Knight First Amendment Institute at Columbia University v. Department of…

Background

After Executive Order 13,780 directed federal agencies to develop a more robust vetting program for visa applicants and refugees, Knight First Amendment Institute at Columbia University submitted Freedom of Information Act (FOIA) requests seeking information about considering individuals’ speech, beliefs, or associations in immigration determinations. One request to Immigration and Customs Enforcement (ICE) sought communications about those issues. ICE initially released 13 pages and withheld 1,653 pages in full, then conducted additional searches and released or referred additional records.

The plaintiff claimed that the agencies’ searches were inadequate and that the agencies improperly withheld records under FOIA exemptions. In earlier summary-judgment rulings, the court held that ICE’s searches were inadequate; that the Office of Legal Counsel’s searches were adequate; that the Department of State (DOS) could withhold documents under FOIA Exemption 5 but not Exemption 7(E); and that ICE and U.S. Citizenship and Immigration Services (USCIS) properly relied on exemptions for some portions of records but improperly withheld other portions.

Motion for reconsideration

The defendants sought clarification and reconsideration of those earlier rulings. They challenged the finding that ICE’s searches were inadequate, asked which USCIS materials were improperly withheld under Exemption 7(E), and asked whether DOS and USCIS could submit additional materials supporting their withholdings instead of immediately producing the records. They did not ask the court to reconsider its determination that DOS and USCIS had failed to justify adequately certain Exemption 7(E) withholdings, but they sought reconsideration if the earlier orders required immediate production.

Under Local Rule 6.3, reconsideration is an extraordinary remedy generally limited to an intervening change in controlling law, newly available evidence, or a need to correct clear error or prevent manifest injustice. The court explained that reconsideration is not a chance to present new theories or take a second opportunity to make the same case.

ICE’s search

The court denied reconsideration of its finding that ICE’s search was inadequate. The defendants correctly pointed out that a supplemental declaration from Toni Fuentes described searches by ICE’s Immigration Law and Practice Division and National Security Law Section. Those searches used terms including “endorse,” “espouse,” “speech,” “beliefs,” “association,” “foreign policy,” and certain statutory and reference numbers.

The court acknowledged that this information made ICE’s overall search more adequate than the earlier opinion had recognized. It still found the search inadequate for several reasons. The search terms were less comprehensive than those used by the Office of Legal Counsel and DOS, did not cure deficiencies in searches by ICE’s Office of the Director and Enforcement and Removal Operations, and did not justify why ICE’s Enforcement and Removal Operations Law Division was not searched.

The court also found that the supplemental declaration did not adequately explain how ICE handled the administrative remand or how it decided where to look when narrowing the search. ICE had conducted its searches before the administrative remand was requested, and its description of the narrowing process explained the physical steps taken but not how decisions were made about where to search, including whether email attachments should be reviewed. The court therefore denied reconsideration as to the adequacy of ICE’s searches.

DOS records

DOS had withheld sections of its Foreign Affairs Manual under FOIA Exemption 7(E). The court explained that its earlier order required DOS to turn over those disputed sections promptly because the information provided did not establish that the exemption applied. The court said that a later instruction requiring supplemental submissions was not inconsistent with that production order; the later instruction required compliance with the opinion’s directives, including production of the improperly withheld DOS material.

USCIS records

USCIS had withheld 256 pages and 33 PowerPoint slides under Exemption 7(E). The plaintiff challenged, among other things, information concerning questions immigration officers should ask to determine whether applicants had terrorism-related bars to admission and information concerning whether applicants qualified for exemptions from those bars.

The court clarified that “TRIG Questions” meant the questions and follow-up questions designed to obtain information about whether applicants had ties to terrorist organizations and activities. “TRIG Exemptions” meant the criteria USCIS used to evaluate applicants’ answers. The court held that the exemption criteria were internal agency information that could be protected, while the questions were shared with applicants and were not properly withheld under Exemption 7(E).

The court further clarified that its earlier order intended USCIS to turn over the improperly withheld TRIG Questions. It rejected the defendants’ request for supplemental submissions or an in-camera review, meaning the court’s private review of the disputed records. The court found that it had enough information to decide whether the exemption applied and that the defendants had shown no intervening change in law, new evidence, or clear error warranting reconsideration.

Disposition

Judge Andrew L. Carter, Jr. denied the defendants’ motion for reconsideration in full. The order maintained the prior findings concerning ICE’s inadequate search, DOS’s obligation to produce the disputed Foreign Affairs Manual sections, and USCIS’s obligation to produce the improperly withheld TRIG Questions while permitting withholding of the TRIG exemption criteria.