LatinoJustice PRLDEF v. U.S. Dep't of Homeland Sec.

LATINOJUSTICE PRLDEF, et al., Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

19-CV-3438 (BCM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

April 29, 2021

OPINION AND ORDER

BARBARA MOSES, United States Magistrate Judge.

Plaintiffs LatinoJustice PRLDEF (LJP) and New York Immigration Coalition (NYIC) brought this action on April 18, 2019, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, against the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE), seeking the release of unredacted agency records related to the creation, operation, and scope of the newly-created Victims of Immigration Crime Engagement (VOICE) office. Now before the Court are the parties' cross-motions for summary judgment, which turn on the narrow issue of whether defendants properly relied on FOIA Exemption 5, which applies to "inter-agency or intra-agency memorandums or letters that would not be available by law to a party . . . in litigation with the agency," 5 U.S.C. § 552(b)(5), when they withheld or redacted 28 documents within the scope of plaintiffs' FOIA request pursuant to the deliberative process privilege and/or the attorney-client privilege.

For the reasons set forth below, plaintiffs' motion (Dkt. No. 47) will be granted in part, and defendants' motion (Dkt. No. 41) will be denied in part, to the extent that defendants must promptly produce, without Exemption 5 redactions, the documents bearing Bates numbers 288, 347-355, and 734. In all other respects, both motions will be denied without prejudice to renewal after defendants submit supplemental Vaughn materials as directed herein.

I. BACKGROUND

A. Parties

Plaintiff LJP is a "national non-profit and non-partisan civil rights legal defense and education fund" that advocates on behalf of Latinos in the United States. Compl. (Dkt. No. 1) ¶ 13. Plaintiff NYIC is "an umbrella policy and advocacy organization for more than 200 groups in New York State, representing the collective interests of New York's diverse immigrant communities and organizations." Id. ¶ 14.

Defendant DHS is a Department of the Executive Branch of the U.S. Government and is "responsible for enforcing federal immigration laws." Compl. ¶ 15. ICE is a "component of" and "under the jurisdiction of" DHS. Id. ¶¶ 15-16. ICE "enforces federal law governing border control, customs, and immigration to the United States." Id. ¶ 16. DHS and ICE have "possession and/or control over the records sought by Plaintiffs." Id. ¶¶ 15-16.

B. Factual Background

On January 25, 2017, then-President Donald J. Trump signed Executive Order (EO) No. 13768 (entitled "Enhancing Public Safety in the Interior of the United States"), which - among other things - mandated that the Secretary of DHS and the Director of ICE "take all appropriate and lawful action to establish . . . an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims." Compl. ¶ 21. Pursuant to EO 13768, then-DHS Secretary John F. Kelly launched the VOICE office, as a part of ICE, on April 26, 2017. Id. ¶ 22. The VOICE office utilizes a toll-free hotline, through which "individuals seeking assistance" can access "local ICE representatives, social service professionals, automated custody status information for alleged perpetrators, and further criminal or immigration history for alleged perpetrators." Id. ¶ 24.

On November 28, 2017, plaintiffs submitted the FOIA request at issue in this case. Compl. ¶ 42 & Ex. 1 (FOIA Request). Plaintiffs sought expedited disclosure of: (1) "Any and all records[] received, maintained, and/or in the possession of ICE on the policies, procedures, objectives, or other guidelines related to VOICE, including documents created prior to January 27, 2017"; (2) specific aggregate data (such as the number of phone calls received on the VOICE toll-free hotline), as well as "[a]ny and all budgets and financial records referring or relating to the projected and actual cost of VOICE"; and (3) "departmental or organizational charts, memorandums, concept of operations, authorization memorandums and other documentation which identifies VOICE's Unit and policy decision-makers and executives, and[] VOICE's relationship to other executive branches." FOIA Request at 1-2. On December 12, 2017, ICE acknowledged receipt of the FOIA Request, stating that while its goal was to respond within the 20 business days allowed by 5 U.S.C. § 552(a)(6)(A)(i), it was invoking the 10-day extension permitted by 5 U.S.C. § 552(a)(6)(B). Compl. ¶ 45 & Ex. 3.

