Judicial Watch, Inc. v. United States Department of Homeland Security , 841 F. Supp. 2d 142 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
"' civil A¢rion No. i i-00604 (CKK)
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
(January 27, 2012)
Judicial Watch, Inc. ("Judicial Watch") brings this Freedom of Information Act ("FOIA")
action against the United States Department of Homeland Security ("DHS"), seeking the
disclosure of records relating to recent changes in federal immigration enforcement priorities and
their implementation in Houston, Texas. Currently before the Court is DHS’s [12/13] Motion for
Summary Judgment. Upon careful consideration of the parties’ submissions, the relevant
authorities, and the record as a whole, the Motion shall be GRANTED-IN-PART and DENIED-
IN-PART.
I. BACKGROUND
This action has its origins in a national policy issued by United States Immigration and
Customs Enforcement ("ICE"), a component and an investigative arm of DHS, and the
subsequent response of the Houston ICE Office to that policy.
A. F actual Background
On June 3, ZOlO, John Morton ("Morton"), the Assistant Secretary of ICE located in
Washington, D.C., distributed a four-page memorandum to all ICE employees concerning civil
immigration enforcement priorities for the apprehension, detention, and removal of aliens (the
"June 2010 National Policy Memorandum"). Def.’s Stmt. of Material Facts as to Which There ls
No Genuine Issue ("Def.’s Stmt."), ECF No. [l3-5], ll l.l The June 2010 National Policy
Memorandum provides, in part:
ln addition to our important criminal investigative responsibilities,
lCE is charged with enforcing the nation’s civil immigration laws.
This is a critical mission and one with direct significance for our
national security, public safety, and the integrity of our border and
immigration controls. lCE, however, only has resources to remove
approximately 400,000 aliens per year, less than 4 percent of the
estimated illegal alien population in the United States. ln light of
the large number of administrative violations the agency is charged
with addressing and the limited enforcement resources the agency
has available, ICE must prioritize the use of its enforcement
personnel, detention space, and removal resources to ensure that
the removals the agency does conduct promote the agency’s
highest enforcement priorities, namely national security, public
safety, and border security.
DHSOO0l .2 The memorandum then proceeds to identify three enforcement priorities: (l)
"[a]liens who pose a danger to national security or a risk to public safety," (2) "[r]ecent illegal
entrants," and (3) "[a]liens who are fugitives or otherwise obstruct immigration controls."
DHSOOOl-OOOZ. However, the memorandum includes the following proviso: "[n]othing in this
memorandum should be construed to prohibit or discourage the apprehension, detention, or
removal of other aliens unlawfully in the United States," DHSOOO3-in other words, those aliens
falling outside the three categories of "higher priority" targets. The memorandum addresses the
role of prosecutorial discretion in balancing enforcement priorities, providing that "[t]he rapidly
1 ln its responsive statement of material facts, J udicial Watch admits the truth of each of the
factual allegations proffered by DHS and then proceeds to adduce two additional allegations of
its own that are, in actuality, nothing more than legal assertions. See Pl.’s Stmt. of Material Facts
as to Which There ls a Genuine Issue and Dispute Filed in Opp’n to Def’s Mot. for Summ. J.,
ECF No. [14].
2 DHS’s partial production of documents to Judicial Watch is Bates-stamped DHSOOOl through
DHS0237 and is part of the record before the Court. See FOlA Release, ECF No. [l3-l].
2
increasing number of criminal aliens who may come to lCE’s attention heightens the need for
ICE employees to exercise sound judgment and discretion consistent with these priorities when
conducting enforcement operations, making detention decisions, making decisions about release
on supervision . . . , and litigating cases." DHS0004.
Gary Goldman ("Goldman") is the Chief Counsel of the Office of Chief Counsel within
the Houston lCE Office ("OCC Houston"), one of twenty-six field offices around the country
that litigate cases in immigration court, counsel ICE operational clients, and provide direction
and support to United States Attorneys’ Offices. Def.’s Stmt. 111 7, 38. On August 12, 2010,
Goldman issued a four-page memorandum to all attorneys in OCC Houston concerning the
exercise of prosecutorial discretion in his office (the "August 12, 2010 Memorandum"). Id. 11 7.
Goldman’s memorandum begins by stating that "every attorney must determine whether [a] case
may be amenable to the exercise of prosecutorial discretion (PD) pursuant to guidelines outlined
in the [June 2010 National Policy Memorandum]." DHS0009. lt then proceeds to direct
attorneys in OCC Houston to "file a Motion to Dismiss Proceedings . . . in clear [prosecutorial
discretion] cases," id., and includes a model to use in such proceedings, DHS0013-0016. The
memorandum also describes a process for the review of pending cases in the office, stating that
"[t]he goal of this attorney-wide tasking is to improve the overall efficiency of the removal
process by ensuring the only cases [OCC Houston] litigate[s] fall within the parameters of the
[June 2010 National Policy Memorandum]." DHS0012.
Goldman issued a supplemental two-page memorandum to OCC Houston attorneys on
August 16, 2010 (the "August 16, 2010 l\/Iemorandum"). Def.’s Stmt. 11 12. Observing that the
June 2010 National Policy Memorandum altered the landscape for enforcement priorities, the
August 16, 2010 Memorandum identifies the need for "guidance as we strive to ensure
consistency in the application of and compliance with prosecutorial discretion policy."
DHS0017. After identifying "case-specific questions," the memorandum provides:
The answer to these questions and many others may be the same.
We have been empowered with independent authority to exercise
prosecutorial discretion. We work not in a world of black and
white but one of many shades of grey. This is the beauty of
prosecutorial discretion. We do strive for consistency in
application of process but the agency does not want to stifle our
independent authority to exercise sound judgnent in matters of
prosecutorial discretion.
DHS0018. The memorandum counsels that OCC Houston "must be selective in pursuing cases
to ensure [its] prosecutions focus on cases of national security, public safety, criminal aliens and
the other classes of ICE Priority cases." DHS0017.
