American Immigration Lawyers Association v. United States Department of Homeland Security ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
AMERICAN IMMIGRATION )
LAWYERS ASSOCIATION )
)
Plaintiff, )
)
v. ) Civ. Action No. 10-1224 (EGS)
)
UNITED STATES DEPARTMENT OF )
HOMELAND SECURITY, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff American Immigration Lawyers Association (“AILA”
or “plaintiff”) brings this action against the United States
Department of Homeland Security (“DHS”) and the United States
Citizenship and Immigration Services, a DHS subdivision (“USCIS”
collectively, “defendants”) under the Freedom of Information Act
(“FOIA”), seeking the release of information withheld by the
USCIS.
Pending before the Court are the parties’ cross-motions for
summary judgment. Plaintiff principally argues that the USCIS
waived its right to withhold or redact certain information
because that information is in the public domain, and that even
if waiver did not occur, certain material was improperly
withheld because FOIA exemption 7(E) does not apply to those
documents. See 5 U.S.C. § 552(b)(7)(E). In a cross-motion for
summary judgment, the USCIS disputes plaintiff’s allegations of
waiver, and argues that all withheld material was properly
exempt from disclosure pursuant to several FOIA exemptions,
including 7(E).
Upon careful consideration of the motions, the responses
and replies thereto, the applicable law, and the entire record,
the Court hereby GRANTS in part the plaintiff’s motion for
summary judgment and DENIES defendants’ cross-motion for summary
judgment without prejudice.
I. BACKGROUND
Plaintiff AILA is an association of over 11,000 attorneys
and law professors who practice and teach immigration law.
Plaintiff’s Memorandum in Support of its Motion for Summary
Judgment (“Pl.’s Br.”), Docket No. 23-2, at 7. Defendant USCIS
is the agency that oversees lawful immigration to the United
States, and is charged with disseminating information regarding
immigration issues, granting immigration and citizenship
benefits, promoting awareness and understanding of citizenship,
and ensuring the integrity of the United States immigration
system. Defendants’ Memorandum of Points and Authorities in
Support of Cross-Motion for Summary Judgment (“Defs.’ Br.”),
Docket No. 25-2, at 2. Among its responsibilities, the USCIS
processes H-1B temporary visa petitions filed by United States
employers seeking to hire non-immigrant alien workers on a
2
temporary basis. Defs.’ Br. at 2. The USCIS carries out this
function pursuant to the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 101(a)(15)(H)(i)(b), which provides for the
admission into the United States of temporary workers to perform
services in a specialty occupation. Pl.’s Br. at 2; Defs.’ Br.
at 2.
A. Plaintiff’s FOIA Requests
Beginning in 2009, AILA submitted three FOIA requests to
the USCIS. The requests were processed by the USCIS’s National
Records Center (“NRC”), in compliance with DHS implementing
regulations found at 6 C.F.R. Part 5 and Management Directive
No. 0460.1. Defs.’ Statement of Material Facts (“Defs.’ SMF”),
Docket No. 25-3, ¶ 1.
By letter dated February 6, 2009, Robert Deasy, AILA’s
Director of Liaison and Information, submitted a FOIA request
(“February 6 Request”) to the USCIS on behalf of AILA for:
Copies of any and all guidance, including, but not
limited to memoranda, standard operating procedures,
and templates used for Requests for Evidence regarding
adjudicating H-1B petitions issued as a result of, in
connection with, in light of, or related to the
Benefits Fraud [Compliance] Assessment Report.
Defs.’ SMF ¶ 7. This request was assigned control number
NRC2009007831. Defs.’ SMF ¶ 8.
By letter dated March 18, 2009, AILA submitted a second
FOIA request (“March 18 Supplemental Request”), in which it
3
requested a document entitled “H1-B Processing Fraud Referral
Sheet” (“H1-B Petition Fraud Referral Sheet”) and petitioned for
expedited processing. Defs.’ SMF ¶ 9. This request was
considered a supplement to the February 6 Request and was
included within it for purposes of processing. See id. ¶¶ 9,
13. The request for expedited processing was denied. Defs.’
SMF ¶ 13.
On April 13, 2009, AILA submitted a third FOIA Request
(“April 13 Request”) to the USCIS, this time seeking “The
Compliance Review Worksheet Mentioned in Comment Request for
Compliance Review Worksheet, 74 FR 15999 (April 8, 2009)”
(“Compliance Review Report”). Defs.’ SMF ¶ 14. The NRC
received the April 13 Request on April 27, 2009. Defs.’ SMF ¶
15. The request was assigned control number NRC2009023483.
Defs.’ SMF ¶ 16. On May 8, 2009, AILA submitted a request to
expedite the April 13 Request, which was denied by letter on May
28, 2009. Defs.’ SMF ¶¶ 17, 18.
Several documents that resulted from USCIS’s searches 1 are
at issue in this case.
1
Although plaintiff initially challenged the adequacy of the
searches conducted by USCIS, that issue is not raised by
plaintiff on summary judgment and plaintiff does not dispute
defendants’ argument in their cross-motion that the searches
were proper.
4
1. Compliance Review Report
One two-page, preprinted USCIS form entitled “Compliance
Review Report” was deemed responsive to AILA’s April 13 Request.
Defs.’ SMF ¶ 52; Substitute Declaration of Jill A. Eggleston
(“Sub. Eggleston Decl.”), Docket No. 25-5, ¶ 42. 2 On June 9,
2009, the USCIS determined that the document should be withheld
in full pursuant to FOIA exemptions (b)(2) 3 and (b)(7)(E).
