Qatanani v. DOJ, No. 12-4042, 12-5379, 2015 WL 1472227 (D.N.J. Mar. 31, 2015) (Hayden, J.)

Qatanani v. DOJ, No. 12-4042, 12-5379, 2015 WL 1472227 (D.N.J. Mar. 31, 2015) (Hayden, J.)

Re: Request for records concerning plaintiff

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Procedural Requirements, Searching for Responsive Records:  "The Court is satisfied that ICE conducted an adequate search that was reasonably calculated to locate responsive records because it submitted an affidavit explaining the search terms used, how it performed its search, and averring that it searched all locations likely to have responsive records and also because [plaintiff] has not shown any facts contradicting those in ICE's affidavit."  Specifically, there is not requirement that defendant "must . . . expand its search based on speculations derived from vague references without a 'positive indication of overlooked materials.'"
   
• Exemption 5, Deliberative Process Privilege:  "The Court finds that ICE has justified its withholdings under the deliberative process privilege because those documents 'reflect predecisional attitudes' and embody the 'give-and-take' regarding 'policy alternatives' in [plaintiff's] removal proceeding that 'are not required to be disclosed.'"  Additionally, the court finds that "[plaintiff's] contention that ICE erroneously withheld final drafts misconstrues a key distinction between a final agency policy and a final draft document."  "The issue is not whether a document is a final or rough draft, but 'whether the document is recommendatory ... and whether the document is deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another' or is instead an interpretation of agency policy."  The court also finds that "[b]ecause [certain] facts were selected from among a larger set to aid in the decision making process, they are protected by the deliberative process privilege."
   
• Exemption 5, Attorney Work-Product:  The court finds that "case summaries, case reports, and legal analyses prepared during [plaintiff's] removal proceeding . . . traditionally lie within the realm of attorney work product" and were properly withheld.
   
• Exemption 5, Attorney-Client Privilege:  The court finds that "ICE properly withheld . . . documents . . . involv[ing] confidential communications between OPLA and senior officials at ICE."  "However, the Court is not persuaded that [a document which] contains discussions between agency attorneys regarding docketing matters" was properly withheld.  "Nevertheless, ICE also invoked the deliberative process privilege for withholding this entry, and the Court finds that it has justified its withholding under that privilege because the record discusses litigation strategy regarding scheduling and motion practice following the BIA's remand."
   
• Exemption 7, Threshold:  "The Court has reviewed the ex parte declaration submitted on behalf of ICE and is satisfied that the records in question meet the threshold requirement of having been compiled for law enforcement purposes."
   
• Exemption 7(A):  "[T]he Court finds that the FBI has provided sufficient justifications for its withholdings under Exemption 7(A)."  The court finds that certain withheld material "would likely hamper investigations and prosecutions by discouraging current, or potential, confidential sources from continuing to cooperate or coming forward with information in the future" and certain "administrative documents," "[w]hile used for routine purposes, . . . such as envelopes, contain dates, places, and names of persons, that would allow an individual seeking to impede or avoid law enforcement to 'identify[ ] witnesses, investigative strategies and items of evidence.'"
   
• Exemptions 6 and 7(C):  "The Court is satisfied that defendants adequately justified their withholdings under Exemption 6 and Exemption 7(C)."  The court relates that the withheld information concerned government employees and non-government third parties.  The court also finds that "[plaintiff's] 'bare suspicion' of government misconduct is insufficient to invade the privacy interests defendants seek to guard."
   
• Exemption 7(D):  "Having reviewed ICE's ex parte declaration, the Court finds that the production of the records it withholds under Exemption 7(D) would reveal the identity of its confidential sources."
   
• Exemption 7(E):  "The Court finds that the three agencies offered logical (and obvious) reasons why the information's release might create serious risks" and, "after reviewing their ex parte declarations, the Court finds that ICE, the CBP, and USCIS properly withheld documents under Exemption 7(E)."  The court relates that the agencies "withheld database codes and case organization descriptions[,] . . . internal secure website address[es,] . . . [and] communications and instructions for interactions with immigration applicants and information gathering techniques."
   
• Exemptions 1 and 3:  "After reviewing the FBI's and CBP's ex parte declarations, the Court finds the FBI has justified its withholdings under Exemption 1, and the CBP has done so with those records withheld pursuant to Exemption 3."
   
• Litigation Considerations, Vaughn Index / Declaration:  The court holds that defendant's "methodology here is appropriate" because "an agency may submit a Vaughn Index that describes documents by category when a document-by-document index would reveal the very information the agency seeks to protect."
   
• Exclusions:  "The defendants have submitted an in camera declaration to the Court in response to [plaintiff's] claim regarding § 552(c)."  "The Court has reviewed the submission, and finds that if an exclusion was invoked, it was and remains justified."