On August 20, 2010, Morton issued a second national policy memorandum offering new
guidance on how to handle removal proceedings involving aliens with applications or petitions
before United States Citizenship and lmmigration Services (the "August 2010 National Policy
Memorandum"). Def.’s Stmt. 11 15. The memorandum outlines a framework for the expedited
disposition of such removal proceedings, including their potential dismissal. DHS0023. lt
specifies that only removal cases meeting four criteria should be considered for potential
dismissal: (l) the alien must be the subject of an application or petition for adjustment of status;
(2) the alien must appear eligible for relief as a matter of law and in the exercise of discretion;
(3) the alien, if required, must present a completed application to register permanent residence or
adjust status; and (4) the alien must be eligible for adjustment of status. DHS0025. Even if an
alien meets those criteria, the memorandum provides that "lCE may oppose relief on the basis of
discretion." Id,
On August 24, 2010, Goldman distributed the August 2010 National Policy
Memorandum to his staff in OCC Houston via e-mail. Def.’s Stmt. 11 18. Goldman identified the
memorandum as "an agency priority" and simultaneously withdrew his own August 12, 2010
and August 16, 2010 Memoranda. DHS0028. According to the e-mail, "[e]ffective
immediately," OCC Houston’s "affirmative efforts regarding prosecutorial discretion [were] to
focus on the class of cases outlined in the [August 2010 National Policy Memorandum]." Id.
On August 25, 2010, Riah Ramlogan, the Director of Field Legal Operations in lCE’s
Office of the Principal Legal Advisor ("OPLA")3 sent a memorandum to Goldman addressing
his interpretation of the June 2010 National Policy l\/lemorandum, as reflected in his August 12,
2010 and August 16, 2010 Memoranda. Def.’s Stmt. 11 21. The memorandum provides:
l understand that your office has implemented the memoranda you
issued by terminating each case it identified that did not
correspond to one or more of the three priorities identified in [the
June 2010 National Policy Memorandum]. However, your
implementation overlooks a key provision of that guidance, which
makes clear that . . . lCE shall continue enforcing the law against
other aliens as well. * * * Your approach that our attorneys
should only litigate cases within the agency’s highest priorities is
not an accurate interpretation of the Assistant Secretary’s guidance
and is not consistent with agency policy.
DHS0029. Goldman was asked to rescind his August 12, 2010 and August 16, 2010
Memoranda. Ia'.
Goldman later responded by informing OPLA that he had already rescinded his August
12, 2010 and August 16, 2010 Memoranda, DHS0030, and explained that his "goal . . . was to
improve the efficiencies of the removal process by utilizing [OCC Houston’s] resources to
ensure that the removals the agency does conduct promote the agency’s highest enforcement
priorities, namely national security, public safety, and border security," DHS0032.
3 OPLA provides legal advice, training, and services to support lCE’s mission and defends the
federal government’s interests in administrative and federal courts. Def.’s Stmt. 11 37.
5
B. Procedural Background
Judicial Watch submitted a FOlA request to DHS on August 30, 2010, seeking an array
of records concerning the review and potential dismissal of pending immigration cases in
Houston, Texas. Def.’s Stmt. 11 25. DHS acknowledged receipt of the request and subsequently
conducted a thorough search for responsive records. Id. 1111 26-36, 39-46.
Judicial Watch commenced this action on March 23, 2011. See Compl., ECF No. [1].
On May 27, 2011, DHS released 237 pages of spreadsheets, memoranda, and correspondence to
Judicial Watch, releasing 46 pages in full and releasing 191 pages in part. Def.’s Stmt. 1111 48,
50-51. As a basis for its partial withholding decisions, DHS cited FOlA Exemptions 5, 6, and
7(C). Id. 11 51. DHS did not withhold any records in full. ld. 11 49.
DHS filed the pending Motion for Summary Judgrnent on August 4, 2011. See Mem. of
P. & A. in Supp. of Def.’s Mot. for Summ. J. ("Def.’s Mem."), ECF No. [13]. lncluded with
DHS’s Motion is an itemized index correlating each document with a specific exemption and the
justification for non-disclosure, see Def’s Vaughn4 lndex, ECF No. [13-4], as well as a
declaration from the Deputy FOlA Officer in lCE’s FOlA Office, see Decl. of Ryan Law ("Law
Decl."), ECF No. [13-2]. Judicial Watch filed its opposition on August 26, 2011. See Pl.’s
Mem. of Law in Opp’n to Def.’s Mot. for Summ. J. ("Pl.’s Opp’n"), ECF No. [14]. Judicial
Watch elected not to cross-move for summary judgment DHS filed its reply on September 16,
201l. See Def.’s Reply Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. ("Def.’s Reply"),
ECF No. [15]. Accordingly, the motion is fully briefed and ripe for adjudication. ln an exercise
of its discretion, the Court finds that holding oral argument would not be of assistance in
rendering a decision. See LCVR 7(f).
4 The reference is to the United States Court of Appeals for the District of Columbia’s decision
in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. a'enied, 415 U.S. 977 (1974).
6
II. LEGAL STANDARD
Congress enacted FOlA to "pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny." Dep ’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)
(quotation marks omitted). However, Congress remained sensitive to the need to achieve
balance between these objectives and the potential that "legitimate governmental and private
interests could be hanned by release of certain types of information." Critz``cal Mass Energy
Project v. Nuclear Regulatory Comm ’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (quotation
marks omitted), cert. a’enied, 507 U.S. 984 (1993). To this end, FOlA "requires federal agencies
to make Government records available to the public, subject to nine exemptions for categories of
material." Milner v. Dep ’t ofNai/y, _ U.S. 131 S. Ct. 1259, 1261-62 (2011). Despite the
availability of such exemptions, "disclosure, not secrecy, is the dominant objective of the act."
Rose, 425 U.S. at 361. For this reason, the "exemptions are explicitly made exclusive, and must
be narrowly construed." Mz``lner, 131 S. Ct. at 1262 (quotation marks and citation omitted).
