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National Day Laborer Organizing Netowrk v. U.S. Immigration and Customs Enforcement Agency

October 24, 2011


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



The National Day Laborer Organizing Network, the Center for Constitutional Rights, and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law bring this action for the purpose of obtainin records, pursuant to the Freedom of Information Act ("FOIA"),*fn1 from the United States Immigration and Customs Enforcement Agency ("ICE"), United States Department of Homeland Security ("DHS"), Executive Office for Immigration Review, Federal Bureau of Investigation ("FBI"), and Office of Legal Counsel ("OLC"). Specifically, plaintiffs have sought information regarding Secure Communities, a federal immigration enforcement program launched in 2008. It has long been the practice for local law enforcement agencies to send the fingerprints of individuals arrested and booked into custody to the FBI to be checked against the national criminal history database.*fn2 Under the Secure Communities program, those fingerprints are also now sent to DHS to be checked against immigration records.*fn3

A portion of the requested records relates to the issue of whether and how state and local law enforcement agencies may "opt-out" of participation in Secure Communities. On January 17, 2011, defendants produced over fourteen thousand pages of "opt-out" records, withholding all or part of certain records pursuant to FOIA's statutory exemptions.*fn4 The parties then cross-moved for summary judgment on the propriety of the asserted exemptions, and, on July 11, 2011, I issued an Opinion and Order granting in part and denying in part the parties' cross-motions.*fn5

With respect to certain documents in that production, I denied summary judgment without prejudice to both parties, giving them the opportunity to present additional information in support of their respective positions. Since the July 11 Opinion and Order was issued, the parties have focused particular attention on a critical document referred to as the "October 2 Memorandum." The parties have now renewed their cross-motions for summary judgment on the October 2 Memorandum. For the reasons stated below, defendants' motion is denied and plaintiffs' motion is granted.


Initially, the federal government indicated that participation in Secure Communities by state and local law enforcement agencies was voluntary and predicated on a Memorandum of Agreement signed by ICE and the authorized state agency.*fn6 Through at least the beginning of 2010, the federal government indicated that states and localities were not required to participate in the program.*fn7

As a result, a number of states and localities took steps to remove themselves from the program's planned deployment. During a press conference on October 6, 2010, Janet Napolitano, the Secretary of DHS, said that "DHS 'does not view [Secure Communities] as an opt-in, opt-out program.'"*fn8 I discussed this shift in policy in more detail in the July 11 Opinion and Order, finding that the decision was made by March 2010.*fn9

Defendants withheld at least eighteen versions of the October 2 Memorandum under FOIA Exemption 5, primarily on the basis of the deliberative process privilege and the attorney-client privilege. In their Vaughn index,*fn10

defendants described each version of the Memorandum with variations of "[l]egal analysis of the mandatory nature of the 2013 Secure Communities deployment."*fn11

In their initial summary judgment motion, plaintiffs asserted that the October 2 Memorandum lost its predecisional status when the agency relied upon it to change its policy position, as announced by Secretary Napolitano on October 6. Because the Memorandum was dated October 2, the statement was made on October 6, and an individual was congratulated for his "excellent SC paper" on October 8, plaintiffs inferred that the Memorandum formed the basis for the shift in policy. Defendants derided this argument as mere speculation, but did not provide information about the role that the Memorandum did or did not play in the policy shift. In fact, DHS has failed to acknowledge that there has been any policy shift, instead insisting that opt-out has never been an option, despite numerous public statements to the contrary.*fn12

After I reviewed the document in camera, I held in the July 11 Opinion and Order that the Memorandum constitutes legal advice and analysis about a Secure Communities mandate.*fn13 However, I also found that defendants had failed to meet their burden of establishing the role that the document had played in the deliberative process. I wrote, "I am unable to determine why the memorandum was written, and -- of particular import for assessing whether it qualifies for protection under the deliberative process -- whether it was written to justify an already existing policy or to lend support in an intra-agency debate about shifting the policy."*fn14 Finding that the other concerns of the deliberative process privilege would not be implicated by the document's release, I held that that privilege did not apply.*fn15

