Transgender L. Ctr. v. ICE, No. 20-17416, 2022 WL 1494722 (9th Cir. May 12, 2022) (McKeown, J.)

Transgender L. Ctr. v. ICE, No. 20-17416, 2022 WL 1494722 (9th Cir. May 12, 2022) (McKeown, J.)

Re:  Request for records concerning custody and death of an asylum-seeker

Disposition:  Reversing the district court's grant of summary judgment, vacating the district court's mootness determination, and remanding back to the district court  

• Litigation Considerations, Adequacy of Search; Litigation Considerations, Standard of Review:  "The district court assessed adequacy of the search but did not address the agencies' precise burden of proof."  "We join our sister circuits and hold that 'beyond material doubt' is the appropriate standard."  "Applying that standard, we conclude that the Government has failed to carry its burden."  "Demonstrating adequacy 'beyond material doubt' is, to be sure, a heavy burden, but such a burden appropriately reflects the purpose and policy of FOIA, including transparency, public access, and an informed citizenry." 
   
• Procedural Requirements, Searching for Responsive Records:  "[W]e hold that the agencies failed to meet their burden because they did not appropriately respond to 'positive indications of overlooked materials' provided by the requester. . . , and did not hew to their duty to follow 'obvious leads.'"  "In the first FOIA letter, [the requester] included two pages of detailed search requests."  "In later communiques, [the requester] provided additional search leads that emerged as a result of a state-level public records request [the requester] had made of . . . the ICE contractor that ran the detention facility in which [the subject of the request] died."  "[The requester] also provided detailed indications that the agencies' initial production was lacking many significant documents within their possession."  "In light of the new leads and indications of overlooked material, the agencies have not met their burden of demonstrating adequacy beyond material doubt." 
   
• Litigation Considerations, Vaughn Index/Declarations:  "[T]he agencies' Vaughn indices are 'riddled with "boilerplate or conclusory statements."'"  "For instance, the Civil Rights Office provided copy-and-pasted generic descriptions in five of six total entries invoking FOIA Exemption 5, failing to explain how the specific content of each document individually implicated the agency's deliberative process."  "This high-level, summary approach resulted in an unacceptable lack of specificity and tailoring, thus undermining [the requester's] ability to contest the agencies' withholdings."  "[T]he Government 'must bear in mind that the purpose of the index is not merely to inform the requester of the agency's conclusion that a particular document is exempt from disclosure . . . but to afford the requester an opportunity to intelligently advocate release of the withheld documents and to afford the court an opportunity to intelligently judge the contest.'" 
   
• Exemption 5, Deliberative Process Privilege:  "[W]e focus our analysis on the Government's invocation of the deliberative process privilege—namely with respect to non-final drafts (including drafts of the detainee death review and mortality review), pre-decisional internal discussions and emails, and emails regarding non-final drafts."  "The district court essentially treated all drafts as necessarily covered by the deliberative process privilege."  "But this was error: 'simply designating a document as a "draft" does not automatically make it privileged under the deliberative process privilege.'"  "ICE, for example, withheld a draft mortality review, simply stating in its Vaughn index that '[t]his Preliminary report . . . contains information pertaining to medical care [and] interviews of detention facility personnel.'"  "Yet such an explanation contains no references to any decision to which the document pertains."  "Likewise, the agencies withheld draft press statements without adequately explaining how they reveal a deliberative process."    "Government 'deliberations regarding how best to address public relations matters or possible responses to an inquiry received from an outside entity are not the type of policy decisions the privilege is intended to protect.'"  "In line with our precedent, we remand to the district court to direct the release of the draft mortality review and the draft press statements." 
   
• Exemptions 6 and 7(C):  "[The requester] objects specifically to the use of Exemption 6 to shield email domains (for example, @ice.dhs.gov)."  "The district court held that Exemption 6 allowed ICE and the Civil Rights Office to properly withhold email domains as 'similar files,' because they 'relate to a particular person.'"  "Yet email domains are not specific to particular individuals—email domains are shared by all employees within a given DHS component—so they do not satisfy the threshold test, and thus cannot be withheld per Exemption 6."  "Since 'domains normally indicate what government agency employs the individual email address holder,' their release would help [the requester] understand 'which agencies and departments are involved in making different types of decisions.'"  "This disclosure can be done without any identification of individuals."  "For similar reasons, the district court erred in permitting the agencies to withhold email domains under Exemption 7(C)." 
   
• Exemption 7(E):  "The agencies broadly invoked Exemption 7(E), claiming it protected from disclosure numerous codes, information 'concerning the number of guards used at detention facilities, location of cameras, as well as the staffing and routes used to transport detainees,' and information concerning technology 'used for law enforcement purposes.'"  "[The District Court's] finding is overbroad."  "The district court should have analyzed whether the withheld documents were, in fact, techniques and procedures, and not guidelines (which for exemption require additional information to show that disclosure 'could reasonably be expected to risk circumvention of the law')."  "We remand this matter to the district court to direct the agencies to (1) clarify whether each document withheld is a 'technique and procedure,' rather than a guideline, and then proceed accordingly, and (2) account for the revelations from the CoreCivic production (which indicate that the agencies were overbroad in their reliance on Exemption 7(E))." 
   
• Segregability and Exemption 5, Deliberative Process Privilege:  "The district court failed to examine, with any specificity, the Government's broad redactions."  "For instance, the agencies redacted the draft detainee death review in its entirety, despite the fact that the final detainee death review (which was released) included considerable factual information."  "The agencies did not make any representations as to the segregability of factual information within these documents, although it was their burden 'to establish that all reasonably segregable portions of a document have been segregated and disclosed.'"  "The district court cited no authority to justify its assertion that 'DPP material is generally not segregable from the facts it contains.'"  "Such a conclusory statement cannot excuse the agencies' failure to provide specific information with respect to segregability, nor does it satisfy the district court's obligation to make findings on the issue of segregability."  "The district court should consider, in particular, whether non-segregable information might be found in: material withheld under the deliberative process privilege; the draft detainee death review; and the redacted emails."
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal:  "The district court held that it 'need not decide whether the expedited requests [submitted in January and August of 2020] are related to the requests at issue in this lawsuit or are new requests,' because the agencies had 'adequately complied' with [the requester's] initial FOIA requests, and therefore 'the expedited processing requests themselves are now moot.'"  "Because we are remanding due to the inadequacy of the agencies' compliance, we vacate the mootness determination, which should be reconsidered by the district court."