NATIONAL COUNCIL OF LA RAZA, New York Immigration Coalition, American Immigration Lawyers Association, National Immigration Law Center, National Immigration Forum, National Immigration Project of the National Lawyers Guild, Massachusetts Immigrant and Refugee Advocacy Coalition, American Civil Liberties Union, National Employment Law Project, Plaintiffs-Appellees, v. DEPARTMENT OF JUSTICE, Defendant-Appellant.
Docket No. 04-5474-CV.
United States Court of Appeals, Second Circuit.
Decided: May 31, 2005.
411 F.3d 350
Argued: March 29, 2005.
Neil M. Corwin, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, on the brief) for David N. Kelley, United States Attorney for the Southern District of New York, Peter D. Keisler, Assistant Attorney General, Gregory G. Katsas, Deputy Assistant Attorney General, Douglas N. Letter, Irene M. Solet, Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., of counsel, for Department of Justice, Defendant-Appellant.
Before: FEINBERG, SACK, and KATZMANN, Circuit Judges.
KATZMANN, Circuit Judge.
This case calls upon us to consider a conflict between two principles fundamental to our system of government: the public‘s right to know the policies by which it is governed, and the government‘s right to obtain frank and confidential counsel as those policies are formulated.
Plaintiffs-appellees, a coalition of advocacy organizations, brought this lawsuit pursuant to the Freedom of Information Act (“FOIA“),
On appeal, the Department argues that it did not expressly adopt or incorporate the OLC Memorandum and that, accordingly, the Memorandum is shielded from disclosure under FOIA‘s deliberative process exemption. In the alternative, the Department argues that even if the deliberative process privilege does not protect the Memorandum, the Department is nonetheless entitled to withhold the Memorandum on the grounds of attorney-client privilege. We disagree on both counts and hold that: (1) the Department incorporated the OLC Memorandum into agency policy through its repeated reference to, and reliance on, the Memorandum; and (2) in this context, the attorney-client privilege does not shield the Memorandum from disclosure.
The instant dispute arose out of a change in policy instituted by the Department of Justice. Beginning in 1996, the Department took the position that state and local law enforcement lacked authority to enforce the civil, as opposed to criminal, provisions of federal immigration law.1 This position was set forth in a 1996 memorandum written by the Department‘s Office of Legal Counsel and published by the Department, which concluded that state and local police lack legal authority to detain individuals based solely on a suspicion of “civil deportability.”
In 2002, however, the Department reversed course, taking the position that state and local law enforcement could, in fact, lawfully enforce the civil provisions of immigration law. The Department‘s change in policy was announced by then-Attorney General John Ashcroft at a June 5, 2002 press conference unveiling the “National Security Entry-Exit Registration System” (“NSEERS“). As the Attorney General explained, NSEERS is an initiative designed to “expand substantially America‘s scrutiny of those foreign visitors who may pose a national security concern and enter our country.” In connection with this initiative, the Attorney General announced that information concerning aliens who overstay their visas or attempt to evade registration requirements — civil immigration violations — will be entered into the National Crime Information Center (“NCIC“) database, a system that state and local police officers regularly check during traffic stops and other routine encounters. The Attorney General explained that state and local law enforcement could then voluntarily arrest those individuals on the basis of their immigration violations and transfer them to the custody of federal immigration officials.
In support of this policy, and during that June 5, 2002 press conference, the Attorney General made the first of a number of references to the OLC Memorandum that the plaintiffs here seek disclosed. Specifically, the Attorney General explained:
When federal, state and local law enforcement officers encounter an alien of national security concern who has been listed in the NCIC ... federal law permits them to arrest the individual and transfer the individual to the custody of the INS.
The Justice Department‘s Office of Legal Counsel has concluded that this narrow, limited mission we are asking state and local police to undertake voluntarily — arresting aliens who have violated criminal provisions of the Immigration and National[ity] Act, or civil provisions that render an alien deportable, those individuals who are listed on the NCIC — that narrow mission is within the inherent authority of the states.
