Louise Trauma Ctr. LLC v. DHS, No. 20-01128, 2022 WL 1081097 (D.D.C. Apr. 11, 2022) (McFadden, J.)
Louise Trauma Ctr. LLC v. DHS, No. 20-01128, 2022 WL 1081097 (D.D.C. Apr. 11, 2022) (McFadden, J.)
Re: Request for records concerning foreseeable harm requirement and copies of "asylum officer lesson plans, materials, instructions, and guidance used during the class for new officers"
Disposition: Granting in part and denying in part defendant's and plaintiff's motions for summary judgment
- Litigation Considerations, Summary Judgment & Attorney's Fees: "[Plaintiff] seeks summary judgment on Counts I and III—which [plaintiff] itself has abandoned—because USCIS did not respond within the allotted time." "According to [plaintiff], USCIS 'is liable for fees and costs as a result.'" "[C]ourts award attorney's fees only to a FOIA plaintiff who has 'substantially prevailed,' . . . implying that the Court considers a motion for attorney's fees after deciding summary judgment." "The Court cannot grant summary judgment on claims that the plaintiff has jettisoned." "Thus, the Court will not consider [plaintiff's] request for fees."
- Procedural Requirements, Searching for Responsive Records: "USCIS decided that '[b]ecause [the agency] does not conduct studies about the FOIA and its application of foreseeable harm,' 'the only records reasonably likely to discuss' the foreseeable harm standard were FOIA training materials provided to USCIS personnel." "[Plaintiff] argues that USCIS should have searched more broadly, though it does not say where." "Instead, [plaintiff] presents several rhetorical questions challenging the search." "The Court rejects the arguments implied by those questions—the adequacy of a search does not turn on whether there might be more documents." "The Court agrees with [plaintiff] on other grounds, however." "USCIS limited its search to FOIA training materials on the premise that the agency conducts no studies about FOIA." "Yet [plaintiff] also requested 'analyses, memoranda, instructions, reports, and documents[.]'" "Indeed, it appears that USCIS simply overlooked all words in the request that followed 'studies.'" "That was an error."
- Litigation Considerations, Adequacy of Search: "USCIS nowhere 'set[s] forth the search terms and the type of search performed.'" "Because USCIS's declaration gives 'no information about [its] search strategies' . . . nor says 'how [the Refugee Asylum and International Division] searched within' the presumably electronic database . . . the agency gives no information 'specific enough . . . to challenge the procedures utilized.'"
- Exemption 5, Deliberative Process Privilege & Litigation Considerations, Foreseeable Harm Showing: "USCIS falls well short of its burden to assert the privilege." "The agency says that an internal review considered the withheld information to be predecisional." "That does not help the Court, which 'must be able to pinpoint an agency decision or policy to which the' information contributed." Moreover, "[t]he agency says nothing about 'what deliberative process is involved' or the 'role the [withheld information] played in' that process." "And even if USCIS had properly asserted the privilege, it has failed to adequately explain the foreseeable harm from disclosure." "Only one paragraph in the agency's declaration discusses foreseeable harm and says simply that the agency's FOIA personnel conducted a foreseeable harm analysis." "The Vaughn Index goes slightly further, asserting that disclosure would 'chill or deter USCIS employees from engaging in [ ] candid and frank discussions.'" "The D.C. Circuit has rejected almost identical assertions of harm as too 'boilerplate and generic' to justify withholding under the deliberative process privilege."
- Exemption 5, Attorney Work-Product Privilege & Litigation Considerations, Foreseeable Harm Showing: "USCIS asserted the work-product privilege for 'an immigration [trial] attorney's notes about a case' that were prepared in anticipation of litigation." "True, asylum officers do not themselves litigate." "That fact does not preclude lawyers, however, from presenting work product during asylum officer training, as happened here." "After all, a document 'can contain protected work-product material even though it serves multiple purposes[.]'" "On foreseeable harm, the agency's explanation provides little clarity." "But the 'context and purpose' of attorney work product makes self-evident the harm from its disclosure."
- Exemption 6 & Litigation Considerations, Foreseeable Harm Showing: "[Plaintiff] challenges only USCIS's withholding of the names of 'experts [ ] brought in to teach asylum officers[.]'" "The Court has no problem finding a significant privacy interest here." "On the other side of the balance," "[w]ho the agency brings in to train asylum officers sheds little information on the agency's 'performance of its statutory duties.'" "To be sure, the content of those trainings might be relevant to agency performance." "But Exemption 6 protects only names here." "Thus, Exemption 6 applies to the withheld names." Additionally, "[t]he nature of this personal information thus shows a risk of foreseeable harm."
- Exemption 7, Threshold: "The term 'law enforcement' in the exemption 'refers to the act of enforcing the law, both civil and criminal.'" "And documents that 'serve security purposes' qualify as law enforcement records." "Records compiled by asylum officers fulfill those characteristics." "What USCIS withheld in this case—training material—informs an asylum officer's duties." "Those documents teach future officers how to investigate and assess an applicant." "The documents therefore assist asylum officers in protecting national security and 'serve [a] security purpose[ ][.]'" "They thus qualify as law enforcement records under 7(E)."
- Exemption 7(E) & Litigation Considerations, Foreseeable Harm Showing: "USCIS invoked Exemption 7(E) to withhold" "'techniques used to review, investigate, and adjudicate immigration applications with national security concerns.'" "In large part, the Court agrees with USCIS's invocation of 7(E)." "The agency withheld information related to sensitive techniques used by asylum officers to conduct interviews and consider applications." "Potential bad actors armed with such knowledge could use it to game asylum interviews and circumvent immigration law." "Similarly, USCIS withheld a bevy of material about how asylum officers should evaluate an applicant's involvement with terrorist organizations." "Terrorists could make great use of such information." "[Plaintiff's] counterarguments are unavailing." "[Plaintiff] . . . contends that USCIS fails to show that the withheld techniques are unknown to the public." "Yet 7(E) applies if disclosure of 'even commonly known procedures could reduce or nullify their effectiveness.'" "Recall that disclosure of how asylum officers make their decisions would reduce the officers' abilities to effectively enforce immigration laws." "[Plaintiff] questions certain withholdings because they resemble USCIS lesson plans currently in the public domain." "[Plaintiff] never suggests, however, that the public information 'duplicate[s] [the material] being withheld' now." Relatedly, "[Plaintiff] correctly points out that page 39 of that plan resides in the public domain." "USCIS must release that page." "In sum, the Court holds that Exemption 7(E) applies to all but one page of the withholdings at issue." "Indeed, [the foreseeable] harm is 'self-evident,' . . . disclosure of how asylum officers perform their duties will help bad actors gain access to the country." "The agency has therefore met its burden on foreseeable harm." The court notes that in the Exemption 7(E) context, "proper invocation of 7(E) 'go[es] a long way to show the risk of foreseeable harm.'"
- Litigation Considerations, "Reasonably Segregable" Requirements: "The agency's FOIA Office reviewed the processed records and 'determined that no further segregation of meaningful information . . . would be possible without disclosing' protected information." "[Plaintiff] doubts the adequacy of that statement, calling it a 'blanket declaration of nonsegregability.'" "[Plaintiff] overlooks, however, that USCIS affirmed in each entry of the Vaughn Index that '[a]ll other information was segregated and determined non-exempt and disclosed.'" "Those representations, 'in conjunction with' the declaration, are enough to carry the agency's burden."