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Families for Freedom v. U.S. Customs and Border Protection


June 16, 2011


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



Families for Freedom, a non-profit advocacy organization, along with Jane Doe, Mary Doe, and John Doe, three individuals in deportation proceedings (collectively, "Plaintiffs"), bring suit against U.S. Customs and Border Protection ("CBP"), U.S. Immigration and Customs Enforcement ("ICE"), and the U.S. Department of Homeland Security ("DHS") (collectively, "Defendants"), seeking release of certain government records pursuant to the Freedom of Information Act ("FOIA").*fn1 The requested records pertain primarily to the scope and practices of CBP operations on inter-city buses and trains within the geographic area designated as the "Buffalo Sector."*fn2 Defendants now move for partial summary judgment on their invocation of FOIA exemptions to withhold, in whole or in part, certain responsive documents.*fn3 Plaintiffs oppose defendants' motion and request that the Court order production of four groups of documents that they allege were improperly redacted or withheld entirely.*fn4 For the reasons stated below, defendants' motion for summary judgment is granted in part and denied in part, and defendants are ordered to produce a number of the withheld documents.


On February 26, 2009, plaintiffs submitted an initial FOIA request to CBP.*fn5 On April 2, 2010, plaintiffs submitted a second FOIA request to CBP, and submitted similar FOIA requests to ICE and DHS.*fn6 Through their requests, plaintiffs sought information primarily concerning the activities of the Buffalo Sector of the United States Border Patrol, a subdivision of CBP, as well as the related activities of ICE.*fn7 Buffalo Sector is one of twenty Border Patrol sectors and covers 450 miles of border between the United States and Canada.*fn8 The Buffalo Sector's responsibilities encompass Pennsylvania, Maryland, Virginia, West Virginia and most of New York State.*fn9

Plaintiffs assert that "Border Patrol officers improperly engage in interior enforcement of immigration laws by questioning bus and train travelers about their immigration status on inter-city conveyances that never cross the border."*fn10 Alleging that these activities exceed the Border Patrol's "statutory and regulatory authority and violate the Fourth Amendment," plaintiffs state that the requested records are necessary to inform the public about the activities of its government and are relevant to various pending deportation proceedings, including those of Jane Doe, Mary Doe, and John Doe.*fn11

A. February 26, 2009 FOIA Request to CBP

The February 26, 2009 FOIA request to CBP sought: (1) I-213 arrest forms for persons apprehended on Amtrak trains by Border Patrol agents from the Rochester Border Patrol Station for the years 2003-2008; (2) arrest statistics relating to those apprehensions, broken down by the length of time the immigrant was in the United States; (3) total arrest statistics for the Rochester Station for the years 2003-2008; (4) explanations and listings of the various codes that are used on the Form I-213s; (5) arrest quotas, goals, targets or expectations for Border Patrol agents from the Buffalo Sector and the Rochester Station for the years 2003-2008; (6) performance review standards for Border Patrol agents from the Buffalo Sector and the Rochester Station for the years 2003-2008; (7) training materials on racial profiling; (8) training materials on Amtrak enforcement operations; (9) reports concerning Amtrak arrests for the years 2003-2008; (10) agreements between CBP and Amtrak; and (11) standards of conduct for CBP officers at the border and in the interior.*fn12

In response to this initial FOIA request, CBP indicated that it had identified eighty-one pages of responsive documents, fifty of which were withheld in their entirety pursuant to Exemptions 2 -- including "Low 2" and "High 2"*fn13 -- 5, 6, 7(C), and 7(E).*fn14 Fifteen pages were released with redactions made pursuant to Exemptions "Low 2," "High 2," 6, 7(C), and 7(E).*fn15 The Department of Justice ("DOJ") and DHS also produced several documents that had been identified by CBP and referred to those agencies as the original authors for review and release.*fn16

On August 17, 2009, plaintiffs appealed by letter the agency's response, challenging the adequacy of the search and the propriety of the claimed exemptions.*fn17 From September through November 2009, plaintiffs communicated on several occasions with CBP about their appeal, but the agency produced no further documents.*fn18 Deeming their administrative remedies exhausted, plaintiffs filed suit against CBP on March 26, 2010, alleging that the agency had violated FOIA by failing to release records, and seeking declaratory and injunctive relief.*fn19

