Knight First Amend. Inst. at Columbia Univ. v. USCIS, No. 20-3837, 2022 WL 1020379 (2d Cir. Apr. 6, 2022) (Nardini, J.)

Knight First Amend. Inst. at Columbia Univ. v. USCIS, No. 20-3837, 2022 WL 1020379 (2d Cir. Apr. 6, 2022) (Nardini, J.)

Re:  Request for records concerning the interpretation and implementation of provisions of the Immigration and Nationality Act ("INA") regarding exclusion of aliens based on connections to terrorist activity 

Disposition:  Reversing district court's findings that Department of State ("DOS") and USCIS improperly withheld certain documents under Exemption 7(E); remanding ICE memo to district court to develop record as to applicability of Exemption 5

• Exemption 7, Threshold:  The Court of Appeals for the Second Circuit holds that "[Volume 9 of the Foreign Affairs Manual ("9 FAM")] was 'compiled for law enforcement purposes' within the meaning of Exemption 7(E)."  "The district court held that 9 FAM was not '"compiled for law enforcement purposes" even if some sections of the FAM may serve those purposes.'"  "First, the district court noted that some of the redacted portions fell within the 'Definitions' section of 9 FAM and that that section appeared to derive from definitions included in the INA."  "The district court thus held that '[t]he similarity between the withheld information and the INA's text . . . suggests Exemption 7(E) does not apply.'"  "Second, DOS admitted that the FAM 'generally consists of policy.'"  "The district court agreed, observing that 'mere descriptions of codified law and policy, even those including interpretation and application of immigration laws and regulations, are not protected under Exemption 7(E).'"  "Finally, the court noted that some records appeared to contain 'interpretive information' which DOS characterized as 'guidelines,' and held that this type of interpretive document falls outside of Exemption 7(E)."  "[The requester] argues that 9 FAM was not compiled for law enforcement purposes because it was compiled 'to help an agency apply the law—in this case to process visa applications,' which is 'not a sufficient basis to conclude that the information was compiled to enforce the law.'" 
  
  "But as Justice Alito has explained, '[t]he ordinary understanding of law enforcement includes not just the investigation and prosecution of offenses that have already been committed, but also proactive steps designed to prevent criminal activity and to maintain security.'"  The court notes that "[e]nforcing the law always requires a degree of analysis and application."  "While some aspects of visa adjudication might fall outside the common understanding of 'law enforcement,' the provisions at issue here do not."  "DOS's explanations for its redactions clearly establish that the redacted provisions relate to the detection of connections to terrorism."  The court finds that "[t]he detection and prevention of terrorism are archetypal law-enforcement purposes."  The court further notes "[t]hat [the district court's] view finds no support in the text of the exemption."  "The threshold inquiry under Exemption 7 is the reason for which material was compiled, and the material should be considered as a whole rather than broken into parts and scrutinized in isolation."  "While an agency's discrete description of law and policy might not be subject to exemption in every context, when a larger series of descriptions is compiled to provide comprehensive guidance to employees in the field on how to apply and enforce the laws within the agency's purview, that subsequent compilation enters the potential ambit of Exemption 7(E)." 
   
• Exemption 7(E); Litigation Considerations, Vaughn Index/Declaration:  "[The requester] contends that the non-redacted portions of 9 FAM include only high-level summaries rather than techniques or procedures."  "With each assertion, though, [the requester] asks us to draw inferences about the redacted material from context that are contradicted by DOS's affidavits and Vaughn index."  "[The court] cannot credit [the requester's] contentions about what the 9 FAM redactions 'appear' to include in the face of an agency affidavit attesting to what they actually do include, particularly in the absence of evidence of bad faith."
  
  "[The requester] next argues that DOS's Vaughn index describes the redacted material as guidelines, while they now state in their brief that it reflects techniques or procedures."  "DOS's use of the word 'guideline' in its Vaughn index is not talismanic."  "Rather, we must consider the substance of the agency's descriptions to determine whether the redacted material contains 'techniques or procedures' or 'guidelines' under FOIA."  "Stated simply, 'techniques or procedures' includes both law enforcement methods—the actions that law enforcement personnel take to identify and neutralize bad actors—as well as the triggers for the application of methods."  Here, we need not decide whether the 9 FAM material is properly categorized as 'techniques or procedures' rather than 'guidelines' for law enforcement."  "Even assuming the more rigorous 'guideline' standard applies, DOS has established that disclosure of the 9 FAM material could reasonably risk circumvention of the law."  "As DOS describes, the redactions to 9 FAM are targeted to those specific provisions that delineate how DOS officials should identify aliens who may have connections to terrorism, including some specific triggers for additional scrutiny."  "Releasing this information would allow an individual with actual terrorist ties to better tailor his or her application to avoid detection."  "It does not matter, then, whether the redactions reflect 'techniques or procedures' or 'guidelines.'"  "Exemption 7(E) would apply in either case."
  
