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Knight First Amendment Inst. at Columbia Univ. v. DHS, No. 17-7572, 2019 WL 4412803 (S.D.N.Y. Sept. 13, 2019) (Carter, Jr.)

Date

Knight First Amendment Inst. at Columbia Univ. v. DHS, No. 17-7572, 2019 WL 4412803 (S.D.N.Y. Sept. 13, 2019) (Carter, Jr.)

Re:  Requests for records concerning authority to exclude or remove individuals from United States based on speech, beliefs, or associations

Disposition:  Granting in part and denying in part defendant's motion for partial summary judgment; granting in part and denying in part plaintiff's cross-motion for partial summary judgment

  • Litigation Considerations, Adequacy of Search:  First, the court holds that "ICE's affidavit fails to establish adequacy by omitting key details about the search terms used, how the agency handled the administrative remand, and how the agency narrowed its search results."  Specifically regarding the search terms used, the court finds that "because the Office of the Director failed to search for additional terms the agency itself would have used in referring to the relevant statutory provisions – and offers no reasonable justification to support its decision – ICE has not established the adequacy of the Office of the Director searches."  Second, the court finds that "OLC meets its summary judgment burden as a matter of law."  The court relates that "Plaintiff does not challenge the adequacy of OLC's search of its own records, but rather, asserts that OLC should have searched the White House's records instead of its own."  The court finds that "OLC cannot be compelled to search records possessed by other agencies."  The court finds that "'an agency is not required to search for records outside its possession or control.'"  "Indeed, as a practical matter, one agency does not have access to another agency's records systems."  "Furthermore, [defendant's] Declaration demonstrates that OLC conducted an adequate search regarding Plaintiff's [n]arrowed [r]equest."  "The affidavit pointed out that OLC searched the central storage system containing 'all final unclassified written legal advice,' which, since 'OLC attorneys use this database to perform internal research,' is kept 'as complete as possible.'"  "Moreover, after receiving one document from the State Department, OLC staff 'revisited the search of [the] Perceptive [database] to ensure that nothing had been missed.'"  "These facts demonstrate that OLC's search was 'reasonably calculated to discover' responsive documents."
     
  • Exemption 5, Deliberative Process Privilege:  The court holds that "the deliberative process privilege applies to the disputed documents, and the DOS properly withheld them under Exemption 5."  The court relates that the "memorandum [at issue] contains legal analysis that 'has not been publicly adopted formally or informally' and 'offers a legal analysis of a range of possible policy options' and 'explicitly assesses the litigation risk for policy decisions.'"  "DOS also contends that [another] memorandum offers 'proposals [that were] not binding on the Department or the President' in the furtherance of policy announced by Presidential Proclamation 8697, and 'presents . . . options to the President' concerning 'legal options for barring entry into the United States to aliens who participate in serious human rights and humanitarian law violations.'"  "Similarly, DOS claims [another] legal opinion provided 'non-binding' analysis and presents 'different viable legal interpretations' . . . and [another] Memo contains analysis of the NSC's 'legal views on a proposed exemption under INA § 212(d)(3)(B) for material support provided to a terrorist organization under duress,' and analysis that 'did not bind the Department to take an action.'"  "Furthermore, [the court finds that] nothing indicates that the government expressly adopted these documents or incorporated them by reference."
     
  • Exemption 7(E):  The court holds that "Defendants are Ordered to turnover these categories of documents."  The court holds that, "[a]s a threshold matter, it is not clear that the [Foreign Affairs Manual ("FAM")] was 'compiled for law enforcement purposes,' even if some sections of the FAM may serve those purposes."  Second, "[t]he Court agrees with Plaintiff[]" that "the redacted sections appear to contain definitions and broad statements of law, which fall outside of the techniques, procedures, and guidelines subject to Exemption 7(E)."  "Moreover, DOS admits the FAM generally consists of 'policy.'"  "The 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)."  "DOS similarly withheld information in other sections of the FAM containing interpretive information characterized as 'guidelines.'"
     
  • Litigation Considerations, In Camera Inspection:  "The Court finds that in camera review is unnecessary and Orders the Government to supplement its submissions in accordance with this Opinion."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 7(E)
Litigation Considerations, Adequacy of Search
Litigation Considerations, In Camera Inspection
Updated December 17, 2021