B. April 2, 2010 FOIA Requests to CBP, ICE, and DHS

On April 2, 2010, plaintiffs served a second FOIA request on CBP and initial FOIA requests on ICE and DHS.*fn20 The second request to CBP sought information similar to that sought in the first request, but added several categories of information and updated the request to include 2009 data.*fn21 The request to ICE sought information similar to that in the CBP request of the same date, but also requested records concerning performance standards, arrest quotas, targets, or goals for ICE officers.*fn22 The April 2, 2010 request to DHS sought: (1) agreements, understandings, or communications between CBP, Border Patrol, DHS and/or ICE regarding transportation checks; (2) performance standards or arrest quotas, targets or goals for Border Patrol officers in effect during the previous six years, preferably broken down by Sector and Station; (3) performance standards, arrest quotas, targets, or goals for ICE officers, including those that can be satisfied by Border Patrol arrestees that are transferred to ICE custody; and (4) reports containing information about arrests on inter-city trains and buses during the previous six years.*fn23

The agencies acknowledged receipt of plaintiffs' April 2, 2010 FOIA requests, but did not produce any responsive documents.*fn24 Plaintiffs amended their Complaint on May 21, 2010, adding ICE and DHS as defendants, and again claiming that the failure to release records and the failure to make a determination regarding plaintiffs' requests for expedited processing violated FOIA.*fn25

C. Productions in Response to Litigation

In response to the instant suit, and pursuant to an agreement negotiated with plaintiffs, CBP performed additional searches and produced additional documents.*fn26 In total, CBP produced sixty pages of responsive documents in their entirety and six hundred and twenty-four pages with redactions, while withholding seven hundred and eight pages in their entirety based on certain exemptions.*fn27 In response to the instant suit, ICE identified one hundred and twenty-six pages of responsive documents, producing eighty-three pages in their entirety and forty-three pages with redactions based on certain exemptions.*fn28 ICE did not withhold any documents in their entirety.*fn29

Defendants now move for summary judgment as to whether defendants have properly withheld records, in whole or in part, based on the asserted exemptions.*fn30 Plaintiffs, in opposing defendants' motion, ask the Court to order the production of four sets of documents, which they allege defendants have improperly redacted or withheld in their entirety. Those documents are described by plaintiffs as follows: first, the Buffalo Sector Daily Reports and related commentary, identified by CBP in US000811-US000816 and US000867-US001518; second, sample Form I-213s, identified by CBP as US00119-US000735; third, training memoranda on agency policies regarding racial profiling and conduct of agents during transportation checks, identified by CBPas US000817-US000866; and fourth, the authors and recipients of a memorandum identified by ICE as US000112 and an email identified by ICE as US000114.*fn31


A. FOIA and Summary Judgment

FOIA cases are generally and most appropriately resolved on motions for summary judgment.*fn32 Summary judgment in the FOIA context, as in any other, is appropriate if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn33

"An issue of fact is genuine if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' A fact is material if it 'might affect the outcome of the suit under the governing law.'"*fn34 "In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party."*fn35

However, unique to the FOIA context, "[a]ffidavits submitted by an agency are accorded a presumption of good faith," and so long as such affidavits "supply[] facts indicating that the agency has conducted a thorough search and giv[e] reasonably detailed explanations why any withheld documents fall within an exemption," they will sustain the agency's burden and summary judgment may be awarded without discovery being conducted.*fn36 Nonetheless, "[t]he agency's decision that the information is exempt from disclosure receives no deference."*fn37

Accordingly, a court is required to conduct a de novo review of the record, deciding "'whether the agency has sustained its burden of demonstrating that the documents requested are not agency records or are exempt from disclosure under the FOIA.'"*fn38

