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Judicial Watch, Inc v. U.S. Department of Homeland Security

July 30, 2012


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiff, Judicial Watch, Inc., brings this action against Defendant, the Department of Homeland Security ("DHS"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff seeks material related to certain types of suspensions of deportation proceedings. This matter is before the Court on Defendant's Motion for Summary Judgment [Dkt. No. 19] and Plaintiff's Cross-Motion for Summary Judgment [Dkt. No. 20]. Upon consideration of the Motions, Oppositions, and Replies, and the entire record herein, and for the reasons set forth below, Defendant's Motion for Summary Judgment is granted and Plaintiff's Cross-Motion for Summary Judgment is denied.


Judicial Watch is a non-profit, educational foundation seeking to promote "integrity, transparency, and accountability in government." Compl. ¶ 3 [Dkt. No. 1]. This case concerns Judicial Watch's efforts to obtain records of communications between DHS and other governmental and non-governmental entities regarding certain procedures used by the government for suspending deportation proceedings. On July 2, 2010, Judicial Watch submitted a FOIA request seeking records of both communications within DHS and communications between DHS and the White House, Executive office of the President, and any third parties concerning policies for "deferred action," "parole," and "selective reprieve." Judicial Watch sought records from January 1, 2010, to the "present." Subsequently, Judicial Watch narrowed its request by substituting a list of private organizations in place of "any third parties" and specified the components within DHS that it wanted searched.

In response to the FOIA request, DHS searched the components identified by Judicial Watch. Further, Immigration and Customs Enforcement ("ICE"), a component of DHS, searched its own components most likely to have responsive records. Eventually, DHS produced 4,235 pages, from both its own components and from ICE's, and withheld certain records in part or in full pursuant to Exemptions 5, 6, 7(C), and 7(E). Judicial Watch now challenges DHS's refusal to release, in part or in full, twenty documents totaling approximately eighty-seven pages. Pl.'s Cross-Mot. 3 n.1.

On December 8, 2011, DHS filed its Motion for Summary Judgment. On January 5, 2012, Judicial Watch filed its Opposition and Cross-Motion for Summary Judgment. On January 26, 2012, DHS filed its combined Opposition and Reply [Dkt. No. 22]. On February 2, 2012, Judicial Watch filed its Reply [Dkt. No. 24].


The purpose of FOIA is to "'to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). FOIA "requires agencies to comply with requests to make their records available to the public, unless the requested records fall within one or more of nine categories of exempt material." Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing 5 U.S.C. § 552(a), (b)). An agency that withholds information pursuant to a FOIA exemption bears the burden of justifying its decision, Petroleum Info. Corp. v. Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)), and must submit an index of all materials withheld, referred to as a "Vaughn Index." Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). In determining whether an agency has properly withheld requested documents under a FOIA exemption, the district court conducts a de novo review of the agency's decision.

5 U.S.C. § 552(a)(4)(B).

FOIA cases are typically and appropriately decided on motions for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011); Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). Summary judgment will be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

In a FOIA case, the court may award summary judgment solely on the basis of information provided in affidavits or declarations when they (1) "describe the documents and the justifications for nondisclosure with reasonably specific detail;" (2) "demonstrate that the information withheld logically falls within the claimed exemption;" and (3) "are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).


As noted above, only twenty documents remain in dispute. Judicial Watch objects to the withholding of these documents on two grounds. First, it argues that DHS's withholding of certain material under Exemption 5 was improper. Second, it contends that DHS failed to disclose all reasonably segregable, nonexempt portions ...

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