Summary judgment is proper when the pleadings, the discovery materials on file, and any
affidavits or declarations "show[] that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). When presented with a
motion for summary judgment in this context, the district court must conduct a "de novo" review
of the record, 5 U.S.C. § 552(a)(4)(B), which "requires the court to ascertain whether the agency
has sustained its burden of demonstrating that the documents requested . . . are exempt from
disclosure," Assassination Archives & Research Ctr. v. Cent. Intellz``gence Agency, 334 F.3d 55,
57 (D.C. Cir. 2003) (quotation marks omitted). "Consistent with the purpose of the Act, the
burden is on the agency to justify withholding requested documents," Beck v. Dep ’t of Justz``ce,
997 F.2d 1489, 1491 (D.C. Cir. 1993), and only after an agency has proven that "it has fully
discharged its disclosure obligations" is summary judgment appropriate, Weisberg v. U.S. Dep ’t
of Justz``ce, 705 F.2d 1344, 1350 (D.C. Cir. l983). ln ascertaining whether the agency has met its
burden, the district court may rely upon agency affidavits or declarations. Military Audit Project
v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). "lf an agency’s affidavit describes the
justifications for withholding the information with specific detail, demonstrates that the
information withheld logically falls within the claimed exemption, and is not contradicted by
contrary evidence in the record or by evidence of the agency’s bad faith, then summary judgment
is warranted on the basis of the affidavit alone." Am. Civil Liberties Union v. U.S. Dep ’t of Def ,
628 F.3d 612, 619 (D.C. Cir. 2011). ln other words, "[u]ncontradicted, plausible affidavits
showing reasonable specificity and a logical relation to the exemption are likely to prevail."
Ancient Coz``n Collectors Guild v. U.S. Dep ’l ofState, 641 F.3d 504, 509 (D.C. Cir. 201 1).
III. DISCUSSION
The parties’ dispute here is a narrow one. Judicial Watch challenges only DHS’s reliance
upon FOlA Exemption 5 as a basis for withholding information from the spreadsheets,
memoranda, and correspondence responsive to its request for records.$ Exemption 5 protects
"inter-agency or intra-agency memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Over the years,
it has been construed as protecting "those documents, and only those documents, normally
privileged in the civil discovery context." Nat ’l Labor Relations Bd. v. Sears, Roebuck & Co.,
421 U.S. 132, 149 (1975). lt provides protection to "materials which would be protected under
the attomey-client privilege, the attorney work-product privilege, or the executive ‘deliberative
5 Judicial Watch does not contest the adequacy of DHS’s search for records or the agency’s
reliance upon Exemptions 6 and 7(C) as a basis for non-disclosure. See Def.’s Mem. at 7; Pl.’s
Opp’n at 6 n.2.
process’ privilege." Coastal States Gas Corp. v. Dep ’t of Energy, 617 F.2d 854, 862 (D.C. Cir.
1980) (citations omitted).
Under the federal common law, the proponent bears the burden of demonstrating the
applicability of any asserted privilege. In re Subpoena Duces Tecum Issued to Commodity
Futures Traa’z``ng Comm ’n, 439 F.3d 740, 750 (D.C. Cir. 2006). The nature of that burden is
clear: the proponent must establish the claimed privilege with "reasonable certainty." Fed.
Trade Comm ’n v. TRW, Inc., 628 F.2d 207, 213 (D.C. Cir. 1980). To do so, the proponent must
adduce competent evidence in support of "each of the essential elements necessary to support a
claim of privilege." Alexander v. Fea'. Bureau of Investigatz``on, 192 F.R.D. 42, 45 (D.D.C.
2000). Consistent with these strictures, the proponent "must offer more than just conclusory
statements, generalized assertions, and unsworn averments of its counsel." In re Application of
Veiga, 746 F. Supp. 2d 27, 34 (D.D.C. 2010). Where the proponent fails to adduce sufficient
facts to permit the district court to conclude with reasonable certainty that the privilege applies,
its burden has not been met. TRW, 628 F.2d at 213.
ln this case, DHS relies on three recognized privileges: (l) the attomey-client privilege;
(2) the work product doctrine; and (3) the "deliberative process" privilege. The Court addresses
each privilege in turn.
A. T he Altorney-Clz'ent Privz'lege
"The attomey-client privilege protects confidential communications from clients to their
attorneys made for the purpose of securing legal advice or services," as well as "communications
from attorneys to their clients if the communications rest on confidential information obtained
from the client." T ax Analysts v. Internal Revenue Serv., 117 F.3d 607, 618 (D.C. Cir. 1997)
(quotation marks omitted). "ln the governmental context, the ‘client’ may be the agency and the
attomey may be the agency lawyer." Ia'.
ln order to demonstrate the applicability of the privilege, the proponent must establish
each of the following essential elements: (l) the holder of the privilege is, or sought to be, a
client; (2) the person to whom the communication is made is a member of the bar or his
subordinate and, in connection with the communication at issue, is acting in his or her capacity
as a lawyer; (3) the communication relates to a fact of which the attorney was informed by his
client, outside the presence of strangers, for the purpose of securing legal advice; and (4) the
privilege has been claimed by the client. In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984).
Additionally, a "fundamental prerequisite to the assertion of the privilege" is "confidentiality
both at the time of the communication and maintained since." Coastal States, 617 F.2d at 863;
accord Fea’. Trade Comm ’n v. GlaxoSmz``thKlz``ne, 294 F.3d 141, 146 (D.C. Cir. 2002).
J udicial Watch contests DHS’s reliance on the attorney-client privilege as a basis for
withholding information from a total of seventeen documents_specifically, DHS0010,
DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063, DHS0064,
DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082,
DHS0085, DHS0093, and DHS0112. See Pl.’s Opp’n at 11. Judicial Watch contends that
DHS’s showing suffers from a fatal defect because "[n]owhere . . . does [DHS] specify that the
withheld information was not also shared at some point with third parties." Id. The Court
agrees. DHS, as the proponent of the attorney-client privilege, bears the burden of "affirmatively
establish[ing] confidentiality." Coaslal States, 617 F.2d at 863; see also Def.’s Reply at 9
(conceding that the agency must show that it was "reasonably careful to keep [the] confidential
information protected from general disclosure.") (quotation marks omitted). However, DHS’s
10
submissions fail to provide any basis for this Court to find that the confidentiality of the
communications at issue has been maintained. Coastal States, 617 F.2d at 863. True, DHS’s
Vaughn Index and agency declaration recite other elements of the attorney-client privilege, but
they do not speak of confidentiality in connection with the information withheld from J udicial
Watch, even in conclusory terms.é See Def.’s Vaughn Index at 1, 3, 5-17; Law Decl. 11 34. ln the
final analysis, FOlA places the burden on the agency to prove the applicability of a claimed
privilege, and this Court is not free to assume that communications meet the confidentiality
requirement.7 Meaa’ Data Cent., Inc. v. U.S. Dep ’t of Air Force, 566 F.2d 242, 254 (D.C. Cir.
