National Day Laborer Organizing Network v. United States Immigration & Customs Enforcement Agency
827 F. Supp. 2d 242
S.D.N.Y.2011Background
- This is a FOIA action by NDLO?N, CCR, and Immigration Justice Clinic seeking ICE/ DHS/ FBI/ OLC records on Secure Communities.
- Program began in 2008; fingerprints are shared with FBI and now immigration records via DHS under Secure Communities.
- Defendants produced opt-out records in Jan 2011 and the parties cross-moved for summary judgment.
- The October 2 Memorandum is central; Plaintiffs challenged exemptions under FOIA Exemption 5 (deliberative/attorney-client).
- Judge Scheindlin previously ruled on July 11, 2011, denying summary judgment in part and inviting more information; this decision renews cross-motions focused on the October 2 Memorandum.
- Court ultimately denies defendants’ motion and grants plaintiffs’ motion, ordering disclosure with limited redactions and production of drafts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether October 2 Memorandum is exempt under Exemption 5. | NDLON argues confidentiality was waived; memo shared publicly. | ICE maintains confidentiality and that memo remains predecisional and privileged. | No, waiver/adoption shown; not protected by Exemption 5. |
| Whether the Memorandum was adopted as agency working law. | Evidence shows ICE adopted the memo’s legal conclusions. | No clear adoption to require disclosure. | Adoption shown; memo treated as working law. |
| Whether confidentiality of the Memorandum was maintained (waiver). | Extensive public disclosure of contents; confidentiality not maintained. | Declared confidentiality preserved; limited inquiries. | Confidentiality not maintained; waiver established. |
| Whether the memorandum constitutes predecisional/deliberative material or has been adopted. | Document formed basis for policy; not purely predecisional. | Still predecisional at the time, and deliberative content protected. | Document not protected; adopted as policy. |
Key Cases Cited
- National Council of La Raza v. Department of Justice, 411 F.3d 350 (2d Cir.2005) (attorney-client privilege may not shield adopted agency policy; working law)
- Grand Cent. P'ship v. Cuomo, 166 F.3d 473 (2d Cir.1999) (deliberative material and policy formation considerations)
- Mejia v. United States, 655 F.3d 126 (2d Cir.2011) (attorney-client privilege in government context and confidentiality)