Gahagan v. United States Citizenship & Immigration Services, No. 2:2015cv02540 - Document 53 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting 50 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 8/8/2017. (cg)
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Gahagan v. United States Citizenship & Immigration Services Doc. 53 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MICHAEL GAHAGAN CIVIL ACTION VERSUS NO. 15-2540 UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES SECTION “R” (3) ORD ER AN D REASON S Before the Court is the United States Citizenship and Im m igration Service’s (“USCIS”) m otion for sum m ary judgm ent. 1 For the following reasons, the Court grants USCIS’s m otion. I. BACKGROU N D This Freedom of Inform ation Act (“FOIA”) case involves a dispute between plaintiff Michael Gahagan, an im m igration attorney, and USCIS, regarding plaintiff’s request for agency records concerning his client. The Court has previously ruled on cross-m otions for summ ary judgm ent, and the facts of this case are set forth m ore fully in the Court’s December 2, 20 15 order and J uly 26, 20 16 order. 2 As relevant here, on J uly 26, 20 16, the Court granted in part and denied in part USCIS’s second m otion for sum m ary 1 2 R. Doc. 50 . R. Doc. 20 ; R. Doc. 36. Dockets.Justia.com judgm ent. The Court found that USCIS was entitled to judgm ent as a m atter of law with respect to: (1) USCIS’s referral to the Department of State of four pages of agency records responsive to plaintiff’s FOIA request, and (2) USCIS’s non-disclosure of four additional pages of agency records identified in the agency’s Vaughn index and supplemental Vaughn index as Records # 21, # 22, # 334, and # 572. But USCIS failed to show full FOIA com pliance with respect to its non-disclosure of Records # 15, # 16, # 31, and # 32. 3 The Court ordered USCIS either to fully disclose Records # 15, # 16, # 31, and # 32 to plaintiff or produce a new Vaughn index m ore fully explaining its decision to withhold portions of each of the four docum ents. 4 On August 9, 20 16, USCIS filed a revised Vaughn index and a declaration by Brian J . Welsh, the Deputy Chief of the FOIA Program Branch for USCIS within the Department of Hom eland Security. 5 USCIS also filed a m otion asking the Court to deem its supplemental filings sufficient to satisfy the Court’s J uly 26, 20 16 order. 6 USCIS’s revised filings reviewed the agency’s processing of plaintiff’s FOIA request and m ore fully explained the relationship between the redacted materials and the privileges asserted. 7 3 4 5 6 7 R. Doc. 36 at 15. Id. at 16. R. Doc. 37-1. See R. Doc. 37 at 1. Id. 2 Specifically, USCIS stated that Records # 15, # 16, # 31, and # 32 are lawfully withheld under FOIA exem ption five because they fall within the attorneyclient privilege and the deliberative process privilege. 8 Plaintiff challenged USCIS’s supplem ental filings, arguing that USCIS did not adequately conduct a segregability analysis of Records # 15, # 16, # 31, and # 32, and that USCIS m ade conclusory statements for the entries in the revised Vaughn index. 9 Additionally, plaintiff m oved to strike Welsh’s supplem ental declaration for lack of personal knowledge. 10 On December 12, 20 16, the Court granted plaintiff’s motion to strike and ordered USCIS to subm it a new supplem ental declaration. 11 On J anuary 11, 20 17, USCIS submitted a revised supplemental declaration. 12 On May 10 , 20 17, USCIS filed a third m otion for sum m ary judgm ent, arguing that it has discharged its FOIA obligations and is therefore entitled to sum m ary judgm ent. 13 Plaintiff argues that sum m ary judgm ent is im proper because USCIS has still failed to m eet its FOIA burden of proof concerning the redactions of Records # 15, # 16, # 31, and # 32. 14 8 9 10 11 12 13 14 Id. at 4-9. R. Doc. 38. R. Doc. 39. R. Doc. 44. R. Doc. 45-1. R. Doc. 50 at 1. R. Doc. 51-1 at 4. 