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Judicial Watch, Inc. v. DHS, No. 11-00604, 2013 WL 753437 (D.D.C. Feb. 28, 2013) (Kollar-Kotelly, J.)

Re: Request for records concerning "recent changes in federal immigration enforcement priorities and their implementation in Houston, Texas" Disposition: Granting DHS's renewed motion for summary judgment in part and finding that DHS properly withheld information from seventeen documents pursuant to the deliberative process privilege and from two documents pursuant to the attorney-work product doctrine; denying DHS's motion to the extent it sought to protect four documents pursuant to the attorney-client privilege and two documents pursuant to the attorney-work product doctrine
  • Exemption 5 & Segregability: The court finds that DHS properly withheld information from seventeen documents pursuant to the deliberative process privilege. The court notes the documents all "appear . . . to contain discussions reflecting the 'give-and-take' of the consultative process occurring within the agency in connection with the adoption of final guidance regarding which removal cases satisfy the criteria for potential dismissal." The court also concludes that DHS has released all reasonably segregable information. It notes that "although several of the documents are heavily redacted, DHS has not withheld from Judicial Watch any document in [its] entirety." DHS's declarant explained "that he 'reviewed each record line-by-line to identify information exempt from disclosure' and that '[w]ith respect to the records that were released in part, all information not exempted from disclosure pursuant to FOIA exemptions . . . was correctly segregated and non-exempt portions were released.'" In addition, "DHS's Second Vaughn Index . . . describes the content of the withheld information with significantly greater specificity than its First Vaughn index." Accordingly, based upon the declaration and the more detailed Vaughn, the court is satisfied that DHS has shown that all reasonably segregable information has been released. With respect to the attorney-work product doctrine, the court concludes that DHS could not invoke the attorney-work product privilege to withhold documents that were "promulgated as 'general standards' to instruct ICE [Immigration and Customs Enforcement] staff attorneys in determining whether to exercise prosecutorial discretion in specific categories of cases." The court finds that the documents do not "anticipate litigation in the way the work-product doctrine demands, as there is no indication that the document includes the mental impressions, conclusions, opinions, or legal theories of . . . any [] agency attorney, relevant to any specific, ongoing or prospective case or cases." The court opines that "[n]early all of the other challenged work-product redactions suffer from the same fundamental infirmity." However, two sections were properly withheld because they were "'derived from attorney notes' and indicative of OCC Houston attorneys' reasons for declining to prosecute in specific cases handled by the office." Finally, the court orders DHS to release information withheld solely pursuant to the attorney-client privilege. The court finds that DHS has not demonstrated "the communication contained within the documents 'relates to a fact of which the attorney was informed by his client . . . for the purpose of securing legal advice'" or "that the communications themselves rest on confidential information obtained from the client."
Court Decision Topic(s)
District Court opinions
Exemption 5
Updated August 6, 2014