In addition to affidavits, agencies generally submit Vaughn indexes to sustain their burden. A Vaughn index is an itemized listing of the non-disclosed records, describing each record and portion withheld, and providing a detailed justification for the agency's withholding, specifying the FOIA exemption that it has applied.*fn39 The purpose of a Vaughn index is to "(a) [] permit [the opposing party] to contest the affidavit in [an] adversarial fashion," and to "(b) [] permit a reviewing court to engage in effective de novo review of the [government's] redactions."*fn40

At the heart of FOIA is "a policy strongly favoring public disclosure of information in the possession of federal agencies."*fn41 However, FOIA provides nine categories of information that are exempt from disclosure.*fn42 Four of those exemptions are relevant to the instant matter -- Exemptions 2, 5,6, and 7. Under Exemption 7, defendants cite both subsection (C) and subsection (E), which I address separately below.

1. FOIA Exemptions 2 and 7(E)

Exemption 7(E) protects "records or information compiled for law enforcement purposes," that, if disclosed, "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."*fn43 Exemption 2 protects from disclosure information that is "related solely to the internal personnel rules and practices of an agency."*fn44 For many years, following the D.C. Circuit's ruling in Crooker v. Bureau of Alcohol, Tobacco, and Firearms,*fn45 courts held that Exemption 2 protected two categories of information: (1) materials concerning human resources and employee relations (known as "Low 2"),*fn46 and (2) "predominantly internal" information that, if disclosed, would "significantly risk[] circumvention of agency regulations or statutes"*fn47 (known as "High 2").

In its recent decision in Milner v. Department of the Navy, the Supreme Court explicitly overruled Crookerand its progeny. In Milner, the Court, after considering the statutory language and the legislative history of FOIA, held that "Exemption 2, consistent with the plain meaning of the term 'personnel rules and practices,' encompasses only records relating to issues of employee relations and human resources."*fn48 As a result, after Milner, High 2 has ceased to exist; and "Low 2 is all of 2."*fn49 In its reasoning, the Court gave significant weight to Congress's amendment of Exemption 7(E) in 1986, noting that "the Crooker construction of Exemption 2 renders Exemption (b)(7)(E) superfluous and so deprives that amendment of any effect."*fn50 The Court added, "[w]e cannot think of any document eligible for withholding under Exemption 7(E) that the High 2 reading does not capture."*fn51 In fact, prior to Milner, agencies frequently cited Exemption 2 in conjunction with Exemption 7(E), due to the conceptual overlap between the two under the Crooker doctrine.

2. FOIA Exemption 5

Exemption 5 protects "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."*fn52 The exemption incorporates "all normal civil discovery privileges,"*fn53 including the attorney-client privilege and the attorney work-product doctrine.*fn54 "The test under Exemption 5 is whether the documents would be 'routinely' or 'normally' disclosed upon a showing of relevance."*fn55

"Whether its immunity from discovery is absolute or qualified, a [privileged] document cannot be said to be subject to 'routine' disclosure," and thus, is protected under Exemption 5.*fn56

"The attorney-client privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services."*fn57 Advice from an attorney to his or her client is also protected by the privilege.*fn58 "In the governmental context, the client may be the agency and the attorney may be an agency lawyer."*fn59 The attorney-client privilege under Exemption 5 "is narrowly construed and is limited to those situations in which its purpose will be served."*fn60 "The agency bears the burden of showing that the information exchanged was confidential. That is, the agency must show that it supplied information to its lawyers 'with the expectation of secrecy and was not known by or disclosed to any third party.'"*fn61

The attorney work product doctrine applies "to memoranda prepared by an attorney in contemplation of litigation which sets forth the attorney's theory of the case and [her] litigation strategy."*fn62 "The attorney work product privilege protects 'the files and the mental impressions of an attorney . . . reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways' prepared in anticipation of litigation."*fn63

The doctrine is "limited in scope and does not protect every written document generated by an attorney."*fn64 "[A]n attorney's mental impressions do not become protected work product simply because they were expressed concurrently with some form of litigation."*fn65 Additionally, "'[d]ocuments that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation' are not protected as attorney work product."*fn66