Defs.’ SMF ¶ 53. On August 7, 2009, AILA administratively
appealed the decision, which was affirmed on February 18, 2010.
Sub. Eggleston Decl. ¶¶ 38,40. At some time after this
litigation was commenced on July 20, 2010, USCIS made the
determination that some of the information withheld could be
disclosed, and the USCIS released the document in redacted form
on October 27, 2010. Defs.’ SMF ¶¶ 57, 59; Watkins Decl., Ex.
12. USCIS also released a revised index on that date, pursuant
to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), explaining
USCIS’s basis for withholding portions of the document. See
October 27, 2010 Vaughn Index (“Oct. 27, 2010 Vaughn Index”),
2
The original Declaration of Jill A. Eggleston was filed in
connection with defendants’ initial motion for summary judgment,
see Docket No. 11-5, and is not part of the record for the
renewed motions for summary judgment.
3
Following the Supreme Court’s decision in Milner v. Dep’t
of the Navy, 131 S. Ct. 1259 (2011), defendants have withdrawn
all assertions of exemption b(2) in connection with plaintiff’s
FOIA Requests. Defs.’ Br. at 11, n.10; Sub. Eggleston Decl. ¶
44, n.4.
5
Ex. 21 to the Declaration of Seth A. Watkins in Support of
Plaintiff’s Motion for Summary Judgment, (“Watkins Decl.”), at
4.
2. Neufeld Memorandum
A four-page memorandum by Donald Neufeld, Acting Associate
Director of Domestic Operations, regarding H-1B fraud
initiatives (“Neufeld Memorandum”) was determined to be
responsive to the February 6 Request and the March 18
Supplemental Request. Sub. Eggleston Decl. ¶ 41. The NRC
initially determined that this document should be withheld in
its entirety pursuant to FOIA exemptions (b)(2), (b)(5), and
(b)(7)(E). Defs.’ SMF ¶ 51. On March 11, 2010, AILA
administratively appealed this decision. Defs.’ SMF ¶ 45. The
appeal was still pending when this action was filed.
At some time after this litigation was commenced on July
20, 2010, USCIS made the determination that some of the
information withheld could be disclosed. Defs.’ SMF ¶ 54.
Much, but not all, of the information contained in the Neufeld
Memorandum had been publicly disclosed with the publication of
the H-1B Benefit Fraud and Compliance Assessment (“BFCA
Report”), which is posted on the internet. Defs.’ SMF ¶¶ 54-55;
Watkins Decl., Ex. 2. Moreover, the Neufeld Memorandum was
issued in September 2008 as a final agency determination,
6
rendering FOIA exemption (b)(5) inapplicable as authority for
withholding that document from public viewing. Defs.’ SMF ¶ 56.
The USCIS therefore released the document in redacted form on
October 27, 2010, and the USCIS’s basis for withholding the
document was explained in the October 27 Vaughn Index. Defs.’
SMF ¶¶ 57, 59; Oct. 27, 2010 Vaughn Index, Watkins Decl., Ex.
21, at 1.
3. H-1B Petition Fraud Referral Sheet
A two-page pre-printed USCIS form entitled “H-1B Petition
Fraud Referral Sheet” was also determined to be responsive to
the February 6 Request and March 18 Supplemental Request. Sub.
Eggleston Decl. ¶ 41. NRC made the initial determination that
the document should be withheld pursuant to FOIA exemptions
(b)(2), (b)(5), and (b)(7)(E) and that there were no reasonably
segregable portions for release. Defs.’ SMF ¶¶ 43-44. On
March 11, 2010, AILA administratively appealed that decision.
Defs.’ SMF ¶ 45. The appeal was still pending when this action
was filed.
At some time after this litigation was commenced on July
20, 2010, USCIS made the determination that some of the
information withheld could be disclosed, and the USCIS released
the document in redacted form on October 27, 2010. Defs.’ SMF
¶¶ 57, 59. The October 27, 2010 Vaughn Index explained the
7
basis for withholding portions of the document. Oct. 27, 2010
Vaughn Index, Watkins Decl., Ex. 21, at 2.
B. Initial Cross-Motions for Summary Judgment
After releasing the redacted versions of certain documents,
defendants moved for summary judgment on December 10, 2010,
asserting that they had satisfied all of their obligations with
respect to AILA’s FOIA requests. See Docket No. 11. Plaintiff
filed its opposition to defendants’ motion for summary judgment
and in support of plaintiff’s cross-motion for summary judgment
on January 14, 2011. Docket No. 13. Plaintiff challenged,
among other things, the adequacy of defendants’ searches. When
the USCIS reviewed plaintiff’s summary judgment filing, it
determined it may have missed documents potentially relevant to
plaintiff’s requests. Defs.’ SMF ¶ 60. With plaintiff’s
consent, the USCIS commenced a renewed search for documents
responsive to AILA’s FOIA requests on March 29, 2011. Defs.’
SMF ¶ 61. USCIS made a subsequent production of documents to
plaintiff on May 9, 2011 and submitted a Supplemental Vaughn
Index describing the materials withheld. May 9, 2011 Vaughn
Index (“May 9, 2011 Vaughn Index”), Watkins Decl., Ex. 20; see
Plaintiff’s Statement of Material Facts (“Pl.’s SMF”) ¶ 21.
Plaintiff refers to several of the documents produced on May 9,
2011 as the “newly-identified documents.”
