Allard K. Lowenstein International Human Rights Project v. Department of Homeland Security
626 F.3d 678
| 2d Cir. | 2010Background
- FOIA request seeks internal DHS documents from Operation Front Line, including the Forman Memorandum, a September 2004 ICE memo.
- Forman Memorandum largely produced; redactions remain in paragraph describing ‘Priority 1’ and portions of ‘Priority 2’.
- Operation Front Line ran prior to 2004 election and 2005 inauguration; Project contends targeted Muslims and fabricated minor immigration violations.
- District court partially granted summary judgment for DHS, finding redactions within FOIA Exemption (b)(7)(E) (and (b)(2)) justified.
- Parties stipulated and DHS released thousands of pages; DHS voluntarily released most disputed information after appeal.
- Second Circuit reviews de novo the district court’s FOIA grant and affirms DHS’s withholding under Exemption (b)(7)(E).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether redacted material is guidelines or techniques/procedures | Redactions are guidelines; disclosure could be permitted with limits. | Redactions reveal techniques and procedures; exempt from disclosure. | Redacted portions are techniques and procedures; exemption applies. |
| Interpretation of Exemption 7(E) scope and the modifying clause | Clause covers guidelines and possibly techniques/procedures; should require risk of circumvention for both. | Qualifying phrase attaches only to guidelines, not to techniques/procedures. | Qualifying phrase modifies only guidelines; techniques/procedures are categorically protected where applicable. |
| Whether the district court properly applied Exemption 7(E) to the Forman Memorandum | Information would not risk circumvention if released. | Information constitutes law-enforcement techniques/procedures; withholding is proper. | Exemption 7(E) properly applied; information withheld. |
Key Cases Cited
- Barnhart v. Thomas, 540 U.S. 20 (Supreme Court, 2003) (rule of the last antecedent applied to statutory interpretation)
- Dobrova v. Holder, 607 F.3d 297 (2d Cir. 2010) (statutory text interpretation in FOIA Exemption 7(E))
- Slayton v. Am. Express Co., 604 F.3d 758 (2d Cir. 2010) (interpretation of statutory amendments in Exemption 7(E))
- American Civil Liberties Union v. Dep't of Def., 543 F.3d 59 (2d Cir. 2008) (Exemption 7(E) expanded to protect guidelines)
- Fisher v. U.S. Dep't of Justice, 772 F. Supp. 7 (D.D.C. 1991) (historical context on Exemption 7(E) protections)
- Keys v. Dep't of Homeland Sec., 510 F. Supp. 2d 121 (D.D.C. 2007) (priority and categorization considerations in Exemption 7(E))