Heartland Alliance for Human Needs & Human Rights v. DHS, No. 16-211, 2018 WL 647634 (D.D.C. Jan. 31, 2018) (Collyer, J.)

Heartland Alliance for Human Needs & Human Rights v. DHS, No. 16-211, 2018 WL 647634 (D.D.C. Jan. 31, 2018) (Collyer, J.)

Re: Request for statistical reports regarding Secure Communities and Priority Enforcement Program

Disposition: Denying defendant's motion for partial summary judgment; granting in part plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "DHS fails to indicate in its briefs, statement of material facts, or . . . declaration . . . how the search was conducted, and it provides no facts from which the Court could make a finding that its search was adequate."  "Although a search must have been conducted because documents were located and produced in part, there is insufficient information in the record for the Court to make the required finding that the search was reasonable and, therefore, DHS's motion for partial summary judgment will be denied."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "DHS's and [plaintiff's] motions for partial summary judgment will both be denied with respect to the draft statistical reports."  The court relates that "DHS relies on the deliberative process privilege to withhold or redact all the draft statistical reports related to the Security Communities program[.]"  Regarding the predecisional nature of the records, "[t]he Court looks to DHS's declarations and Vaughn Indexes to determine the decision-making process at issue in draft reports, but DHS has failed to provide information sufficient to determine what potential agency decision was at issue."  "DHS must identify what prospective 'final policy' the documents predate."  Regarding the deliberative nature of the records, "[t]o the extent the withheld statistical reports are part of the first step in DHS's plan to conduct statistical monitoring of Secure Communities and include any or all of the metrics DHS publically indicated would be calculated, the Court finds the information contained in the reports is not deliberative."  "DHS publically disclosed in great detail the metrics it would use to evaluate Secure Communities; therefore, any report containing completed metrics involved no individual decision-making or judgment."  "To the extent portions of the statistical reports proceeded further into the second step of analysis identified by DHS, and made recommendations or observations about the utility of Secure Communities, those portions of the records may properly be considered deliberative."  "However, DHS has not provided sufficient information in its Vaughn Indexes or declarations to allow the Court to conduct this analysis and differentiate between portions of the reports containing the metrics previously identified by DHS and portions purporting to provide further analysis of those metrics."
  
  The court also holds that, "[b]ecause data and results from requests for statistical information are factual information not protected from disclosure under Exemption 5, DHS shall conduct a reasonable search designed to locate all underlying data and produce the results to [plaintiff]."