8
C. Renewed Cross-Motions for Summary Judgment
AILA filed a renewed motion for summary judgment on May 31,
2011. In its motion, AILA alleges that USCIS improperly invoked
exemption 7(E) as to several documents that were produced with
redactions, and that USCIS has waived any ability to withhold
the documents because they are in the public domain. Defendants
filed a cross-motion for summary judgment, asking the Court to
determine that they satisfied their obligations under FOIA as to
all documents produced or withheld, that they properly invoked
exemptions, and that they did not waive its ability to invoke
the exemptions because of information that exists in the public
domain.
II. LEGAL FRAMEWORK
A. Rule 56
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted if the moving party has shown that
there are no genuine issues of material fact and that the moving
party is entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);
Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.
2002). In determining whether a genuine issue of fact exists,
the court must view all facts in the light most favorable to the
non-moving party. See Matsushita Elec. Indus. Co. v. Zenith
9
Radio Corp., 475 U.S. 574, 587 (1986). Likewise, in ruling on
cross-motions for summary judgment, the court shall grant
summary judgment only if one of the moving parties is entitled
to judgment as a matter of law upon material facts that are not
genuinely disputed. See Citizens for Responsibility & Ethics in
Wash. v. Dep’t of Justice, 658 F. Supp. 2d 217, 224 (D.D.C.
2009) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.
1975)).
B. FOIA
FOIA requires agencies to disclose all requested agency
records, 5 U.S.C. § 552(a), unless one of nine specific
statutory exemptions applies, id. § 552(b). It is designed to
“pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of Air Force v.
Rose, 425 U.S. 352, 361 (1976) (citations omitted). “Given the
FOIA’s broad disclosure policy, the United States Supreme Court
has ‘consistently stated that FOIA exemptions are to be narrowly
construed.’” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)
(quoting Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)).
“FOIA’s ‘strong presumption in favor of disclosure places
the burden on the agency to justify the withholding of any
requested documents.” Dep’t of State v. Ray, 502 U.S. 164, 173
(1991). The government may satisfy its burden of establishing
10
its right to withhold information from the public by submitting
appropriate declarations and, where necessary, an index of the
information withheld. See Vaughn v. Rosen, 484 F.2d 820, 827-28
(D.C. Cir. 1973). “If 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.” ACLU v. Dep’t of the Defense, 628 F.3d
612, 619 (D.C. Cir. 2011); see id. (an agency’s justification
for invoking a FOIA exemption is sufficient if it appears
‘logical’ or ‘plausible’) (internal citations omitted).
III. DISCUSSION
In its motion for summary judgment and its response to
defendants’ motion, plaintiff primarily challenges defendants’
redaction of three documents: (1) the Compliance Review Report
Form; (2) The Neufeld Memorandum; and (3) the H-1B Petition
Fraud Referral Sheet. Plaintiff also argues that defendants
waived the right to claim that certain “newly-identified
documents” that were produced on May 9, 2011 are properly
withheld under Exemption 7(E) because they purportedly contain
11
publicly-disclosed information, but plaintiff does not challenge
the applicability of Exemption 7(E) to those documents.
Defendants, in their cross-motion for summary judgment,
seek summary judgment as to the entirety of their searches and
subsequent responses to plaintiff’s FOIA Requests. Defendants
argue that all exemptions were properly invoked and that all
reasonably segregable information was disclosed. Plaintiff, in
its opposition, does not dispute the withholding of material
pursuant to exemption 7(E) other than in connection with the
Compliance Review Report, the Neufeld Memorandum, and the H-1B
Petition Fraud Referral Sheet. Plaintiff also does not respond
to defendants’ arguments regarding the appropriateness of
defendants’ searches as a whole, or the withholding of documents
pursuant to exemptions b(5) or b(6). Therefore, those points
are deemed conceded.
Accordingly, the issues before the Court are 1) whether
defendants waived their right to withhold all or portions of the
Compliance Review Report, the Neufeld Memorandum, the H-1B
Petition Fraud Referral Sheet, and certain “newly-identified
documents” under the “public domain doctrine”; 2) whether
defendants properly sought to withhold the Compliance Review
Report, the Neufeld Memorandum, and the H-1B Petition Fraud
Referral Sheet under Exemption 7(E); and 3) whether defendants’
12
Vaughn indexes and the Substitute Eggleston Declaration properly
indicate whether all reasonably segregable information has been
released.
A. Waiver/Public Domain Doctrine
The threshold issue before the Court is whether the USCIS
waived its right to invoke Exemption 7(E) and withhold redacted
material in several documents it produced pursuant to the AILA’s
FOIA Requests. The public domain doctrine sets a high standard
that a plaintiff must meet in order to establish that the
government has waived an otherwise-valid FOIA exemption.
“[FOIA] bars the courts from prying loose from the government
even the smallest bit of information that is properly
classified.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130
(D.C. Cir. 1983) (Exemptions 1&3). “Under [the] public domain
doctrine, materials normally immunized from disclosure under
FOIA lose their protective cloak once disclosed and preserved in
a permanent public record.” Cottone v. Reno, 193 F.3d 550, 554
(D.C. Cir. 1999) (citing Niagra Mohawk Power Corp. v. Dep’t of
Energy, 169 F.3d 16, 19 (D.C. Cir. 1999) (Exemption 4)); Public
Citizen v. Dep’t of State, 11 F.3d 198, 201-03 (D.C. Cir. 1993)
(Exemption 1); Davis v. Dep’t of Justice, 968 F.2d 1276, 1276
(D.C. Cir. 1992) (Exemptions 3 & 7(C)); Ashfar, 702 F.2d at
1130-34. The logic of this doctrine is that “where information
13
requested ‘is truly public, the enforcement of an exemption
cannot fulfill its purposes.’” Id. (quoting Niagra Mohawk, 169
F.3d at 19). “[A] plaintiff asserting that information has been
previously disclosed bears the initial burden of pointing to
specific information in the public domain that duplicates that
being withheld.” Public Citizen, 11 F.3d at 201 (citing Afshar,
702 F.2d at 1130). The D.C. Circuit has held that “when
information has been ‘officially acknowledged,’ its disclosure
may be compelled even over an agency’s otherwise valid exemption
claim. Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990).