I then considered whether the document was protected by the attorney-client privilege.*fn16 I noted that the Memorandum contains legal analysis and that it was written by the Office of the Principal Legal Advisor of ICE and addressed to Beth Gibson, the Assistant Deputy Director of ICE. I found, however, that defendants "failed to establish that the confidentiality of the document was maintained."*fn17 I observed that if plaintiffs were correct that the legal analysis within the document had been shared outside of the agency, then attorney-client confidentiality was breached and the Memorandum would no longer be protected by that privilege. Regarding defendants' assertions of the attorney-client privilege, I found that "plaintiffs have alleged, with convincing evidence, that defendants have shared with individuals outside of the agencies at least some of the information found in the documents that they now withhold as privileged communications."*fn18 The attorney-client privilege is waived if the document or information therein has been shared with other individuals. Finding that defendants had failed to assert with any specificity that confidentiality was maintained, I held that they must do so "for each document that defendants seek to withhold under the attorney-client privilege."*fn19 I held that "[i]f defendants are not able to make such a representation as to a particular document, and no other privileges or FOIA exemptions have been asserted, that document must be released."*fn20

I also considered plaintiffs' contention that the Memorandum should be released because defendants were misusing FOIA Exemption 5 to conceal the agency's policy or "working law."*fn21 I noted that although the working law doctrine has been discussed most often in the context of the deliberative process privilege, the Second Circuit held in National Council of La Raza v. Department of Justice ("La Raza") that Like the deliberative process privilege, the attorney-client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agency's policy. In such circumstances, the principle rationale behind the attorney-client privilege -- to promote open communication between attorneys and their clients so that fully formed legal advice may be given . . . evaporates; for once an agency adopts or incorporates a document, frank communication will not be inhibited.*fn22

Because the issue had been insufficiently briefed, I denied summary judgment as to both parties, ordering defendants "to provide more information as to the role that the document played in the deliberative process, and to establishthat the confidentiality of the document has been maintained."*fn23 I also invited plaintiffs to submit "any additional proof that the Memorandum has been adopted or incorporated by reference by the agency, such that it can be considered secret law that should be released."*fn24 Finally, I held that factual material in the report was only protected by the attorney-client privilege to the extent that it was client-supplied, and ordered defendants to release any factual material that came from other sources.*fn25


A. FOIA and Summary Judgment

FOIA cases are generally resolved on motions for summary judgment.*fn26 Like in any other context, however, summary judgment is appropriate only 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."*fn27 "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.'"*fn28 "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."*fn29 "Inferences and burdens of proof on cross-motions for summary judgment are the same as those for a unilateral summary judgment motion. 'That is, each cross-movant must present sufficient evidence to satisfy its burden of proof on all material facts.'"*fn30

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 the need for discovery.*fn31 Nonetheless, "[t]he agency's decision that the information is exempt from disclosure receives no deference."*fn32

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.'"*fn33

FOIA is intended "to 'promote honest and open government and to assure the existence of an informed citizenry in order to hold the governors accountable to the governed.'"*fn34 At the heart of FOIA is "a policy strongly favoring public disclosure of information in the possession of federal agencies."*fn35

However, FOIA provides nine categories of information that are exempt from disclosure.*fn36 The "exemptions are 'explicitly made exclusive,' and must be 'narrowly construed.'"*fn37

B. 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."*fn38 The exemption incorporates "all normal civil discovery privileges,"*fn39 including the deliberative process privilege and the attorney-client privilege.*fn40 "The test under Exemption 5 is whether the documents would be 'routinely' or 'normally' disclosed upon a showing of relevance."*fn41

The deliberative process privilege protects from disclosure "'documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'"*fn42 The privilege is intended "'to enhance the quality of agency decisions, by protecting ...

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