United States District Court, D. Columbia.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For MARIA ANDREA MEZERHANE DE SCHNAPP, Plaintiff: Sandra Andrea Grossman, LEAD ATTORNEY, GROSSMAN LAW, LLC, Rockville, MD.
For UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant: John Cuong Truong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
JOHN D. BATES, United States District Judge.
Before the Court are  the parties' cross-motions for summary judgment in this action seeking the disclosure of agency records under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552. Only 47 pages remain in dispute. Defendant United States Citizenship and Immigration Services (" USCIS" ) claims that these 47 pages are properly withheld under various FOIA exemptions--some in full, some in part. Plaintiff Maria Andrea Mezerhane de Schnapp (" Mezerhane" ) disagrees. Recently, USCIS produced the disputed documents to the Court, in unredacted form, for in camera review. After a careful review of the documents in question, and for the reasons set forth below, the Court will grant USCIS's motion for summary judgment in substantial part, and deny Mezerhane's cross-motion in its entirety. USCIS's exemption claims will be upheld for 42 of the 47 pages in dispute. For the remaining five pages, both parties' motions will be denied at this time, as a factual question remains--specifically, whether the documents are predecisional and protected by the deliberative-process privilege and, thus, FOIA Exemption 5.
FOIA requires federal agencies to release all records responsive to a proper request, except those protected from disclosure by any of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). A district court is authorized " to enjoin [a federal] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see also Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). The agency has the burden of proving that " each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352, 197 U.S.App.D.C. 25 (D.C. Cir. 1978) (internal citation and quotation marks omitted); accord Maydak v. U.S. Dep't of Justice, 218 F.3d 760, 764, 342 U.S.App.D.C. 393 (D.C. Cir. 2000).
" FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). Summary judgment is appropriate when the pleadings and the evidence demonstrate that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In a FOIA case, the district court may award summary judgment to an agency on the basis of information provided in affidavits or declarations that describe " the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and 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, 211 U.S.App.D.C. 135
(D.C. Cir. 1981); accord Vaughn v. Rosen, 484 F.2d 820, 826, 157 U.S.App.D.C. 340 (D.C. Cir. 1973).
Much of Mezerhane's briefing tells the story of how USCIS " kept [her] and her family members in immigration limbo for more than three years," Pl.'s Cross-Mot. for Summ. J. (" Pl.'s MSJ" ) [ECF No. 18] at 2, despite the clear strength of their asylum applications (all of which have now been granted). Ultimately, most--but not all--of this history is irrelevant to the legal questions now before the Court: that is, whether USCIS properly withheld portions of 47 pages of documents under various FOIA exemptions. For the vast majority of the disputed records, the Court finds that USCIS made proper exemption claims. For five pages, perplexing internal contradictions in the record preclude summary judgment for either party at this time.
I. USCIS Properly Invoked FOIA Exemption 7(E) to Protect Law Enforcement Techniques and Procedures
USCIS argues that much of the withheld information is exempt from disclosure under FOIA Exemption 7(E), which protects " records or information compiled for law enforcement purposes . . . to the extent that the production" of such records " would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E).
Under D.C. Circuit precedent, " Exemption 7(E) sets a relatively low bar for the agency to justify withholding: 'Rather than requiring a highly specific burden of showing how the law will be circumvented,'" this exemption " 'only requires that the agency demonstrate logically how the release of the requested information might create a risk of circumvention of the law.'" Blackwell v. FBI, 646 F.3d 37, 42, 396 U.S.App.D.C. 164 (D.C. Cir. 2011) (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194, 385 U.S.App.D.C. 250 (D.C. Cir. 2009)); see also id. (" [T]he exemption looks not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk." ) (internal quotation marks omitted).
USCIS clears this " relatively low bar" for all of the records it has withheld under Exemption 7(E), because USCIS has " demonstrate[d] logically how the release of the requested information might create a risk of circumvention of the law." Id. For example, USCIS withheld several pages of printouts from " The Enforcement Communications System," also known as the " TECS II" database. The TECS II database contains law enforcement data " from a variety of federal, state and local sources," including " names, aliases, dates
of birth, addresses, physical descriptions, various identification number[s], details and circumstances of search, arrest or seizures," and so on. Def.'s Mot. for Summ. J. (" Def.'s MSJ" ) [ECF No. 16] at 13.
USCIS's representations, and this Court's own in camera review, confirm that this data " was compiled for law enforcement purposes," and that its disclosure would risk revealing " techniques and procedures for law enforcement investigations or prosecutions," 5 U.S.C. § 552(b)(7)(E). Specifically, it could create the " chance" of a " risk" of circumvention of the law, because it could enlighten asylum applicants with criminal backgrounds about what sort of law enforcement information (from which databases) is consulted by USCIS during adjudication of a pending asylum application--and, of course, by logical inference, what sort of information is not consulted. Not surprisingly, several courts in this district have held that printouts from the TECS II database are properly withheld under FOIA Exemption 7(E). See, e.g., Strunk v. U.S. Dep't of State, 905 F.Supp.2d 142, 148 (D.D.C. 2012) (" The CBP thus demonstrates that its decision to withhold the TECS-related information under Exemption 7(E) is proper." ); Skinner v. U.S. Dep't of Justice, 806 F.Supp.2d 105, 116 (D.D.C. 2011) (" USCIS properly has redacted from the TECS screen printout information pertaining to the techniques, procedures and guidelines for action in an ongoing criminal law enforcement operation." ).
The same is true for the other information USCIS withholds under Exemption 7(E), which includes, for example, records of USCIS queries of the Interagency Border Inspection System (" IBIS" ), see, e.g., Vaughn Index [ECF No. 16-4] Nos. 297-98, 321, and other information that might reveal the methods by which USCIS cooperates and shares information with the Federal Bureau of Investigation (" FBI" ) in adjudicating asylum applications, see, e.g., id. No. 245. Given the deferential standard applied by the D.C. Circuit for agency withholding under Exemption 7(E), and the in camera review that confirmed the accuracy of the agency's description of the relevant documents, the Court will not second-guess USCIS's concerns about the potential risks of releasing this information.
In response, Mezerhane hardly disputes USCIS's factual assertions and, instead, makes a series of legal arguments. None are persuasive. She begins with an appeal to (out-of-circuit, district court) authority: Gluckman v. U.S. Dep't of Labor, 2013 WL 6184957 (E.D. Va. Nov. 26, 2013), which she reads to stand for the proposition that " [a]n agency withholding records for law enforcement purposes must have a law enforcement mandate." Pl.'s MSJ at 21 (internal quotation marks omitted). USCIS, argues Mezerhane, " is not principally or even tangentially engaged in law enforcement activity" ; instead, it " refers immigration enforcement matters to Immigration and Customs Enforcement." Id. at 22. Even assuming Mezerhane has her facts right, this argument overreads Gluckman and, more importantly, finds no basis in FOIA's text. Exemption 7(E) applies to all " records or information compiled for law enforcement purposes," 5 U.S.C. § 552(b)(7)--making no reference to, distinction between, or limitation on the sort of agency currently in custody of the document. Mezerhane does not cite, and the Court has not found, any D.C. Circuit authority for such a ...