American Civil Liberties Union Foundation v. Department of Justice

Background

The American Civil Liberties Union Foundation and the American Civil Liberties Union Foundation of Northern California submitted Freedom of Information Act (FOIA) requests to seven federal agencies for records about social-media surveillance. The requests covered policies and guidance; purchases of surveillance technology; communications with private businesses and social-media platforms; and the use of social-media content in systems using algorithms, machine learning, or predictive analytics. The plaintiffs also sought records concerning monitoring and retaining immigrants’ and visa applicants’ social-media information for what the complaint called “extreme vetting” or “visa lifecycle vetting.”

After alleging that the agencies did not produce responsive records, the plaintiffs filed this lawsuit to compel production. The agencies later produced records, including 358 pages from U.S. Customs and Border Protection (CBP), 2,169 pages from U.S. Immigration and Customs Enforcement (ICE), and 2,645 pages from U.S. Citizenship and Immigration Services (USCIS). The agencies withheld or redacted portions of some records. The parties filed cross-motions for partial summary judgment concerning the adequacy of the agencies’ searches and the disputed withholdings by CBP, ICE, and USCIS.

The court reviewed unredacted documents privately and held a private hearing with defense counsel about redactions based on the deliberative-process privilege, which protects certain predecision agency discussions.

Legal standards

Summary judgment is appropriate when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. In FOIA cases, disclosure is generally favored, and the agency bears the burden of justifying each withholding. The court may rely on sufficiently detailed agency declarations, but it must be able to independently assess the claimed exemptions.

FOIA Exemption 7(E) protects law-enforcement records that would disclose investigative techniques or procedures, or certain guidelines whose disclosure could reasonably be expected to risk circumvention of the law. In the Ninth Circuit, the exemption covers investigative techniques not generally known to the public and specific means of deploying particular techniques.

FOIA Exemption 5 protects certain interagency or intra-agency communications that would ordinarily be privileged in civil discovery. The deliberative-process privilege covers predecisional materials reflecting recommendations, draft plans, and policy discussions, but not documents embodying a final agency decision. The attorney-client privilege protects confidential communications seeking or providing legal advice when the privilege’s required elements are established.

Court’s findings

For CBP, the court ruled that Exemption 7(E) did not apply to redacted portions of the Policy on Operational Use of Social Media because those portions described authorization procedures that could not reasonably be expected to risk circumvention of the law. The court ordered CBP to reproduce that policy without those redactions within 14 days. The court upheld Exemption 7(E) for redacted portions of CBP’s Information Issue Papers, Use of Social Media Papers, Social Media Briefing Papers, Privacy Threshold Analyses, Social Media Use Templates, and Contract Documents because they described specific means of deploying investigative techniques or techniques not generally known to the public.

For ICE, the court upheld Exemption 7(E) for redacted portions of records concerning the Visa Lifecycle Vetting Initiative, open-source and social-media exploitation, government posts using the initiative to track nonimmigrant visitors’ social media, and symbols used to identify particular terrorist groups on social media. The court found that the withheld material described specific means of deploying investigative techniques and could be used to circumvent law enforcement.

For USCIS, the court upheld Exemption 7(E) for redacted portions of guidance listing social-media questions asked of visa applicants under specific circumstances. It rejected the exemption for redactions on pages USCIS 1878 through 1885 of a presentation titled “Protecting the First Amendment in Social Media Research,” but upheld the exemption for redactions on pages USCIS 1886 through 1906. USCIS was ordered to reproduce pages 1878 through 1885 without redactions within 14 days.

Under Exemption 5’s deliberative-process privilege, the court upheld redactions in CBP Privacy Threshold Analyses because they discussed draft plans, policy recommendations, and pilot programs. It rejected the privilege for portions of CBP Issue Papers that merely listed the sub-agencies that reviewed a draft Social Media Strategy and did not describe the substance of the draft or the reviewers’ views. The court ordered CBP to remove specified redactions from CBP pages 2, 17, and 19 within 14 days, while allowing the remaining redactions in those documents because they discussed draft plans, recommendations, and pilot programs.

The court upheld the deliberative-process privilege for ICE redactions involving draft language for a potential contract, recommendations for an internal briefing paper about DHS’s use of Facebook data, and a draft policy concerning the Visa Lifecycle Vetting Initiative. For USCIS, it upheld the privilege for draft responses about a policy on using social-media information and for remaining redactions in procurement emails that appeared to contain agency officials’ opinions about policymaking and upcoming decisions. USCIS had already reprocessed and disclosed some previously redacted portions of the procurement emails.

The court upheld attorney-client privilege for a USCIS summary paper containing legal advice about constitutional issues that might arise from USCIS’s use of social media and for an email containing legal advice about First Amendment implications. It rejected attorney-client privilege for other portions of the procurement emails because those portions did not involve legal advice, although it upheld the remaining redactions there under the deliberative-process privilege.

The court found CBP’s Vaughn index—which identifies withheld documents, the claimed FOIA exemptions, and the reasons for withholding—generally unworkable because it used nonspecific, standardized explanations. However, after reviewing the documents privately, the court determined that CBP did not need to update the index before the court ruled.

Disposition

The court granted in part and denied in part the parties’ cross-motions for partial summary judgment. It ordered CBP and USCIS to produce specified documents or pages without particular redactions within 14 days. It upheld other redactions and withholdings under FOIA Exemptions 7(E) and 5. The order disposed of docket numbers 98 and 108.