Immigrant Def. Project v. DHS, No. 20-10625, 2023 WL 1966178 (S.D.N.Y. Feb. 13, 2023) (Abrams, J.)

Immigrant Def. Project v. DHS, No. 20-10625, 2023 WL 1966178 (S.D.N.Y. Feb. 13, 2023) (Abrams, J.)

Re:  Request for records concerning immigration enforcement initiative called “Operation Palladium”

Disposition:  Granting in part and denying in part defendants’ motion for summary judgment; granting in part and denying in part plaintiffs’ motion for summary judgment

• Litigation Considerations, Adequacy of Search & Procedural Requirements, Searching for Responsive Records:  “The Court . . . concludes that ICE is not entitled to summary judgment with respect to the custodians searched or the search terms used, except for [two search terms].”  “ICE must either provide sufficiently detailed, reasonable, and nonconclusory justifications as to why it did not search the custodians and terms identified as relevant by Plaintiffs, or, to the extent ICE chooses not to attempt to justify its prior search terms and procedures, the agency must perform a new search that is ‘reasonably calculated to uncover all relevant documents,’ . . . as set forth in this Opinion.”  Regarding search locations, the court finds that “ICE does not assert that [the office that it searched] was the only location likely to maintain responsive records.”  “Nor does ICE explain why other sub-agencies were unlikely to possess responsive records.”  “And the fact that ‘Operation Palladium was an [initiative led by the office that ICE searched] in concept and execution’ does not rule out the possibility that other offices were also involved in its implementation.”  “ICE’s declarations, however, are devoid of any further detail regarding the offices it chose to search – and not to search – and why.”
  
  Regarding search terms, the court finds that “ICE provides no explanation for [certain] discrepancies.”  The court also finds that defendant “do[es] not provide any insight as to why some offices found certain search terms to be relevant . . . [including some] which [are] expressly listed in the Request – and other offices did not.”  The court also relates that “ICE also failed to use clearly relevant search terms identified by Plaintiffs.”  Regarding terms that plaintiff argues “are ‘too broad’ and would produce a ‘large volume of non-responsive records,’” the court finds that “the agency does not explain why more specific search strategies, such as Boolean connectors, could not be used to narrow the field of results.”
  
  “That said, ICE's decision not to search ‘Op Palladium’ and ‘OP PALLADIUM’ were reasonable.”  “As ICE explains, searching the word ‘Palladium alone, which each of the custodians did, ‘would uncover the same amount, if not more, records’ than searching the word ‘Palladium’ in conjunction with other terms.”  “ICE also explains that their searches are ‘not case-sensitive,’ so ‘changing the capitalization of certain words would make no difference in the records returned.’”  The court finds that “[t]hese are logical justifications, and ICE is therefore not obligated to conduct searches for ‘Op Palladium’ and ‘OP PALLADIUM.’”
   
• Exemption 5, Deliberative Process Privilege:  The court relates that “Plaintiffs challenge the redaction of two documents under the deliberative process privilege:  (1) an email labeled as ‘Operation Palladium – [Homeland Security Investigations (“HIS”)] HSI Special Agent in Charge (SAC) Assignments to [Enforcement and Removal Operations (“ERO”)] Field Offices,’ and (2) an email labeled as ‘ICE HSI Assistant Special Agent in Charge (ASAC) to numerous (more than twenty) ICE employees.’”  Regarding the first document at issue, the court relates that “Plaintiffs challenge two redactions in this document.”  “First, ICE redacted the identities of seven ERO Field Offices known as ‘surge sites.’”  The court finds that “[t]he agency’s Vaughn index, however, provides no explanation as to why the identities of those Field Offices are predecisional or deliberative, which is plainly insufficient.”  “Second, ICE redacted the ‘potential number range of SAC [officers]’ to be deployed to each ERO Field Office.”  The court finds that “mere staffing numbers are more akin to ‘purely factual material’ . . . .”  “While the Court does not doubt, as ICE argues, that ‘how to staff the operation’ was a ‘policy-laden [question] with which ICE had to grapple,’ . . . the Vaughn index does not suggest that the redacted information in this particular document reflected any deliberations of that policy question.”  Regarding the second document, that court relates that “[a]ccording to the Vaughn index, in the redacted section of this document, ‘the ASAC informs the agents on the email of the methodology of how agents will be selected for upcoming operations and that all agents should get their cases up to date with statistics and program codes.’”  The court finds that “[n]othing in that explanation suggests the redacted information is predecisional or deliberative.”  “Indeed, this email falls squarely in the category of ‘process[es] transmitted to subordinates for application,’ which are not exempt from disclosure.”  “Thus, neither of these documents are protected by the deliberative process privilege, unless ICE provides nonconclusory explanations demonstrating that these documents are both predecisional and deliberative.”
   
