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American Immigration Lawyers Association v. Executive Office for Immigration Review

United States District Court, District of Columbia

November 17, 2017

AMERICAN IMMIGRATION LAWYERS ASSOCIATION, Plaintiff,
v.
EXECUTIVE OFFICE FOR IMMIGRATION REFVIEW, U.S. DEPARTMENT OF JUSTICE, et al, Defendants.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER United States District Judge.

         Since this case has been here before, the Court will only briefly recount the relevant factual background. In November 2012, the American Immigration Lawyers Association ("AILA") filed a request under the Freedom of Information Act ("FOIA") with the Department of Justice's Executive Office for Immigration Review ("EOIR") seeking all complaints filed against immigration judges employed by EOIR and records reflecting the resolution of those complaints for 2009 through November 2012. Compl. ¶ 18. When EOIR did not timely disclose the requested documents, AILA brought suit. Id. ¶ 26. EOIR eventually disclosed some 16, 000 pages of records to AILA but, as relevant here, it redacted the names of the individual judges, replacing each judge's name with a unique three-letter code. See Am. Immigration Lawyers Ass'n v. Exec. Office of Immigration Review, 830 F.3d 667, 672 (D.C. Cir. 2016) ("AILA II"). EOIR argued that Exemption 6 of FOIA-which protects personnel records from disclosure- permitted these redactions. See id.

         The parties briefed summary judgment and, in December 2014, the Court granted summary judgment to EOIR, upholding EOIR's redaction of the names under Exemption 6. See Am. Immigration Lawyers Ass'n v. Exec. Office for Immigration Review, 76 F.Supp.3d 184, 192 (D.D.C. 2014). The Court held that EOIR's blanket withholding was justified because the incremental public interest in knowing the judges' identities did not outweigh the privacy interests of the judges given their status as non-supervisory civil servants. Id. at 187.

         AILA appealed, and the D.C. Circuit reversed. See AILA II, 830 F.3d at 676. The panel reasoned that EOIR could not defend its withholding with such sweeping categorization. Id. Since each judge had a different privacy interest given the varying facts about that judge and the complaints filed against her, the panel concluded that EOIR needed to provide a "particularized showing" for individual judges or categories of judges to justify withholding under Exemption 6. Id. The D.C. Circuit thus remanded for this Court to assess the balance of public and privacy interests for each judge or category of judges in the first instance. Id. The parties have now once more filed briefs for summary judgment on whether that balance should tip towards the disclosure of the names of a subset of the judges whose records were released. The Court will grant each motion in part and deny each motion in part: after considering the balance of privacy interests versus public interests, some of the judges' names must be disclosed while others may remain withheld.

         I. Legal Background

         Summary judgment is appropriately granted if a party shows that there are no genuine issues of material fact and that the party is entitled to judgement as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the burden of proving it is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Additionally, the Court examines the facts and draws all reasonable inferences in favor of the nonmoving party. Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016). "FOIA cases typically and appropriately are decided on motions for summary judgment." Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009).

         FOIA "seeks 'to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.'" NLRB v. Sears, Roebuck &Co, 421 U.S. 132, 136 (1975) (citation omitted). Thus, exemptions to FOIA are to be narrowly construed. See, e.g., DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015). As relevant here, Exemption 6 of FOIA withholds from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).

         Courts apply a two-step analysis to determine if records fall within the scope of Exemption 6. See, e.g., AILA II, 830 F.3d at 673. At the initial step, the Court must determine whether the records at issue are the type of records covered by Exemption 6. Id. If so, the Court then determines whether "disclosure would constitute a clearly unwarranted invasion of personal privacy." Id. (citation omitted). The Court uses a two-part test to perform the second step in the analysis, determining whether disclosure would involve an unwarranted invasion of personal privacy. First, the Court determines if disclosure of the records "would compromise a substantial, as opposed to a de minimis, privacy interest." Id. at 674 (citation omitted). If so, the Court then weighs the privacy interest at stake compared to the public interest in disclosure. Id. If the public interest outweighs the privacy interest, then disclosure is warranted; otherwise, withholding is permissible. Id. It is undisputed here that the records at issue fall within the scope of Exemption 6. See AILA II, 830 F.3d at 673. Nor does AILA dispute that disclosure would compromise a substantial, not de minimis, privacy interest. See Id. Consequently, the sole issue that remains for the Court to address is the balancing of interests. See Id. at 674.

