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December 19, 2005.


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 Plaintiffs challenge the Government's decision to withhold only two of the five documents, (1) an unpublished Memorandum (the "1989 Memo"), from the OLC to FBI Assistant Director, Joseph R. Davis, entitled "Handling of INS Warrants of Deportation in Relation to NCIC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 General.*fn2

  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 (1975).

  A. The 1989 Memo

  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 ...

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