United States District Court, S.D. New York
BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW, Plaintiff,
UNITED STATES DEPARTMENT OF STATE, Defendant.
MEMORANDUM OPINION & ORDER
G. GARDEPHE, U.S.D.J.
Brennan Center for Justice brings this action against
Defendant U.S. Department of State to compel compliance with
the Freedom of Information Act ("FOIA"), 5 U.S.C.
§ 552. (Cmplt. (Dkt. No. 1) ¶ 1) Plaintiff seeks
documents referenced in President Trump's September 24,
2017 Proclamation entitled "Enhancing Vetting
Capabilities and Processes for Detecting Attempted Entry into
the United States by Terrorists or Other Public Safety
Threats[.]" (Id. ¶ 2, Ex. A (Proclamation)
(Dkt. No. 1-1); see also Proclamation No. 9, 645, 82
Fed. Reg. 45, 161 (Sept. 24, 2017)) Only six documents are at
issue: "two reports (and associated attachments)."
(Stein Decl. (Dkt. No. 26) ¶ 9)
December 22, 2017, Plaintiff moved to expedite this action
pursuant to 28 U.S.C. § 1657. (Mot. (Dkt. No. 22))
Plaintiff seeks an order requiring Defendant "to produce
the [requested] documents (or all segregable non-exempt
portions thereof) within 21 days[, ]" and to provide
"written justification for any withheld documents or
portions of documents" -commonly referred to as a
Vaughn index - within 28 days. (Pltf. Reply (Dkt.
No. 27) at 2; Pltf Br. (Dkt. No. 23) at 13)
January 27, 2017, President Trump issued Executive Order No.
13, 769 -"Protecting the Nation from Foreign Terrorist
Entry into the United States" ("EO-1"), 82
Fed. Reg. 8977 (Jan. 27, 2017) - which bars entry into the
United States of individuals from seven Muslim-majority
countries for 90 days, suspends the United States Refugee
Admission Program for 120 days, and bans the entry of Syrian
refugees indefinitely. See EO-1, 82 Fed. Reg. 8,
977, §§ 3(c), 5(a), 5(c). Shortly thereafter,
several courts enjoined implementation of this executive
order. See, e.g., Washington v. Trump, No. C17-0141
(JLR), 2017 WL 462040, at *3 (W.D. Wash. Feb. 3, 2017),
appeal dismissed. No. 17-35105, 2017 WL 3774041 (9th
Cir. Mar. 8, 2017); Aziz v. Trump, 234 F.Supp.3d
724, 739 (E.D. Va. 2017).
March 6, 2017, President Trump issued Executive Order 13, 780
("EO-2"), "Protecting the Nation From Foreign
Terrorist Entry Into the United States, " 82 Fed. Reg.
13, 209 (Mar. 6, 2017). EO-2 revokes EO-1 and suspends entry
into the United States of nationals from Iran, Libya,
Somalia, Sudan, Syria, and Yemen for 90 days. See EO-2, 82
Fed. Reg. 13, 209, § 2(c). EO-2 also directs a
"worldwide review to identify whether, and if so what,
additional information will be needed from each foreign
country to adjudicate an application by a national of that
country for a visa, admission, or other benefit under the
[Immigration and Nationality Act] ... in order to determine
that the individual is not a security or public-safety
threat." Id. § 2(a). EO-2 instructs the
"Secretary of Homeland Security, in consultation with
the Secretary of State and the Director of Intelligence ...
[to] submit to the President a report on the results of
worldwide review[.]" Id. § 2(b). Several
courts also issued nationwide injunctions enjoining
implementation of this executive order. See,
e.g., Hawai'i v. Trump, 245 F.Supp.3d
1227, 1237 (D. Haw.); Int'l Refugee Assistance
Project v. Trump. 857 F.3d 554, 606 (4th Cir. 2017). On
June 26, 2017, the U.S. Supreme Court granted the
Government's petition for certiorari to review
lower courts' grant of injunctive relief related to EO-2.
(Cmplt. (Dkt. No. 1) ¶ 15)
20, 2017, Plaintiff submitted a FOIA request to Defendant for
"23 categories of records related to the
[Government's] travel bans." (Cmplt. (Dkt. No. 1)
¶ 25; Cmplt., Ex. B (FOIA Request) (Dkt. No. 1-2)) The
FOIA request seeks:
All records pertaining to the worldwide review process
conducted under Section 2 of Executive Order 13780 and 17
STATE 72000, including the Report that was submitted to
President Trump, copies of instructions to foreign
governments regarding the requirements that must be met to
avoid travel restrictions, and a list of all countries that
i. been designated as providing adequate information to the
ii. been designated as providing inadequate information to
the U.S. government; and/or
iii. been designated as being at risk of providing inadequate
information to the U.S. government.
(Cmplt. (Dkt. No. 1) ¶ 26)
24, 2017, the State Department granted Plaintiffs request for
expedited processing and for a fee waiver:
After consideration of your request for expedited processing
under the Department's rules governing Freedom of
Information Act requests, we have determined that your
request does warrant expedited processing. We have considered
your request for a fee waiver. Based upon the information
provided in your letter, your request for a fee waiver has
(Cmplt., Ex. C (State Department Initial Response) (Dkt. No.
1-3) at 2)
August 18, 2017, the State Department informed Plaintiff that
it expected to make production by October 31, 2017. (Cmplt.
(Dkt. No. 1) ¶ 32) To date, however, Plaintiff has
received no documents in response to its FOIA request.
(Id. ¶ 35)
September 24, 2017, President Trump issued Proclamation 9,
645 (the "Proclamation"). (Id. ¶ 17;
Proclamation No. 9, 645, 82 Fed. Reg. 45, 161 (Sept. 24,
2017)) The Proclamation restricts entry into the United
States of individuals from "six Muslim-majority
countries (and two non-Muslim majority countries)":
Chad, Iran, Libya, Syria, Yemen, Somalia, Venezuela, and
North Korea. (Cmplt. ¶ 18; Proclamation No. 9, 645, 82
Fed. Reg. 45, 161, §§ 2(a)-(g))
Proclamation justifies these entry restrictions on the basis
of the "worldwide review" of the
"information-sharing practices, policies, and
capabilities of foreign governments" directed in EO-2
(See Proclamation No. 9, 645, 82 Fed. Reg. 45, 161,
§§ 1(c), (i)) The Proclamation states that - after
conducting this "worldwide review" - the Secretary
of State "engaged with the countries reviewed in an
effort to address deficiencies and achieve
improvements." (Proclamation No. 9, 645, 82 Fed. Reg.
45, 161) However, "a small number of countries . . .
remain deficient. . . with respect to their
identity-management and information-sharing capabilities,
protocols, and practices[ and i]n some cases, these countries
also have a significant terrorist presence within their
territory." (Id.) Accordingly, the Proclamation
announces "certain conditional restrictions and
limitations ... on entry into the United States of nationals
of the countries identified [as deficient.]"
Proclamation cites several reports on which Executive Branch
officials relied, including July 9, 2017 and September 15,
2017 reports submitted by the Secretary of Homeland Security