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Kapende v. DHS, No. 18-1238, 2019 WL 1359285 (D.D.C. Mar. 26, 2019) (Jackson, J.)


Kapende v. DHS, No. 18-1238, 2019 WL 1359285 (D.D.C. Mar. 26, 2019) (Jackson, J.)

Re:  Request for records concerning asylum applications submitted by plaintiffs

Disposition:  Granting defendant's motion for summary judgment; denying plaintiffs' motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  "Based on its review of the agency's declaration and the controlling legal authorities, the Court finds that [one] plaintiff['s] . . . Assessment to Refer and [the other] plaintiff['s] . . . Assessment to Grant Asylum are protected by the deliberative process privilege under Exemption 5."  "[The first] Plaintiff['s] . . . Assessment to Refer is predecisional and deliberative."  "The Assessment to Refer is predecisional because it was drafted by the interviewing asylum officer before a decision was made; and it is also deliberative because 'it was written as part of the process by which the supervisor came to [his or her] final decision.'"  "With regards to [the second] plaintiff['s] . . . Assessment to Grant Asylum, the Court also finds that the document is predecisional and deliberative."  "The Assessment to Grant Asylum, like the Assessment to Refer, serves as a preliminary recommendation from the interviewing asylum officer to the supervisor."  "Because the Assessment to Grant Asylum is drafted prior to the final decision and it is an essential tool of the agency's decision-making process, it plainly falls within the deliberative process privilege."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  "[T]he Court finds that the government has met FOIA's segregability requirement."  "The agency's declarant avers that '[a]fter carefully reviewing the [plaintiffs' assessments], [the court has] determined that no portion of the withheld sections can be reasonably segregated and released without revealing the deliberative, decision-making nature of these intra-agency documents.'"
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Litigation Considerations, “Reasonably Segregable” Requirements
Updated November 16, 2021