In a similar vein, in response to a letter from one of the plaintiff organizations inquiring as to the authority of states and localities to enforce the civil provisions of immigration law, the Attorney General, by letter dated March 11, 2003, wrote:
Let me first state clearly the policy of the Department on this issue. The Department‘s Office of Legal Counsel (OLC) previously opined that state and local law enforcement officials have inherent authority to make arrests for criminal immigration law violations generally. It has now additionally opined that they possess inherent authority to arrest individuals whose names have been entered into the [NCIC database] because they have both (1) violated civil provisions of the federal immigration laws that render them deportable and (2) been determined by federal authorities to pose special risks, either because they present national security concerns or because they are absconders who have not complied with a final order of removal or deportation. Thus, when state and local law enforcement officers encounter an alien who poses special risks and has been listed in the NCIC database for violating the [Immigration and Nationality Act], they may arrest that individual and transfer him to the custody of the Immigration and Naturalization Service (INS). The policy and the authority are no broader than this, and the narrow, limited mission that we are asking state and local police to undertake is a voluntary one.
In June 2003, Kris Kobach, counsel to the Attorney General, gave what is perhaps the most detailed discussion of the OLC Memorandum during a presentation before the FBI‘s Criminal Justice Information Services Policy Advisory Board — a presentation attended by, inter alia, representatives from state and local police departments. Kobach began by stating that he would “sort of summarize” the Memorandum and then explained:
So, the question was, it was crystal clear that any criminal violation of the Immigration [and] Nationality Act could be a basis for an arrest by [a] state and local police officer. But what about a civil violation — of the Act? There was some ambiguity on this question. The last time the Office of Legal Counsel had looked at it was back in 1996. And since 1996, Congress had passed several acts all stating pretty clearly that there was no federal preemption. I don‘t want to get too much into the legalese of this, but [the OLC determined] that there was no federal preemption of state and local assistance for civil violations of the Act versus criminal violations of the Act. In addition, there were several Circuit court opinions in the 10th U.S. court of appeals, and that also raised the question rather, rather, crisply that perhaps we need to resolve this issue and just clear up the ... ambiguity[. I]n a nutshell [the OLC] concluded that there is no federal preemption, there is no difference between civil and criminal with respect to whether state laws are preempted — by the federal.... [T]he authority to make such arrest[s] is an inherent authority possessed by the states.
Later in his remarks, Kobach continued:
But as far as the civil-criminal assumption, there really isn‘t any legal fiber underneath it in the immigration law, at least. And so in the OLC opinion it came out very clearly, and the Attorney General did announce the summary of what that opinion is.... At this point — well there are two things. One is that the OLC opinion doesn‘t say that immigration enforcement is an inherent authority of the states. It merely says, making an immigration arrest to assist the federal government lies within the inherent powers of the states.
Plaintiffs subsequently filed the instant lawsuit seeking, inter alia, to compel the production of documents relating to the Department‘s new position regarding the authority of states and localities to enforce civil violations of immigration law, only one of which — the 2002 OLC Memorandum — is relevant on appeal. On the Department‘s motion for summary judgment, the district court held, in relevant part, that the Department was required to disclose the OLC Memorandum. The district court noted that while the Memorandum fell within the deliberative process exception to FOIA‘s disclosure requirements and would normally not be subject to disclosure, the Department was nonetheless required to produce the Memorandum because the Department had, through the public statements of its representatives, incorporated the OLC Memorandum into Department policy. See Nat‘l Council of La Raza v. Dep‘t of Justice, 339 F.Supp.2d 572, 585-87 (S.D.N.Y. 2004).
DISCUSSION
We review de novo a district court‘s grant of summary judgment in a FOIA case. See Halpern v. FBI, 181 F.3d 279, 288 (2d Cir. 1999). We also review de novo a district court‘s decision “to require partial production of documents following in camera review, in keeping with the spirit and the text of the FOIA and its presumption in favor of disclosure.” Tigue v. United States Dep‘t of Justice, 312 F.3d 70, 75 (2d Cir. 2002) (citation omitted).