1977). To the extent DHS intends to rely on the attorney-client privilege as a basis for non-
disclosure, it must affirmatively show confidentiality. The Court shall not prejudge what form
that showing must take, other than to say that DHS must adduce competent evidence establishing
"confidentiality both at the time of the communication and maintained since." Coastal States,
617 F.2d at 863.
But there is a more far-reaching problem with DHS’s showing, one that effectively
prevents the Court from concluding that the agency has "fully discharged its disclosure
obligations." Weisberg, 705 F.2d at 1350. ln identifying its justification for withholding
information pursuant to the attorney-client privilege, DHS’s Vaughn Index simply parrots
selected elements of the attorney-client privilege. Almost without exception, DHS asserts,
without further elaboration, that "the attorney-client privilege appl[ies] because this document
was created by agency attorneys . . . to provide legal analysis and advice." Nor does cross-
6 The Court does not credit the unsworn averments of DHS’s counsel.
7 That is especially true where, as here, an agency cites the attorney-client privilege as a basis
for withholding communications running from the attorney to the client, which are eligible for
protection only if they rest on confidential information obtained from the client. See T ax
Analysts, 117 F.3d at 618.
ll
referencing DHS’s separate declaration elucidate matters further There, in a single,
unilluminating paragraph, DHS’s declarant broadly asserts that "communications between an
[sic] ICE attorneys and ICE employees" have been withheld and that "[t]he communications
consisted of an attorney or employee providing information for the purpose of seeking legal
advice and counsel rendering advice." Law Decl. jj 34. Even when situating these descriptions
within the context of DHS’s partial production, "the descriptions of the documents are so brief
and of such a general nature that they fail to give the court any basis for determining whether the
privilege was properly invoked." Alexana'er, 192 F.R.D. at 45.
Three of the more egregious examples will illustrate the problem. First, DHS0057 is a
one-page memorandum to Goldman from his Deputy Chief Counsel in OCC Houston. Apart
from the subject line, which reads "Prosecutorial Discretion," everything substantive has been
redacted from the document. Neither DHS’s Vaughn Index nor its agency declaration provide
any meaningful context, leaving the Court with what amounts to little more than a conclusory
claim of privilege. Second, DHS0058-0059 is a two-page excerpt from OCC Houston’s
Procedural Manual addressing the exercise of prosecutorial discretion. DHS does not even
identify the author(s) and recipient(s), let alone explain the circumstances surrounding the
communication. Under these circumstances, the Court cannot meaningfully judge whether the
privilege applies. Third, and finally, DHS0064 is a one-page e-mail from Goldman to
approximately two dozen recipients, the identities of the vast majority of which are left unstated.
The subject line of the e-mail reads, "Notes from Leadership meeting," and the first line of the
body states, "This is how the various presenters presented their messages to us." The remainder
of the message has been redacted and DHS’s Vaughn Index and agency declaration provide no
12
further context, again leaving the Court with what effectively amounts to a conclusory claim of
privilege.
ln the end, DHS’s generalized and non-specific showing fails to satisfy the Court that the
attorney-client privilege has been properly invoked in connection with the information withheld
from Judicial Watch. For this reason, the Court shall DENY DHS’s [12/13] Motion for
Summary Judgment insofar as it seeks a ruling that information has been appropriately withheld
from DHS0010, DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062,
DHS0063, DHS0064, DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080~
0081, DHS0082, DHS0085, DHS0093, and DHS0112 on the basis of the attorney-client
privilege.
Where, as here, an agency’s descriptions fail to affirmatively establish each of the
essential elements of the claimed privilege, the district court has the discretion to order
disclosure or to afford the agency an additional opportunity to fully discharge its burden. In this
case, the Court is mindful that J udicial Watch has not cross-moved for summary judgment and,
even based on the limited record now before the Court, it appears that DHS likely has viable
privilege claims to assert in this action. Accordingly, the Court shall exercise its discretion to
permit DHS a further and final opportunity to establish the applicability of the attomey-client
privilege to the information withheld from J udicial Watch.
B. T he Work Product Doctrine
The work product doctrine protects materials "prepared in anticipation of litigation or for
trial by or for another party or its representative (including the other party’s attorney, consultant,
surety, indemnitor, insurer, or agent)." FED. R. CIV. P. 26(b)(3)(A). ln assessing whether the
proponent has carried its burden, the relevant inquiry is "whether, in light of the nature of the
document and the factual situation in the particular case, the document can fairly be said to have
13
been prepared or obtained because of the prospect of litigation." Equal Emp ’t Opportunz``ty
Comm ’n v. Lutheran Soc. Servs., 186 F.3d 959, 968 (D.C. Cir. 1999) (quotation marks omitted).
This inquiry encompasses two related but distinct concepts-<)ne a question of timing and the
other a question ofintent. U.S. ex rel. Fago v. M& TMortg. Corp., 242 F.R.D. 16, 18 (D.D.C.
2007). The former, the temporal element, asks whether there was "a subjective belief that
litigation was a real possibility" at the time the document was prepared and whether that belief
was "objectively reasonable." Lutheran Soc. Servs., 186 F.3d at 968 (quotation marks omitted).
The latter, the motivational element, demands that the document be prepared or obtained because
of the prospect of litigation. Id. ln this respect, the proponent bears the burden of "showing that
the documents were prepared for the purpose of assisting an attorney in preparing for litigation,
and not some other reason." Alexander, 192 F.R.D. at 46. "[T]he documents must at least have
been prepared with a specific claim supported by concrete facts which would likely lead to
litigation in mind." Coastal States, 617 F.2d at 865. ln this Circuit, "[i]f a document is fully
protected as work product, then segregability is not required." Judicial Watch, Inc. v. Dep ’t of
Justice, 432 F.3d 366, 371 (D.C. Cir. 2005).8
J udicial Watch contests DHS’s reliance on the work product doctrine as a basis for
withholding information from a total of twenty documents--specifically, DHS0010, DHS0031-
0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063, DHS0064, DH0065-
0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082, DHS0085,
DHS0093, DHS0112, DHS0201-0202, DHS0203-0235, and DHS0236-0237. See Pl.’s Opp’n at
6-8. ln so doing, Judicial Watch divides its argument between three spreadsheets relating to
8 ln the civil discovery context, the work product privilege is qualified and may be overcome by
a showing of "substantial need." FED. R. CIV. P. 26(b)(3)(A)(ii). However, that limitation does
not apply under FOlA. l/Vz``lliams & Connolly v. Secs. & Exch. Comm ’n, 662 F.3d 1240, 1243
(D.C. Cir. 2011)_
14
immigration cases handled by OCC Houston, on the one hand, and an array of memoranda and
communications, on the other hand. The Court shall likewise divide its analysis.