3. FOIA Exemptions 6 and 7(C)

Exemption 6 protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."*fn67 The purpose of Exemption 6 is to "'protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.'"*fn68 The Supreme Court has interpreted Exemption 6 broadly to encompass any "information which applies to a particular individual."*fn69 If disclosure would compromise "substantial privacy interests," it need not be disclosed.*fn70 If no substantial privacy interest is established, however, the court must weigh the "potential harm to privacy interests" against "the public interest in disclosure of the requested information."*fn71 The "only relevant public interest to be weighed in this balance is the extent to which disclosure would serve the core purpose of FOIA, which is contribut[ing] significantly to public understanding of the operations or activities of the government."*fn72 "The requesting party bears the burden of establishing that disclosure of personal information would serve a public interest cognizable under FOIA."*fn73 However, information that "merely identifies the names of government officials who authored documents and received documents" does not generally fall within Exemption 6.*fn74

Exemption 7(C) protects from disclosure "records or information compiled for law enforcement purposes" if disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy."*fn75 Exemption 7(C) requires balancing of privacy interests and the public interest as well.*fn76

However, the privacy interests of Exemption 7(C) have been construed more broadly than those of Exemption 6. "First, whereas Exemption 6 requires that the invasion of privacy be 'clearly unwarranted,' the adverb 'clearly' is omitted from Exemption 7(C) . . . Second, whereas Exemption 6 refers to disclosures that 'would constitute' an invasion of privacy, Exemption 7(C) encompasses any disclosure that 'could reasonably be expected to constitute' such an invasion."*fn77


Plaintiffs contest defendants' withholding of documents that fall into four categories, but do not contest numerous other exemptions invoked by defendants. Thus, I grant defendants' motion for summary judgment as to the following categories of documents, which plaintiffs do not dispute:

(1) redactions of certain ICE internal codes and databases;*fn78

(2) phone numbers for the National Law Enforcement Communications Center and the Buffalo Sector duty agent;*fn79

(3) documents that contain descriptions of a law enforcement technique known as a "cold convoy;"*fn80

(4) names of ICE course instructors;*fn81

(5) name and phone number of the deputy assistant director of the Compliance Enforcement Division;*fn82

(6) name and phone number of the National Fugitives Operations Plan acting unit chief;*fn83

(7) phone numbers of Border Patrol agents;*fn84

(8) names and other personal identifying information of aliens whose information appears in ICE classroom training materials;*fn85

(9) other sample training materials from Glynco County Jail;*fn86

(10) those redactions on the sample I-213s that have not been challenged.*fn87

I now turn to the categories of documents for which plaintiffs contest defendants' asserted exemptions.

A. Buffalo Sector Daily Reports

Defendants withheld in their entirety the six Buffalo Sector Daily Reports that contain annual apprehension statistics for 2004 through 2009 for the six Border Patrol stations within Buffalo Sector,*fn88 and the comments pages from five hundred and eighty-four Buffalo Sector Daily Reports that provide detailed information on arrests made by Border Patrol agents.*fn89 Plaintiffs argue that those documents are responsive to their demands and that defendants have improperly applied FOIA exemptions to withhold the documents.

Specifically, plaintiffs sought information about the percentage of Rochester Station and Buffalo Sector arrests that were attributable to CBP's transportation raids.*fn90 CBP has disclosed the total number of transportation raid arrests made by the Rochester Station for the years 2006-2009, and the total number of all arrests made by the Buffalo Sector for the years 2003-2009. However, the agency has withheld documents that would reveal the total number of all arrests made by the Rochester Station for each year, and the total number of transportation raid arrests by the Buffalo Sector.*fn91 This partial withholding has prevented plaintiffs from calculating the percentage of arrests attributable to transportation raids, as was their aim in requesting this information. The missing data is contained in the six Buffalo Sector Daily Reports that have been withheld in their entirety.*fn92

Plaintiffs also sought "[a]ny documents that contain any information regarding arrest quotas, targets, goals and expectations."*fn93 Defendants identified US000867-001518 as the comments pages of five hundred and forty-eight separate Buffalo Sector Daily Reports, which include "details of apprehensions," and which have been withheld.*fn94 On the theory that such commentary "will likely convey the agency's own reflections on what kinds of arrests are appropriate and expected of officers," plaintiffs suggest that those portions of the Buffalo Sector Daily Reports would be responsive to their demand.*fn95

