Doe 1 v. McAleenan

Background

Defendants sought reconsideration of the court’s May 27, 2020 order, which had sustained in part and denied in part their confidentiality designations for 16 discovery items. The materials concerned the FBI’s vetting of refugee applicants under the Lautenberg-Specter program. Defendants had designated all 16 items “Highly Confidential – Attorneys’ Eyes Only” (HC-AEO) under the case’s protective order.

The reconsideration motion relied on Judge Freeman’s later decision denying plaintiffs leave to add the FBI as a defendant and to add allegations about an alleged FBI vetting policy. Defendants argued that the later decision made the materials irrelevant to the jurisdictional discovery in the case. Plaintiffs opposed reconsideration and argued that the materials remained relevant to their allegations about agency action.

Legal standard

The court explained that reconsideration may be available based on newly discovered facts or a change in law, facts or arguments that could not reasonably have been presented earlier, or the court’s failure to consider material facts or dispositive legal arguments. Reconsideration may not be used to present arguments or evidence for the first time when they could reasonably have been raised earlier.

For confidentiality designations, the court first had to determine whether disclosure would cause particularized harm—specific harm rather than general allegations of harm. If specific harm existed, the court would then balance other public and private interests. Defendants, as the parties opposing disclosure, bore the burden of showing good cause for the HC-AEO designations.

Discussion

The court held that defendants had not identified a reason to reconsider its earlier finding that they failed to show particularized harm. The court also rejected defendants’ effort to use the later decision as a basis for reconsidering the prior confidentiality ruling. It explained that relevance is not part of the first step of the confidentiality analysis and may be considered at the second step only if particularized harm is shown. The court was also not persuaded that the materials were wholly irrelevant, and it stated that even irrelevance would not support reconsideration of the particularized-harm finding.

The court noted that defendants were effectively seeking a new decision on the merits of the confidentiality issue, including reliance on a declaration that had not previously been presented. The court did, however, review whether its treatment of each item was consistent with the reasoning of the May 27 order. It found that items 3 and 4 disclosed some operational details of the FBI’s vetting methodology. Consistent with the earlier order, those items could retain the HC-AEO designation. The remaining items contained only high-level references to vetting techniques or agency processes without operational details and could not retain that designation.

Disposition

The court granted in part and denied in part defendants’ motion for reconsideration. It denied reconsideration regarding the 16 discovery items except for items 3 and 4, identified as DEF-00005921.0001 and DEF-00006140.0001, respectively. Those two items could retain the HC-AEO designation. The order also stated that portions would remain filed under seal until further order because the order was subject to review by the presiding judge and that review could affect whether certain material should remain sealed.