Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Iraqi Refugee Assistance Project v. United States Department of Homeland Security

United States District Court, S.D. New York

March 27, 2017

IRAQI REFUGEE ASSISTANCE PROJECT, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.

          MEMORANDUM AND ORDER

          P. Kevin Castel United States District Judge

         To determine refugee eligibility for resettlement in the United States, an agency of defendant Department of Homeland Security (“DHS”) sends a small team of personnel overseas to interview and adjudicate each applicant. On these trips, trained personnel spend several weeks near a concentrated refugee population and make individualized findings as to the applicants' background and credibility. Their decisions must comply with the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., and are informed by supplemental agency guidance.

         After these trips, a team leader submits a “trip report” summarizing his or her observations. Trip reports discuss numerous topics: from hotel amenities and public transportation to suspected fraud trends and evidence of applicants' terrorism ties. They may discuss individual applicants in detail or summarize observations about a large refugee population. Trip reports are intended to give more senior staff information on application trends and identify gaps in the knowledge, resources and procedures for adjudicating applicants. The reports sometimes request clarification of existing policy or specifically suggest policy changes.

         This action is brought pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et seq. (“FOIA”). After plaintiff Iraqi Refugee Assistance Project (“IRAP”) brought this action seeking the public release of documents about the refugee adjudication process, the parties substantially narrowed the scope of their disputes. IRAP maintains, however, that the DHS has unlawfully redacted sections of trip reports that describe the refugee-adjudication process, while the DHS asserts that the redactions fall within statutory exemptions to FOIA's mandatory disclosure.

         Both parties move for summary judgment. Pursuant to a process proposed by the parties and ordered by the Court, IRAP has designated ten trip reports for review by the Court in camera to determine whether redactions made by DHS fall within FOIA's exemptions. The Court has reviewed the unredacted versions of the trip reports.

         For the reasons that will be explained, the Court concludes that the DHS has met its burden of showing that the redacted material falls within FOIA's exemptions. The DHS's motion is therefore granted in its entirety, and IRAP's motion is denied. BACKGROUND.

         A. Circuit Trip Reports and the DHS's Adjudication of Refugees.

         The United States Refugee Admissions Program (“USRAP”) is a federal program that screens and admits refugees for resettlement. (Pl. 56.1 ¶ 1.)[1] The USRAP is administered by the Refugee Affairs Division (“RAD”) of the Refugee, Asylum and International Operations Directorate of the United States Citizenship and Immigration Services (“USCIS”). (Strack Dec. ¶ 1.) The USCIS is an agency of the DHS. (Pl. 56.1 ¶ 1; Strack Dec. ¶ 1.)

         The RAD's “primary mission” is to adjudicate refugee applications and approve only applicants who satisfy the INA's statutory criteria for refugee designation. (Strack Dec. ¶ 8.) USCIS refugee officers are responsible for individual adjudications. (Strack Dec. ¶ 7.) All adjudicators “must undergo extensive training in refugee law as well as specific country conditions training” related to the conditions and population that they are visiting. (Strack Dec. ¶ 12.)

         As part of the USRAP process, the USCIS sends teams of “circuit riders” to concentrated refugee populations, where they personally interview and adjudicate each resettlement applicant. (Pl. 56.1 ¶¶ 1-2.) These are known as “circuit trips” or “circuit rides, ” and they generally last six to seven weeks. (Strack Dec. ¶ 9.) Circuit trips usually have four to five refugee adjudicators and are supervised by a team leader. (Strack Dec. ¶ 13.)

         After each trip, the team leader writes a “circuit ride trip report, ” or “trip report, ” summarizing on-the-ground observations. (Pl. 56.1 ¶ 3: Strack Dec. ¶ 14.) Trip reports range in length from a few pages to ten pages or more. (Strack Dec. ¶ 14.) They discuss issues specific to each circuit trip, including transportation and accommodations, security, communications, caseload patterns and fraud trends. (Strack Dec. ¶ 14.) The contents of trip reports may vary depending on refugee population, country and region. (Strack Dec. ¶ 15.)