         II. Analysis

         AILA has narrowed the scope of this case to 34 of the original 201 immigration judges who had disciplinary records responsive to its FOIA request. Pl.'s Mem. Supp. Mot. Summ. J. ("Pl.'s MSJ") at 1.[1] It argues that Exemption 6 does not provide for the withholding of any of the judges' names. Id. at 18. In turn, EOIR has again contended that the withholding of all of the judges' names is appropriate under Exemption 6. Defs.'Mem. Supp. Renewed Mot. Summ. J. ("Defs.' MSJ") at 13. This time, however, EOIR has provided an explanation for withholding each individual judge's name rather than a blanket justification. Id. at 15-16. Since AILA does not argue that EOIR has failed to perform the particularized analysis required by the D.C. Circuit in AILA II, see Pl.'s Reply Supp. Mot. Summ. J. ("Pl.'s Reply") at 1, all that remains for the Court to determine is whether the withholding of each judge's name is justified under Exemption 6.

         To resolve this question, the Court must weigh the public interest in disclosure against each judge's privacy interest. See AILA II, 830 F.3d at 674. As the D.C. Circuit recognized, the "only relevant public interest here" is "the extent to which disclosure would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government." Id. (quoting Dep't of Defense v. FLRA, 510 U.S. 487, 495 (1994)). Knowledge of the identity of a particular judge "would enable the public to examine her official actions (including decisions), both past and future, and to assess any possible implications of those complaints for the conduct of her official responsibilities." Id. at 675-76. On the other side of the scale, the judges clearly have a privacy interest in their personnel records and any allegations of impropriety or disciplinary actions taken against them. Cf. Dep't of Air Force v. Rose, 425 U.S. 352, 377 (1976) ("[Identification of disciplined cadets . .. could expose the formerly accused men to lifelong embarrassment, perhaps disgrace, as well as practical disabilities, such as loss of employment or friends." (citation omitted)). The ultimate question is "whether, given the information already disclosed by EOIR, the 'incremental value' served by disclosing an immigration judge's name outweighs that person's privacy interest." AILA II, 830 F.3d at 674. Here, EOIR has already disclosed a large quantity of information, including details on the nature of every complaint filed against each judge and the resolution of each complaint. See generally Defs.' MSJ Ex. A, Ex. 1 (revised Vaughn index).

         In performing its balancing analysis, the Court is guided by the factors identified by the D.C. Circuit in its decision in AILA II: (1) "whether [the complaint] is substantiated or unsubstantiated"; (2) "whether [the complaint is] related to serious issues or comparatively trivial ones"; (3) "whether [the complaint is] about immigration judges' conduct on the bench or their conduct outside the workplace"; (4) "whether [the judge is] a sitting immigration judge or someone no longer on the bench"; (5) "whether a judge . . . has faced only one complaint or a judge has repeatedly been the target of complaints"; and (6) "whether the judge has been subject to some type of discipline or has avoided disciplinary action (and the reasons why)." 830 F.3d at 675. The Court will also consider the number of complaints relative to the number of hearings a judge conducted during the relevant time period, specifically whether the judge presided over a particularly large or small number of hearings as compared to other immigration judges.[2]Finally, the Court has taken into account any additional factors that might be relevant, such as whether a complaint raises particularly embarrassing or sensitive allegations.

         The Court has reviewed EOIR's revised Vaughn index and generally weighed the key factors as follows:

• The public has a comparatively higher interest when there is a greater proportion of substantiated complaints versus unsubstantiated complaints;[3]
• The public has a comparatively higher interest when the complaints contain serious allegations as compared to less-serious ones, and one indication of the gravity of the complaint is the level of discipline applied (e.g., oral counseling as compared to suspension);[4]
• The public has a comparatively higher interest when the allegations concern in-court behavior, whereas the judge has a comparatively higher privacy interest when the allegations concern out-of-court behavior such as a judge's interactions with his staff;
• The public has a comparatively higher interest in disclosure of the name of a sitting judge, whereas a retired judge has a comparatively higher privacy interest, see AILA II, 830 F.3d at 675;
• The public has a comparatively higher interest in disclosure when the judge has been subject to numerous complaints as opposed to a judge subject to few complaints, particularly when the judge has presided over a lower-than-average number of hearings, see id[5]

         On the whole, the Court believes that the balancing of public interests and privacy interests typically weighs towards disclosure in "the case of a sitting judge with a substantial number of serious and substantiated complaints, " AILA II, 830 F.3d at 675, and against disclosure in the case of a retired judge with a small number of substantiated complaints. After reviewing the revised Vaughn index and the declarations filed by both parties, the Court holds that the withholding of 20 judges' names is proper under Exemption 6, but that the withholding of the other 14 judges' names is not and thus those names must be disclosed.

         A. Withholding Proper ...


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