The Court identified three requirements to determine whether the
government has waived its right to withhold the sought
information by officially acknowledging it. Specifically,
plaintiff must establish that the information requested is as
specific as the information previously released, must match the
information previously disclosed, and must have already been
made public through an official and documented disclosure.
Fitzgibbon v. CIA, 911 F.2d at 765.
1. Compliance Review Report Form
Plaintiff argues that the Compliance Review Report Form
released in redacted form should be released in full because the
redacted portions are in the public domain. See Pl.’s Br. at 12
(citing Watkins Decl., Ex. 12). The agency produced a redacted
14
version to AILA on October 27, 2010, asserting Exemption
(b)(7)(E) as to the redactions. See Watkins Decl., Ex. 12; see
Oct. 27, 2010 Vaughn Index, Watkins Decl. Ex. 21.
In support of its argument that the redacted portions of
the Compliance Review Report Form are in the public domain,
plaintiff cites to four versions of instructions purportedly
used by on-site investigators to complete the Compliance Review
Report Form. Plaintiff argues that these instructions provide
the same information, and indeed more information, than the
Compliance Review Report. Plaintiff argues that the public
availability of these instructions prevent USCIS from seeking to
withhold the information in the Compliance Review Report Form
under Exemption (b)(7)(E). Pl.’s Br. at 12-14. The versions of
the instructions include (1) a version that was included in the
appendix of a book published by Thompson/West (Watkins Decl.,
Ex. 7); (2) a version of the instructions dated December 5, 2008
that is available on the internet (Watkins Decl., Ex. 8); (3) a
version of the instructions dated July 22, 2009 that was
produced on May 9, 2011 in response to AILA’s FOIA Requests
(Watkins Decl., Ex. 29); and (4) a general description of the
information sought by inspectors during site visits that is
available on the USCIS’s website. Watkins Decl., Ex. 6.
Defendants argue that AILA has failed to establish that any
of the instructions “match” the information that USCIS has
15
withheld. The Court agrees. AILA has not established that any
of these alleged instructions specifically correspond to the
version of the form that it seeks to compel USCIS to produce in
full, which bears an apparent date of June 19, 2009. See
Watkins Decl., Ex. 12. The instructions published by
Thompson/West bear no date, and the other versions of the
instructions are dated December 5, 2008 and July 22, 2009,
respectively. Plaintiff has failed to persuade the Court that
the date is not relevant to the public disclosure analysis.
The general description of site visits (Watkins Decl., Ex.
6) is even less specific than the different versions of the
instructions, giving the reader only a general overview of the
process. Accordingly, plaintiff has failed to meet its initial
burden of pointing to specific information in the public domain
that duplicates what is being withheld. Public Citizen, 11 F.3d
at 201 (plaintiff bears burden of pointing to specific
information in the public domain that duplicates that being
withheld). 4
4
Because plaintiff has failed to meet its initial burden,
the Court need not reach the question of whether any of the
Compliance Review Report Instructions cited by plaintiff were
publicly disclosed. The Court notes, however, that USCIS has
conceded that its disclosure of the July 22, 2009 instructions
in response to AILA’s FOIA Requests was an “official
disclosure.” Defendants’ Reply to Plaintiff’s Opposition to
Defendants’ Cross-Motion for Summary Judgment (“Defs.’ Reply”),
Docket No. 30, at 2.
16
2. H-1B Petition Fraud Referral Sheet
AILA argues that the H-1B Petition Fraud Referral Sheet,
which was released to AILA in redacted form, is “fully in the
public domain” because it is part of a judicial record in
another litigation. Pl.’s Br. at 14; Watkins Decl., Ex. 11.
AILA also argues that the document is in the public domain
because USCIS agreed it did not need to be filed under seal in
this matter. Pl.’s Br. at 15 (citing Docket No. 16
(“Defendant’s position is that Exhibit[]...15 is publicly
available and therefore not appropriately filed under seal.”).
The parties do not dispute that a version of an H-1B Petition
Fraud Referral Sheet was filed by USCIS as an exhibit on June
24, 2010 in the TechServe Alliance v. Napolitano matter. See
Case No. 10 Civ. 00353 (D.D.C.), Docket No. 16, Ex. 1. The
parties also do not dispute that USCIS agreed that the same
exhibit did not need to be filed under seal in this matter. See
Docket No. 16-3. The parties do dispute, however, the effect of
these filings.
AILA contends that the filing of the H-1B Petition Fraud
Referral Sheet by USCIS on a public docket constitutes a “public
disclosure.” In support of its argument, plaintiff cites
Cottone for the proposition that evidence submitted in court
becomes part of the public domain under FOIA unless and until
destroyed or placed under seal. Pl.’s Br. at 14-15 (citing
17
Cottone, 193 F.3d at 554). Defendants argue that the exhibit
filed in TechServe was an earlier version of the document than
the one at issue in this litigation. Defs.’ Br. at 25.
