United States District Court, S.D. New York
MEMORANDUM AND ORDER
Kevin Castel United States District Judge
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.
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
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
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.
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
Circuit Trip Reports and the DHS's Adjudication of
United States Refugee Admissions Program
(“USRAP”) is a federal program that screens and
admits refugees for resettlement. (Pl. 56.1 ¶
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
The DHS's Ex Parte Submissions.
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.)
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.)
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.).
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.
The DHS's FOIA Burden at Summary Judgment.
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)).
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).
FOIA Exemptions 5 and 7(E).
“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.
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 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).
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).
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 ...