Advancement Project v. U.S. Department of Homeland Security
Civil Action No. 2019-0052
| D.D.C. | Jul 19, 2021Background:
- DHS and State publicly announced visa sanctions against Cambodia, Eritrea, Guinea, and Sierra Leone for allegedly refusing or delaying travel documents needed for U.S. removals.
- Advancement Project submitted FOIA requests to DHS, State, CBP, and ICE for records about the sanctions; this dispute concerns ICE’s response.
- ICE initially claimed no records, then produced 569 pages after suit, withholding portions under Exemptions including FOIA Exemption 5 (deliberative process) and Exemption 7(E) (law‑enforcement techniques/guidelines).
- Both parties moved for summary judgment; ICE supported withholding with a declaration and a Vaughn index; Advancement Project submitted a replicated Vaughn disputing exemptions.
- The Court upheld most of ICE’s withholdings: Exemption 5 justified for many drafts, internal emails, and briefing materials; Exemption 7(E) justified for internal case‑management system materials and RCI Tool details; ICE failed to justify withholding a small subset and must supplement its explanations.
- The Court found ICE satisfied segregability for properly withheld records and denied Advancement Project’s motion for disclosure.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of Exemption 5 (deliberative process) | Records are postdecisional or effectively adopted; Project seeks factual predicates behind press release | Records are predecisional/deliberative drafts, internal advice, and messaging plans whose disclosure would chill candid deliberation | Most withholdings valid under Exemption 5; but ICE must better justify withholding for several documents (some labeled “final,” two briefings, one email) |
| Application of Exemption 7(E) (techniques/procedures/guidelines) | ICE lacks basis to withhold; some information already public; ICE lacks criminal enforcement authority allegedly | Records were compiled for law enforcement; internal system procedures and RCI Tool details reveal confidential techniques and could risk circumvention | ICE may withhold internal case‑management/system screenshots and RCI Tool details; ICE must better justify withholding certain operations/facility records |
| Segregability | ICE’s segregability description is insufficiently detailed | Produced detailed Vaughn index; conducted line‑by‑line review and disclosed nonexempt portions | Court accepts ICE’s segregability showing for records properly withheld; no additional disclosure required |
| Summary judgment remedy | Seeks judgment ordering disclosure of disputed records | Seeks judgment affirming withholdings | Court grants ICE summary judgment in part, denies in part; denies Advancement Project’s motion |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (2001) (background principle limiting long‑term immigration detention)
- U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777 (2021) (deliberative‑process privilege standard for predecisional and deliberative documents)
- U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) (FOIA exemptions construed narrowly to further disclosure)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (deliberative process privilege origins and application)
- Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429 (D.C. Cir. 1992) (predecisional document test)
- Access Reports v. Dep’t of Justice, 926 F.2d 1192 (D.C. Cir. 1991) (documents must bear on policy formulation to be predecisional)
- Pub. Emps. for Envtl. Resp. v. U.S. Section, Int’l Boundary & Water Comm’n, 740 F.3d 195 (D.C. Cir. 2014) (Exemption 7(E) covers records compiled for law‑enforcement purposes)
- Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007) (Exemption 7(E) protects confidential details even when general contours are public)
- Mayer Brown LLP v. IRS, 562 F.3d 1190 (D.C. Cir. 2009) (agency need only show a reasonable expectation that disclosure might risk circumvention)