Defendants further note that the document was attached to
USCIS’s filing because it had been attached to the FOIA request
made by the plaintiff in that case, and was filed by USCIS in
that lawsuit to support USCIS’s arguments that it had properly
asserted exemptions under FOIA, which would distinguish it from
a willful disclosure. See id. Defendants note that a notation
on the bottom of the document indicates that it had been
obtained from an archive entitled “AILA InfoNet,” rather than
from any official USCIS source. Id.The Court agrees with Defendants on this issue. As with
the Compliance Review Report Form discussed previously, the
Court finds that because the fraud referral form filed in the
TechServe matter was a different version than the one at issue
in this case, AILA has failed to meet its burden of pointing to
specific information in the public domain that duplicates what
is being withheld. See Public Citizen, 11 F.3d at 201.
Moreover, even if AILA could establish that the form was the
same form at issue in this matter, AILA has not established that
the form was made public through an official disclosure. See
Fitzgibbon, 911 F.2d at 765. Indeed, it appears the only reason
the form was filed on the public docket in TechServe is because
18
it was attached to the plaintiff’s FOIA request in that matter,
which USCIS then filed as an exhibit to a declaration explaining
the steps taken to respond to that plaintiff’s FOIA request.
AILA has not persuaded the Court that the attachment of the FOIA
request (and the H-1B Fraud Referral Sheet) was done for the
purpose of any desire to officially disclose the document; to
the contrary, it appears that the document was filed in support
of USCIS’s arguments in that case that it had responded
appropriately to the FOIA requests it had received. See Frugone
v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999) (“[W]e do not deem
‘official’ a disclosure made by someone other than the agency
from which the information is being sought.”) (citations
omitted); Valfells v. CIA, 717 F. Supp. 2d 110, 117 (D.D.C.
2010) (noting that FOIA plaintiffs must point to information in
the public domain that was previously disclosed by the same
agency). For the same reasons, the Court is not persuaded that
USCIS has waived its right to withhold the document based on its
agreement that the earlier version of the form did not require
filing under seal because it was part of the record in the
TechServe matter. Therefore, the Court finds that no official
disclosure occurred, and defendants did not waive their ability
to claim Exemption 7(E) for the H-1B Petition Fraud Referral
Sheet.
19
3. Neufeld Memorandum
AILA contends that “[a]t least some of the redacted
content” in the Neufeld Memorandum is also in the public domain
and should be released. Pl.’s Br. at 15 (citing Watkins Decl.,
Exs. 10 & 21). Specifically, AILA contends that the BFCA Report
serves as the basis for the Neufeld Memorandum. Pl.’s Br. at
16. The parties do not dispute that the BFCA Report has been
publicly disclosed. Defs.’ SMF ¶ 55. Indeed, USCIS stated that
it reconsidered its withholding of the Nuefeld Memorandum
specifically because of the public availability of the BFCA
Report. Defs.’ SMF ¶¶ 54-55.
AILA contends that “fraud indicators” redacted in the
Neufeld Memorandum necessarily include the “fraud indicators”
discussed in the BFCA Report. 5 AILA also claims that the Neufeld
Memorandum makes reference to the BFCA Report “when introducing
5
The final page of the BFCA Report identifies several
primary fraud or technical violation(s) indicators: (1) firms
with 25 of fewer employees have higher rates of fraud or
technical violation(s) than larger-sized companies; (2) firms
with an annual gross income of less than $10 million have higher
rates of fraud or technical violation(s) than firms with annual
gross income greater than $10 million; (3) firms in existence
less than 10 years have higher incidences of fraud or technical
violation(s) than those in existence for more than 10 years; (4)
H-1B petitions filed for accounting, human resources, business
analysts, sales and advertising occupations are more likely to
contain fraud or technical violation(s) than other occupational
categories; and (5) beneficiaries with only bachelor’s degrees
had higher fraud or technical violation(s) rates than those with
graduate degrees. Pl.’s SMF ¶ 3.
20
the guidance concerning fraud indicators.” Pl.’s Br. at 16.
Defendants argue that AILA’s speculation as to the relationship
between the BFCA Report and the Neufeld Memorandum falls short
of the requirement to show that the information in the
memorandum “matches” or is the specific information included in
the BFCA Report. Defs.’ Br. at 25-26. The Court agrees. By
making a general allegation about the relationship between the
BFCA Report and the Neufeld Memorandum, AILA has fallen far
short of showing that the redacted material in the Neufeld
Memorandum is the specific information disclosed in the BFCA
Report or that it matches the material in the BFCA Report.
Accordingly, USCIS has not waived its right to claim an
exemption for this document. See Public Citizen, 11 F.3d at
201.
4. “Newly-Identified Documents”
Plaintiff’s final argument is that “[t]o the extent
defendants’ newly-identified documents...also include segregable
portions which are in the public domain, as discussed above with
respect to the Neufeld Memorandum, defendants should be ordered
to release such portions.” Pl.’s Br. at 16. AILA cites
generally to Exhibits 22 through 25 to the Watkins Declaration,
which are redacted documents produced by USCIS in response to
AILA’s FOIA Requests and were reflected in defendants’ May 9,
21
2011 Vaughn Index. In response, the USCIS argues that AILA has
failed to point to any redactions in those documents that it
contends contain information that was officially released by
USCIS, and AILA also fails to provide any analysis or legal
argument. The Court agrees. Accordingly, the Court finds that
AILA has failed to carry its initial burden of showing that the
specific information contained in any of these documents exists
in the public domain. See Public Citizen, 11 F.3d at 201.
B. Exemption 7(E)
Having found that no waiver occurred, the Court must now
determine whether the agency properly withheld and redacted
material in the Compliance Review Report Form, the H-1B Petition
Fraud Referral Sheet, and the Neufeld Memorandum pursuant to
Exemption 7(E). 6 Plaintiff does not challenge the applicability
of Exemption 7(E) to what it refers to as the “newly-identified
documents” cited in the May 9, 2011 Vaughn Index. See Watkins
Decl., Exs. 22-25.