         According to Barbara L. Strack, chief of the RAD, trip reports are “an integral part of the de-briefing process” and are used to plan later trips in the same country or region. (Strack Dec. ¶ 15.) Senior RAD staff use trip reports to identify topics that require high-level attention, including fraud detection and national security. (Strack Dec. ¶ 16.) Strack states that applicant fraud trends “are particularly sensitive, ” and refugee adjudicators will commonly reject applicants based on suspected fraud or lack of credibility. (Strack Dec. ¶ 17.) Strack states that the fraud discussions in trip reports are used to develop lines of questioning that identify credible applicants in future trips. (Strack Dec. ¶ 17.)

         B. Procedural History.

         Plaintiff IRAP is a non-profit organization that provides legal representation to individuals seeking refugee resettlement. (Pl. 56.1 ¶ 4.) In 2011, IRAP submitted FOIA requests to the DHS and the State Department for records related to the USRAP process, including circuit trip reports. (Pl. 56.1 ¶ 5; Eggleston Dec. ¶ 6.) In 2011 and 2012, the USCIS released 1, 558 pages of documents to IRAP, many of them partially or “heavily” redacted. (Pl. 56.1 ¶ 6; Eggleston Dec. ¶ 8.)

         It is undisputed that IRAP exhausted its administrative remedies before bringing this action, which seeks declaratory and injunctive relief directed to DHS's compliance with FOIA. (Pl. 56.1 ¶ 7; Eggleston Dec. ¶¶ 9-10; Docket # 1.) On March 5, 2013, while this action was pending, the USCIS agreed to additional review of documents responsive to IRAP's pending FOIA requests, including trip reports. (Pl. 56.1 ¶ 9.) On July 8, 2015, the DHS produced additional materials, which included descriptions reflecting the applicants' lack of sophistication in navigating the USRAP system. (Pl. 56.1 ¶¶ 10-11.) A July 29, 2015 production of trip reports included factual observations of USCIS personnel and their views on existing USRAP policies. (Pl. 56.1 ¶¶ 12-13.)

         In December 2015, the Court approved a stipulation that narrowed the parties' dispute to 563 pages of redacted documents and dismissed IRAP's claims as to all other materials. (Pl. 56.1 ¶¶ 14-15; Docket # 43.) It provided that this action would be stayed until April 22, 2016 (a date later extended to May 6, 2016) unless either party requested a lifting of the stay, in which case a then-existing briefing schedule would be reinstated. (Docket # 43 ¶ 3; Docket # 49.) While the stay was in effect, defendant DHS was to undertake a good-faith review as to whether its redactions were consistent with its claimed FOIA exemptions. (Id. ¶ 4.)

         On April 27, 2016, IRAP wrote to the Court requesting that the stay be lifted because the parties could not reach an agreement as to 563 pages of redactions to trip reports. (Pl. 56.1 ¶ 17; Eggleston Dec. ¶ 14.) The Court vacated the stay and adopted a briefing schedule on the current motion. (Pl. 56.1 ¶ 18.)

         C. The DHS's Ex Parte Submissions.

         Pursuant to a procedure agreed upon by the parties and ordered by the Court, IRAP has designated ten partially redacted documents of its choosing for in camera, ex parte review of whether the DHS has made redactions consistent with FOIA's requirements. (Eggleston Dec. ¶ 20.)

         The DHS has submitted the ten selected documents to the Court ex parte, as well as a so-called Vaughn Index explaining the basis for the redactions. (Eggleston Dec. ¶ 20.) A Vaughn Index takes its name from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). An agency prepares a Vaughn Index to explain its reasons for claiming a FOIA exemption, and the index is not required to conform to a particular format. See id. at 827-28. The Vaughn Index is submitted as part of the Declaration of Jill A. Eggleston, who has the job title of Associate Center Director in the Freedom of Information and Privacy Act Unit, National Records Center, USCIS. (Eggleston Dec. ¶ 1.)

         In a footnote to its supporting memorandum, DHS suggests that the Court should resolve the parties' motion based solely on the Vaughn Index, without in camera review of the disputed materials. (DHS Mem. at 12 n.3.) It notes that courts generally favor deciding FOIA disputes through agency affidavits and limit in camera review to matters that cannot be resolved through affidavit. See, e.g., Am. Civil Liberties Union v. Dep't of Def., 389 F.Supp.2d 547, 567 (S.D.N.Y. 2005) (“Cases generally disfavor in camera inspections by district court judges as the primary method for resolving FOIA disputes.”) (Hellerstein, J.).

