811 F. Supp. 2d 713
S.D.N.Y.2011Background
- NDLON, CCR, and Cardozo Clinic request FOIA records from ICE, DHS, EOIR, FBI, and OLC about Secure Communities; focus on opt-out records and program governance.
- Initial belief was that Secure Communities was voluntary; later officials stated there is no opt-in/opt-out, making participation effectively mandatory by 2013.
- Court ordered production of opt-out records; multiple agencies withheld documents under FOIA exemptions (2/5/6/7).
- Plaintiffs cross-moved for partial summary judgment on exemptions for opt-out records; defendants sought summary judgment on exemptions.
- Court conducted in camera review of numerous documents;裁 held exemptions to be applied variably and ordered revised Vaughn indexes and limited releases as appropriate.
- Judgment: partial grant and partial denial; need for further index revisions and targeted productions by August 1, 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 7(E) applies to opt-out records | Milner overruled Crooker; records involve law enforcement techniques | Exemption 7(E) protects investigatory tech and guidelines | Granted to defendants for all opt-out records |
| Whether Exemption 2 (Low 2) applies to identifying information | Names/identifying info should be disclosed to test against policies | Privacy protections allow withholding | Granted to defendants for Low 2; High 2 overruled by Milner |
| Whether Exemptions 5/6/7(C) require release of contested documents | Many entries are non-deliberative or segregable; more disclosure warranted | Privilege and privacy balancing supports withholding | Partially granted; release of segregable non-exempt material; revised Vaughn indexes ordered. |
Key Cases Cited
- Milner v. Department of the Navy, 131 S. Ct. 1259 (2011) (overruled Crooker; Exemption 2 encompasses only personnel/human resources)
- Washington Post Co. v. Department of Justice, 456 U.S. 589 (1982) (privacy threshold and public interest under FOIA Exemption 6)
- Crooker v. Bureau of Alcohol, Tobacco, and Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (overruled by Milner; prior High/Low 2 framework abandoned)
- NCLR v. Department of Justice, 411 F.3d 350 (2d Cir. 2005) (deliberative process and public interest balancing)
- Sears, Roebuck & Co. v. Department of Justice, 421 U.S. 132 (1975) (attorney work product/privilege; deliberative process distinctions)
- Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980) (test for deliberative process and segregability; agency decision context)
- NASA v. National Aeronautics and Space Admin., 920 F.2d 100 (D.C. Cir. 1990) (D.C. Cir. 1990) (threshold for authorial privacy and similar files)