3 II. LEGAL STAN D ARD Sum m ary judgment is available to the defendant in a FOIA case when the agency proves that it has fully discharged its obligations under FOIA, and there is no genuine issue of m aterial fact, after the underlying facts and the inferences to be drawn from them are construed in the light m ost favorable to the FOIA requester. See W eisberg v. U.S. Dep’t of Justice, 70 5 F.2d 1344, 1350 (D.C. Cir. 1983). The agency m ay satisfy its burden of proof through the subm ission of affidavits that identify the documents at issue and explain why they fall under the claim ed exemption. Cooper Cam eron Corp. v. U.S. Dep’t of Labor, Occupational Safety & Health Adm in., 280 F.3d 539, 543 (5th Cir. 20 0 2). These affidavits m ust be clear, specific, and reasonably detailed while describing the withheld inform ation in a factual and nonconclusory m anner. Id. Further, the court will not grant sum m ary judgm ent if there is contradictory evidence or evidence of agency bad faith. See Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994) (quoting Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980 )). If the agency m eets all of these requirements, the court will norm ally accord the affidavits substantial weight. But a reviewing court may also inspect the content of agency docum ents in cam era to determ ine whether they fall under any of the FOIA exem ptions. See 5 U.S.C. § 552(a)(4)(B). 4 III. D ISCU SSION A. Re co rd s # 15, # 16 , # 3 1, an d # 3 2 USCIS continues to withhold Records # 15, # 16, # 31, and # 32 under FOIA exemption five, and it subm its a revised Vaughn index explaining its decision. 15 Exemption five protects from disclosure “inter-agency or intraagency mem orandum s 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). “To qualify, a docum ent m ust thus satisfy two conditions: its source m ust be a Governm ent agency, and it m ust fall within the am bit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep’t of the Interior v. Klam ath W ater Users Protective Ass’n, 532 U.S. 1, 8 (20 0 1). Exem ption five encompasses the attorney-client privilege, the attorney work product privilege, and the deliberative process privilege. See Sherm co Indus., Inc. v. Sec’y of the Air Force, 613 F.2d 1314, 1318 (5th Cir. 1980 ). USCIS contends that Records # 15, # 16, # 31, and # 32, which are email chains between agency em ployees, are protected from disclosure under both the attorney-client privilege and the deliberative process privilege. The Court addresses the attorney-client privilege first. 15 R. Doc. 45-1 at 4-9. 5 In the context of a FOIA request, “the agency is the ‘client’ and the agency’s lawyers are the ‘attorneys’ for the purposes of attorney-client privilege.” Judicial W atch, Inc. v. U.S. Dep’t of the Treasury , 796 F. Supp. 2d 13, 33 (D.D.C. 20 11) (citing In re Lindsey , 148 F.3d 110 0 , 110 5 (D.C. Cir. 1998)). To invoke the privilege, the agency “m ust show that the withheld docum ent (1) involves confidential com m unications between an attorney and [the agency] and (2) relates to a legal m atter for which the [agency] has sought professional advice.” Id. (quoting W ilderness Soc’y v. U.S. Dep’t of the Interior, 344 F. Supp. 2d 1, 16 (D.D.C. 20 0 4)). The agency’s revised Vaughn index carries this burden. The relevant index entries explain that the redacted portions of Records # 15, # 16, # 31, and # 32 consist of discussions between USCIS attorney Am isha Sharm a and non-attorney personnel concerning the filing of a Mandam us action in federal court. 16 Im portantly, the entries elaborate on this claim by providing the source and recipient of the com munications, as well as a description of the m atters discussed. See Ctr. For Medicare Advocacy , Inc. v. U.S. Dep’t of Health & Hum an Servs., 577 F. Supp. 2d 221, 238 (D.D.C. 20 0 8) (explaining that identification of the parties to the com m unications “is critical to the Court’s assessment of whether the comm unications are between an attorney 16 Id. 6 and a client”). Specifically, the entries state that the redacted inform ation includes USCIS attorney’s “brief notification of the filing of a Mandam us action in Federal court to field office personnel, and requesting initial Agency action to be taken necessary for consultation with the Assistant United States Attorney.”17 Additionally, the redacted records contain “inform ation from Filed [sic] Counsel to field office personnel, and a brief sum m ary of a discussion . . . on an im m igration case as related to the Mandam us suit.”18 USCIS’s detailed index