FOIA was enacted in order to “promote honest and open government and to assure the existence of an informed citizenry [in order] to hold the governors accountable to the governed.” Grand Cent. P‘ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (internal quotation marks omitted). FOIA strongly favors a policy of disclosure, see, e.g., Halpern, 181 F.3d at 286, and requires the government to disclose its records unless its documents fall within one of the specific, enumerated exemptions set forth in the Act. See
At issue in the present appeal is whether the OLC Memorandum is protected under FOIA‘s fifth exemption (“Exemption 5“), which permits an agency to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”
The deliberative process privilege is designed to promote the quality of agency decisions by preserving and encouraging candid discussion between officials. It is based on “the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.” Klamath, 532 U.S. at 8-9. An inter — or intra-agency document may be withheld pursuant to the deliberative process privilege if it is: (1) “predecisional,” i.e., “prepared in order to assist an agency decisionmaker in arriving at his decision,” and (2) “deliberative,” i.e., “actually ... related to the process by which policies are formulated.” Cuomo, 166 F.3d at 482 (internal quotation marks and citations omitted). See also Tigue, 312 F.3d at 76; Local 3, Int‘l Bhd. of Elec. Workers, 845 F.2d at 1180.4
The probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice if adopted, will become public is slight. First, when adopted, the reasoning becomes that of the agency and becomes its responsibility to defend. Second, agency employees will generally be encouraged rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency. Moreover, the public interest in knowing the reasons for a policy actually adopted by an agency supports [disclosure].
In the instant case, the repeated references to the OLC Memorandum made by the Attorney General and his high-ranking advisors,6 the substance of their comments, and the way in which their comments were used — that is, to assure third parties as to the legality of the actions the third parties were being urged to take — are sufficient to establish that the Department incorporated the Memorandum into its new policy regarding state and local immigration law enforcement authority. The references to the OLC Memorandum demonstrate that the Department regarded the Memorandum as the exclusive statement of, and justification for, its new policy on the authority of states to enforce the civil provisions of immigration law. For example, in his June 2002 press conference, the Attorney General invoked the OLC Memorandum to justify the Department‘s policy change, noting expressly that the OLC had now — in contrast to the OLC and the Department‘s previous position — concluded that states possess the inherent authority to enforce the civil provisions of immigration law. In the Attorney General‘s March 2003 letter, the Attorney General wrote that he wanted to “state clearly the policy of the Department on this issue” — and then immediately referred to the OLC Memorandum. He concluded by writing that “[t]hus, when state and local law enforcement encounter an alien” listed in the NCIC, they have authority to make an arrest. Other letters from the Attorney General and his staff contained similar language.
So, the question was, it was crystal clear that any criminal violation of the Immigration [and] Nationality Act could be a basis for an arrest by [a] state and local police officer. But what about a civil violation — of the Act? There was some ambiguity on this question. The last time the Office of Legal Counsel had looked at it was back in 1996. And since 1996, Congress had passed several acts all stating pretty clearly that there was no federal preemption. I don‘t want to get too much into the legalese of this, but [the OLC determined] that there was no federal preemption of state and local assistance for civil violations of the Act versus criminal violations of the Act. In addition, there were several Circuit court opinions in the 10th U.S. court of appeals, and that also raised the question rather, rather, crisply that perhaps we need to resolve this issue and just clear up the ... ambiguity[. I]n a nutshell [the OLC] concluded that there is no federal preemption, there is no difference between civil and criminal with respect to whether state laws are preempted — by the federal.... [T]he authority to make such arrest[s] is an inherent authority possessed by the states.
