National Day Laborer Organizing Network v. United States Immigration and…
National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement
- Paul Engelmayer
- 1:16-cv-00387
- U.S. District Court · Southern District of New York
- 42
National Day Laborer v. ICE: Judge Engelmayer granted partial summary judgment to both sides, ordering some records released, upholding some withholdings, and reserving others.
The three plaintiff organizations and the federal agencies were directly affected: the agencies were ordered to release some Priority Enforcement Program records, were permitted to continue withholding others, and had to provide additional records or explanations for the remaining disputed materials.
What happened
National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement involved requests by three organizations for federal records about the discontinued Priority Enforcement Program, an immigration-enforcement program. The organizations sued under the Freedom of Information Act after agencies withheld records.
The organizations argued that the agencies improperly withheld the records, while the agencies relied mainly on a protection for government discussions made while developing policy. The court reviewed whether the claimed protection applied and whether the agencies explained specific harm that disclosure would cause.
Judge Paul A. Engelmayer granted partial summary judgment to the organizations and partial summary judgment to the agencies. He ordered many records released, upheld the withholding of others, and required the agencies to submit additional records and explanations for private court review before the remaining issues could be decided.
The detailed version
- National Day Laborer Organizing Network v. United States Immigration and… · No. 1:16-cv-00387
- Paul Engelmayer
- Sept. 14, 2020
Background
The plaintiffs—National Day Laborer Organizing Network, Asian Americans Advancing Justice – Asian Law Caucus, and the Immigration Clinic of the Benjamin N. Cardozo School of Law—submitted Freedom of Information Act requests concerning the Priority Enforcement Program. The program had replaced the Secure Communities program and was later discontinued. The remaining defendants were U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, the U.S. Department of Homeland Security, and the Department of Homeland Security’s Office of Civil Rights and Civil Liberties.
The parties’ remaining dispute concerned records that the agencies withheld under Freedom of Information Act Exemption 5. That exemption can protect certain internal government communications, including communications covered by the deliberative-process privilege, attorney-client privilege, or work-product doctrine. The deliberative-process privilege generally covers material prepared before an agency decision and reflecting the agency’s policy-development discussions, but it does not generally cover factual material or material explaining, interpreting, or carrying out an existing policy.
Court’s analysis
The court rejected almost all of Immigration and Customs Enforcement’s claims that 13 records were protected by attorney-client privilege. It found that the agency’s descriptions generally did not establish that the records contained confidential legal advice. The court recognized an exception for attorney comments about legal considerations in ICE Record No. 6. The court also rejected the agency’s work-product claim because the agency had not shown that the records were prepared because of a particular expected lawsuit rather than as part of ordinary program implementation.
The court held that several records about proposed civil-rights monitoring policies were covered by the deliberative-process privilege, but found that the agencies had not adequately addressed the Freedom of Information Act’s separate foreseeable-harm requirement. That requirement permits withholding only when the agency reasonably foresees harm to an interest protected by an exemption, unless disclosure is prohibited by law.
The court ruled that many records involving the implementation, explanation, or communication of the Priority Enforcement Program were not protected by the deliberative-process privilege. These included various talking points, factual records, implementation materials, and records about existing policy. The court also held that some drafts containing redline edits, comment bubbles, proposed agreements, unfinished forms, or competing policy options were properly protected because they reflected internal policy development. The court declined to treat every document labeled “draft,” “deliberative,” or “attorney-client communication” as protected based solely on that label.
Disposition
The opinion states that the cross-motions for summary judgment were granted in part and denied in part. In the conclusion, the court granted partial summary judgment to the plaintiffs and ordered the defendants to produce specified DHS and ICE records in full within 30 days. The court granted partial summary judgment to the defendants and upheld withholding of specified DHS and ICE records.
The court reserved decision on additional records. It ordered the defendants to submit certain records to the court under seal for in camera review, meaning private review by the judge, and to provide affidavits or revised indexes explaining the specific harm that disclosure would cause. It also ordered sworn statements about whether certain records contained redlines or other markup. The court terminated the pending motions at docket numbers 164 and 173.
Read the full 42-page opinion on CourtListener, the free public archive maintained by the Free Law Project.