Knight First Amendment Inst. at Columbia Univ. v. DHS, No. 17-7572, 2019 WL 4601718 (S.D.N.Y. Sept. 23, 2019) (Carter, Jr., J.)

Knight First Amendment Inst. at Columbia Univ. v. DHS, No. 17-7572, 2019 WL 4601718 (S.D.N.Y. Sept. 23, 2019) (Carter, Jr., J.)

Re:  Request for records concerning government's authority to exclude or remove individuals from the United States based on their speech, beliefs, or associations

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  Regarding ICE, first, concerning an "Extreme Vetting Memo," the court holds that "the purported 'proposals' and 'recommendations' describing how to meet mandates appear to be deliberative material."  "However, the portions of the memo that describe existing policy undoubtedly 'reflect [the agency's] formal or informal policy on how it carries out its responsibilities,' which 'fit comfortably within the working law framework.'"  The court also rejects plaintiff's "argu[ment] that the memo is protected by Exemption 5 because it was a draft yet to reach final, authoritative, 'working law' status" because, the court explains that "'working law' documents do not have to 'reflect the final programmatic decisions of the program officers who request them' and "[i]t is enough that they represent [the agency’s] final legal position.'"  Second, the court finds that "ICE proved Exemption 5 applies to the First Amendment Concerns Memo."  The court explains that "[a]ccording to the declarations, all versions of the memo reflect 'advisory opinions, recommendations and deliberations' that potentially assisted the governmental decision-making process."  Third, the court finds that "ICE failed to demonstrate the Foreign Policy Provision Memo was pre-decisional."  The court explains that "[t]he record does not indicate that the memo 'formed an essential link in a specific consultative process, reflects the personal opinions of the writer rather than the policy of the agency, [or] if released, would inaccurately reflect or prematurely disclose the views of the agency.'"  Fifth, the court finds that "ICE demonstrated it properly applied the deliberative process privilege to the EO Implementation Memo."  The court finds that "the memo is pre-decisional because it 'proposes implementation plans for ICE regarding Executive Orders entitled "Border Security and Immigration Enforcement Improvements" and "Enhancing Public Safety in the Interior of the United States" issued by the President . . . ,' and deliberative because the proposed 'plans and edits [ ] were under review and being changed as ICE offices and ICE employees provided edits, comments, and recommendations on the proposed draft.'"  "Furthermore, not only is the document 'watermarked "DRAFT" . . . [it also] contains comment bubbles, red-lines, track changes, [and] newly proposed language.'"  Sixth, the court finds that "ICE failed to establish that portions of the INA § 235(c) are protected by the deliberative process doctrine . . . ." because "apparently, the agency relied on the memo for at least seven years when considering removals pursuant to INA § 235(c)."
  
  Regarding USCIS, concerning an Acting Director Memo and Senior Policy Council Paper, the court finds that "[a]ccording to the record, USCIS appears to be withholding information that 'is more properly characterized as an opinion or interpretation which embodies the agency's effective law and policy' and thus constitutes the agency's 'working law.'"  "Accordingly, USCIS must release the reasonably segregable sections of these records reflecting USCIS current immigration policy."
   
• Exemption 5, Attorney-Client Privilege:  Despite not being withholdable under the Deliberative Process Privilege, the court finds that "ICE justified its application of Exemption 5 to the 235(c) Memo."  "First, the Section 235(c) memo was drafted by an attorney (the Acting Deputy Chief of the ICE National Security Law Section of the Office of the Principal Legal Advisor) for a client (the Chief of the National Security Law Section)."  "Second, the memorandum was explicitly marked as 'privileged' and 'attorney-client communication,' and . . . was, to the best of [defendant's] knowledge, intended to be and was kept confidential."
   
• Exemption 5, Deliberative Process Privilege & Litigation Considerations, "Reasonably Segregable" Requirements:  First, the court holds that "ICE is ordered to conduct a segregability review of the HSI Updates Memo for segregable disclosable content."  The court explains that "[certain withheld] information reflects the factual, segregable information Exemption 5 does not protect."  "Watermarking the memorandum as a 'Draft' does not change the finality of the facts within it."  Second, the court holds that "USCIS established that the disclosable material in the TRIG Options Paper 'is inextricably intertwined with deliberative material and analysis such that it cannot reasonably be segregated and released.'"  "The Eggleston Declaration points out that, 'in the "Background" and "Methodology" sections of the [TRIG] Options Paper, the drafters discuss specific asylum applications and the agency's various methods for analyzing those applications, thus intertwining the facts of specific cases with the agency’s deliberations and analyses.'"  "This demonstrates that an attempt to segregate and release any disclosable material would 'result in incomplete, unintelligible and fragmented sentences,' . . . and therefore disclosure is not required under FOIA."
   
• Exemption 7, Threshold:  The court holds that "ICE failed to demonstrate it properly applied Exemption 7(E) to the HSI Updates Memo."  The court explains that "ICE's law enforcement authority is not in dispute."  "However, just because ICE is the Executive Branch's designated immigration enforcement arm does not mean ICE compiles all its documents for law enforcement purposes."  The court finds that "ICE fails to establish the HSI Updates Memo constitutes the 'investigatory files' protected by Exemption 7(e)."  "Specifically, the Court is unaware of the rational nexus ICE attempts to make between a memo regarding social media practices and the perceived threats of immigration."
   
• Exemption 7(E):  The court first holds that "other than stating so, USCIS failed to demonstrate that its [terrorism-related inadmissibility grounds ("TRIG")] screening methods[, "'model,' 'sample,' or 'suggested' questions,"] are comparably protectable."  "USCIS claims the withheld questions are calculated techniques because they 'reflect specialized methods' it 'refined' over 'decades of enforcing United States immigration laws' in search of terrorist ties.'"  "However, [the court finds that] . . . this only suggests USCIS' screening questions are susceptible to widespread dissemination."  "USCIS submits no evidence suggesting its methods are so special that the interviewees cannot parrot them to whomever they choose."  However, the court then holds that "[u]nlike the TRIG Questions, USCIS properly withheld information related to the TRIG Exemption Qualifications."  "USCIS claims that if an applicant reviewed the criteria the agency considers in granting exemptions, 'applicants could tailor their testimony to meet [the] requirements.'"  "As USCIS contends, '[r]eleasing those factors would enable applicants to tailor their answers to meet such criteria – criteria which is not otherwise available and known to the public.'"