosure of these names or to this FOIA request."
  
  The court relates that "Plaintiff requests in the alternative that the Court order ICE to substitute unique identifiers for the names on the basis that 'it is extremely difficult to follow the threads of conversation and make sense of them [without such identifiers].'"  "In response, the government correctly contends that FOIA does not require agencies to 'create . . . documents; it only obligates them to provide access to those which it in fact has created . . . .'"  "However, it is not clear that the government would be creating a document by substituting names for a unique identifier, which arguably is a method of redaction."  "The Court will assume that in at least some circumstances the government may be required to provide such unique markers.  Here, however, plaintiff has not identified any unusually heightened public interest or benefit in this case, nor any unusual burden imposed by the failure to provide unique identifiers."
   
• Litigation Considerations, Pattern-or-Practice Claims:  The court finds that "defendants are entitled to summary judgment as to plaintiff’s procedural claims."  The court notes that "since the filing of his complaint, plaintiff has submitted two more FOIA requests to ICE, on September 30 and November 30, 2020."  The court finds that "[i]t is therefore clear, at a minimum, that plaintiff has pending FOIA requests with ICE, and that the 'ongoing injury' requirement is satisfied."  "Accordingly, the issue is whether he has demonstrated that the specific policies he challenges are likely to impact those requests." 
  
  Next, the court relates that "Plaintiff essentially contends that the e-mail and website of ICE and DHS have a practice of not providing 'meaningful' estimates for the completion of FOIA requests, and that such a practice could affect his pending FOIA requests (and appears to have already impacted them)."  "He contends that such a practice injures him because if he does not understand how long the delay will be, he will not be able to determine whether litigation is the appropriate next step."  "Thus, he has alleged an ongoing practice that is impacting his pending FOIA requests (the practice of failing to comply with § 552(a)(7)(B)) and an injury (his lack of information about how long ICE will take to respond to his requests)."  However, the court finds that this argument "fail[s] to state a claim because defendants have complied with the procedural requirements in question."  The court explains that "even if § 552(a)(7) provides a deadline, in this case, ICE's response was not so untimely that it would violate it."  "It sent him an e-mail five days after he first inquired by e-mail, which according to one court, is the relevant time period to consider."
  
  Regarding another "complained-of practice – that 'Defendants ICE and DHS have a pattern and practice of failing to properly report their FOIA response times' – [the court finds that] at a minimum [that practice] did not cause plaintiff's alleged injuries (a slow and over-redacted response to his FOIA request)."  "In other words, his request was not implicated by the alleged improper practice."  Therefore, the court finds that "plaintiff does not have standing to assert [these claims]."