1 . Spreadsheets
The focus of J udicial Watch’s challenge is three spreadsheets relating to immigration
cases handled by OCC Houston_specifically, DHS0201-0202, DHS0203-0235, and DHS0236-
0237. See Pl.’s Opp’n at 6-7. The information in these spreadsheets was compiled as part of
OCC Houston’s efforts to conform to the June 2010 and August 2010 National Policy
Memoranda, and in particular the office’s efforts to determine which pending and reasonably
foreseeable immigration cases, if any, were candidates for potential dismissal consistent with the
exercise of prosecutorial discretion.g The information withheld appears in columns labeled
"Basis(es) for Seeking Dismissal," DHS201-0202, "Reason for filing Motion," DHS0203-0235,
"Type of Review," DHS0203-0235, "Basis of Motion," DHS0236-0237, and "Brief Explanation
(and Other Notes)," DHS0236-0237. ln its submissions, DHS specifically represents that the
information in these columns was "derived entirely from attomey notes" that were made in
preparation for litigation. Law Decl. 11 36; see also Def.’s Vaughn Index at 17-18 (stating that
each field contains information prepared by agency attomeys in anticipation of potential
litigation and to provide legal analysis and advice).
9 While it is ultimately immaterial to the instant motion, the three spreadsheets differ slightly in
their precise content. The first spreadsheet sets forth information identifying the location of the
proceeding and the alien involved, all of which has been disclosed, while a final column, which
has been redacted, appears to identify the alien’s past criminal convictions. DHS020l-0202.
The second spreadsheet sets forth information identifying the proceeding, the alien and counsel
involved, the relief sought by the alien, the status of OCC Houston’s motion to dismiss, and the
alien’s response to the motion, all of which has been disclosed, while two columns identifying
the reason for the filing of the motion and the type of review conducted have been withheld from
disclosure. DHS0203-0235. The third spreadsheet, titled "Motions to Terminate Filed by OCC
(Fiscal Year 2011)," identifies the proceeding, the alien and office involved, and the status of
OCC Houston’s motion to dismiss, all of which has been disclosed, while two columns
identifying the basis of the motion and a brief explanation have been redacted. DHS0236-0237.
15
Judicial Watch offers two arguments in favor of the disclosure of the information in the
spreadsheets. First, J udicial Watch contends that the information was not prepared "in
anticipation of litigation." The thrust of Judicial Watch’s argument is this: (i) "the entire point of
[DHS’s] new policy was to terminate as much litigation as possible by dismissing cases against
certain immigrants," (ii) the information in the spreadsheets was gathered to decide whether to
terminate litigation, (iii) therefore, the information was not prepared "in anticipation of
litigation." Pl.’s Opp’n at 6. The argument lacks merit. Material may still be said to be
prepared "in anticipation of litigation" even when an attorney is deciding whether or not to
pursue a case, including under circumstances analogous to those presented here, See, e.g., A.
Mz'chael ’s Pz``ano, Inc. v. Fea'. Tracle Comm ’n, 18 F.3d 138, 145 (2d Cir.) (concluding that the
work product doctrine still applied to documents prepared after govemment counsel "decided not
to recommend enforcement litigation"), cert. deniea’, 413 U.S. 1015 (1994); Kishore v. U.S.
Dep ’t of Justz'ce, 575 F. Supp. 2d 243, 259-60 (D.D.C. 2008) (concluding that the work product
doctrine applied to records explaining the government’s reasons for declining to prosecute);
Heggestaa’ v. U.S. Dep ’t of Justice, 182 F. Supp. 2d 1, 10 (D.D.C. 2000) (rejecting argument that
documents recommending the declination of prosecution are not subject to work product
doctrine); cf Cz``ties Serv. Co. v. Fea'. Trade Comm ’n, 627 F. Supp. 827, 832 (D.D.C. 1984)
(finding that materials relating to potential settlement are eligible for work product protection),
ajj"d, 778 F.2d 889 (D.C. Cir. 1985). DHS has satisfied its burden of showing that the
information was prepared in anticipation of the pending and reasonably foreseeable immigration
cases handled by OCC Houston.
Judicial Watch’s second argument fares no better. Here, similar to the argument it made
with respect to the attomey-client privilege, J udicial Watch argues that DHS "has failed to
16
demonstrate that the information contained in these documents has not been shared with third
parties." Pl.’s Opp’n at 7. As with the attomey-client privilege, disclosure may waive the
protections of the work product doctrine. However, courts employ a slightly different inquiry in
this context. When it comes to the work product doctrine, disclosure to a third party constitutes a
waiver when the disclosure is made under circumstances inconsistent with the maintenance of
secrecy from one’s adversary. United States v. Deloz'tte LLP, 610 F.3d 129, 140 (D.C. Cir.
2010). Pursuant to this so-called "maintenance of secrecy” standard, courts inquire whether the
proponent "had a reasonable basis for believing that the recipient would keep the disclosed
material confidential." Ia’. at 141; accord Rockwell ]nt’l Corp. v. U.S. Dep ’t of Justz'ce, 235 F.3d
598, 605 (D.C. Cir. 2001).
DHS mischaracterizes Judicial Watch’s argument as one arising under the "prior
disclosure" doctrine frequently encountered in FOlA jurisprudence, which provides that "[i]f the
govemment has officially acknowledged inforrnation, a FOlA plaintiff may compel disclosure of
that information even over an agency’s otherwise valid exemption claim." Am. Civil Liberties
Union, 628 F.3d at 620. Were this Judicial Watch’s argument, the Court agrees that Judicial
Watch would bear the burden of meeting the rigors of the "prior disclosure" doctrine, which
requires the plaintiff to show that the specific information he seeks is already in the public
domain by an official disclosure. The Court would also agree that Judicial Watch has not met
this exacting standard. But Judicial Watch’s argument is different. lt is targeted to DHS’s
antecedent burden, as the proponent of the privilege, to establish the applicability of the work
product doctrine. See Pl.’s Opp’n at 7.