To justify their withholding of the specified pages from the Buffalo Sector Daily Reports, defendants have cited to Exemptions High 2 and 7(E).*fn96 The briefing in this case was completed just prior to the decision in Milner; as a result, the parties' briefs include detailed arguments about the applicability of the now non-existent High 2 Exemption. However, as the parties suggested in their post-Milner letters to the Court, my analysis is little altered, as defendants claimed Exemptions 7(E) and High 2 concurrently as to those documents.*fn97 In view of

Milner, I address only the applicability of Exemption 7(E) to the contested documents.

Defendants have withheld the Buffalo Sector Daily Reports under Exemption 7(E) on the grounds that (1) release of the contested documents risks enabling circumvention of the law;*fn98 (2) courts have routinely upheld the invocation of the exemption when matters of national security are at issue, which includes securing of the borders;*fn99 and (3) the fact that the agency has chosen to disclose a certain subset of apprehension statistics does not signify that it has waived its right to assert an exemption as to other such statistics.*fn100 For the reasons explained below, I find that defendants are entitled to withhold some of the documents, or portions of some of the documents, sought by plaintiffs.

First, I find that defendants must release the portions of the six Buffalo Sector Daily Reports that indicate the total number of all arrests made by the Rochester Station for each year, and the total number of transportation raid arrests within the Buffalo Sector. Such statistics are neither "techniques or procedures" nor "guidelines," such that they could be properly exempt under 7(E).*fn101 As a result, I need not reach whether disclosure of such information risks circumvention of the law.

However, were I to reach the latter issue, I would find that release of this information does not pose that risk. Plaintiffs are not requesting arrest statistics for each station within the Buffalo sector, which could theoretically aid circumvention of the law by publicizing the relative activity or success of Border Patrol agents in effecting apprehensions at each station, as defendants fear.*fn102

Rather, plaintiffs seek information only about the Buffalo Sector as a whole and Rochester Station in particular. This information will aid plaintiffs in calculating the percentages that they argue are important to enable the public to understand the role and significance of transportation-based arrests, but it will not reveal the comparative strengths and weaknesses of the various stations within the Buffalo Sector. To the extent that the Daily Reports include arrest data broken down by station, defendants may redact the information so that only the Rochester Station arrest data and Buffalo Sector arrest totals are disclosed.

I note also that CBP is not required to create a spreadsheet with this information, even if it has done so for similar information in the past.*fn103 Rather, it must simply disclose the documents that contain this information. On the other hand, if the agency finds it simpler to compile such information into a spreadsheet rather than to conduct extensive redactions, it may produce such a spreadsheet to plaintiffs in lieu of the heavily redacted Reports.

Second, I find that defendants must re-evaluate the comments sections of the five hundred and forty-eight Buffalo Sector Daily Reports and produce those portions that are responsive and not exempt. Defendants argue that the Reports contain "a trove of information on Border Patrol's law enforcement efforts throughout Buffalo Sector," and proceed to list a half dozen types of information that, if disclosed, would risk circumvention of the law.*fn104 As a result, they have withheld the comments pages of the Reports in their entirety. However, they should have -- and are now ordered to -- analyze whether the pages in question contain non-exempt information that is segregable from exempt information.

For example, plaintiffs have already conceded that certain information is or may be properly exempt, such as names and identifying information of arrestees, and "commentary related to surveillance, the use of informants, or the identities of arrested individuals and arresting officers."*fn105 There may be additional information that is properly exempt, such as Border Patrol methods for locating contraband, which clearly constitute "techniques and procedures."*fn106 On the other hand, certain information has already been disclosed in response to this FOIA request, thereby waiving defendants' right to claim exemptions for that information -- in particular, the names of certain databases in which Border Patrol agents run queries.*fn107