The foregoing statements make clear that the Attorney General and his high-level staff made a practice of using the OLC Memorandum to justify and explain the Department‘s policy and to assure the public and the very state and local government officials who would be asked to implement the new policy that the policy was legally sound. Moreover, these statements must be understood in context: The Department had announced a reversal of its policy, and the Department publicly and repeatedly depended on the Memorandum as the primary legal authority justifying and driving this change, and the legal basis therefor. Thus, given the facts and context, the Department cannot satisfy its burden of proving that the deliberative process exemption to FOIA applies to the document here sought. See Taxation With Representation Fund, 646 F.2d at 678 (noting that deliberative process privilege may evaporate if a document “is used by the agency in its dealings with the public” (quoting Coastal States Gas, 617 F.2d at 866)); Montrose Chem. Corp. v. Train, 491 F.2d 63, 70 (D.C. Cir. 1974) (explaining that disclosure is required “where a decision-maker has referred to an intra-agency memorandum as a basis for his decision,” since “once adopted as a rationale for a decision, the memorandum becomes part of the public record“). See also Arthur Andersen & Co., 679 F.2d at 258.
To be sure, had the Department simply adopted only the conclusions of the OLC Memorandum, the district court could not have required that the Memorandum be disclosed. Mere reliance on a document‘s conclusions does not necessarily involve reliance on a document‘s analysis; both will ordinarily be needed before a court may properly find adoption or incorporation by reference. In Renegotiation Bd. v. Grumman Aircraft Eng‘g Corp., 421 U.S. 168 (1975), for example, plaintiffs sought reports prepared by two subordinate divisions of the Renegotiation Board, an agency established to ascertain whether government contractors had received, and were required to refund, “excessive profits.” The reports were given to the Board, which simply ordered or denied a “clearance” — a determination that no excessive profits were realized — without any substantive reasoning or even a reference to the reports. Id. at 185-86. Moreover, the Board was in no way bound by the reports’ recommendations, nor the reasoning contained therein; the reports were simply prepared for the Board as an aid to Board deliberation. Id. at 177. Under these circumstances, the Supreme Court held that the reports had not been adopted or incorporated by the Board, as “the evidence utterly fails to support the conclusion that the reasoning in the reports is adopted by the Board as its reasoning, even when it agrees with the conclusion of a report....” Id. at 184.
The instant case, however, is different. The record makes clear that the Department embraced the OLC‘s reasoning as its own. The OLC Memorandum was “used by the agency in its dealings with the public,” Coastal States Gas, 617 F.2d at 866, as the sole legal authority for the Department‘s claim that its new policy had a basis in the law; indeed, the Department repeatedly invoked the OLC Memorandum to assure those outside of the agency that its policy was lawful and to encourage states and localities to take actions that the Department desired. See supra. The Department therefore relied on the OLC Memorandum not only to justify what it, the Department, would do as a result of its deliberations, but also to justify what a third party — “state and local law enforcement” — should and could lawfully do. The latter use of the OLC Memorandum by Department personnel is powerful evidence that the Department explicitly adopted the OLC Memorandum as part of its policy. In these circumstances, “the public can only be enlightened by knowing what the [agency] believes the law to be.” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). To quote again from Sears,
The public is only marginally concerned with reasons supporting a policy which an agency has rejected, or with reasons which might have supplied, but did not supply, the basis for a policy which was actually adopted on a different ground. In contrast, the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted. These reasons, if expressed within the agency, constitute the “working law” of the agency....7
Sears, 421 U.S. at 152-53. Here, as the district court cogently concluded, “The Department‘s view that it may adopt a legal position while shielding from public view the analysis that yielded that position is offensive to FOIA.” La Raza, 339 F.Supp.2d at 587.
We cannot allow the Department to make public use of the Memorandum when it serves the Department‘s ends but claim the attorney-client privilege when it does not. Because the Department, in light of all the facts and circumstances set forth above, incorporated the OLC Memorandum into the Department‘s policy, the attorney-client privilege cannot here be invoked to bar that Memorandum‘s disclosure.9
CONCLUSION
For the foregoing reasons, the order of the district court is affirmed.