Emuwa v. U.S. Dep't of Homeland Sec.

AMARA EMUWA, et al., Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

Case No. 1:20-cv-01756 (TNM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

June 3, 2021

MEMORANDUM OPINION

The Freedom of Information Act's ("FOIA") Exemption 5 encompasses, among other things, the deliberative process privilege. This privilege protects from disclosure agency documents that are both predecisional and deliberative. It allows agency officials to communicate candidly without fear that their tentative opinions and recommendations will become public. The privilege is thus meant to improve agency decisionmaking.

Plaintiffs—four individuals and one organization—filed this FOIA action seeking "Assessments to Refer" ("Assessments") from the U.S. Department of Homeland Security ("DHS" or "the Government"). Assessments are brief documents containing an asylum officer's impressions after an asylum interview and his recommendation on whether asylum should be granted. While DHS released the factual portions of the Assessments, Plaintiffs seek the analysis portions too.

Before the Court are cross-motions for summary judgment. Although the parties disagree on several points, the crux of their dispute concerns whether Exemption 5's deliberative process privilege protects the analysis portions of the Assessments. Because the Court finds that it does, and otherwise finds that DHS is entitled to summary judgment, the Court will grant the Government's motion and deny Plaintiffs' cross-motion.

I.

Plaintiff Louise Trauma Center, LLC submitted FOIA requests to U.S. Citizenship and Immigration Services ("USCIS"), a DHS component, on behalf of the other four plaintiffs here—Amara Emuwa, Michaux Lukusa, Mohammed AlQaraghuli, and FNU Alatanhua. Def.'s Statement of Material Facts ("DSMF") ¶¶ 1, 6, 12, 16, ECF No. 14. The FOIA requests concern Assessments to Refer, which are prepared after an asylum interview and recommend whether to grant asylum. Id. ¶¶ 27-28; Pls.' Counter Statement of Facts ("PSMF") at 1, ECF No. 18-2.¹ If USCIS ultimately determines that the applicant is not eligible for asylum, it sends the individual a "Referral Notice" advising that the agency has made a final decision to refer him to an immigration judge for removal proceedings. DSMF ¶ 29; PSMF at 1.

Each FOIA request here sought "the assessment written by the Asylum Officer"; "the notes of the asylum officer"; and the materials consulted by the asylum officer or mentioned in the Referral Notice. DSMF ¶¶ 1, 6, 12, 16. As to each request, DHS released hundreds of pages in full, released some pages in part, and withheld others in full. See DSMF ¶¶ 3, 8, 14, 18. Except for AlQaraghuli, each Plaintiff administratively appealed the agency's determination. Id. ¶¶ 4, 10, 15, 19. For Emuwa, Lukusa, and Alatanhua, the agency released more pages upon appeal, but otherwise upheld its determination. Id. ¶¶ 5, 11, 20. DHS applied full and partial redactions under FOIA Exemptions 3, 5, 6, 7(C), and 7(E). See id. ¶ 21; 5 U.S.C. § 552(b)(3), (5)-(6), (7)(C), (7)(E).²

Plaintiffs then sued. Their Complaint raises six causes of action: in Counts 1-4, the individual Plaintiffs seek the entire Assessments; Count 5 alleges that DHS "negligently trained its processors"; and Count 6, brought only by Louise Trauma Center, challenges DHS' policies and practices. Compl. at 36-40, ECF No. 1. Both parties cross-move for summary judgment. Their motions are ripe.³

II.

Federal courts are courts of limited jurisdiction. Article III constrains the judicial power to deciding "Cases" and "Controversies." U.S. Const. art. III, § 2. "Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To have standing, a plaintiff must show (1) that it has "suffered an injury in fact"; (2) that the injury is "fairly traceable to the challenged action of the defendant"; and (3) that the injury is "likely" to be "redressed by a favorable decision." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (cleaned up). Article III standing is jurisdictional, so it "can be raised at any point in a case proceeding and, as a jurisdictional matter, may be raised, sua sponte, by the court." Bauer v. Marmara, 774 F.3d 1026, 1029 (D.C. Cir. 2014) (quoting Steffan v. Perry, 41 F.3d 677, 697 n.20 (D.C. Cir. 1994) (en banc)).