Plaintiffs have made clear the type of information that they seek -- "performance expectations for arrest rates, agency communications with transportation operators, and inter-agency communications regarding transportation raids."*fn108 While the sorts of information that defendants describe as constituting "sensitive law enforcement methods and techniques"*fn109 may appear in the communications between the agencies, and between the agencies and transportation operators (e.g., Amtrak), that is information that could be redacted without withholding the documents in their entirety. To the extent that "performance expectations" are articulated in a prospective manner, they arguably constitute "guidelines," and would be exemptif their disclosure would risk circumvention of the law. However, given the nature of the Buffalo Sector Daily Reports, I would expect the vast majority of information contained therein to be retrospective, and therefore not to constitute "guidelines" under FOIA.*fn110

Defendants are ordered to re-assess their assertions of Exemption 7(E) over the comments pages of each of the five hundred and forty-eight Buffalo Sector Daily Reports, using this Opinion as guidance, and to disclose all responsive non-exempt materials that can reasonably be segregated from exempt materials. Additionally, defendants are required to release the names of the authors and recipients of the Reports, to the extent that they are agency heads or high-level subordinates. Such information "does not generally fall within Exemption 6"*fn111 and defendants have provided no evidence to suggest any particular privacy threat posed by the revelation of these federal employees' names. The public, on the other hand, has an interest in knowing whether the Reports reflect the views of the agency, rather than of particular agency employees.*fn112

My ruling as to this set of documents is not based on waiver by defendants. While the agency has chosen to release certain information in the past, that does not mean that it must release other similar information. However, the fact that the requested information pertains to law enforcement activities along our nation's borders, which arguably falls under the broad topic of national security, is not a sufficient reason to uphold the claimed exemption. The cases cited by defendants are inapposite insofar as they address the withholding of specific guidelines, techniques, and procedures, information of a different nature from what is sought here.*fn113

B. Sample Form I-213s*fn114

Defendants have redacted "internal codes or databases" throughout their production, citing Exemptions High 2 and 7(E), and explaining that "the release of internal agency case codes used in agency databases could permit individuals seeking to violate immigration and customs laws to circumvent the law by fraudulently accessing secure databases and modifying or deleting sensitive agency records."*fn115 In their FOIA requests to CBP, plaintiffs sought I-213 arrest forms, in part "to ascertain whether transportation raids in the interior of the U.S. further border enforcement goals; whether transportation raids further terror-related enforcement goals; and whether CBP officers carrying out transportation raids arrest persons who are deemed lawfully present by United States Citizenship and Immigration Service ('USCIS')."*fn116 Defendants have produced a sample set of I-213 forms, but have redacted certain information, including field 45, which contains "charge codes." Charge codes are "used by the agency to indicate the legal reason an individual was arrested for violation of immigration laws."*fn117

Plaintiffs argue that disclosure of charge codes cited in the sample I-213s would help to answer the above questions, which they assert are of significant public import.*fn118

I find that the charge codes may not be withheld under Exemption 7(E) because, while the I-213 forms constitute "records or information compiled for law enforcement purposes," the release of the charge codes contained therein would not "disclose techniques or procedures for law enforcement investigations or prosecutions, or . . . guidelines for law enforcement investigations or prosecutions . . . ."*fn119 Furthermore, as plaintiffs point out, defendants have already released the catalogue of available charge codes.*fn120 Given that defendants have already released that general information, it is difficult to imagine how the release of the codes cited on particular sample I-213 forms will compromise the security of agency databases or otherwise risk circumvention of the law.

Defendants assert that courts have previously upheld the exact redactions at issue here. However, the cases that defendants cite are easily distinguishable in that they reference different sorts of codes,*fn121 or uphold the exemptions under Exemption High 2, which is no longer effective.*fn122 Defendants are thus ordered to reproduce the sample I-213 forms without redacting the charge codes that appear in field 45.

C. Training Memorandum

Defendants have withheld two documents that they have described as training memoranda.*fn123 The documents were created by attorneys in CBP's Office of Assistant Chief Counsel and contain legal analysis and guidance to Border Patrol agents regarding the use of race or ethnicity in executing their duties, and analysis of case law concerning racial profiling in law enforcement.*fn124 Defendants assert Exemption 5 in withholding these documents, claiming that they are properly protected under the attorney-client privilege and the attorney work product doctrine.