Nonetheless, DHS’s essential point is correct: the burden lies with J udicial Watch to
establish that DHS has waived the protections of the work product doctrine. That is because, in
17
contrast to the attomey-client privilege, the proponent of the work product doctrine does not bear
the burden of proving non-waiver.m Ecuadorian Plaint% v. Chevron Corp., 619 F.3d 373, 379
n.l0 (5th Cir. 2010); accord U.S. Inspection Servs., Inc. v. NL Engz``neered Solutions, LLC, 268
F.R.D. 614, 617-18 (N.D. Cal. 20l0); Greene, Tweed ofDel., Inc. v. DuPont Dow Elastomers,
L.L.C., 202 F.R.D. 418, 423 (E.D. Pa. 2001); Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D.
Kan. 2000); Aull v. Cavalcade Pensz``on Plan, 185 F.R.D. 618, 624 (D. Colo. 1998). lnstead, the
party seeking to pierce the privilege must show that the holder of the privilege disclosed work
product to a third party under circumstances "inconsistent with the maintenance of secrecy from
the disclosing party’s adversary." Deloz'tte, 610 F.3d at 140 (quotation marks omitted). Judicial
Watch has failed to discharge this burden, offering only its unadomed speculation that DHS
"obviously had some communication with the [affected immigrant] about the content and
reason[s] for the motion" and that "[i]t is possible that some of the information contained in these
spreadsheets has been shared with [immigration attomeys in the Houston area] as well." Pl.’s
Opp’n at 7. Despite the conjecture from its counsel, Judicial Watch does not adduce any
competent evidence to support a finding that the specific information redacted from the three
spreadsheets was shared with third parties under circumstances inconsistent with the
maintenance of secrecy. Accordingly, its waiver argument fails.
ln short, Judicial Watch has failed to identify a colorable basis for rejecting DHS’s claim
that the work product privilege applies to the information withheld from the three spreadsheets.
Meanwhile, DHS has proffered a sufficient factual basis for this Court to conclude that, in light
10 The difference in treatment is in part a product of the different purposes served by the two
privileges: whereas the attomey-client privilege "protects the attomey-client relationship by
safeguarding confidential communications, [the work product doctrine] promotes the adversary
process by insulating an attorney’s litigation preparation from discovery." Deloitte, 610 F.3d at
139-40.
18
of the nature of the spreadsheets and the factual situation in this case, the information withheld
can "fairly be said to have been prepared or obtained because of the prospect of litigation."
Lutheran Soc. Servs., 186 F.3d at 186 (quotation marks omitted). Therefore, the Court shall
GRANT DHS’s [12/13] Motion for Summary Judgrnent insofar as it seeks a ruling that
information has been appropriately withheld from DHS0201-0202, DHS0203-0235, and
DHS0236-0237 on the basis of the work product doctrine.
2. Memoranda and Other Communications
J udicial Watch also challenges DHS’s reliance upon the work product doctrine as a basis
for withholding information from an array of memoranda and other communications-
specifically, DHS0010, DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062,
DHS0063, DHS0064, DH0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-
0081, DHS0082, DHS0085, DHS0093, and DHS0112. See Pl.’s Opp’n at 7-8. As before,
J udicial Watch claims that the information in these documents must be disclosed because DHS
"has failed to show that they were prepared in anticipation of litigation and because nowhere . . .
does [DHS] state that these documents were never shared with third parties." 1d. For the reasons
just discussed, the Court is unpersuaded by Judicial Watch’s waiver argument. Nonetheless, the
Court finds that DHS’s evidentiary showing is so generalized and non-specific as to these
memoranda and communications that it fails to satisfy the Court that the work product doctrine
has been properly invoked as a basis for non-disclosure.
Just as it did with the attomey-client privilege, DHS’s Vaughn Index simply parrots
elements of the work product doctrine when identifying its justification for withholding
inforrnation. Almost without exception, DHS asserts, without any meaningful measure of detail,
that the "work-product privilege . . . appl[ies] because this document was created by agency
19
attomeys in anticipation of potential litigation, to provide legal analysis and advice." True,
DHS’s separate declaration provides a little more detail, separating the memoranda and
communications into eight general categories, see Law Decl. 11 36, but DHS fails to correlate
these categories to specific records identified in its Vaughn lndex. Even if it had, the
descriptions of some of these categories are so generic that, even when they are considered
alongside DHS’s partial production, they do not demonstrate that the information withheld can
"fairly be said to have been prepared or obtained because of the prospect of litigation." Lutheran
Soc. Servs., 186 F.3d at 186 (quotation marks omitted).
For example, one of the categories identified by DHS includes information involving
"discussions on litigation strategies . . . centering around prosecutorial discretion." Law Decl. 11
36. This Court is "mindful of the fact that the prospect of future litigation touches virtually every
object of a prosecutor’s attention, and that the work product exemption, read over-broadly, could
preclude almost all disclosure from an agency with responsibilities for law enforcement."
SafeCard Servs., Inc. v. Secs. & Exch. Comm ’n, 926 F.2d 1197, 1203 (D.C. Cir. 1991) (quotation
marks and citation omitted). Absent a more particularized showing from DHS, the Court cannot
conclude that DHS has applied the appropriate standard in this case: at a minimum, "the
documents must at least have been prepared with a specific claim supported by concrete facts
which would likely lead to litigation in mind." Coastal States, 617 F.2d at 865.
illustrative in this regard is DHS0057, a one-page memorandum to Goldman from his
Deputy Chief Counsel in OCC Houston. Apart from the subject line, which reads "Prosecutorial
Discretion," everything substantive has been redacted from the document. DHS’s Vaughn Index
provides no meaningful elaboration on the nature of the document and the Court is left to
speculate as to which of the eight categories, if any, that are identified in DHS’s agency
20
declaration might apply. ln essence, the Court is left with a conclusory claim that the work
product doctrine applies, but nobody disputes that "conclusory assertions of privilege will not
suffice." Coastal States, 617 F.2d at 861; see also Senate of the Commonwealth ofP.R. v. U.S.
Dep ’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) ("[W]here no factual support is provided for
an essential element of the claimed privilege or shield, the label ‘conclusory’ is surely apt.")
(emphasis omitted).
