United States District Court, S.D. New York
June 13, 2013
THE NEW YORK TIMES COMPANY and MARIA SACCHETTI, Plaintiffs, -
- UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant
For Plaintiffs: David Edward McCraw, Esq., Stephen Nathaniel Gikow, Esq., The New York Times Company, New York, NY.
For Defendants: Cristine Irvin Phillips, Assistant U.S. Attorney, United States Attorney Office, SDNY, New York, NY.
Shira A. Scheindlin, U.S.D.J.
OPINION AND ORDER
In Zadvydas v. Davis , the Supreme Court held that individuals who have been found unlawfully present in the United States and are scheduled for removal may not be detained for a period longer than six months where there is no significant likelihood of removal in the reasonably foreseeable future. The New York Times Co. and its employee Maria Sacchetti, a reporter for the Boston Globe, (collectively " Plaintiffs" ) request, pursuant to the Freedom of Information Act (" FOIA" ), that the United States Department of Homeland Security (" DRS" ) produce a list of all aliens since 2008 who, after being convicted of a crime and serving their sentence, were designated for removal but were released from DHS custody pursuant to Zadvydas . In response to this request DHS produced a list of 6,843 individuals (the " Released Individuals" ) along with certain relevant information, but redacted the individuals' names pursuant to FOIA Exemptions 6 and 7(C) concerning protection of privacy interests. The parties now cross-move for summary judgment on the propriety of DHS's decision to withhold the names of the individuals.
II. STATEMENT OF FACTS
When an alien is designated for removal from the United States, DHS, and specifically Immigrations and Customs Enforcement (" ICE" ), generally places the individual in administrative detention until removal is effected. During that period, an ICE officer works to obtain necessary travel documents from the individual's home country. Occasionally ICE is unable
to obtain the necessary documents, for example because of the state of U.S. diplomatic relations with the country or the individual's medical condition. If ICE's efforts to obtain the necessary documentation exceed six months without the likelihood of success in the foreseeable future, Zadvydas mandates that the individual be released unless special circumstances exist, i.e., risk of flight or danger to the community.
As part of a journalistic investigation into the government's handling of immigration matters, Sacchetti researched the government's procedures and policies for releasing aliens convicted of crimes who were designated for removal to their home country, but whose administrative detention implicated the Supreme Court's ruling in Zadvydas . Sacchetti was interested in learning whether, for instance, " aliens with a history of violent crimes were being released, whether repeat offenders were being released on more than one occasion, and whether sentencing decisions that had been affected by the court's belief that removal would follow were being undermined by release." 
Sacchetti submitted a FOIA request to ICE on September 28, 2011, which was subsequently modified into a request seeking " a list of convicted criminal aliens released by ICE, but not deported, since 1/1/2008 due to the 2001 Supreme Court decision in Zadvydas " (the " Request" ). DHS produced a spreadsheet (the " Spreadsheet" ) containing, for each individual, the most serious crime for which the individual was convicted, the date of release from ICE custody, and the jurisdiction in which the release took place (the " Area of Responsibility" ). The names of the individuals were redacted based on DHS's aassertion that the information fell within FOIA Exemptions 6 and 7(C). On February 24, 2012, Sacchetti administratively appealed the redaction of the names;  on April 20, 2012, DHS denied the appeal on the grounds that the Exemptions applied;  and on November 7, 2012 Plaintiffs initiated this lawsuit.
III. APPLICABLE LAW AND STANDARD
Balancing the objective of " broad disclosure of Government records" against recognition that such disclosure " may not always be in the public interest,"  FOIA provides for nine exemptions from disclosure, which are to be construed narrowly, with all doubts resolved in favor of disclosure. Courts review de novo the adequacy of an agency's justifications for
withholding information pursuant to an exemption.
FOIA cases are generally resolved on motions for summary judgment, which requires that the moving party " show 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."  The agency withholding documents or redacting information responsive to a FOIA request bears the burden of proving the applicability of claimed exemptions. " Summary judgment is appropriate where the agency [submits] affidavits [that] 'describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'"  An agency's affidavits are viewed with a presumption of good faith.
ICE withheld the names of the Released Individuals pursuant to FOIA Exemptions 6 and 7(C). Exemption 6 exempts from disclosure information from " personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."  Exemption 7(C) exempts from disclosure " records or information compiled for law enforcement purposes" where disclosing them " could reasonably be expected to constitute an unwarranted invasion of personal privacy."  Because these records are more closely aligned with Exemption 7(C), which has a lower threshold for what invasion of privacy will trigger the exemption, I assess DHS's exemption claims under 7(C). When applying Exemption 7(C), courts engage in a two-part test. First, the court determines " whether there is any privacy interest in the information sought."  If the court answers that question in the affirmative, it then balances the privacy interest against the public interest in disclosure. " Where the privacy concerns addressed by Exemption
7(C) are present, the exemption requires the person requesting the information to [show: (1)] that the public interest sought to be advanced is a significant one [; and (2) that] the information is likely to advance that interest." 
A. Disclosure of the Names of Released Individuals Implicates a Privacy Interest
It is well-established that an individual has a privacy interest in controlling information concerning his or her person, where release of that information may cause " embarrassment in their social and community relationships," or result in " retaliatory action."  At the same time, such privacy interest may be limited or eliminated entirely where the information at issue is already public, or where the individual has forfeited the right to control the relevant information no matter how potentially harmful.
