Lawyers for Civil Rights v. United States Citizenship & Immigration Servs.

1

LAWYERS FOR CIVIL RIGHTS, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.

No. 20-cv-11777-RGS

United States District Court, D. Massachusetts

August 14, 2023

REPORT AND RECOMMENDATION ON CROSS PARTIAL MOTIONS FOR SUMMARY JUDGMENT

Paul G. Levenson, United States Magistrate Judge

I. INTRODUCTION 2

II. BACKGROUND 2

III. STANDARD OF REVIEW 5

IV. ANALYSIS 7

A. The Consultant Corollary ............................................................................................................... 8

B. USCIS's Claims of Privilege Invoking FOIA Exemption 5 ..............................................................8

1. Background on Exemption 5 ............................................................................................................... 8

2. Deliberative Process Privilege ............................................................................................................... 9

a. Redlined Versions and Proposed Revisions ..........................................................................................11

b. Responses to Media Content or Inquiries ..............................................................................................12

3. Attorney-Client Privilege ............................................................................................................... 15

C. USCIS's Claimed Exemptions under FOIA Exemption 6 .................................................................17

1. Personnel and Medical Files and Similar Files .................................................................................18

2. Clearly Unwarranted Invasion of Privacy ...........................................................................................19

V. Request for In Camera Review............................................................................................................... 22

VI. CONCLUSION ............................................................................................................... 23

I. INTRODUCTION

Lawyers for Civil Rights (“LCR”), a nonprofit organization with a social justice mission, seeks access to documents from the United States Citizenship and Immigration Services (“USCIS” or the “agency”) pursuant to the federal Freedom of Information Act (“FOIA”). USCIS has released several batches of documents, some redacted, but LCR says the agency has not done enough under FOIA. Before the Court are motions for partial summary judgment from both parties concerning the documents produced thus far.

As discussed below: (1) in seeking to avail itself of FOIA Exemption 5, the agency has properly invoked the deliberative process privilege in several instances, but in other instances, LCR has the better of the argument; (2) the agency has appropriately asserted the attorney-client privilege to support withholdings under Exemption 5; and (3) in its invocation of FOIA Exemption 6-the privacy exemption-the agency has not adequately supported its contention that identifying the personnel who prepared the documents in question would constitute a “clearly unwarranted invasion of personal privacy.”

Accordingly, I recommend granting in part and denying in part both motions.

II. BACKGROUND

In February 2018, during the Trump Administration, news outlets reported that Defendant USCIS was considering rules that would greatly limit immigrants from settling in the United States based on their reliance on social services. Pl.'s Statement of Undisputed Material Facts ¶¶ 3-4, ECF No. 25 [hereinafter LCR SOF]. The news outlets reported that USCIS had prepared a draft regulation (the “Draft Regulation”) that included a substantial revision of the criteria for determining which aliens seeking admission to the United States are subject to exclusion under the “public charge” provisions of the Immigration and Nationality Act.^[1]Id. ¶¶ 3-4. As characterized in a media report quoted in LCR's complaint, the Draft Regulation included “new rules that would allow the government to keep immigrants from settling in the US, or even keep them from extending their stays, if their families had used a broad swath of local, state, or federal social services to which they're legally entitled[.]” Compl. ¶ 21, ECF No. 1 (alteration in original).

Ultimately, on October 10, 2018, USCIS proposed a regulation that was published to the Federal Register on August 14, 2019. LCR SOF ¶ 7, ECF No. 25; Def.'s Statement of Undisputed Material Facts, ECF No. 20, ¶ 22; see Inadmissibility on Public Charge Grounds, 84 Fed.Reg. 41,292 (Aug. 14, 2019). The published regulation differed from the Draft Regulation and did not include the proposed revisions that had been described in news reports as preventing immigrants from remaining in the United States if they availed themselves of certain social services to which they are entitled. Compl. ¶¶ 21, 28. LCR contends, however, that news coverage of the Draft Regulation had a chilling effect, leading members of immigrant communities to forgo public benefits for fear of jeopardizing their immigration status. LCR SOF ¶¶ 8-9, ECF No. 25.

LCR, a Massachusetts nonprofit “with the mission of fostering equal opportunity and fighting discrimination on behalf of people of color and immigrants,” (LCR SOF ¶ 1, ECF No. 25) grew “concerned that the initial draft rule had been deliberately leaked [to the press] in order to dissuade immigrant communities from accessing public benefits.” Pl.'s Opp'n to Def.'s Mot. for Partial Summ. J. 2, ECF No. 26.

On January 23, 2019, LCR sent a FOIA request letter to USCIS seeking six categories of documents, all related to the Draft Regulation.^[2] LCR SOF ¶ 10, ECF No. 25.

After USCIS produced no responsive documents for over one and a half years, LCR sued, filing its complaint on September 29, 2020. Id. ¶¶ 10, 17-18; see Compl., ECF No. 1. Ultimately, USCIS produced four heavily redacted batches of documents to LCR in January, February, March, and April of 2021. LCR SOF ¶¶ 19-25, ECF No. 25. On May 12, 2021, USCIS provided a Vaughn Index accounting for its decisions with respect to release and redaction of the documents it provided. Id. ¶¶ 26-27.

LCR contends that USCIS's production is insufficient under FOIA. Because LCR's concerns will apply to future production if USCIS proceeds as it has done so far, the parties have each presented partial summary motions aimed at resolving disputes about the current production and guiding future production. Since the filing of the complaint, USCIS produced further information to LCR and provided a Supplemental Vaughn Index on August 6, 2021. See Decl. of Jennifer Piateski in Supp. of Def.'s Suppl. Vaughn Index 3, ECF No. 28-1; see generally Suppl. Vaughn Index, ECF No. 28-2.

To facilitate and organize the analysis of the various documents listed in the Supplemental Vaughn Index, I append to this recommendation a table-Appendix A-that divides the withheld materials into twenty-four enumerated items. See App. A. Most of the twenty-four items correspond to a single entry in the Supplemental Vaughn Index^[3](ECF No. 282), and they are largely (but not entirely) presented in Appendix A in the same order that they appear in the Index. Throughout this recommendation, documents (or groups of related documents) withheld by USCIS are referred to by the item numbers used in Appendix A.

III. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if the moving party shows that there is no genuine dispute of material fact and that the party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party” and a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Cartett, 477 U.S. 317, 323 (1986). “Once the moving party avers the absence of genuine issues of material fact, the nonmovant must show that a factual dispute does exist.” Ingram v. Brink's, Inc., 414 F.3d 222, 228-29 (1st Cir. 2005). The Court must draw all reasonable inferences in favor of the nonmovant, though “summary judgment cannot be defeated by relying on improbable inferences, conclusory allegations, or rank speculation.” Id. at 229.

FOIA requires federal agencies to disclose records upon request “unless [the records] may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b).” U.S. Dep't of Just. v. Julian 486 U.S. 1, 8 (1988). Summary judgment is the norm in FOIA cases. Moradi v. Morgan, 527 F.Supp.3d 144, 150 (D. Mass. 2021) (“FOIA cases are typically decided on motions for summary judgment.”) (quoting Am. Civ. Liberties Union of Mass., Inc. v. U.S. Immigr. & Customs Enf't, 448 F.Supp.3d 27, 35 (D. Mass. 2020)). An agency is entitled to summary judgment in a FOIA action if it “proves that it has fully discharged its obligations under the FOIA after the underlying facts and the inferences to be...