• Exemption 5, Attorney-Client Privilege:  The court relates that “Plaintiffs challenge the redaction of the following three documents made pursuant to the attorney-client privilege:  (1) the ERO Fugitive Operations Handbook, (2) the [Office of Principal Legal Advisor (“OPLA”)] Fourth Amendment Refresher Training, and (3) the Operation Plans for Operation Palladium for the New York and Newark Field Offices.”  The court finds that “ICE has not met its burden in establishing that the allegedly privileged communications were made in confidence and have remained confidential.”  “For each of the challenged documents over which ICE asserts an attorney-client privilege, the Vaughn index states the following (or a substantially similar version of the following):  ‘Sections of the document contain legal guidance from [OPLA] attorneys.[’]”  “[‘]These particular sections provide OPLA’s opinions and guidance to ERO.’”  “The Vaughn index further states, in general and conclusory terms, that ‘[a]ttorney-client communications are shielded from disclosure in order to encourage a full and frank discussion between the client and their legal advisor.’”  “[Defendant’s] declaration similarly states, in conclusory fashion:  ‘The attorney-client privilege applies to a category of records that contain confidential communications between ICE attorneys and their clients (ERO and HSI employees) relating to legal matters for which the client has sought professional legal advice.’”  The court finds that “[t]hese assertions fail to ‘affirmatively establish [the] confidentiality’ of these particular documents, as the agency is required to do.” 
  
  Additionally, the court relates that “Plaintiffs additionally argue that these documents are not covered by attorney-client privilege because they constitute ‘final agency policy’ or ‘working law.’”  “The Court disagrees.”  “Plaintiffs do not point to any evidence in the record indicating that these documents have been adopted as final agency policy.”  “In the Vaughn index, ICE asserts that these documents provide ‘legal guidance’ on topics such as ‘the handling of gang members,’ ‘how to review and prepare arrest warrants,’ and ‘use of force,’ to name a few.”  “While this kind of advice could certainly be implemented as final agency policy, the Court cannot conclude that these documents have been implemented as such – and would thereby fall outside the scope of the attorney-client privilege – without any evidence to that effect in the record.”  “[W]hile these documents do not constitute working law or final agency policy, they will not be deemed protected by the attorney-client privilege unless ICE provides nonconclusory explanations establishing the confidentiality of the documents both at the time of their creation and maintained since.”
   
