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 requests under the Freedom of Information Act (FOIA), a federal law providing access to government records. They sought records from seven federal agencies concerning social-media surveillance, including policies, surveillance technology, communications with businesses and platforms, and the use of social-media information in algorithmic or predictive systems. The requests also concerned monitoring and retaining immigrants’ and visa applicants’ social-media information for “extreme vetting” or “visa lifecycle vetting.”

After the agencies allegedly did not respond as FOIA required, the plaintiffs filed this case to compel production. The agencies later produced records, including documents from U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS), but withheld or redacted portions of some records. The parties filed cross-motions for partial summary judgment. Summary judgment is a decision entered when the court finds that no genuine dispute of important fact requires a trial and that one side is entitled to judgment under the law.

FOIA Exemption 7(E)

FOIA Exemption 7(E) permits withholding certain law-enforcement records when disclosure would reveal investigative techniques or procedures, or—in the case of guidelines—could reasonably be expected to risk circumvention of the law. After reviewing the records privately, the court upheld Exemption 7(E) redactions in several CBP records, including issue papers, social-media papers, privacy threshold analyses, social-media-use templates, and contract documents. The court also upheld redactions in ICE records concerning visa lifecycle vetting, government posts using that initiative, and symbols used to identify specific terrorist groups on social media.

The court likewise upheld Exemption 7(E) redactions in USCIS guidance containing questions asked of visa applicants in particular circumstances and in a document concerning social-media research. But the court held that Exemption 7(E) did not apply to redacted portions of CBP’s Policy on Operational Use of Social Media because those portions described authorization procedures and were not reasonably expected to risk circumvention of the law. CBP was ordered to reproduce that policy without those redactions within 14 days.

FOIA Exemption 5 and the deliberative-process privilege

FOIA Exemption 5 covers certain interagency or intra-agency communications that would ordinarily be protected in civil litigation. The court applied the deliberative-process privilege—a protection for predecisional materials reflecting agency recommendations, drafts, and policy discussions—to portions of CBP privacy threshold analyses, issue papers, ICE contract and tasking-request emails, an ICE draft policy document, and USCIS emails concerning draft policy responses and policy decisions.

The court rejected the privilege for portions of three CBP issue papers that identified sub-agencies involved in reviewing a draft social-media strategy. The government did not explain why disclosure of those participants’ identities would discourage candid agency discussion, and the information did not itself reveal the draft’s content or the personal opinions of particular officials. CBP was ordered to remove the specified redactions from CBP 2, CBP 17, and CBP 19. The privilege continued to apply to the remaining redacted portions of those documents.

The court also held that the attorney-client privilege, which protects confidential communications seeking or providing legal advice, applied to a USCIS summary paper discussing potential constitutional issues and to a USCIS email about First Amendment implications. The privilege did not apply to USCIS 1711–12 because those emails did not contain legal advice, although the court held that the remaining redactions in those emails were protected by the deliberative-process privilege. USCIS had already reprocessed and disclosed previously redacted portions of those emails.

CBP’s Vaughn index and disposition

A Vaughn index is an agency’s document-by-document explanation of what it withheld and why. The court found CBP’s index “unworkable” because it used repeated, nonspecific explanations. However, after conducting an in-camera review—private review by the judge—the court concluded that it could resolve the parties’ disputes without requiring CBP to revise the index.

The court granted in part and denied in part the parties’ cross-motions for partial summary judgment. It ordered production of specified unredacted documents within 14 days and stated that the order disposed of Docket Nos. 98 and 108.