The opinion of the court was delivered by: HAROLD BAER JR., District Judge
Plaintiffs, a coalition of advocacy organizations, filed this
action pursuant to the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552, to compel disclosure of documents by various
federal agencies including the Department of Justice, the
Department of Homeland Security, the Office of Legal Counsel, and
the Federal Bureau of Investigation (collectively, the
"Government"). In a motion for partial summary judgment, the
Government contends that two documents need not be disclosed
pursuant to a FOIA exemption. Plaintiffs claim that any FOIA
exemption has been waived. Following oral argument on July 12,
2005, and an in camera review by this Court, the Government's
motion is GRANTED in part and DENIED in part.
On October 27, 2004, in connection with a related matter, Doe
v. Immigration & Customs Enforcement, 2004 U.S. Dist. LEXIS
12021 (S.D.N.Y. June 29, 2004),*fn1 Plaintiffs submitted
several FOIA requests for the production of records from
different federal agencies including the Department of Justice ("DOJ") and
its Office of Legal Counsel ("OLC"). The records sought by
Plaintiffs involve the type of civil immigration information
entered into the National Criminal Information Center Wanted
Person File ("NCIC"), a national database of criminal records
maintained by the FBI and used by local, state, and federal law
enforcement officers. The OLC identified forty-eight documents as
responsive to part of a much broader FOIA request. It withheld
five documents pursuant to the FOIA exemption that excuses
"inter-agency or intra-agency memorandums [sic] or letters which
would not be available by law to a party other than an agency in
litigation with the agency." See 5 U.S.C. § 552(b)(5).
Plaintiffs challenge the Government's decision to withhold only
two of the five documents, (1) an unpublished Memorandum (the
"1989 Memo"), from the OLC to FBI Assistant Director, Joseph R.
Davis, entitled "Handling of INS Warrants of Deportation in
Relation to NCIC Wanted Person File," April 11, 1989, and (2) an
OLC Email (the "2002 Email") to Immigration and Naturalization
Services ("INS") officials and the Office of the Attorney
The Government moves for summary judgment on the ground that
both the 1989 Memo and the 2002 Email are exempt from disclosure
pursuant to 5 U.S.C. § 552(b)(5), because they are protected by
the deliberative process privilege and attorney-client privilege.
Plaintiffs argue that the documents must be disclosed under the
affirmative provisions of FOIA, and that with respect to these
documents if they ever were privileged, the FBI has waived any
such privilege. More specifically, Plaintiffs claim that (1) the
deliberative privilege should not attach to the 2002 Email, and
(2) the 1989 Memo has lost its deliberative privilege status
through public disclosure or adoption and incorporation of that
memo into FBI policy. II. DISCUSSION
FOIA is the product of a Congressional policy of transparency
and openness toward sharing government information. Simply put,
"the public is entitled to know what its government is doing and
why." Coastal States Gas Corp. v. Dep't of Energy,
617 F.2d 854, 869 (D.C. Cir. 1980). To further this goal, FOIA strongly
favors disclosure and requires federal agencies to make any
record available to any person upon request unless its documents
fall within one of the specific, enumerated exemptions set forth
in the Act, 5 U.S.C. § 552(a)(3), (b)(1)-(9), and even then the
exemptions are narrowly construed. Local 3 Int'l Bhd. Of Elec.
Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988).
Generally, FOIA requests are resolved on summary judgment
following its proper identification. See, e.g., N.Y. Pub.
Interest Research Group v. United States EPA,
249 F. Supp. 2d 327 (S.D.N.Y. 2003). The district court makes its determination
de novo. See 5 U.S.C. § 552(a)(4)(B). In order to prevail on a
motion for summary judgment, the defendant agency has the burden
of showing that its search was adequate and that any withheld
documents fall within an exemption to FOIA. Id.
At issue here is whether the 1989 Memo and the 2002 Email are
protected under FOIA's fifth exemption ("Exemption 5"), which
permits an agency to withhold "inter-agency or intra-agency
memorandums [sic] or letters which would not be available by law
to a party other than an agency in litigation with that agency."
5 U.S.C. § 552(b)(5).
The Government contends that both documents are protected from
disclosure by the deliberative process privilege and the
attorney-client privilege. The deliberative process privilege is
"a sub-species of work-product privilege that covers documents
reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and
policies are formulated." Tigue v. United States Dep't of
Justice, 312 F.3d 70, 75 (2d Cir. 2002). It is intended to
promote candid discussion between agency officials and protect
the quality of agency decisions. Nat'l Council of La Raza v.
Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005). To qualify
for the privilege, the document must have been predecisional and
deliberative, meaning that it was "prepared in order to assist an
agency decisionmaker in arriving at his decision" and "actually . . . related to the process by which policies are
formulated." Grand Central P'ship, 166 F.3d at 482. The
privilege is destroyed when a deliberative document has been
adopted or incorporated by reference into a final agency policy
or decision. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161
The 1989 Memo appears to fit squarely within the protections of
the deliberative process privilege because it is both
predecisional and deliberative. It was written by the OLC for the
FBI and contains analysis of the legal implications of the FBI's
policy. It was prepared to help the FBI determine whether it had
the authority to enter the names of persons with outstanding
immigration warrants into the NCIC database. The Memo concludes
that the FBI could only enter into the NCIC the names of persons
alleged to have violated criminal laws.
FBI policy with regard to immigration warrants in the NCIC
database has changed several times over the past few decades.
Before 1974, both civil and criminal immigration warrants were
entered into the NCIC database. (Schuessler Dec. Ex. A at 1.) In
1974, the FBI suspended the practice on the basis of an INS
opinion that state and local officers could not "arrest" a person
against whom an administrative (civil) warrant of deportation had
been issued. Id. In 1986, the INS requested authorization from
the NCIC to resume the entry of civil warrants of deportation.
Id. In 1987, the FBI announced that it would consider this
request at a meeting of the NCIC Advisory Policy Board ("APB"), a
body of state and local law enforcement officials that advises
the FBI on its NCIC policies. The FBI also sought an opinion from
the OLC regarding the legality of the INS request.
In 1996 the DOJ publicly took the position that state and local
law enforcement agencies were authorized only to enforce the
criminal provisions of federal immigration law. In 2002, the DOJ
flip-flopped and openly stated that state and local law
enforcement could, in fact, lawfully enforce the civil provisions
of the immigration law. As part of the 2002 policy, the
Government stated that additional immigration ...