Simply put, DHS’s generalized and non-specific showing fails to satisfy the Court that
the work product doctrine has been properly invoked in connection with the information
withheld from Judicial Watch. For this reason, the Court shall DENY DHS’s [12/13] Motion for
Summary Judgment insofar as it seeks a ruling that information has been appropriately withheld
from DHS0010, DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062,
DHS0063, DHS0064, DH0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-
0081, DHS0082, DHS0085, DHS0093, and DHS01 12 on the basis of the work product doctrine.
As before, the Court shall afford DHS a further and final opportunity to establish the
applicability of the work product doctrine to the information withheld from these documents.
C. T he Delz``berative Process Privilege
The deliberative process privilege protects "documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated." Dep ’t of Interz``or v. Klamath Water Users Protecz‘ive
Ass ’n, 532 U.S. 1, 8 (2001) (quotation marks omitted). lt recognizes "that officials will not
communicate candidly among themselves if each remark is a potential item of discovery and
front page news, and its object is to enhance the quality of agency decisions by protecting open
and frank discussion among those who make them." Id. at 8-9 (quotation marks and citations
21
omitted). The privilege is designed to "protect the executive’s deliberative processes_not to
protect specific materials." Dudman Commc ’ns Corp. v. Dep ’t of Air Force, 815 F.2d 1565,
1568 (D.C. Cir. 1987). To qualify for protection under the privilege, materials must be "both
‘predecisional’ and ‘deliberative."’ Pub. Citizen, Inc. v. Ojj‘ice ofMgmt. and Budget, 598 F.3d
865, 874 (D.C. Cir. 2010) (quoting Coastal States, 617 F.2d at 866). A document is
predecisional "if it was generated before the adoption of an agency policy and deliberative if it
reflects the give-and-take of the consultative process." judicial Watch, Inc. v. Food & Drug
Admz'n., 449 F.3d 141, 151 (D.C. Cir. 2006) (quotation marks omitted). To be deliberative,
information "must reflect the personal opinions of the writer rather than the policy of the
agency." Morley v. Cent. Intellz``gence Agency, 508 F.3d 1108, 1127 (D.C. Cir. 2007) (quotation
marks omitted).
J udicial Watch challenges DHS’s reliance upon the deliberative process privilege as a
basis for withholding information from a total of seventeen documents_specifically DHS0030,
DHS0031-0035, DHS0046, DHS0053-0054, DHS0056, DHS0057, DHS0063, DHS0064,
DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082,
DHS0085, DHS0093, and DHS0112. See Pl.’s Opp’n at 9. Judicial Watch tenders a series of
arguments why disclosure of the information redacted from these documents is appropriate,
including a contention that DHS has failed to release all reasonably segregable inforrnation. See
id. at 9-10. ln this regard, the Court shares Judicial Watch’s concem.
ln contrast to the work product doctrine, "[f] actual material is not protected under the
deliberative process privilege unless it is ‘inextricably intertwined’ with the deliberative
material." Judicial Watch, 432 F.3d at 372 (quoting In re Sealed Case, 121 F.3d 729, 737 (D.C.
Cir. 1997)). Here, DHS avers generally in its submissions that it conducted a "line-by-line"
22
review of its entire release and disclosed all reasonably segregable, non-exempt information
Law Decl. 11 45. ln addition, DHS represents that the communications withheld under the
deliberative process privilege are "largely opinion," but the agency concedes that "they also
contain some factual material selected by the authors which [sic] are [sic] ‘inextricably
intertwined’ with deliberative material that its disclosure would compromise the confidentiality
of deliberative information" Id. 11 31. This empty invocation of the segregability standard,
which DHS never couples with a more detailed representation relating to specific records, does
not satisfy the Court that DHS has applied the correct standard.
lndeed, without deciding the matter, the Court’s review of DHS’s partial production
reveals that there is some cause for concem. For example, DHS0053-0054 is a two-page
memorandum from Goldman to a superior in OPLA accompanying one of the spreadsheets
relating to immigration cases handled by OCC Houston. On the first page of the memorandum,
Goldman sets forth a summary of the data in the spreadsheets. DHS0053. DHS does not appear
to dispute that this information is "factual" in nature, but it makes no meaningful effort to
explain why the information is inextricable from deliberative material or how its disclosure
would reveal "advisory opinions, recommendations [or] deliberations comprising part of a
process by which governmental decisions and policies are formulated." Klarnath, 532 U.S. at 8.
Where DHS has withheld factual information under the deliberative process privilege, the Court
requires a more nuanced explanation as to why the information is inextricable from deliberative
material. DHS may not simply parrot the legal standard governing segregability.
Moreover, the Court agrees with J udicial Watch that DHS has failed to provide sufficient
factual context for much of the information withheld under the deliberative process privilege to
allow the Court to conclude that the privilege has been properly invoked. In its Vaughn lndex,
23
DHS consistently recites the general elements of the deliberative process privilege without
explaining how they apply to the document in question While DHS’s separate declaration
divides the documents withheld on this basis into four general categories, Law Decl. 11 31, DHS
never correlates these categories to specific records identified in its Vaughn lndex. Oftentimes,
the descriptions are so generic and non-specific that, even when considered alongside DHS’s
partial production the Court cannot meaningfully assess whether the information withheld is
predecisional and deliberative.
For example, DHS0046 is a one-page e-mail from Goldman to one of his superiors in
OPLA. The e-mail’s subject line reads, "Discussion," the first line states, "l know how busy you
must be so 1 thought l would simply write you a very brief email to clarify one issue," and the
final line provides, "Thanks for supporting the field." DHS0046. ln its Vaughn lndex, DHS
merely recites legal boilerplate about the deliberative process privilege, see Def.’s Vaughn Index
at 4, and the Court is left to guess which, if any, of the four categories identified in the separate
declaration might apply, see Law Decl. 11 3 1. When all is said and done, the Court is left with
DHS’s naked claim that the privilege has been properly invoked, and this obviously does not
suffice.
ln light of these concems about the adequacy of DHS’s descriptions and its application of
the segregability standard, which at least theoretically could affect all of DHS’s withholding
decisions under the deliberative process privilege, the Court declines to rule on the merits of any
of DHS’s withholding decisions at this time. DHS shall first be afforded an opportunity to
provide a more particularized evidentiary showing. Nonetheless, the Court takes this opportunity
to address some of the other issues raised by the parties in the hopes of narrowing the areas of
dispute in the future.