6
As discussed more fully below, Exemption 7(E) protects
records or information compiled for law enforcement purposes
from disclosure “to the extent that the production of such law
enforcement records or information . . . would disclose
techniques and procedures for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E).
22
1. Defendants’ Stated Exemptions
Defendants have set forth the basis for their exemptions in
the October 27, 2010 Vaughn Submission. Defendants describe the
Compliance Review Report as
a questionnaire that is filled out by USCIS/ICE Site
Inspectors, documenting their personal observations.
Items 1-10 are the actual questions asked onsite, and
provide the foundation for any additional impromptu or
follow-up questions that might later be asked. More
important, the decision whether to initiate a more
scrutinizing investigation is, invariably, based upon
the recommendation proffered by the author of the
report.
Oct. 27, 2010 Vaughn Index, Watkins Decl., Ex. 21 at 4. The
USCIS explains that it asserts Exemption 7(E) because
[t]he public disclosure of the questions contained in
this questionnaire will alert all to the precise
nature of conduct, behavior, and conditions that will
draw the attention of law enforcement authorities, and
instruct those so disposed to simultaneously violate
the law and avoid detection by adjusting their
responses to the questions accordingly. Consequently,
the investigative questions...are eligible for [the
7(E) Exemption] since their disclosure would impair
the effectiveness of the fraud detection techniques
revealed therein.
Id.With respect to the Neufeld Memorandum, USCIS states that
that the document
reveals very particular and sensitive criteria (fraud
indicators) used by adjudicators to determine which
cases of suspected fraud to refer for further
investigation . . . . Anyone in possession of this
document would have, essentially, a roadmap by which
they could follow to avoid attracting attention and
close scrutiny by either ‘doctoring’ their H-1B
23
applications (or associated forms); ‘staging’ places
of employment; manufacturing employment records; or
engaging in any number of other ploys designed to
deceive immigration and law enforcement authorities.
Id. at 1-2.
The USCIS describes the H-1B Petition Fraud Referral Sheet
as the “companion document” to the Neufeld Memorandum, “employed
to make referrals of suspected fraud cases to the USCIS Center
Fraud Detection Operation (CFDO).” The USCIS states that the
exemption applies because the document
is, literally, a checklist of fraud indicators that
agency adjudicators are required to strictly adhere to
in order to ensure that actionable fraud referrals are
being sent to the Center Fraud Detection Operation
(CFDO)..... [The document could be used] to determine,
with surgical precision and consistent accuracy, the
patterns of conduct and forms of operations to be
avoided by potential defrauders seeking to skirt
closer agency scrutiny and escape detention....
Accordingly, the document is being withheld to
preserve the integrity and effectiveness of certain
techniques and operations of current law enforcement
significance.
Id. at 3-4.
2. Exemption 7(E) Generally
Exemption 7(E) protects records or information compiled for
law enforcement purposes from disclosure “to the extent that the
production of such law enforcement records or information . . .
would disclose techniques and procedures for law enforcement
investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.” 5
24
U.S.C. § 552(b)(7)(E). Courts have held that information
pertaining to law enforcement techniques and procedures is
properly withheld where disclosure reasonably could lead to
circumvention of laws or regulations. See, e.g., Skinner v.
Dep’t of Justice, 744 F. Supp. 2d 185, 214 (D.D.C. 2011) (citing
cases). “[A] highly specific burden of showing how the law will
be circumvented” is not required; instead, “exemption 7(E) only
requires that [the agency] ‘demonstrate[] logically how the
release of [the requested] information might create a risk of
circumvention of the law.’” Mayer Brown LLP v. IRS, 562 F.3d
1190, 1194 (D.C. Cir. 2009) (quoting PHE, Inc. v. Dep’t of
Justice, 983 F.2d 248, 251 (D.C. Cir. 1993)). “If 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.”
ACLU, 628 F.3d at 619.
While Exemption 7(E)’s protection is generally limited to
techniques or procedures that are not well-known to the public,
even commonly known procedures may be protected from disclosure
if the disclosure could reduce or nullify their effectiveness.
See, e.g., Judicial Watch, Inc. v. Dep’t of Comm., 337 F. Supp.
252d 146, 181 (D.D.C. 2004); see Barnard v. Dep’t of Homeland
Sec., 598 F. Supp. 2d 1, 23 (D.D.C. 2009) (rejecting plaintiff’s
argument that because the public is generally aware of security
clearance procedures including marking of travel documents, use
of a computer database, and the use of a “no fly” list, agency
is not required to disclose all details concerning those
procedures); but see Goldstein v. Office of Indep. Counsel, No.
87-2028, 1999 WL 570862, *14 (D.D.C. July 29, 1999) (ordering
disclosure of two documents that were over ten years old and
discussed law enforcement techniques that had since become more
widely known).
Plaintiff makes several general arguments as to why the
Compliance Review Report Form, the H-1B Petition Fraud Referral
Sheet, and the Neufeld Memorandum are not properly redacted
pursuant to Exemption 7(E). AILA principally argues that
because the BFCA Report made public several of the fraud
indicators, those indicators are no longer exempt from
disclosure because they are widely known. In support of that
argument, plaintiff cites to cases that have found Exemption
7(E) does not cover information that is widely known or that
constitutes basic law enforcement techniques. Pl.’s Br. at 16-
18. Plaintiff also argues that certain factors, such as gross
income of a company, the number of employees in the company, and
the number of years the company has been in existence, do not
26
“indicate if and how to circumvent agency regulation” and should
not be exempt. Pl.’s Br. at 18.