• Exemption 7(E):  The court relates that “Plaintiffs challenge the redaction of four documents under Exemption 7(E):  (1) the ERO Fugitive Operations Handbook, (2) the OPLA Fourth Amendment Refresher Training, (3) the HSI Special Agent Training Surveillance Guide, and (4) the email labeled as ‘Operation Palladium – HSI Special Agent in Charge (SAC) Assignments to ERO Field Offices.’”  First, regarding the ERO Fugitive Operations Handbook, the court finds that “according to the Vaughn index, ICE redacted information about ‘specific law enforcement systems/databases and their identifiers.’”  “Multiple courts have concluded that information regarding internal databases and access procedures are exempt from disclosure.”  “And regardless of whether such information is considered ‘techniques and procedures’ or ‘guidelines,’ ICE provides a reasonable explanation for why disclosure of this information would risk circumvention of the law, stating that ‘[k]nowledge of websites, complete email addresses, and system database codes can lead to denial-of-service attacks and/or manipulation of systems if access is gained.’”  “This redacted information is thus exempt from disclosure.”  “ICE also redacted from the Fugitive Operations Handbook information regarding the ‘administrative arrests of removable noncitizens inside the United States,’ including ‘the processes of the FOT to receive, review, and approve lead information; the considerations for developing and maintaining the cooperation of confidential informants (including systems to use); and the processes for locating and verifying the removability of noncitizens.’”  “Such processes logically relate to law enforcement methods for identifying and investigating targets, and thus qualify as ‘techniques and procedures.’”  “Plaintiffs insist that an earlier version of the Fugitive Operations Handbook, which was voluntarily produced in a past lawsuit, ‘contain[s] agency law and policy for agents – not specific and technical guidelines that if learned by the public could lead to the circumvention of law.’”  “However, the Court cannot draw inferences about what the current version of the document contains based solely on earlier versions, given that the agency has provided a sworn statement regarding its actual contents.”  “This information is thus also exempt from disclosure.”
  
  Second, regarding the OPLA Fourth Amendment Refresher Training, the court finds that “[t]he agency redacted the following information from this document:  ‘law enforcement strategies for interacting in the public (e.g., knock and talk rules)[,] handling social media and media coverage, the use of certain technologies, [and] the discussion of scenarios that demonstrate law enforcement tactics.’”  “‘[T]he use of certain technologies’ and ‘the discussion of scenarios that demonstrate law enforcement tactics’ are too vague to support withholding, without any further detail as to what these ‘technologies,’ ‘scenarios,’ or ‘law enforcement tactics’ are.”  “‘[I]nteracting in the public’ and ‘handling social media and media coverage,’ while more specific, appear by definition to be public-facing information, which is not exempt from disclosure as a ‘technique or procedure.’”  “To the extent that ‘interacting in the public’ and ‘handling social media and media coverage’ constitute ‘guidelines,’ the Vaughn index does not provide an adequate explanation for how the disclosure of this information would risk circumvention of the law.”  “The agency merely states, in conclusory fashion, that ‘[k]nowledge of these aforementioned law enforcement activities could permit people seeking to violate or circumvent the law to take proactive steps to counter operational and investigative actions taken by ICE during enforcement operations.’”
  
  Regarding the HSI Special Agent Training Surveillance Guide, the court finds that, “[a]ccording to the Vaughn index, the agency redacted from this document information about ‘law enforcement surveillance procedures, activities, tactics, and techniques.’”  “The Court does not doubt that certain surveillance tactics are exempt from disclosure as law enforcement techniques and procedures.”  “However, the Court cannot conclude that these particular surveillance activities constitute ‘techniques and procedures’ based merely on the circular statement that they do.”  “ICE must provide some minimal description of the surveillance activities at issue, without disclosing sensitive information, that allows the Court to logically conclude the redacted information is exempt.”
  
  Regarding the email labeled as “‘Operation Palladium – HSI Special Agent in Charge (SAC) Assignments to ERO Field Offices,’” the court finds that “for this document, the Vaughn index does not specify what information is being withheld pursuant to Exemption 7(E).”  “To the extent the agency is using Exemption 7(E) to justify the redaction of the number of SAC officers deployed and the location of ‘surge sites,’ as discussed above, that information does not constitute ‘techniques and procedures’ – indeed, the Vaughn index itself describes the email as a ‘resource-management document.’”  “And as with the Fourth Amendment Refresher Training, to the extent these redactions constitute ‘guidelines’ for the purposes of Exemption 7(E), the Vaughn index does not adequately explain how the disclosure of this information would risk circumvention of the law.”