         The Court declines to follow the DHS's suggestion. As will be discussed, the in camera review of the disputed material has been essential to deciding this motion. Although the Vaughn Index provides accurate and good-faith descriptions of the redacted contents, it discusses them in broad terms, as is warranted given the potentially sensitive nature of some underlying subject matter. Absent in camera review, the Court would be unable to make adequate findings as to the DHS's claimed FOIA exemptions and whether the discussions contain segregable factual content. LEGAL STANDARD.

         A. The DHS's FOIA Burden at Summary Judgment.

         Summary judgment “shall” be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a), Fed.R.Civ.P. “In order to prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden of showing that its search was adequate and that any withheld documents fall within an exemption to the FOIA.” Carney v. United States Department of Justice, 19 F.3d 807, 812 (2d Cir. 1994), citing 5 U.S.C. § 552(a)(4)(B); accord Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143, 147 (2d Cir. 2010) (all doubts are “resolved in favor of disclosure, ” and the agency has the burden “to justify the withholding of any requested documents.”) (quotation marks omitted); Associated Press v. United States Dep't of Defense, 554 F.3d 274, 283 (2d Cir. 2009) (FOIA has a “‘strong presumption in favor of disclosure, '” and agencies have the burden “‘to justify the withholding of any requested documents.'”) (quoting United States Dep't of State v. Ray, 502 U.S. 164, 173 (1991)).

         The text of FOIA authorizes redaction, and directs that “[a]ny reasonably segregable portion of a record” must be provided “after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). “‘That burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document as well as when it seeks to withhold an entire document.'” Associated Press, 554 F.3d at 283-84 (quoting Ray, 502 U.S. at 173). “Redaction, however, is ‘expressly authorized by FOIA, ' which indicates that Congress ‘recognized that the policy of informing the public about the operation of its Government can be adequately served in some cases without unnecessarily compromising individual interests in privacy.'” Id. at 284 (quoting Ray, 502 U.S. at 173).

         B. FOIA Exemptions 5 and 7(E).

         FOIA “was enacted to facilitate public access to Government documents.” Ray, 502 U.S. at 173. However, the text of FOIA creates express exemptions to disclosure. Associated Press, 554 F.3d at 283. The exemptions are to be narrowly construed. Id. “The agency's decision that the information is exempt from disclosure receives no deference; accordingly, the district court decides de novo whether the agency has sustained its burden.” Bloomberg, L.P., 601 F.3d at 147. “An agency may carry its burden by submitting declarations ‘giving reasonably detailed explanations why any withheld documents fall within an exemption, ' and such declarations ‘are accorded a presumption of good faith.'” Center for Constitutional Rights v. Central Intelligence Agency, 765 F.3d 161, 166 (2d Cir. 2014) (quoting Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 69 (2d Cir. 2009)). “[D]iscovery relating to the agency's search and the exemptions it claims for withholding records generally is unnecessary if the agency's submissions are adequate on their face.” Carney, 19 F.3d at 812.

         All remaining disputes involve the DHS's reliance on Exemption 5 and Exemption 7(E) of FOIA. 5 U.S.C. §§ 552(b)(5), 552(b)(7)(E). The DHS asserts that all of the redacted contents challenged by IRAP fall within Exemption 7(E), and that some contents separately fall within Exemption 5.

         1. Exemption 5.

         Exemption 5 creates a “deliberative process privilege” for intra-agency memoranda and letters “that would not be available by law to a party other than an agency in litigation with the agency . . . .” Id. § 552(b)(5). “To qualify, a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001).

         Any document falling within Exemption 5 must be both “predecisional” and “deliberative.” A document is predecisional when it is “‘prepared in order to assist an agency decisionmaker in arriving at his decision.'” Hopkins v. U.S. Dep't of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991) (quoting Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975)). A document is deliberative when it is “‘actually . . . related to the process by which policies are formulated.'” Id. (quoting Jordan v. United States Dep't of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc)). “The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.” Klamath, 532 U.S. at 8-9 (quotation marks and internal citation omitted).

         Exemption 5 “protects ‘recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.'” Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999) (quoting Ethyl Corp. v. Environmental Protection Agency, 25 F.3d 1241, 1248 (4th Cir. 1994)). In the context of agency adjudication, this exemption may apply to “an agent's analysis of a particular . . . case” and internally “recommended ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.