Defendants argue that Exemption 7(E) has been properly
invoked for all information withheld from AILA. Defendants
assert that these records fall within the category of
investigatory and prosecutorial guidelines that courts have
found to be protected under Exemption 7(E). Defs.’ Br. at 18
(citing PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 250-51
(D.C. Cir. 1993) (holding that portions of an FBI manual
describing patterns of violations, investigative techniques, and
sources of information available to investigators were protected
by 7(E))). Defendants argue that the application and
interpretation of fraud indicators is not well known to the
public and constitutes internal law enforcement data that 7(E)
was designed to protect. Id. at 20 (citing Barnard, 598 F.
Supp. 2d at 23.
The Court agrees with defendants that exemption 7(E) is
properly invoked as to the Compliance Review Report, the H-1B
Petition Fraud Referral Sheet, and the Neufeld Memorandum, and
the Court notes that plaintiff has not challenged any other
specific documents as improperly withheld under Exemption 7(E).
The Court finds that defendants have met their burden of
demonstrating that the disclosure of the fraud indicators
reasonably could lead to circumvention of laws or regulations.
27
See Skinner, 744 F. Supp. 2d at 214. Specifically, the Court
finds that the explanations provided by defendants indicate that
the particular type of information withheld would provide a
“roadmap” or “guidance” to those looking to circumvent the law,
which would thwart future law enforcement efforts. See
generally Oct. 27, 2010 Vaughn Index, Watkins Decl., Ex. 21.
Furthermore, the Court agrees that plaintiff has not
rebutted defendants’ argument by establishing that those fraud
indicators constitute “basic law enforcement techniques” that
would be excluded from Exemption 7(E). See Barnard, 598 F.
Supp. 2d at 23. The Court disagrees that factors such as the
gross income of a company or the length of time a company has
been in existence are factors that could not logically be used
to circumvent agency regulation. In addition, the mere fact
that the public may know about site visits generally, or may
know some information about fraud indicators does not mean that
defendants must disclose all details concerning fraud
indicators. See id. Accordingly, the Court finds that
defendants have properly asserted Exemption 7(E) with respect to
the Compliance Review Report, the H-1B Petition Fraud Referral
Sheet, and the Neufeld Memorandum.
28
C. Segregability
Even after determination that documents are exempt from
disclosure, FOIA analysis is not properly concluded unless a
court determines whether “any reasonably segregable portion of a
record” can “be provided to any person requesting such record
after deletion of the portions which are exempt.” 5 U.S.C. §
552(b). “So important is this requirement that ‘[b]efore
approving the application of a FOIA exemption, the district
court must make specific findings of segregability regarding the
documents to be withheld.’” Elec. Frontier Found. v. Dep’t of
Justice, --- F. Supp. 2d ----, 2011 WL 5966379, *10 (D.D.C.
2011) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106)).
The Court errs if it “simply approve[s] the withholding of an
entire document without entering a finding on segregability or
the lack thereof.” Powell v. U.S. Bureau of Prisons, 927 F.2d
1239, 1242 n. 4 (D.C. Cir. 1992) (citations omitted).
“It has long been the rule in this Circuit that non-exempt
portions of a document must be disclosed unless they are
inextricably intertwined with exempt portions.” Mead Data
Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir.
1977). The agency should, for example, “’describe what
proportion of the information in [the] documents,’ if any, ‘is
non-exempt and how that material is dispersed through the
document[s].” Elec. Frontier Found., --- F. Supp. 2d at ----,
29
2011 WL 5966379, *11 (citing Mead Data Cent., Inc., 566 F.2d
242, 261 (D.C. Cir. 1977)); see King v. Dep’t of Justice, 830
F.2d 210, 219 (D.C. Cir. 1987) (Vaughn index must sufficiently
identify the withheld material to enable the district court to
make a rational decision whether the withheld material must be
produced without actually viewing the documents). Where an
agency has publicly disclosed information that is similar to
what is being withheld, its Vaughn submission must be
“sufficiently detailed” to distinguish the withheld information
from the public information. Army Times Pub. Co. v. Dep’t of
Air Force, 998 F.2d 1067, 1071-72 (D.C. Cir. 1993).
Defendants argue that they have “established, with
reasonable specificity, that responsive documents were redacted
in part after a line-by-line review and after a determination
that there were no reasonably segregable portions of documents
appropriate for release.” Defs.’ Br. at 23 (citing Sub.
Eggleston Decl. ¶ 60). Defendants conclude that they have
therefore “complied with [their] duty to segregate exempt from
non-exempt information.” Id. The Court disagrees.
1. October 27, 2010 Vaughn Index
The October 27, 2010 Vaughn Index sets forth defendants’
basis for withholding or redacting certain information as
exempt. USCIS states in the Substitute Eggleston Declaration
30
that the documents in the October 27 Vaughn Index were reviewed
for segregability and that USCIS “released all reasonably
segregable, nonexempt, non-privileged portions of the subject
documents.” Sub. Eggleston Decl. ¶ 45.
The Court finds that USCIS’s October 27 Vaughn Index and
the related paragraphs of the Substitute Eggleston Declaration
to be inadequate to establish that all non-exempt, reasonably
segregable portions of the documents disclosed have been
produced. For example, the entries for the Compliance Review
Report and the Neufeld Memorandum state only “[t]he balance of
the document remains eligible for protection under the above-
cited FOIA exemption.” Oct. 27, 2010 Vaughn Index, Watkins
Decl. Ex. 21, at 1. With respect to the H-1B Petition Fraud
Referral Sheet, defendants indicate only that the “[a]gency
continues to withhold balance based on above-cited FOIA
exemption.” Id. at 2. The submissions fail to describe the
proportion of exempt to non-exempt information and fail to
establish that any non-exempt information is “inextricably
intertwined” with exempt information. See Mead Data Cent.,
Inc., 566 F.2d at 260; McGehee v. Dep’t of Justice, 800 F. Supp.