  The court further holds "that the TRIG ["Terrorism Related Inadmissibility Grounds"] questions constitute 'techniques or procedures' of law enforcement, and in any event, their disclosure would reasonably risk circumvention of the law."  "The district court found that the TRIG questions were not 'techniques or procedures' because 'USCIS [had] not demonstrate[d] its methods are necessarily special or technical.'"  However, the court highlights that "the phrase 'techniques or procedures' refers simply to 'how law enforcement officials go about investigating a crime.'"  "Our analysis is not advanced by adding qualifiers that do not appear in the statute—such as 'special,' 'specialized,' 'technical,' or 'calculated'—to modify the terms 'techniques or procedures.'"  "The key issue in determining whether redacted material contains 'techniques or procedures' under Exemption 7(E) is whether disclosure of that material would reveal particulars about the way in which an agency enforces the law and the circumstances that will prompt it to act."  "The questions that USCIS instructs its employees to ask visa applicants to detect ties to terrorism are . . . closely linked to the specific methods employed by government actors. . . ."  "Even if the TRIG questions were 'guidelines' rather than 'techniques or procedures' of law enforcement, Exemption 7(E) would apply because USCIS has established that disclosing the TRIG questions would reasonably risk circumvention of the law."  The court agrees that "disclosing in advance the specific questions that agents may use to suss out and evaluate connections to terrorism would help those with terrorist ties to tailor their answers to avoid detection." 
   
• Waiver & Discretionary Disclosure:  "[The requester] asserts, as the district court held, that even if the [TRIG] questions could be considered 'techniques or procedures' for purposes of Exemption 7(E), they are no longer exempt because they have been publicly disclosed."  "In the FOIA context, information is in the public domain if it is generally available to the public at large, not simply if it happens to be known by select members of the public."  "The latter is the case here."  "Perhaps an enterprising researcher could identify a pool of visa applicants, collect information about what they were asked, and then compile a list of common questions they faced."  "Though doubtful, let us further assume that our imaginary researcher would also be able to intuit which questions had been posed to ferret out possible terrorists and therefore must be on the TRIG list."  "Even if all of this might conceivably be achieved, the necessity of the reconstruction exercise itself demonstrates that the information in question is not in the public domain."  "Put another way, the possibility that a savvy law-evader might be able to infer the substance of some withheld documents by carefully observing an agency's actions does not remove those documents from the ambit of Exemption 7(E)."
   
• Litigation Considerations, Vaughn Index/Declarations:  "[The requester] urges that the Vaughn index is too 'vague and conclusory' to support DOS's withholding [of information in the 9 FAM]."  "Here, too, we conclude that DOS satisfied its obligation to provide a detailed overview of the withheld material."  "DOS's redactions are highly targeted and discrete."  "In this context, it would not be reasonable to expect DOS to provide more specific descriptions; doing so would effectively require disclosure of the isolated material it chose to redact."  "And the agency here went further than [the prior court decision] would require, providing separate, detailed explanations for each redaction."
   
• Litigation Considerations, "Reasonably Segregable" Requirements; Litigation Considerations, Considerations on Appeal:  "ICE withheld under Exemption 5 a memo titled 'ICE Ability to Use 212(a)(3)(C) Foreign Policy Charge.'"  "The agency emphasizes that the memo was a draft, that it was not binding, and that it reflected the views of the individual author rather than the agency."  "The district court found that ICE had failed to establish that the ICE memo was subject to the deliberative process privilege through Exemption 5."  The court notes that "[i]t appears that ICE's appeal with respect to the ICE memo might be moot, but the record is unclear."  "Although the district court concluded that the ICE memo did not fall within Exemption 5 because it was not pre-decisional, . . . it did not order immediate disclosure of the memo."  "Rather, it directed ICE to 're-assess its applied exemptions' using the district court's opinion as a guide 'and disclose all responsive non-exempt materials that can reasonably be segregated from exempt materials.'"  "The record does not reveal whether or when ICE conducted the ordered segregability analysis."  "At oral argument, counsel for ICE stated that the agency had conducted a review and determined that no material was reasonably segregable, but it seemed that counsel might have been referring to a different memo that the district court had addressed in the same opinion."  "Because we cannot determine whether ICE complied with the district court's direction to conduct a segregability analysis, we remand to the district court to allow the parties to develop the record."