Skip to main content

Nat'l Day Laborer Org. Network v. ICE, No. 16-387, 2020 WL 7321396 (S.D.N.Y. Dec. 11, 2020) (Engelmayer, J.)

Date

Nat'l Day Laborer Org. Network v. ICE, No. 16-387, 2020 WL 7321396 (S.D.N.Y. Dec. 11, 2020) (Engelmayer, J.)

Re:  Request for since-discontinued federal program governing immigration enforcement, the Priority Enforcement Program ("PEP")

Disposition:  Order resolving all remaining issues following in camera inspection and closing case

  • Exemption 5, Deliberative Process Privilege:  The court relates that "[i]n its [prior] Decision, the Court ordered in camera inspection of a number of records where defendants' Vaughn entries were too vague to enable the Court to determine whether they were properly withheld under the deliberative process privilege."  "After having carefully reviewed these documents in camera," the Court finds that certain records were properly withheld and certain records were not properly withheld.  In particular, the court finds that "[a] draft blog post, which discusses past actions rather than future plans, is not protected under [the deliberative process] privilege."  Also, the court finds that "[another] record does not fall under the deliberative process privilege, because the talking points generally state facts about and relate to the application of an existing policy."  Additionally, the court finds that certain material that "relates to 'the explanation, interpretation or application of an existing policy, [PEP], as opposed to the formulation of a new policy' and is not covered by the deliberative process privilege."

    Additionally, "[t]he Court [previously] ordered defendants to file an affidavit stating whether any of [a certain group of] records contain 'deliberative redlines' or other markup on their faces such that they could be properly withheld as drafts."  "Defendants thereupon released some of these records voluntarily."  "The Court has since reviewed the rest . . . along with defendants' related affidavits, in camera."  The court finds that some records were correctly withheld and orders that the agency disclose others.
     
  • Exemption 5, Foreseeable Harm:  The court relates that "[f]or a number of the records as to which the Court found a basis for withholding under Exemption 5, the agency's Vaughn entry was nevertheless insufficient to satisfy the additional requirements of the FOIA Improvement Act."  "The Court therefore directed the agencies to submit copies of such records for in camera review, and to supply an affidavit explaining the particular harm that would come from the records' production."  "After careful in camera review of these documents and the associated agency affidavit explaining the harm of releasing the documents, the Court finds that the agency's assertion that their release would chill pre-decisional discussions and recommendations, and thus inhibit candor within the agencies, persuasive."  The court finds similarly regarding several other records where "the agency's Vaughn entry was insufficient to satisfy the additional requirements of the FOIA Improvement Act."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Litigation Considerations, Foreseeable Harm Showing
Updated November 9, 2021