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Gatore v. United States Department of Homeland Security

United States District Court, District of Columbia

January 4, 2018

RICA GATORE, et al., Plaintiffs,
v.
UNITED STATES DEPARMENT OF HOMELAND SECURITY, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON United States District Judge

         The plaintiffs initiated this civil action against the defendant, the United States Department of Homeland Security, under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), seeking, inter alia, portions of documents termed “assessments to refer” (“assessments”) prepared by asylum officers in connection with the individual plaintiffs' asylum applications. See generally Amended Complaint (“Am. Compl.”). Currently pending before the Court is the Defendant's Renewed Motion for Summary Judgment (“Def.'s Renewed Mot.”), which seeks, inter alia, summary judgment as to the individual plaintiffs' requests for their assessments. See Def.'s Renewed Mot. at 1. Upon careful consideration of the parties' submissions, [1] the Court concludes that it must conduct an in camera review of the assessments in order to resolve the defendant's motion.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Plaintiff Catholic Charities submitted FOIA requests to the defendant on behalf of each of the eight individual plaintiffs, requesting, inter alia, the assessments prepared by an asylum officer after interviewing each plaintiff in connection with his or her pending application for asylum in the United States. See, e.g., Am. Compl. ¶¶ 10, 12; see also Def.'s Facts ¶¶ 1-8. Although the defendant initially disclosed some documents in response to the individual plaintiffs' FOIA requests, see Supp. Eggleston Decl. ¶ 12, it withheld in full the assessments prepared in each of the individual plaintiffs' cases, see, e.g., Am. Compl. ¶ 12; see also Supp. Eggleston Decl. ¶¶ 11-12. Consequently, the plaintiffs filed suit, alleging that “the first several paragraphs” of each assessment were reasonably segregable and that the defendant's failure to release those paragraphs violated the FOIA. See, e.g., Am. Compl. ¶¶ 11, 35.

         On July 28, 2015, the defendant initially moved for summary judgment as to the individual plaintiffs' claims regarding their requests for production of their asylum assessments, asserting that it had properly withheld the assessments in their entirety pursuant to Exemption 5 of the FOIA, in particular, the deliberative process privilege. See Def.'s 1st Summ. J. Mem. at 7. In support of its position, the defendant relied on a declaration from Jill A. Eggleston, the Assistant Center Director in the FOIA and Privacy Act Unit of the National Records Center of the United States Citizenship and Immigration Services (“USCIS”), see Eggleston Decl. ¶ 1, which concluded, in part, that

[t]he factual portions of the assessment[s] to refer cannot be severed or segregated from [their] context and thus must remain exempt from disclosure. The factual distillation[s] in the assessment[s] to refer do[] not purport to be a verbatim transcript of [each of] the plaintiffs' asylum interviews. Rather, they reflect a selective recording of information the USCIS asylum officers deemed particularly pertinent to [the] plaintiffs' requests for asylum. As such, the assessment[s] to refer [ ] contain[] factual matter that cannot be severed from its context and is exempt from disclosure pursuant to Exemption 5 of the FOIA[, ]

id. ¶ 18 (citations omitted).

         In a memorandum opinion issued on April 6, 2016, the Court denied the defendant's initial summary judgment motion, due to several concerns reiterated below with the defendant's position that no part of the asesssments was reasonably segregable:

First, the Eggleston Declaration discusses the segregability of the assessments in a categorical fashion, as opposed to providing a description of the assessments prepared in each of the individual plaintiffs' cases. See Eggleston Decl. ¶¶ 17, 19, 20 (discussing the assessments in general). The Court is therefore unable to conduct a de novo assessment of the agency's determination of segregability as to each of the individual plaintiffs' requests. 5 U.S.C. § 552(a)(4)(B) (upon judicial review, “the court shall determine the matter de novo . . . .”). Second, the defendant's representation that it conducted a “line-by-line examination” of each of the assessments to determine whether any portions were reasonably segregable, Eggleston Decl. ¶ 20, is seemingly undermined by what appears to be the defendant's blanket policy not to release any portion of an assessment, irrespective of its contents, see Pls.' Suppl. Partial Summ. J. Mem., Ex. A at 1, 2 (indicating that assessments should be withheld in full). . . .
The courts in Gosen v. U.S. Citizenship and Immigration Services, 118 F.Supp.3d 232 (D.D.C. 2015), and Abtew v. U.S. Department of Homeland Security, 47 F.Supp.3d 98 (D.D.C. 2014), aff'd 808 F.3d 895 (D.C. Cir. 2015), which both involved the same type of assessment at issue here, ordered the defendant to provide the withheld assessments for in camera review and thereafter concluded that some portions were reasonably segregable. See Gosen, 118 F.Supp.3d at 243 (“The Court has reviewed the documents in question and finds that there is at least some factual material that may not expose the deliberative process. For example, both assessments begin with factual introductory information.”); Abtew, 47 F.Supp.3d at 114 (“After reviewing the Assessment in camera, the Court concludes that the first six paragraphs simply recite and summarize the facts that [the] plaintiff presented to the [asylum officer] during his asylum application interview. Those paragraphs do not include any analysis or impressions, and they do not reflect the [asylum officer's] deliberative process: although the document does not purport to be a verbatim rendition of the interview, and there may have been some streamlining involved, the summary does not involve the sort of culling of facts from a large universe that could be characterized as deliberative.” (citing Ancient Coin Collectors[ Guild v. U.S. Dep't of State], 641 F.3d [504, ] 513 [(D.C. Cir. 2011)])). The Court is persuaded by Gosen and Abtew that there may be some portion of the assessments at issue in this case that contain factual information that may be reasonably segregated from the whole.

Gatore v. U.S. Dep't of Homeland Sec., 177 F.Supp.3d 46, 52-53 (D.D.C. 2016) (Walton, J.). In light of all of these concerns, the Court ordered “the defendant to submit a revised Vaughn index, affidavit, or declaration, that reassesses the issue of segregability as to each of the individual plaintiffs' assessments, and provides an adequate description of each assessment to support the defendant's assertion that no portion may be released.” Id. at 53.

         On May 27, 2016, the defendant filed a supplemental declaration from Eggleston addressing the seven assessments then at issue in this case. See generally Supp. Eggleston Decl.[2]Eggleston's supplemental declaration asserted that each assessment had received “two levels of segregability review, ” after which it was determined that “[n]one of the assessments . . . contained reasonably segregable information.” Id. ¶ 12; see also id. ¶ 11 (“[A] determination was made that the factual portions of the assessment[s] to refer cannot be severed or segregated from [their] context[s] and thus must remain exempt from disclosure.”).

         Despite Eggleston's representations, on March 14, 2017, the defendant released to the individual plaintiffs limited portions of each of the seven assessments. See Pls.' Facts ¶¶ 23-24; see also Pls.' Report, Exhibit (“Ex.”) 1 (attaching the released versions of the assessments). Specifically, the defendant released the first paragraph of each of the assessments for plaintiffs Gatore, Al Timemy, Ouedraogo, Herve Shyaka, and Ayessa, and the first two paragraphs of each of the assessments for plaintiffs Innocent Shyaka and Lumonika. See Pls.' Report, Ex. 1 (March 14, 2017 Release of Information from Seven Assessments) at 2-8. The defendant subsequently submitted a second supplemental declaration from Eggleston, acknowledging the defendant's decision to release that information, namely that, “[o]n further review, it was determined that USCIS could release limited factual information from the assessments, ” in particular, “limited information relating to the asylum applicant's biographical information” contained in “the opening paragraph(s).” 2d Supp. Eggleston Decl. ¶ 3.

         A few months later, on June 9, 2017, the defendant released the first three paragraphs of the assessment for the eighth named plaintiff, Veronica Carolina Lemus Miranda. See Pls.' Facts ¶ 24; see also id., Ex. 1 (Declaration of David L. Cleveland (June 15, 2017) (“Cleveland Decl.”)), Attachment (“Att.”) C (Portions of Assessment of Ms. Lemus Miranda, Released on June 9, 2017). The defendant simultaneously submitted a third supplemental declaration from Eggleston, which described plaintiff Lemus Miranda's assessment, see 3d Supp. Eggleston Decl. ΒΆΒΆ 5-9, and explained that ...


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