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Judicial Watch, Inc. v. United States Department of Justice

United States District Court, D. Columbia

February 28, 2014

U.S. DEPARTMENT OF JUSTICE, et al., Defendants

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[Copyrighted Material Omitted]

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For JUDICIAL WATCH, INC., Plaintiff: Michael Bekesha, Paul J. Orfanedes, JUDICIAL WATCH, INC., Washington, DC.


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BERYL A. HOWELL, United States District Judge.

The plaintiff Judicial Watch, Inc. brought this case under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, to challenge the processing by the defendants, the U.S. Department of Justice (" DOJ" ) and the U.S. Department of Homeland Security (" DHS" ), of the plaintiff's FOIA request for records regarding a DHS program announced on June 15, 2012, referred to as the Deferred Action for Childhood Arrivals (" DACA" ). Pending before the Court are cross-motions for summary judgment as to whether DHS has properly withheld two responsive documents under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), as subject to attorney-client and deliberative process privileges.[1]

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For the reasons set out below, the Court grants the defendants' motion for summary judgment and denies the plaintiff's cross-motion for summary judgment.



On June 15, 2012, DHS Secretary Janet Napolitano announced the implementation of a new DHS program called DACA, under which DHS would, in its exercise of prosecutorial discretion, consider for relief from removal from this country or from entering into removal proceedings, " certain young people who were brought to the United States as young children, do not present a risk to national security or public safety, and meet several key criteria." See Pl.'s Mem. Opp'n Defs.' Mot. Summ. J. & Supp. Pl.'s Cross-Mot. Partial Summ. J. (" Pl.'s Mem." ) at 1, ECF No. 17 (quoting Department of Homeland Security Press Release dated June 15, 2012). In addition, individuals subject to the DACA program would be " eligible for employment authorization during the period their removal action is deferred." Decl. of John R. Sandweg, Acting General Counsel of DHS (" Sandweg Decl." ) ¶ 4, ECF No. 19-1. Secretary Napolitano issued a corresponding memorandum to the U.S. Customs and Border Protection, U.S. Citizenship and Immigration Services, and U.S. Immigration Customs Enforcement agencies instructing the agencies on implementation of the DACA program. Pl.'s Mem. at 2 -3.

The plaintiff, a non-profit foundation, submitted FOIA requests to DHS and to the DOJ Office of Legal Counsel (" OLC" ) on June 22, 2012, seeking: " [a]ll records concerning, regarding, or relating to [DHS'] decision to exercise prosecutorial discretion with respect to individuals who came to the United States as children as outlined in a June 15, 2012, Memorandum by Secretary Napolitano." See Decl. of James V. M. L. Holzer (" Holzer Decl." ), Ex. A at 1, ECF No. 15-3; [2] Decl. of Paul P. Colborn (" Colborn Decl." ) Ex. 1 at 1-2, ECF No. 15-11. The request to DHS specified that this included " communications, meeting notes and agenda, briefing materials, and policy memoranda," and also requested " [a]ll records concerning, regarding, or relating to the legal authority for the DHS decision . . . ." Holzer Decl. Ex. A at 1.


The plaintiff filed suit on August 15, 2012, to compel the defendants to conduct reasonable searches and produce non-exempt records pursuant to the plaintiff's FOIA requests, as well as to award the plaintiff attorneys' fees and other litigation costs. Complaint (" Compl." ) ¶ 18, ECF No. 1. At that time, DHS and OLC were still reviewing potentially responsive records. See Holzer Decl. ¶ 12; Colborn Decl. ¶ 9-11.

The following month, OLC informed the plaintiff that, out of the eighty responsive documents identified in the agency's

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search, six documents were produced, one was referred to the DOJ's Office of Information Policy, and the remaining records were withheld pursuant to FOIA Exemption 5. See Colborn Decl., Ex. 3 at 1.

DHS identified 2,039 responsive pages of documents and, in three separate releases on February 27, 2013, March 1, 2013, and March 4, 2013, produced 387 pages to the plaintiff in their entirety and 322 pages with redactions. See Holzer Decl., Exs. C-E at 7-12.[3] DHS withheld the remaining pages claiming they were exempt from disclosure under FOIA Exemption 5, as subject to the deliberative process privilege and/or the attorney-client privilege, as well as Exemptions 6 and 7E. See 5 U.S.C. § 552(b)(5)-(7). See Holzer Decl. ¶ ¶ 22-35.

