National Day Laborer Organizing Network v. United States Immigration and…

Background

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 a request under the Freedom of Information Act (FOIA) for records concerning the discontinued Priority Enforcement Program. 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. Other federal agencies and offices had previously been dismissed.

The defendants withheld many records, primarily under FOIA Exemption 5, which protects certain agency documents reflecting pre-decision policy discussions. In a September 14, 2020 decision, the court granted partial summary judgment to each side and reserved judgment on some records. The defendants later voluntarily released several records, and the court modified its earlier orders concerning others. The court then reviewed the remaining records privately, along with agency affidavits.

Legal standards

The court explained that the deliberative-process privilege protects agency records that are both pre-decisional—prepared to help an agency decision-maker reach a decision—and deliberative—related to the process of formulating policy. The privilege generally does not protect factual material or records concerning the explanation, interpretation, or application of an existing policy. Drafts may be protected when they contain deliberative edits or other markings showing the agency’s policy-development process.

The court also applied the FOIA Improvement Act of 2016. Under that law, an agency may withhold information covered by an exemption only when it reasonably foresees that disclosure would harm an interest protected by that exemption, unless disclosure is prohibited by law. For Exemption 5, the agency therefore had to explain how disclosure would harm its deliberative process.

Records the court ordered disclosed or partly disclosed

After in-camera review, the court ordered disclosure of non-deliberative material in several records:

- DHS Record No. 92: The email itself was properly withheld, but bolded-circle bullet points 1, 2, 3, 4, 7, and 8 in its attachment had to be disclosed. The attachment’s subsidiary open-circle bullet points remained protected. - DHS Record No. 124: The contested email text could be withheld, but the draft blog post had to be disclosed because it discussed past actions rather than future plans, and the agency had not shown that later changes made it nonfinal. - ICE Record No. 17: The entire record had to be produced because it concerned applying the existing Priority Enforcement Program rather than developing new policy. - ICE Record No. 29: Most of the record had to be produced. The section titled “Discussion Points” could be withheld under Exemption 5, and narrow redactions under FOIA Exemptions 6 and 7 were permitted. - ICE Record No. 30: The record had to be produced with only a bold bullet point at the top of the first page withheld under Exemption 5 and limited redactions under Exemptions 6 and 7. - ICE Record No. 46: The entire record had to be produced because it concerned explaining, interpreting, or applying the existing Priority Enforcement Program, and the agency had not shown that the letter versions contained final-language changes, redlines, or other markups supporting withholding. - DHS Record Nos. 1, 3, and 4: These records had to be produced in full because the court found that they did not contain the required markup to qualify as protected drafts.

Records the court allowed defendants to withhold

The court upheld full withholding of DHS Record Nos. 104, 122, and 123 under the deliberative-process privilege. It also upheld full withholding of DHS Record Nos. 12, 13, 25, and 125 after reviewing the records and an affidavit explaining that disclosure could chill pre-decisional discussions and recommendations and reduce candor within the agencies.

The court treated ICE Record Nos. 41, 42, 50, 51, 52, and 83 the same way and held that they could be withheld in full under the deliberative-process privilege because they were substantially similar to the DHS records.

The court also upheld withholding of CBP Record No. 4, a draft of forms, after finding persuasive the agency’s explanation that disclosure could chill written exchanges of draft materials and related discussions. It upheld withholding of DHS Record Nos. 21, 22, 23, 24, 27, 44, and 94 because they were iterative drafts or related correspondence concerning forms implementing the Priority Enforcement Program, and disclosure could inhibit frank discussion of policy alternatives.

The court held that DHS Record Nos. 14, 15, 16, and 100 contained markups on their face and therefore could be withheld as drafts under Exemption 5. It likewise held that CBP Record No. 3 could be withheld as a draft after in-camera review.

Disposition

The opinion stated that these rulings resolved all outstanding questions regarding plaintiffs’ FOIA request. Judge Paul A. Engelmayer directed the Clerk of Court to close the case.