United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
R WOOD UNITED STATES DISTRICT JUDGE
matter concerns a Freedom of Information Act
(“FOIA”) request related to eleven immigration
matters decided by the United States Attorney General.
Plaintiff National Immigrant Justice Center
(“NIJC”), a non-profit organization that provides
immigration assistance, deportation defense, and asylum
representation to low-income immigrants, submitted the FOIA
request to Defendant Department of Justice
(“DOJ”) and received a number of documents in
response. But many more documents were withheld as
privileged. Presently before the Court are the parties'
cross-motions for summary judgment. For the reasons stated
below, DOJ's motion for summary judgment (Dkt. No. 61)
and NIJC's motion for summary judgment (Dkt. No. 69) are
both granted in part and denied in part.
subject to removal generally go through the following
process. First, the immigrant's case is heard by an
immigration judge. See 8 C.F.R. § 1003.14.
Immigration judges exercise the powers and duties delegated
to them by the Attorney General. Id. §
1003.10(b). Decisions by immigration judges are subject to
review by the Board of Immigration Appeals
(“BIA”). Id. § 1003.10(c).The BIA
consists of attorneys appointed by the Attorney General to
act as her delegates. Id. § 1003.1(a)(1). Both
immigration judges and the BIA are employed by the Executive
Office of Immigration Review, which is within DOJ.
(Def.'s Resp. to Pl.'s 56.1 Stmt. of Facts
(“DRPSF”) ¶ 6, Dkt. No. 81.) The Department
of Homeland Security (“DHS”) represents the
government's interests in removal proceedings before
immigration judges and the BIA. See 6 U.S.C. § 251.
Attorney General has the power to review any BIA case she
chooses as well as those the BIA refers to her for decision.
See 8 C.F.R. § 1003.1(h)(1). Besides a mandate
that the Attorney General's decision be in writing, there
are no procedural requirements for the Attorney General's
decision-making process. Id.; see also Nani v.
Brownell, 153 F.Supp. 679, 680 (D.D.C 1957) (holding
that, pursuant to 8 C.F.R. § 1003.1, Attorney General is
not required to give notice to the immigrant when a case is
referred to her for review). The Attorney General's
decisions in removal matters are binding and precedential. 8
C.F.R. § 1003.1(g). Immigrants may seek review of final
BIA or Attorney General decisions in the appropriate federal
court of appeals, 8 U.S.C. § 1252(a)(1) & (5), where
the Office of Immigration Litigation (“OIL”)
defends the BIA's or the Attorney General's decision.
See 28 C.F.R. §§ 0.45(k), 0.20(a). If the
decision gets appealed to the U.S. Supreme Court, the Office
of the Solicitor General represents the government.
See 28 U.S.C. § 1254.
insight into the policies and procedures used by the Attorney
General when reviewing removal cases, NIJC filed a FOIA
request on December 3, 2010 seeking production of all of the
Attorney General's communications related to eleven
contested immigration decisions issued by the Attorney
General. (Pl.'s Resp. to Def.'s 56.1 Stmt. of Facts
(“PRDSF”) ¶ 1, Dkt. No. 71.) DOJ's
Office of Information Policy (“OIP”) received
NIJC's request on December 22, 2010, and acknowledged
receipt of the request by letter dated January 21, 2011.
(Id. ¶¶ 2, 3.) Over the course of the
following year, OIP identified 5, 269 records responsive to
NIJC's request, of which 989 were released to NIJC.
(Id. ¶¶ 17, 18.) The documents that were
not released were withheld pursuant to Exemptions 5 and 6 of
FOIA. (Id. ¶¶ 6-17.)
February 21, 2013, NIJC sent a second FOIA request seeking
Office of Legal Counsel (“OLC”) communications
related to the same eleven immigrations decisions issued by
the Attorney General. (Id. ¶ 19.) By January
30, 2015, OIP released several hundred pages of
communications, with excisions made and documents withheld
pursuant to Exemptions 5 and 6 of FOIA. (Id.