2d 220, 238 (D.D.C. 2011) (“Defendant’s declarant’s statement
that every effort was made to provide plaintiff with all
material in the public domain and with all reasonably segregable
portions of the releasable material falls far short of the
31
specificity required to justify non-segregation. Therefore,
Defendant has not carried its burden of demonstrating that all
segregable material has been disclosed.”) (citing Johnson v.
Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir.
2002) (internal quotation marks omitted)).
Furthermore, because the BFCA Report and the Compliance
Review Report Instructions share a common subject matter (fraud
indicators) with the documents that USCIS has redacted and
listed in the October 27, 2010 Vaughn Index, the Court finds
that USCIS is required to specifically explain the difference
between what it has deemed appropriate for public disclosure and
what remains withheld. Specifically, defendants must specify
how the redacted information differs from the BFCA Report and
the Compliance Review Report Instructions. See Army Times Pub.
Co. v. Dep’t of Air Force, 998 F.2d 1067, 1071-72 (D.C. Cir.
1993) (requiring Vaughn submission to be “sufficiently detailed”
to distinguish between the information being withheld and any
similar publicly-available information).
2. May 9, 2011 Vaughn Index
The May 9, 2011 Vaughn Index sets forth defendants’ basis
for withholding information from documents located in searches
conducted during this litigation. With respect to those
documents, the Substitute Eggleston Declaration states that
32
“[a]ll responsive documents were reviewed with an eye toward
providing the fullest disclosure and, in furtherance of this
goal, received a line-by-line examination in an effort to
identify all reasonably segregable, unprivileged, nonexempt
portions for release to plaintiff.” Sub. Eggleston Decl. ¶ 60.
The Court finds the May 9 Index to also be inadequate.
First, the index is inadequate because none of the entries and
the accompanying portions of the Substitute Eggleston
Declaration specify the relationship between any exempt and non-
exempt information in the documents. The Court emphasizes that
this requirement applies to all information withheld under any
exemption, and not only the documents withheld under exemption
7(E). See McGehee, 800 F. Supp. 2d at 238. Furthermore, with
respect to the documents exempted under 7(E), the Court finds
that the May 9 Index and accompanying portions of the Substitute
Eggleston Declaration fail to specifically explain how the
exempted information differs from the publicly-disclosed
Compliance Review Report Instructions and the BFCA Report. For
example, the document referenced on page 2 as “H-1B Primary
Fraud Indicators for Referral (Rev. 08-28-08, D12)” appears from
its description to relate to fraud indicators. See May 9, 2011
Vaughn Index, Watkins Decl., Ex. 20, at 2. The accompanying
description does not, however, explain how the redacted
information differs from information that the defendants have
33
chosen to publicly disclose. As explained above, the Court
finds that USCIS is required to specifically explain the
difference between what it has deemed appropriate for public
disclosure and what remains withheld, in light of the existence
of the publicly-disclosed BFCA Report and the Compliance Review
Report Instructions. Specifically, for any documents that
relate to the subject matter discussed in the BFCA Report and
the Compliance Review Report Instructions, defendants must
specify how the information redacted differs from what has been
officially disclosed.
D. Resolution
Having found the USCIS’s Vaughn submissions inadequate, the
Court has several options regarding how to now proceed in the
case, including whether to inspect the documents in camera,
requesting further affidavits, or allowing the plaintiff
discovery. See Elec. Frontier Found., 2011 WL 5966379, at *11
(citing Spirko v. USPS, 147 F.3d 992, 997 (D.C. Cir. 1998)).
Because a district court should not undertake in camera review
of withheld documents as a substitute for requiring an agency’s
explanation of its claims exemptions in accordance with Vaughn,
see id., the Court finds that the best approach is to direct
defendants to submit revised Vaughn submissions. See Army Times
Pub. Co., 998 F.2d at 1071-72. The Court notes that the USCIS’s
34
revised Vaughn submissions must be sufficiently detailed such
that the Court and plaintiff can conduct their own reviews of
the segregability of the non-exempt information, particularly in
light of the previously-disclosed information regarding fraud
indicators in the BFCA Report (Watkins Decl., Ex. 2) and the
Compliance Review Report Instructions produced by defendants in
response to plaintiff’s FOIA Requests (Watkins Decl., Ex. 29).
The Vaughn submissions should contain a segregability analysis
for each document withheld in part or in full, identifying the
proportion of exempt and non-exempt information, and
specifically explaining why the withheld information cannot be
produced.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that
defendants’ Vaughn submissions and accompanying Substitute
Eggleston Declaration fail to set forth a sufficient basis that
“any reasonably segregable portion” of the documents defendants
seek to withhold have been provided to plaintiff. See 5 U.S.C.
§ 552(b). Accordingly, defendants’ cross-motion for summary
judgment must be DENIED without prejudice, and plaintiff’s
motion for summary judgment must be GRANTED insofar as it
challenges the segregability analysis set forth by defendants.
Defendants are hereby directed to file revised Vaughn
submissions that take into account the deficiencies identified
35
by the Court by no later than April 30, 2012. The parties are
directed to file a joint recommendation for further proceedings
by no later than May 31, 2012. An appropriate order accompanies
this Memorandum Opinion.
It is so ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 30, 2012
36