Gatore v. United States Department of Homeland Security
Civil Action No. 2015-0459
| D.D.C. | Jan 4, 2018Background
- Eight individual asylum applicants (represented by Catholic Charities) sought their asylum officers’ "assessments to refer" under FOIA; DHS/USCIS withheld the assessments in full invoking Exemption 5 (deliberative process privilege).
- The court previously denied DHS’s first summary judgment motion, finding the agency’s Vaughn-style declaration categorically described assessments and failed to show that no reasonably segregable factual material existed; the court ordered more detailed segregability explanations.
- DHS submitted three supplemental declarations from Jill Eggleston and released limited "biographical" introductory paragraphs for each plaintiff (one to three paragraphs), but continued to withhold the remainder.
- Plaintiffs contend more factual introductory paragraphs (biography, basis of claim, testimony) are reasonably segregable and should be disclosed; DHS contends it has identified and released segregable biographical information and properly withheld deliberative factual distillations.
- The court found the supplemental declarations still too categorical and insufficiently specific (failed to distinguish released from withheld factual material and to address prior decisions finding more paragraphs segregable), and concluded an in camera review of the eight assessments is necessary to make a de novo segregability determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether factual portions of asylum assessments are reasonably segregable from deliberative material under FOIA Exemption 5 | Plaintiffs: introductory factual paragraphs (biography, basis, testimony) are nonexempt and should be released | DHS: it reviewed each assessment, released limited biographical facts, and the remaining factual distillations are inseparable from deliberative material and exempt | Court: DHS’s declarations are inadequate; in camera review of the assessments is required to resolve segregability de novo |
| Whether agency’s supplemental declarations/Vaughn suffice for de novo review | Plaintiffs: declarations remain conclusory and fail to justify withholding | DHS: supplemental declarations address earlier deficiencies and show individual review | Court: declarations remain largely categorical, lack specificity, and fail to distinguish released vs withheld facts; not sufficient |
| Whether prior decisions (Abtew, Gosen, Bayala) control or suggest release of more material | Plaintiffs: those decisions show several introductory paragraphs can be released | DHS: differences exist; it need not follow those outcomes if current documents are deliberative | Court: DHS did not show the assessments here materially differ; prior cases support need to reassess segregability and weigh toward in camera review |
| Proper next step to resolve segregability dispute | Plaintiffs: seek release of additional paragraphs or further discovery | DHS: argues further judicial deference to its review and that it already complied | Court: in camera inspection is appropriate and efficient given small number of documents and repeated inadequate declarations |
Key Cases Cited
- Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir. 2011) (deliberative process can protect factual summaries that reflect agency judgment in culling a larger universe of facts)
- Abtew v. U.S. Dep’t of Homeland Sec., 47 F. Supp. 3d 98 (D.D.C. 2014) (court ordered in camera review and concluded several introductory paragraphs of an assessment were reasonably segregable)
- Gosen v. U.S. Citizenship & Immigration Servs., 118 F. Supp. 3d 232 (D.D.C. 2015) (court reviewed assessments in camera and found at least some factual introductory material could be released)
- Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172 (D.C. Cir. 1996) (agency must provide detailed Vaughn descriptions revealing as much detail as possible without disclosing protected information)
- N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (Exemption 5 protects advisory opinions, recommendations, and deliberations in pre-decisional processes)