Nat'l Immigr. Project of the Nat'l Laws. Guild v. ICE, No. 17-02448, 2020 WL 5798429 (D.D.C. Sept. 29, 2020) (Mehta, J.)

Nat'l Immigr. Project of the Nat'l Laws. Guild v. ICE, No. 17-02448, 2020 WL 5798429 (D.D.C. Sept. 29, 2020) (Mehta, J.)

Re:  Request for records concerning mass immigration enforcement operation that was planned by ICE

Disposition:  Granting defendant's motion for summary judgment; denying plaintiffs' cross-motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court holds that "ICE has met its burden of showing that the withheld portions of the Draft Handbook qualify for the deliberative process privilege and are properly exempt under Exemption 5."  The court relates that "Plaintiffs do not dispute the general principle that drafts of this nature are appropriately withheld under Exemption 5."  "Instead, they assert that the Draft Handbook has lost its predecisional character because it was cited as one of two sources in the 12-page training document that ICE prepared regarding gang membership identification and produced to Plaintiffs, thereby rendering the entire Handbook 'working law.'"  The court finds that "[defendant's] declaration adequately shows that none of the withheld portions of the Draft Handbook have been informally or formally adopted as working law, or final agency policy."  "The agency, by way of [defendant's] declarations, has demonstrated that the Draft Handbook reflects 'non-final agency decisions pertaining to the conduct of . . . criminal street gang investigations,' that the Handbook was finalized a year after the draft was prepared and was modified substantially, and that any portions of the Draft that were utilized in other trainings and operational memoranda previously disclosed in the course of this litigation have been released."
   
• Exemption 5, Foreseeable Harm:  The court holds that "ICE has met its burden under 5 U.S.C. § 552(a)(8)(A)."  The court finds that "[c]ontrary to Plaintiffs' suggestions, . . . ICE does not 'simply rely on "generalized" assertions that disclosure "could" chill deliberations,' . . . ."  "Rather, ICE has specifically explained that disclosure of the withheld information, which includes editorial judgments and significant changes between the draft and final versions, 'would discourage the expression of candid opinions' and 'would result in a chilling effect on intra- and inter-agency communications.'"  "Plaintiffs undoubtedly would prefer ICE to have provided more specifics, but '[t]he degree of detail necessary to substantiate a claim of foreseeable harm is context-specific.'"  "Given the preliminary nature of the entire Draft Handbook, the chilling effect of public disclosure is in some sense self-evident, and it is difficult to see how ICE could have provided any additional explanation as to how disclosure of the draft will cause future agency communications to be chilled."
   
• Litigation Considerations, "Reasonably Segregable" Requirement:  The court finds that "ICE's segregability analysis reflects the two 'factors that [the D.C. Circuit has] previously deemed sufficient' for an agency to meet its segregability obligation, 'i.e., the description of the document . . . and the agency's declaration that it released all segregable material.'"