Plaintiffs make four arguments as to why the memoranda have been improperly withheld. First, plaintiffs hypothesize that the memoranda describe "how CBP officers are trained to use, or avoid using, racial profiling while identifying persons for questioning and arrest."*fn125 In view of the agency's public disavowal of racial profiling, plaintiffs argue that the memoranda are of great public interest insofar as their disclosure will help to confirm whether or not the agency's practice is in accord with its public stance.*fn126 Plaintiffs harken to the oft-repeated principle in FOIA law that "'an agency will not be permitted to develop a body of secret law used by it in the discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil of privilege.'"*fn127 Accordingly, plaintiffs ask the Court to order disclosure of these memoranda, "[g]iven the public's interest in establishing that, in fact, racial profiling is not used [] in the course of CBP's transportation checks."*fn128

Second, plaintiffs invoke the Supreme Court's holding that documents are not protected from disclosure under Exemption 5 if the "documents would be 'routinely' or 'normally' disclosed [through civil discovery] upon a showing of relevance."*fn129 Plaintiffs argue that "CBP's past disclosure of racial profiling policies would make it reasonable to expect that they would be 'routinely' or 'normally' disclosed," citing CBP's release of two such memoranda in response to the initial FOIA request in this matter.*fn130 Third, plaintiffs argue that the documents were not created in connection with or in contemplation of any particular litigation, and therefore the attorney work product doctrine does not apply.*fn131 Finally, plaintiffs argue that the documents were created as part of the agency's regular course of business, which also precludes their protection as attorney work product.*fn132

Plaintiffs' first and second arguments pertain to both the attorney-client privilege and the attorney work product doctrine. First, plaintiffs' guess that the memoranda may describe how CBP officers should use racial profiling does not come close to establishing the existence of a body of "secret law," particularly because plaintiffs also concede that the memoranda may describe how CBP officers should avoid using racial profiling, which would be in accordance with the agency's public position.*fn133 Furthermore, the secret law doctrine in FOIA cases generally arises in contexts in which agencies are rendering decisions based on non-public analyses.*fn134 I am aware of no precedent for evaluating whether law enforcement policies constitute secret law.

Second, contrary to plaintiffs' argument, I decline to find that because CBP has voluntarily disclosed certain memoranda on the same general topic in the past in response to this very FOIA request, that it "routinely" or "normally" discloses such information. Nor do I find that CBP has waived its right to assert privilege over other such memoranda.*fn135

However, I do not reach plaintiffs' third and fourth arguments pertaining to the attorney work product doctrine, because I find that the documents have been properly withheld under the attorney-client privilege. Defendants aver that the documents were "created by agency attorneys for the purpose of imparting legal advice to employees of the agency," and consist of legal analysis and guidance.*fn136 Thus, the documents fall squarely within the attorney-client privilege and have been properly withheld under Exemption 5.

D. Authors and Recipients of the Memorandum and the Email

Defendants have redacted the names, phone numbers and personal identifying information of both arrestees and agency personnel throughout the document production, citing the privacy concerns embodied in Exemptions 6 and 7(C).*fn137 While not contesting the vast majority of such redactions, plaintiffs seek disclosure of the names of authors and recipients of two documents produced by ICE at US000112 and US000114.*fn138 The first document is a memorandum entitled "Performance Appraisal Element #2," establishing required case levels for "Element 2 -- Institutional Removal Program and Alien Criminal Apprehension Program."*fn139 The second document is an email with the subject line "FW: Productivity," listing a number of requirements and expectations, including that employees "produce a minimum of 3 actual Charging Documents Issued (CDI) daily."*fn140 Depicting the content of the two documents as "set[ting] out what amounts to a quota system," plaintiffs argue that "the identity and functional role of these individuals in the agency will indicate to what extent the documents reflect agency-wide policy."*fn141 They argue that the public interest at stake overrides the privacy interests of the federal agency employees who wrote or received the documents.*fn142