To prevail at summary judgment, a movant must show that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The party seeking summary judgment has the initial burden to identify those portions of the record that show the lack of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party must then "designate specific facts showing that there is a genuine issue for trial." Id. at 324 (cleaned up). The Court construes the evidence "in the light most favorable to the non-moving party." Brubaker v. Metro. Life Ins. Co., 482 F.3d 586, 588 (D.C. Cir. 2007).

Courts can decide the "vast majority" of FOIA cases on motions for summary judgment. Brayton v. Off. of U.S. Trade Repr., 641 F.3d 521, 527 (D.C. Cir. 2011). An agency withholding records under a FOIA exemption "bears the burden of establishing that a claimed exemption applies." Citizens for Resp. & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1088 (D.C. Cir. 2014). "[A]n agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." ACLU v. DOD, 628 F.3d 612, 619 (D.C. Cir. 2011) (cleaned up). "To successfully challenge an agency's showing that it complied with the FOIA, the plaintiff must come forward with specific facts demonstrating that there is a genuine issue with respect to whether the agency has improperly withheld extant agency records." Span v. DOJ, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (cleaned up).

The agency may rely on declarations, a Vaughn index, or both to meet its burden. See Jud. Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006). And the Court affords this evidence a "presumption of good faith." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Courts review the applicability of FOIA exemptions de novo. King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987).

III.

The Court considers: (A) DHS' withholdings under Exemption 5; (B) whether DHS sufficiently complied with FOIA's segregability requirement; and (C) Plaintiffs' policy-or-practice and inadequate training claims.

A.

First up: Did the agency properly rely on FOIA exemptions to withhold information?⁴ The Government's summary judgment brief cites Exemptions 3, 5, 6, 7(C), and 7(E) to justify its withholdings. Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mot.") at 26-27, ECF No. 14. These exemptions were applied to many records, including State Department documents pertaining to the issuance of permits, personal information of third parties and USCIS employees, and law enforcement systems checks and database codes. Decl. of Jill A. Eggleston ("Eggleston Decl.") ¶¶ 20, 29, 33-34, 36, ECF No. 14-2. But the dispute before the Court is much narrower.

Plaintiffs suggest that they seek only the release of the entire Assessments for each Plaintiff or the sources cited in the Assessments and so waive any challenges to the Government's other withholdings. See, e.g., Pls.' Mot. for Summ. J. ("Pls.' Mot.") at 9, ECF No. 16 ("DHS will suffer no harm if assessments are released. DHS will suffer no harm if sources cited in assessments are released."); Pls.' Mem. in Opp'n to Def.'s Mot. for Summ. J. ("Pls.' Opp'n") at 5, ECF No. 18-1 (arguing that Plaintiffs "seek[] the entire assessment of theasylum office" and that "DHS will not suffer any harm if assessments are disclosed"). While DHS released the "factual narrative" section of Assessments to FOIA requesters, it withheld "the analysis sections." Def.'s Mot. at 32.

The Government's Vaughn index shows that Exemption 5 was mainly used to withhold the analysis portions of the Assessments. See Vaughn Index at 2, ECF No. 14-1 (describing exemptions from Emuwa's Assessment to Refer); id. at 8 (same for Alatanhua); id. at 14 (same for AlQaraghuli); id. at 27 (same for Lukusa). The parties' summary judgment briefing also clarifies that only Exemption 5 is at issue. See, e.g., Pls.' Opp'n at 11 ("Plaintiffs want four entire assessments to be released. Exemption 3 withholdings do not apply to assessments."); id. at 23 ("Exemption 6 does not apply to assessments."); id. ("DHS does not contend that Exemption 7 applies to the four assessments."); see also, e.g., Def.'s Reply in Supp. of Mot. for Summ. J. ("Def.'s Reply") at 5-9, ECF No. 19 (making arguments only under Exemption 5).⁵ So the Court need only address Exemption 5.

Exemption 5 protects "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). "As the text indicates—albeit in a less-than-straightforward way—this exemption incorporates the privileges available to Government agencies in civil litigation," which include "the deliberative process privilege, attorney-client privilege, and attorney work-product privilege." U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785 (2021). This case mainly concerns the deliberative process privilege.

1.

"[T]he deliberative process privilege covers deliberative, pre-decisional communications within the Executive Branch." Nat'l Sec. Archive v. CIA, 752 F.3d 460, 462 (D.C. Cir. 2014) (Kavanaugh, J.). As the Supreme Court recently reiterated in Sierra Club, this privilege "shields from disclosure documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated" in order "[t]o protect agencies from...