entries show that the redacted portions of Records # 15, # 16, # 31, and # 32 involve confidential com m unications between USCIS and its counsel, and also explain the connection between those com m unications and a litigation m atter. Thus, USCIS has adequately explained its conclusion that the withheld portions of Records # 15, # 16, # 31, and # 32 fall within exem ption five, specifically under the attorney-client privilege. Additionally, USCIS contends that Records # 15, # 16, # 31, and # 32 are protected from disclosure under the deliberative process privilege. The purpose of the deliberative process privilege is to enhance the quality of agency decisions by assuring individuals “who offer inform ation and 17 18 Id. at 6, 9. Id. 7 opinions to the Government that their com m unications will be kept in confidence.” Sherm co, 613 F.2d at 1318. For the privilege to apply, a docum ent m ust be both “predecisional” and “deliberative.” Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). A docum ent is “predecisional” if it was generated before the adoption of an agency policy. Coastal States Gas Corp. v. Dep’t of Energy , 617 F.2d 854, 866 (D.C. Cir. 1980 ); see also Sherm co, 613 F.2d at 1319. It is “deliberative” if “it reflects the give-and-take of the consultative process.” Judicial W atch, Inc. v. Food & Drug Adm in., 449 F.3d 141, 151 (D.C. Cir. 20 0 6) (quoting Coastal States, 617 F.2d at 866). In other words, the docum ent m ust be such that public disclosure “would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby underm ine the agency’s ability to perform its functions.” Dudm an Com m c’ns Corp. v. Dep’t of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). The burden is on the agency to “establish[] what deliberative process is involved, and the role played by the docum ents in issue in the course of that process.” Coastal States, 617 F.2d at 868. Conclusory assertions that m erely parrot the language of the exem ption do not suffice. Senate of the Com m onw ealth of Puerto Rico on Behalf of Judiciary Com m . v. U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (citing Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 8 242, 258 (D.C. Cir. 1977) (noting that the governm ent m ust show “by specific and detailed proof that disclosure would defeat, rather than further, the purposes of the FOIA”)). Through its am ended Vaughn index, USCIS claims that the email chains contain inform ation reflecting “USCIS staff internal deliberations relating to a lawsuit filed against the Agency.”19 It further explains that the redacted inform ation is predecisional because it is “m eant to foster discussion am ong agency personnel in order to begin discussions both with Agency counsel, and Agency personnel in defending the lawsuit.”20 USCIS asserts that “[t]he redaction[s] of [these] docum ent[s] further[] the goal of fostering frank internal discussion on Agency m atters,” specifically “defending itself against the lawsuit,” and that “concerns about the public dissem ination of this m aterial m ay tem per candor with a concern for public appearance.”21 With this newly provided inform ation, USCIS’s Vaughn index no longer fails for lack of specificity. USCIS’s detailed index entries show that the redacted portions of Records # 15, # 16, # 31, and # 32 involve initial discussions between USCIS counsel and agency personnel related to defending a lawsuit. The revised Vaughn index also explains the connection 19 20 21 Id. at 5, 8. Id. Id. 9 between those com m unications and concerns for candid decisionm aking discussions regarding agency functions. Thus, in addition to the attorneyclient privilege, USCIS has adequately explained that the withheld portions of Records # 15, # 16, # 31, and # 32 also fall under the deliberative process privilege. B. Se gre gability An alys is Finally, FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). Accordingly, once an agency identifies a docum ent that it believes qualifies for a FOIA exem ption, “it m ust undertake a segregability analysis, in which it separates the exem pt from the non-exempt portions of the docum ent, and produces the relevant non-exem pt information.” Edm onds Inst. v. U.S. Dep’t of the Interior, 383 F. Supp. 2d 10 5, 