The defendants' pending motion for summary judgment argues that the search for records responsive to the plaintiff's request was adequate, Defs.' Mem. Supp. Defs.' Mot. Summ. J. (" Defs.' Mem." ) at 3-9, ECF No. 15-1, and that records were properly withheld under Exemptions 5, id. at 9-16, 6, and 7E, id. at 17-19. In its cross-motion for partial summary judgment, the plaintiff " elected not to challenge the reasonableness of the searches and a majority of the withholdings," but contends that DHS is improperly withholding two records, which are listed as Documents 6 and 7 on the Vaughn index produced with DHS' first interim response on February 27, 2013. Pl.'s Mem. at 5; see also Vaughn Index, DHS First Release at 2, ECF No. 15-5. DHS subsequently submitted an updated Vaughn Index, see Pl.'s Mem. at 7 n.1; id. Ex. A at 3-4 (" Updated Vaughn Index" ), which provides additional detail regarding the justification for the withholding of Documents 6 and 7.[4]


As noted, the plaintiff is challenging the withholding by DHS of only two documents. According to the Updated Vaughn Index and a supplemental declaration submitted by the Acting General Counsel of DHS, Document 6 is a four-page, single-spaced memorandum, dated June 14, 2012, for Secretary Napolitano from DHS General Counsel Ivan Fong titled " Authority to Exercise Deferred Action for a Discrete Class of Individuals." See Updated Vaughn Index at 3; Sandweg Decl. ¶ 7. This record was withheld in full under Exemption 5 " to protect from disclosure deliberative communications and privileged attorney-client communication regarding the adoption of a new departmental policy pertaining to the Deferred Action Process." Updated Vaughn Index at 3. It is undisputed that Document 6 is a " summary of a White Paper on Deferred Action" that " discusses in detail,

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the Secretaries [sic] authority to grant deferred action." Id ; see also Sandweg Decl. ¶ 7 (indicating that document 6 summarizes document 7); Pl.'s Mem. at 8 (" Document 6 is a summary of Document 7." ).

Document 7, also dated June 14, 2012, is described in the Updated Vaughn Index and supplemental declaration as a 21-page white paper on deferred action. Updated Vaughn Index at 3-4; Sandweg Decl. ¶ 7.[5] This White Paper was authored by DHS' Office of General Counsel and was withheld in full under Exemption 5 because it contained " deliberative communications and privileged attorney-client communication." Updated Vaughn Index at 4; see also Sandweg Decl. ¶ ¶ 7-11. The document " outlines the Secretaries [sic] general authority to exercise prosecutorial discretion as part of her charge to enforce the immigration laws." Updated Vaughn Index at 4.

Both documents are marked " PRIVILEGED ATTORNEY-CLIENT COMMUNICATION," Sandweg Decl. ¶ 6, and " PREDECISIONAL AND DELIBERATIVE," id. ¶ 11, and both discuss the DHS Secretary's " authority to exercise deferred action" using " legal issues, relevant case law, assessments of judicial review, statutory responsibilities, legal authority to enforce immigration laws, and options to reduce legal risk." Id. ¶ 7. Both documents were created and submitted to the Secretary of DHS in response to " the Secretary's request for legal advice from DHS's Office of the General Counsel (OGC), and were intended as confidential legal advice." Id. ¶ 8. The documents were " concurrent with" and " part of a discussion about potential approaches to the proposed deferred action policy and legal considerations." Id. ¶ 11. The issues " were being considered by Senior Department officials," id. ¶ 11, and " helped to inform and guide the Secretary in arriving at the final decision." Id. ¶ 12. The plaintiff seeks release of these two documents on grounds that they are improperly withheld under Exemption 5 or, in the alternative, asks the Court to conduct in camera review of the documents before ruling on DHS' exemption claim. Pl.'s Mem. at 8-13.



Congress enacted the FOIA to promote transparency across the government and " 'permit access to official information long shielded unnecessarily from public view.' " Milner v. U.S. Dep't of the Navy, 562 U.S. 562, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011) (quoting EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973)). The Supreme Court has explained that the FOIA is " a means for citizens to know 'what their Government is up to.' This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-72, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (citation and internal quotation marks omitted). " The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors ...

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