Immigrant Defense Project v. United States Department of Homeland Security

Background

The Immigrant Defense Project and the Center for Constitutional Rights sued the Department of Homeland Security and United States Immigration and Customs Enforcement under the Freedom of Information Act, a federal law requiring disclosure of government records unless a specific exemption applies. Their request sought records about Operation Palladium, including policies and guidance, surveillance tactics, targeting procedures, communications with the New York Police Department, and New York Field Office worksheets.

After the lawsuit was filed, Immigration and Customs Enforcement made eight rolling productions totaling 1,274 pages. It also redacted or withheld records under Freedom of Information Act Exemptions 5, 6, 7(C), and 7(E). Only Immigration and Customs Enforcement’s Enforcement and Removal Operations and, after negotiations, Homeland Security Investigations conducted searches. The parties filed cross-motions for summary judgment, asking the court to decide whether the search was adequate and whether the claimed exemptions applied. The plaintiffs challenged the search and the claims under Exemptions 5 and 7(E); they did not challenge the claims under Exemptions 6 and 7(C) in their briefing.

Adequacy of the Search

The court held that Immigration and Customs Enforcement had not shown that its search was reasonably calculated to find all responsive records. The agency explained that Enforcement and Removal Operations searched because Operation Palladium was an Enforcement and Removal Operations initiative, but it did not explain why other offices were unlikely to have responsive records. In particular, the court held that the Office of Public Affairs should have been searched because the request broadly covered policies, memoranda, and guidance related to Operation Palladium, including records concerning public communication of those policies. The court also stated that Enforcement and Removal Operations Support and the Office of the Principal Legal Advisor would need to be searched unless the agency supplied sufficiently detailed explanations for not searching them.

The court separately found the search terms inadequate. Different divisions used different terms, and Immigration and Customs Enforcement did not explain why some offices searched for terms such as “surveillance tactics” while others did not. The agency also did not reasonably explain why it failed to search for “Cross Check” and “Sub Zero” in combination with terms related to ruses or surveillance, or why it could not use more targeted search strategies for terms it considered too broad. The agency also had to search “ERO surge” with other relevant terms.

The court approved Immigration and Customs Enforcement’s decision not to search for “Op Palladium” and “OP PALLADIUM.” The agency explained that searches for “Palladium” would produce the same or more records and that its searches were not case-sensitive. The court therefore ruled that the agency was not entitled to summary judgment concerning the challenged custodians and search terms, except for those two variations. The agency had to provide detailed justifications for its prior search procedures or conduct a new search.

Exemption 5

Exemption 5 protects certain interagency or intra-agency records that would ordinarily be protected in litigation, including material covered by the deliberative-process and attorney-client privileges.

For two emails, the court found that Immigration and Customs Enforcement had not adequately justified redactions under the deliberative-process privilege. The agency did not explain why the identities of seven Enforcement and Removal Operations field offices known as “surge sites” were predecisional or deliberative. It also did not show that redacted ranges for the number of special-agent-in-charge officers to be assigned were deliberative rather than factual or operative staffing information. A separate email describing how agents would be selected for upcoming operations and how they should update cases likewise appeared to communicate procedures for subordinates to apply, rather than protected policy deliberations. The agency had to update its Vaughn index—a document-by-document list explaining the claimed exemptions—or produce the redacted material, unless another exemption applied.

The court also found that Immigration and Customs Enforcement had not established the attorney-client privilege for redactions in the Enforcement and Removal Operations Fugitive Operations Handbook, the Office of the Principal Legal Advisor Fourth Amendment Refresher Training, and the New York and Newark Operation Palladium plans. The agency’s descriptions stated generally that the records contained legal guidance, but did not affirmatively establish that the communications were confidential when made and that confidentiality had been maintained. The court rejected the plaintiffs’ separate argument that the records were final agency policy or “working law,” finding that the record did not show that the documents had been adopted as binding policy or incorporated into formal decisions. The agency had to provide nonconclusory confidentiality explanations or produce the redacted portions, subject to other exemptions.

Exemption 7(E)

Exemption 7(E) protects law-enforcement records that disclose investigative techniques or procedures, or law-enforcement guidelines whose disclosure could reasonably be expected to risk circumvention of the law.

The court upheld the Exemption 7(E) redactions in the Fugitive Operations Handbook. The redacted material concerned law-enforcement systems, databases, identifiers, and processes for receiving and reviewing leads, using confidential informants, and locating and verifying the removability of noncitizens. The court found that these materials concerned law-enforcement methods and that Immigration and Customs Enforcement reasonably explained how disclosure could expose databases to manipulation or other attacks and help people evade enforcement.

The court did not uphold the agency’s existing explanations for the redactions in the Office of the Principal Legal Advisor Fourth Amendment Refresher Training, the Homeland Security Investigations Special Agent Training Surveillance Guide, or the email concerning special-agent-in-charge assignments to field offices. The descriptions of technologies, scenarios, surveillance activities, and tactics were too vague. Information about interacting with the public and handling social media and media coverage appeared to be public-facing, and the agency’s explanation that disclosure could help people counter enforcement operations was too general. The court likewise found that the email’s staffing numbers and surge-site locations were not shown to be law-enforcement techniques or procedures, and the agency had not adequately explained any risk of circumvention. Immigration and Customs Enforcement therefore had to provide more detailed explanations or produce the redacted portions, subject to other exemptions.

Disposition

The court granted in part and denied in part the plaintiffs’ motion for summary judgment and granted in part and denied in part the defendants’ motion for summary judgment. The parties were directed to meet and confer about new search terms, production schedules, and revised explanations or productions for the disputed records. They had to file a joint letter by February 27, 2023, reporting agreed dates or their separate positions. After the required productions, the parties could renew their summary-judgment motions. The clerk was directed to terminate the pending motions.