On February 22, 2018, having received no further communications from defendants, plaintiffs submitted a "FOIA appeal letter," asserting that defendants violated their statutory deadline for responding within 20 business days (plus the 10-day extension) pursuant to 5 U.S.C. § 552(a)(6)(A)(i). Compl. ¶ 46; see also Declaration of Jose Luis Perez in Support of Plaintiffs' Complaint (Perez Decl.) (Dkt. No. 1-2) ¶ 6. On June 7, 2018, having still not heard from defendants, plaintiffs submitted a second FOIA appeal letter. Compl. ¶ 47; see also Perez Decl. ¶ 7. On June 27, 2018 (nearly seven months after receiving the original FOIA Request), defendants responded to the second appeal letter, stating: "[T]his office is remanding your appeal to the ICE FOIA Office so that they may complete the search of these records and provide a direct responseto you." Compl. ¶ 48; see also Perez Decl. ¶ 8. Ten months later - having heard nothing from defendants in the interim - plaintiffs filed their complaint. Compl. ¶ 49.

C. Procedural Background

Plaintiffs seek a declaratory judgment that (1) defendants' failure to produce the requested records and failure to timely respond to plaintiffs' FOIA Request and appeal violated FOIA; and (2) defendants' failure to timely respond to plaintiffs' FOIA Request violated the Administrative Procedure Act. Compl. ¶¶ 61, 71, 75. On June 5, 2019, defendants filed their answer. (Dkt. No. 13.) On August 27, 2019, the parties consented to the jurisdiction of the assigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Dkt. No. 21.) On the same day, the Court held an initial case management conference and directed defendants to "produce documents responsive to plaintiff's FOIA request . . . no later than November 1, 2019." (Dkt. No. 22 ¶ 2.)

On February 3, 2020, after producing documents, defendants provided plaintiffs with a draft Vaughn index describing the pages that were withheld from the production or produced in redacted form. See Joint Ltr. dated April 17, 2020 (Dkt. No. 36) at 1. On April 23, 2020, following a status conference, the Court issued an order (Dkt. No. 37) setting a schedule for the parties' anticipated cross-motions for summary judgment. That schedule was later extended at the parties' request. (Dkt. No. 40.)

On August 13, 2020, defendants filed their motion, together with a memorandum of law (Def. Mem.) (Dkt. No. 42) and the declaration of ICE's Acting FOIA Officer Fernando Pineiro (Pineiro Decl.) (Dkt. No. 43), attaching the government's final Vaughn index (Index) (Dkt. No. 43-1). In his declaration, Pineiro attests that ICE produced 1,032 pages of responsive records as well as two excel spreadsheets; that 494 pages, as well as the two spreadsheets, were "releasedsubject to partial FOIA withholdings"; and that 325 pages were "withheld in full." Pineiro Decl. ¶¶ 9, 10. Pineiro also explains that the parties narrowed their summary judgment dispute to 24 documents (comprising 217 pages) that were "withheld in full or in part pursuant to FOIA Exemption (b)(5)," which defendants applied "to protect from disclosure information subject to the deliberative process privilege and attorney-client privilege." Id. ¶¶ 11, 18.

On September 14, 2020, plaintiffs filed their cross-motion for summary judgment, together with a memorandum of law (Pl. Mem.) (Dkt. No. 48), a Rule 56.1 Statement (Pl. 56.1 Stmt.) (Dkt. No. 50),¹ and the declaration of their attorney Natasha Lycia Ora Bannan (Bannan Decl.) (Dkt. No. 49), attaching the disputed pages in the form produced by defendants (that is, either with redactions noting the exemption(s) relied on or replaced entirely by a page reading, "withheld pursuant to exemption (b)(5)"). Bannan Decl. ¶ 3 & Exs. B-X. On October 5, 2020, defendants filed their reply brief in support of their motion and in opposition to plaintiffs' cross-motion (Def. Reply Mem.) (Dkt. No. 53), together with the declaration of their attorney Alexander J. Hogan (Hogan Decl.) (Dkt. No. 52) and their response to plaintiffs' Rule 56.1 Statement (Dkt. No. 51).² On October 26, 2020, plaintiffs filed their reply brief (Pl. Reply Mem.) (Dkt. No. 54).

II. ANALYSIS

A. Legal Standards

1. FOIA

"FOIA was enacted in order to 'promote honest and open government and to assure the existence of an informed citizenry [in order] to hold the governors accountable to the governed.'" Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 355-56 (2d Cir. 2005) (quoting Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999)). "FOIA strongly favors a policy of disclosure . . . and requires the government to disclose its records unless its documents fall within one of the specific, enumerated exemptions set forth in the Act," which must be narrowly construed. Nat'l Council of La Raza, 411 F.3d at 355-56 (citations omitted). "The government bears the burden of demonstrating that an exemption applies to each item of information it seeks to withhold, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure." Florez v. CIA, 829 F.3d 178, 182 (2d Cir. 2016) (quoting Ctr. for Constitutional Rights v. C.I.A., 765 F.3d 161, 166 (2d Cir. 2014)).

FOIA authorizes a complainant from whom agency records have been improperly withheld to bring...