¶¶ 25, 26.)
then filed this lawsuit on June 15, 2012, alleging that DOJ
violated FOIA by unlawfully withholding, in whole or in part,
non-exempt documents responsive to their requests. After the
complaint was filed, the parties attempted to work out their
dispute, and DOJ produced a number of documents. But the
parties were not able to resolve their differences
completely, and thus on June 12, 2014, NIJC filed an amended
complaint, again seeking an order requiring DOJ's
production of responsive records. Eventually, DOJ filed its
motion for summary judgment (Dkt. No. 62), in which it argues
that it fully complied with FOIA and has released all
non-exempt records responsive to NIJC's two requests. To
support its motion, DOJ has submitted two Vaughn
indices, which are “comprehensive listing[s] of each
withheld document cross-referenced with the FOIA exemption
that the Government asserts is applicable.” Solar
Sources, Inc. v. United States, 142 F.3d 1033, 1036 n.3
(7th Cir. 1998). One index relates to the first FOIA request
regarding the Attorney General's communications
(Def.'s Mot. for Summ. J. Ex. P, Dkt. No. 62-1), and the
other relates to the second FOIA request regarding OLC
communications (Id., Dkt. No. 62-2.) With respect to
the first FOIA request, DOJ also has submitted a declaration
from Laurie A. Day, Chief of Initial Request Staff at DOJ
OIP. (Id., Dkt. No. 62-1.) With respect to the
second, the OLC request, DOJ has submitted a declaration from
Paul P. Colborn, Special Counsel in OLC. (Id., Dkt.
response to DOJ's motion, NIJC has filed a cross-motion
for summary judgment, arguing that DOJ has improperly applied
Exemption 5 to documents that should be released. (Dkt. No.
70.) NIJC makes two arguments: (1) DOJ improperly withheld
documents as privileged that are actually ex parte
communications in connection with contested proceedings, and
therefore not protected; and (2) DOJ's Vaughn
index does not provide sufficient detail regarding the
contents of documents withheld pursuant to the deliberative
enacted FOIA “to open up the workings of government to
public scrutiny through the disclosure of government
records.” Stern v. FBI, 737 F.2d 84, 88 (D.C.
Cir. 1984) (internal quotation marks omitted). When a request
under FOIA is made, the government may withhold a document
only if it falls within one of nine statutory exemptions. 5
U.S.C. § 552(a)(4)(B). “Congress created these
exemptions because it realized that legitimate governmental
and private interests could be harmed by release of certain
types of information.” FBI v. Abramson, 456
U.S. 615, 621 (1982). Because disclosure is “the
dominant objective of the FOIA, ” the Court construes
“FOIA exemptions narrowly in favor of
disclosure.” Patterson v. I.R.S., 56 F.3d 832,
835 (7th Cir. 1995) (internal quotation marks omitted).
Consequently, the government has the burden of justifying its
decision to withhold requested documents. Id.;
see also 5 U.S.C. § 552(a)(4)(B) (“the
burden is on the agency to sustain its action”). The
Court may grant summary judgment in favor of the government
in a FOIA case only if the government provides
“affidavits [that] describe the documents withheld and
the justifications for nondisclosure in enough detail and
with sufficient specificity to demonstrate that material
withheld is logically within the domain of the exemption
claimed.” Patterson, 56 F.3d at 836 (quoting
PHE, Inc. v. U.S. Dep't of Justice, 983 F.2d
248, 250 (D.C. Cir. 1993)).
DOJ relies on Exemption 5 of FOIA to support withholding the
requested documents. That Exemption allows the government to
withhold “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.
§ 522(b)(5). “Exemption 5 incorporates the
privileges which the Government enjoys under the relevant
statutory and case law in the pretrial discovery
context.” Renegotiation Bd. v. Grumman Aircraft
Eng'g Corp., 421 U.S. 168, 184 (1975). One such
privilege that Exemption 5 incorporates is the deliberative
process privilege, which protects government documents
reflecting the deliberative or policy-making processes.
Enviro Tech Int'l, Inc. v. U.S. E.P.A., 371 F.3d
370, 374 (7th Cir. 2004). Exemption 5 also incorporates the
attorney-client privilege and the attorney work-product
protection. Rockwell Intern. Corp. v. DOJ, 235 F.3d
598, 601 (D.C. Cir. 2001).
Communications with OSG and OIL
contends that all of the withheld documents are protected by
the deliberative process privilege, and therefore were
properly withheld under Exemption 5. NIJC counters that the
records DOJ withheld pursuant to Exemption 5 constitute
ex parte communications and are therefore not
privileged. Specifically, NIJC contends that ...