1. Exemption 7(C)

Before examining the balance of privacy and public interests, the threshold issue is whether the documents in question constitute the types of records that the exemptions are intended to protect. Specifically, Exemption 7 and its subdivisions address "records or information compiled for law enforcement purposes."*fn143 While ICE is unquestionably a federal law enforcement agency, not every document produced by ICE personnel has been "compiled for law enforcement purposes" under FOIA. Courts have generally interpreted Exemption 7 as applying to records that pertain to specific investigations conducted by agencies, whether internal or external, and whether created or collected by the agency -- in other words, investigatory files.*fn144

The two documents in question here, by contrast, are not investigatory files. Rather, they are directives regarding the general execution of tasks by agency personnel. While in a general sense, the tasks described in the two documents pertain to law enforcement, the documents are not investigatory, and thus, were not "compiled for law enforcement purposes." Accordingly, I find that the names of agency personnel who authored or received the two documents are not exempt under 7(C) because the documents do not constitute "records or information compiled for law enforcement purposes."*fn145

2. Exemption 6

I next consider the same threshold issue regarding whether the documents qualify under Exemption 6, as files "similar" to medical or personnel files. The Supreme Court has interpreted the term "similar files" broadly to include any "detailed Government records on an individual which can be identified as applying to that individual."*fn146 While the privacy right protected by FOIA "was not intended to turn upon the label of the file which contains the damaging information,"*fn147 nor is it the case that every slip of paper on which a name is written warrants protection.*fn148 The inquiry is "whether the records at issue are likely to contain the type of personal information that would be in a medical or personnel file."*fn149 Such information generally includes "'place of birth, date of birth, date of marriage, employment history,'" and other "identifying information," though not necessarily "intimate" information.*fn150 Examples of records that would fall into the "similar files" category include administrative investigatory files, which could contain personal information about the subject of the investigation and about third-party witnesses;*fn151 "files [that] would contain . . . the information that normally is required from a passport applicant;"*fn152 or "[a]ttachments to an individual's asylum request consisting of personal history data and supporting affidavits."*fn153

The two documents at issue here are nothing like a medical or personnel file. They are not records "on an individual."*fn154 Neither document contains any personal or identifying information apart from the names of the authors, recipients, and persons identified as "the SCOs."*fn155 Therefore, the documents cannot be withheld under Exemption 6, because they do not constitute "similar files."

3. Public Interest Outweighs Privacy Interests

Even if I were to find that the two documents in question constituted either "records or information compiled for law enforcement purposes" or "similar files," I would nonetheless conclude that the public interest in determining whether the policies set out in those documents are agency-wide or the work of a single agency employee outweighs the privacy interests of the federal employees in withholding their names as the authors and recipients of the two documents.

The D.C. Circuit has held that "[FOIA] does not categorically exempt individuals' identities . . . because the privacy interest at stake may vary depending on the context in which it is asserted."*fn156 While "[t]he privacy interests of U.S. government officials might be 'somewhat diminished' due to the countervailing interest of the public 'to be informed about what their government is up to,'"*fn157

federal employees nonetheless maintain "an identifiable privacy interest in avoiding disclosures of information that could lead to annoyance or harassment."*fn158

There is, however, persuasive authority for the proposition that information that "merely identifies the names of government officials who authored documents and received documents does not generally fall within Exemption 6."*fn159

Therefore, under either the Exemption 6 standard of whether disclosure "would constitute a clearly unwarranted invasion of personal privacy" or the Exemption 7(C) standard of whether disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy,"*fn160 I find that the public interest in disclosure outweighs the privacy interest. There is a substantial public interest in knowing whether the expectations and requirements articulated in the memoranda reflect high-level agency policy. Significantly, plaintiffs seek only names, not phone numbers or other more intrusive categories of personal information. Disclosure of these names, in conjunction with the already disclosed content of the memoranda, will help to inform the public as to "what their government is up to," as the Supreme Court has articulated as the underlying purpose of FOIA.*fn161 Therefore, defendants must disclose the names of the authors and recipients of the two documents in question.


For the foregoing reasons, defendants' motion for summary judgment is granted in part and denied in part, and defendants are directed to make the additional disclosures ordered by this Opinion by July 1, 2011. The Clerk is directed to close this motion [Docket No. 25]. A conference is scheduled for July 22, 2011 at 5 p.m.

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