DHS argues that " [t]he Released Individuals have a strong interest in avoiding any embarrassment or retaliation that may be caused by the Government's publicly identifying them both as convicted criminals and illegal aliens."  Plaintiffs respond that " [a]ny criminal information about the individuals -- specifically, their arrests, convictions, and sentences -- is a matter of public record, and information regarding their immigration status is routinely disclosed in those public proceedings as well."  As such, disclosure would simply " make public what is already a matter of public record" with the sole new information being that the individual has not been removed from the United States.
The Supreme Court has confirmed that there is a privacy interest in not publicizing as " federal compilations" events such as " arrests, charges, convictions, and incarcerations," even those which " have been previously disclosed to the public."  The Court recognized that there is a significant difference, in terms of privacy interests, " between scattered disclosure of the bits of information contained in a rap sheet and revelation of the rap sheet as a whole."  Here too, there is a difference between the " practical obscurity"  of the existence of
public records regarding individuals' prior convictions, and records regarding immigration status, which may be obtained with some effort, and the release of a spreadsheet compiled by ICE containing a variety of information about an individual including criminal convictions, status as an illegal immigrant, some information about that individual's current location, and the fact that he or she has not been deported.
B. The Public Interest in Disclosure Outweighs the Privacy Interests
Having concluded that there is a privacy interest, albeit a diminished one, in the information contained in the Releasee Spreadsheet, the Court must weigh that privacy interest against the public interest in disclosure. There is " only one relevant public interest, that of 'open[ing] agency action to the light of public scrutiny.'" 
The public has an interest in knowing how ICE handles aliens convicted of crimes who are required to be released pursuant to Zadvydas when their detention period exceeds six months. This is " [o]fficial information that sheds light on an agency's performance of its statutory duties."  The Spreadsheet captures relevant information about how ICE is handling its obligations under Zadvydas -- for example, the most significant crime committed permits evaluation of whether a special circumstance such as threat to safety might have warranted an exception to the six month limitation period. The question, then, is whether inclusion of the names of the releasees would shed additional light on agency practices and whether that additional light justifies the concomitant invasion of privacy.
Plaintiffs do not assert a direct public interest in knowing the names of individuals being released pursuant to Zadvydas . Rather, they argue that disclosure of the names of the Released Individuals would permit them to obtain information that
" would shed further light on critical aspects of the government's handling of its removal duties."  Plaintiffs contend that " the Globe could more fully monitor how often courts gave lesser sentences to aliens because prosecutors and judges mistakenly believed that removal was to follow sentence [and] how often DHS failed to seek longer detentions for individuals who, according to court records, posed a risk to the community."  In support of this, Plaintiffs cite examples of where Sacchetti was able to learn through " diligent reporting despite the secrecy imposed by DHS" of several questionable exercises of DHS's discretion under Zadvydas .
The Second Circuit has observed that " assertions of a public interest in 'monitoring' governmental operations 'have not been viewed favorably by the courts,'" but accepted this interest as " within the ambit of public interests."  In Associated Press , which involved requests for information about Guantamo Bay detainees, the Second Circuit found a similar argument -- " that the names and identifying information would allow the public to track these detainees' treatment . . . including transfer and release decisions" -- plausible but ultimately insufficient in light of the privacy interests in question. The court also separately considered the " derivative use" theory -- that is " that the public interest can be read more broadly to include the ability to use redacted information to obtain additional as yet undiscovered information outside the government files."  Recognizing that the Supreme Court left open " 'whether a derivative use theory would ever justify release of information about private individuals,'" the court found a derivative use theory insufficient in Associated Press but declined to foreclose the theory altogether.
The privacy interest at issue in this case -- that of convicted criminals in not releasing in compiled form information which is already public -- is significantly diminished compared to those at issue in Associated Press (Guantanamo Bay detainees) or Ray (" Haitian nationals who had attempted to emigrate illegally to the United States and were involuntarily returned to Haiti" ). Although release of the names in this case would not " reveal something directly about the character of
a government agency,"  plaintiffs do not propose to contact the individuals in furtherance of their investigation -- a derivative use which the Second Circuit held " dramatically increases the already significant threat to the  privacy interests that disclosure of this information would entail."  Rather, plaintiffs argue that disclosure of individual names would permit " monitoring of whether repeat offenders are on the list" and " identif[ication] through public court document [of] those countries with a track record of avoiding or resisting repatriations." 
Plaintiffs have established that they would use the individual names in combination with other public information to draw conclusions about the performance of the DHS -- information which the government agency, for whatever reason, is disinclined to disclose on its own. They have refuted DHS's contention that allegations of impropriety by government actors are based on " bare suspicion,"  and have established that disclosure of the names would further the legitimate public interest in knowing how government agencies make decisions. Thus, DRS has not carried its burden of showing that this diminished privacy interest outweighs the public interest in " facilitat[ing] an investigation of [DRS's] performance.
For the foregoing reasons, summary judgment is granted in Plaintiffs' favor and DRS is ordered to disclose the names of the Released Individuals. The Clerk of the Court is directed to close these motions (Docket Nos. 4 and 7) and this case.