TRANSGENDER LAW CENTER V. ICE, No. 20-17416 (9th Cir. 2022)
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The Transgender Law Center (collectively “TLC”), acting on behalf of the family and estate of an asylum-seeker, submitted two FOIA requests. The first FOIA request was directed to the U.S. Immigration & Customs Enforcement (“ICE”), and the second was directed to the Department of Homeland Security Office for Civil Rights and Civil Liberties. TLC filed suit in district court seeking declaratory and injunctive relief. The district court granted TLC’s request for declaratory judgment holding that the agencies had failed to timely respond to their FOIA requests, but ruled for the agencies in all other respects.
The Ninth Circuit reversed the district court’s partial summary judgment; vacated the district court’s mootness determination; and remanded. The court held that the government’s belated disclosure was not “adequate” under FOIA. The court reasoned that the Government failed to carry its burden because the agencies did not appropriately respond to positive indications of overlooked materials provided by TLC and did not hew to their duty to follow obvious leads.
The court further held that the agencies’ Vaughn indices were filled with boilerplate or conclusory statements; and this high-level, summary approach resulted in an unacceptable lack of specificity and tailoring that undermined TLC’s ability to contest the agencies’ withholdings. The court also held that the Government failed to come forward with clear, precise, and easily reviewable explanations for why the information was not segregable.
Court Description: Freedom of Information Act. The panel reversed the district court’s partial summary judgment in favor of federal agencies in a Freedom of Information Act (“FOIA”) action involving requests for government documents related to an asylum-seeker’s death in federal custody; vacated the district court’s mootness determination; and remanded. The Transgender Law Center and Jolene K. Youngers (collectively “TLC”), acting on behalf of Roxsana Hernandez’s family and estate, submitted two FOIA requests. The first FOIA request was directed to the U.S. Immigration & Customs Enforcement (“ICE”), and the second was directed to the Department of Homeland Security Office for Civil Rights and Civil Liberties. TLC filed suit in district court seeking declaratory and injunctive relief. The district court granted TLC’s request for declaratory judgment that the agencies had failed to timely respond to their FOIA requests, but in all other respects ruled * The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. TRANSGENDER LAW CENTER V. ICE 3 for the agencies, holding that they had adequately complied with the FOIA requests, had conducted an adequate search, had appropriately applied FOIA exemptions, and had provided adequate Vaughn indices. The panel first considered whether the district court erred in holding that the agencies’ search was “adequate.” Joining the other circuits that had considered the issue, the panel held that the agencies had the burden to demonstrate adequacy “beyond material doubt.” Applying that standard, the panel concluded that the Government failed to carry its burden because the agencies did not appropriately respond to positive indications of overlooked materials provided by TLC and did not hew to their duty to follow obvious leads. The panel therefore reversed the district court’s summary judgment and remanded to the district court to direct the agencies to properly comply with TLC’s FOIA requests. The panel next considered the sufficiency of the agencies’ Vaughn indices. A Vaughn index is a submission that identifies the withheld documents, the claimed FOIA exemptions, and a particularized explanation of why each document fell within the claimed exemption. The panel held that the agencies’ Vaughn indices were filled the boilerplate or conclusory statements; and this high-level, summary approach resulted in an unacceptable lack of specificity and tailoring that undermined TLC’s ability to contest the agencies’ withholdings. The panel remanded to the district court to direct the agencies to provide specific, non- conclusory Vaughn indices. The agencies withheld and redacted information under FOIA Exemptions 5, 6, 7(C), and 7(E). First, under FOIA Exemption 5, the Government need not disclose “inter- agency or intra-agency memorandums or letters that would 4 TRANSGENDER LAW CENTER V. ICE not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). This allows agencies to withhold privileged information, including documents revealing an agency’s deliberative process. The panel held that the district court erred in treating all drafts as necessarily covered by the deliberative process privilege. Simply designating a document as a “draft” did not automatically make it privileged. The panel remanded to the district court to direct the release of the draft mortality review and the draft press statements. The district court should also reconsider the other assertions of deliberative process privilege. Second, Exemption 6 applies to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The panel held that the district court erred in permitting the agencies to withhold email domains under Exemption 6. The panel remanded to the district court to direct the agencies to release the requested documents with the email domains redacted. For similar reasons, the panel held that the district court erred in permitting the agencies to withhold email domains under FOIA Exemption 7(C). Third, FOIA Exemption 7(E) allows agencies to withhold certain “records or information compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7)(E). The agencies broadly invoked Exemption 7(E). The district court held that the withheld information was categorically exempted under the Exemption. The panel held that this finding was overbroad, and the district court should have analyzed whether the withheld documents were, in fact, law enforcement techniques and procedures, and not guidelines (which for exemption require additional information to show that disclosure “could reasonably be expected to risk circumvention of the law”). In this situation a categorical exclusion could not be sustained as the panel had no basis to TRANSGENDER LAW CENTER V. ICE 5 review whether “techniques and procedures” were at issue. The panel remanded for further clarification. The panel next considered the segregability of portions of the record from the exempt portions. The panel held that the Government failed to come forward with clear, precise, and easily reviewable explanations for why information was not segregable. The panel remanded for the district court to make specific findings as to whether factual information was properly segregated and disclosed in all documents. The panel held that the district court did not err by failing to make a finding on the Government’s withholding of certain documents as “non-responsive” or “duplicative.” TLC argued at the trial stage that the agencies unlawfully denied two expedited processing requests it submitted in January and August of 2020. The district court determined that the expedited processing requests were moot. Because the panel is remanding due to the inadequacy of the agencies’ compliance, the panel vacated the mootness determination, which should be reconsidered by the district court. 6 TRANSGENDER LAW CENTER V. ICE
The court issued a subsequent related opinion or order on August 19, 2022.
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