10 8 (D.D.C. 20 0 5) (citing Vaughn, 484 F.2d at 825). To prevail in a m otion for sum m ary judgm ent, the agency m ust dem onstrate that it has satisfied its segregability analysis obligation, which it m ay do through its Vaughn index in conjunction with an agency declaration. See e.g., Peter S. Herrick’s Custom s & Int’l Trade N ew sletter v. U.S. Custom s & Border Protection, No. 0 4-377, 20 0 5 WL 32740 73, at *3 (D.D.C. Sept. 22, 20 0 5). Under Fifth Circuit law, “[i]t is error for a district court to sim ply 10 approve the withholding of an entire docum ent without entering a finding on segregability, or the lack thereof.” Batton v. Evers, 598 F.3d 169, 178 (5th Cir. 20 10 ) (citing Schiller v. NLRB, 964 F.2d 120 5, 1210 (D.C. Cir. 1992)). Here, USCIS partially withheld portions of Records # 15, # 16, # 31, and # 32. Plaintiff argues that USCIS is withholding segregable nonexem pt inform ation and has not conducted an adequate segregability analysis as m andated by FOIA. 22 As stated above, the records are part of two em ail chains from an Imm igration Services Officer to USCIS Counsel regarding a Mandam us lawsuit. 23 USCIS produced a declaration in connection with this litigation, explaining the agency’s segregability analysis: In processing the [FOIA] request, the NRC reviewed all docum ents it has received for purposes of determ ining which docum ents were responsive to the request and those which were not responsive to the request. The NRC then reviewed each of the responsive docum ents it has received, and determ ined which inform ation was or is exem pt from disclosure pursuant to the FOIA exem ptions set forth at 5 USC § 552(b). In m aking this determ ination, the NRC considered whether any inform ation could be segregated and released. 24 Because that statem ent is generalized, the declaration alone does not prove that USCIS’s analysis was adequate. See Perry -Torres v. U.S. Dep’t of State, 40 4 F. Supp. 2d 140 , 145 (D.D.C. 20 0 5) (rejecting the agency’s “conclusory” 22 23 24 R. Doc. 38-2 at 6. R. Doc. 45-1 at 4, 7. Id. at 2. 11 declaration that the agency performed segregation analysis and noted that “the explanation m ust include a specific finding for each document withheld”); Anim al Legal Def. Fund, Inc. v. Dep’t of the Air Force, 44 F. Supp. 2d 295, 30 2 (D.D.C. 1999) (“[T]he Defendant shall not offer one [segregability] finding for all docum ents.”) (emphasis in original). Thus, the Court turns to the relevant Vaughn index entries to determ ine whether USCIS has provided facts to support its segregability determ ination. Entries for Records # 15, # 16, # 31, and # 32 in the revised Vaughn index contain enough detail to support USCIS’s decision to partially withhold the redacted em ail chains. The index entries invoke the deliberative process privilege, explaining that the email chains partially withheld are “interagency, predecisional, and deliberative document[s] inasm uch as [they] reflect[] USCIS staff internal deliberations relating to a lawsuit filed against the Agency.”25 In addition, the entries specifically describe the deliberations at issue as interagency com m unications m eant to “begin discussions . . . in defending the lawsuit.”26 USCIS also explains that the redactions further “the goal of fostering frank internal discussion on Agency m atters,” which m ay be tempered by public dissem ination and concern for 25 26 Id. at 5, 8. Id. 12 public appearance. 27 The Court finds that these detailed Vaughn index entries, combined with USCIS’s declaration that a segregation analysis was conducted, dem onstrate that the docum ents in question are not further segregable. See Peter S. Herrick’s, 20 0 5 WL 32740 73, at *3 (finding that the com bination of a com prehensive Vaughn index and an affidavit confirm ing the agency segregability analysis satisfied the agency’s obligation). Thus, USCIS has lawfully withheld portions of Records # 15, # 16, # 31, and # 32 of the revised Vaughn index. IV. CON CLU SION For the foregoing reasons, the Court GRANTS USCIS’s m otion for sum m ary judgment. 8th New Orleans, Louisiana, this _ _ _ _ _ day of August, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 27 Id. 13
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