24
First, J udicial Watch appears to argue that "the deliberative process privilege is a
‘qualified privilege and can be overcome by a showing of sufficient need."’ Pl.’s Opp’n at 9
(quoting In re Sealed Case, 121 F.3d at 73 7). While this is an accurate statement of the law,
J udicial Watch conveniently omits an important proviso_namely, that "[t]his characteristic of
the deliberative process privilege is not an issue in FOlA cases." In re Sealed Case, 121 F.3d at
737 n.5. The reasons for this limitation are two-fold. On the one hand, FOlA’s exclusive
concem is with what must and must not be made public and, as a result, the general rule is that
"the particular purpose for which a FOlA plaintiff seeks information is not relevant." 1d. On the
other hand, an interpretation of Exemption 5 that would require courts to balance a private
litigant’s need against an agency’s privilege claim in some "hypothetical litigation" would be
unworkable. Sears, 421 U.S. at 149 n.16. Accordingly, the relevant question in this context is
whether the information subject to the privilege claim would "normally" or "routinely" be
disclosed in private litigation.
Second, J udicial Watch fails to recognize that even documents dated after a decision has
been made may still be eligible for protection under the deliberative process privilege. Courts
recognize that "[a]gencies are, and properly should be, engaged in a continuing process of
examining their policies" and should be "wary of interfering with this process." Sears, 421 U.S.
at 151 n.18. Even after a path has been cut by an agency, "it is the very process of debating,
shaping, and changing a . . . policy that needs candor, vigorous to-and-fro, and freedom of
expression" Sierra Club v. U.S. Dep ’t oflnterior, 384 F. Supp. 2d 1, 16 (D.D.C. 2004); see also
Gordon v. Fed. Bureau of Investigation, 388 F. Supp. 2d 1028, 1038 (N.D. Cal. 2005) ("That an
agency is ‘deliberating’ on whether or how to change an existing policy, as opposed to
deliberating on whether to adopt an entirely new policy, does not mean the deliberations fall
25
outside the privilege."). For this reason, documents dated after one decision has been made
"may still be predecisional and deliberative with respect to other, nonfinal agency policies."
Judicial Wazch, 449 F.3d at 151. Furthermore, while "[a] document that does nothing more than
explain an existing policy cannot be considered deliberative," Pul). Citizen, 598 F.3d at 876,
even "[p]ost-decisional documents properly fall under the deliberative process privilege when
they recount or reflect pre-decisional deliberations," Judicial Watch 1nc. v. U.S. Dep ’t of
Treasury, 796 F. Supp. 2d 13, 31 (D.D.C. 2011) (citing Citizens_for Responsibilz``ty & Ethz``cs in
Wash. v. U.S. Dep ’t of]ustz``ce, 658 F. Supp. 2d 217, 234 (D.D.C. 2009)).
Third, and finally, J udicial Watch intimates that the Court should inquire whether the
disclosure of specific information would harm the interests animating the deliberative process
privilege. See Pl.’s Opp’n at 8-9. However, "Congress enacted FOlA Exemption 5 . . . precisely
because it determined that the disclosure of material that is both predecisional and deliberative
46
does harm an agency’s decisionmaking process," and it is not the district court’s role . . . to
second-guess that congressional judgment on a case-by-case basis." McKinley v. Bd. of
Governors ofFed. Reserve Sys., 647 F.3d 331, 339 (D.C. Cir. 2011), cert denied, _ U.S. _,
2012 WL 33340 (Jan. 9, 2012). As a result, the scope of this Court’s inquiry is properly
confined to asking whether DHS has satisfied its burden of showing the applicability of the
privilege--that is, whether the information withheld is both predecisional and deliberative. Once
that inquiry is complete, the Court’s task is at an end.
Regardless, the Court reiterates that it declines to rule on the merits of DHS’s decision to
withhold certain information under the deliberative process at this time. DHS’s generalized and
non-specific showing fails to satisfy the Court that the deliberative process has been properly
invoked or that DHS has applied the correct segregability standard. Accordingly, the Court shall
26
DENY DHS’s [12/13] Motion for Summary Judgment insofar as it seeks a ruling that
information has been appropriately withheld from DHS0030, DHS0031-0035, DHS0046,
DHS0053-0054, DHS0056, DHS0057, DHS0063, DHS0064, DHS0065-0066, DHSOO67-0068,
DHS0069, DHS0070-0071, DHS0080-008l, DHS0082, DHS0085, DHS0093, and DHS0112 on
the basis of the deliberative process privilege. As before, the Court shall afford DHS a further
and final opportunity to establish that the deliberative process privilege applies to the
information withheld from these documents and that all reasonably segregable information has
been released to J udicial Watch.
IV. CONCLUSION AND ORDER
For the reasons set forth above, it is, this 27th day of January, 2012, hereby
ORDERED that DHS’s [12/13] Motion for Summary Judgment is GlLANTED-IN-
PART and DENlED-lN-PART. Specifically, the motion is GRANTED insofar as it seeks a
ruling that information has been appropriately withheld from DHS0201-0202, DHS0203-0235,
and DHS0236-0237 on the basis of the work product doctrine. Meanwhile, the motion is
DENIED insofar as it seeks a ruling that information has been appropriately withheld from (a)
DHS0010, DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063,
DHS0064, DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081,
DHS0082, DHS0085, DHS0093, and DHS01 12 on the basis of the attomey-client privilege; (b)
DHS0010, DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063,
DHS0064, DH0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081,
DHS0082, DHS0085, DHS0093, and DHS0112 on the basis of the work product doctrine; and
(c) DHS0030, DHS0031-0035, DHS0046, DHS0053-0054, DHS0056, DHS0057, DHS0063,
27
DHS0064, DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081,
DHS0082, DHS0085, DHS0093, and DHS01 12 on the basis of the deliberative process privilege.
lt is FURTHER ORDERED that the Court shall afford DHS a final opportunity to
discharge its burden of establishing the applicability of the remaining claimed privileges to the
information withheld from J udicial Watch. The parties shall promptly meet and confer and, by
no later than February 8, 2012, file a Joint Status Report proposing a schedule for further
proceedings, which shall include, at a minimum, proposed deadlines for DHS’s production of a
revised Vaughn Index and agency declaration and for the briefing of a renewed motion for
summary judgrnent.
SO ORDERED.
Dare; January 27, 2012 § j
t wjr z g‘;‘i;ii.gj~c "“
CoLLEEN KoLnAR-KoTEi;LY
United States District Judge
28