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Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 1 of 32

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------x
AMERICAN CIVIL LIBERTIES UNION; and





AMERICAN CIVIL LIBERTIES UNION
FOUNDATION,

Plaintiffs,

v.

UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; and

U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT,




------------------------------------------------------------x

Defendants.

No. 11 Civ. 3786 (RMB)

ECF CASE



MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR

SUMMARY JUDGMENT AND IN SUPPORT OF DEFENDANTS’ CROSS MOTION

FOR SUMMARY JUDGMENT





PREET BHARARA

United States Attorney for the
Southern District of New York
86 Chambers Street, 3rd Floor
New York, New York, 10007
Telephone: (212) 637-2689
Facsimile: (212) 637-2686







































Of Counsel:








LOUIS A. PELLEGRINO
Assistant United States Attorney

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 2 of 32

TABLE OF CONTENTS

PRELIMINARY STATEMENT ......................................................................................1

STATEMENT OF FACTS ................................................................................................3





Detained Individuals ................................................................................................3

Plaintiffs’ FOIA Request and ICE’s Search and Response .....................................3

ARGUMENT ......................................................................................................................6

I.

II.










III.



IV.

LEGAL STANDARD ..............................................................................................6

THE GOVERNMENT PROPERLY REDACTED THE NAME, ALIEN
NUMBER, AND OTHER PERSONALLY INDENTIFIABLE INFORMATION
OF THE INDIVIDUAL IN THE POCR SAMPLE PURSUANT TO FOIA
EXEMPTIONS (6) AND (7)(C) .............................................................................7

A.

B.


C.


The Government Properly Applied Both Exemptions 6 and 7(C) to the
POCR Sample ..............................................................................................9

The Redacted Information Contained in the POCR Sample Implicates
A Clear Privacy Interest in Avoiding Public Disclosure of PII .................11

The Detainee’s Privacy Interests Outweigh Any Public Interest in the
Disclosure of His Personally Identifiable Information ..............................17

PURSUANT TO THE STIPULATION, THE GOVERNMENT
RESERVES THE RIGHT TO APPROPRIATELY REDACT
FOR PRIVILEGE ..................................................................................................19

THE GOVERNMENT PROPERLY REDACTED LAW ENFORCEMENT
PROCEDURES PURSUANT TO FOIA EXEMPTION 7(E) ..............................22

CONCLUSION ................................................................................................................25

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 3 of 32

TABLE OF AUTHORITIES

Ahmed v. U.S. Citizenship and Immigration Services, No. 11–cv–6230 (CBA), 2013 WL


27697 (E.D.N.Y. Jan. 2, 2013) .........................................................................................23

Allard K. Lowenstein Int’l Human Rights Project v. Dep’t of Homeland Sec.,

626 F.3d 678 (2d Cir. 2010)...................................................................................22, 23, 24

American Federal of Gov. Employees, Local 1760 v. FLRA,

786 F.2d 554 (2d Cir. 1986).............................................................................................8, 9

Amnesty International USA v. CIA,


728 F. Supp. 2d 479 (S.D.N.Y. 2010) ..................................................................................9

Asian Law Caucus v. U.S. Dept. of Homeland Sec., No. C 08-00842 CW, 2008 WL


5047839 (N.D. Cal. Nov. 24, 2008) ..................................................................................25

Associated Press v. U.S. Department of Defense,


554 F.3d 274 (2d Cir. 2009).................................................................................7, 9, 18, 19

Associated Press v. U.S. Department of Justice,


549 F.3d 62 (2d Cir. 2008)...................................................................................................6

Barnard v. Dep’t of Homeland Sec.,


598 F. Supp. 2d 1 (D.D.C. 2009 ........................................................................................22

Catledge v. Mueller,


323 F. App’x 464 (7th Cir. 2009) .....................................................................................25

CIA v. Sims,

471 U.S. 159 (1985) .............................................................................................................7

Carney v. U.S. Dep’t of Justice,


19 F.3d 807 (2d Cir. 1994).............................................................................................7, 16

Coleman v. FBI,


13 F. Supp. 2d 75 (D.D.C. 1998) ......................................................................................23

Davis v. Dep’t of Justice,


968 F.2d 1276 (D.C. Cir. 1992) .........................................................................................13

Federal Labor Relations Auth. v. United States Department of Treasury, Finance Mgt.,


884 F.2d 1446 (D.C. Cir. 1989) ...........................................................................................9

Federal Labor Relations Auth. v. U.S. Department of Veterans Affairs,


958 F.2d 503 (2d Cir.1992)........................................................................................ passim

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 4 of 32

Ferguson v. FBI,

89 Civ. 5071 (RPP), 1995 WL 329307 (S.D.N.Y. June 1, 1995),
aff’d, 83 F.3d 41 (2d Cir. 1996) ...........................................................................................6

Grand Cent. P’ship, Inc. v. Cuomo,


166 F.3d 473 (2d Cir. 1999).........................................................................................21, 22

John Doe Agency v. John Doe Corp.,


493 U.S. 146 (1989) .........................................................................................................6, 7

Judicial Watch, Inc. v. U.S. Dep’t of Commerce,


337 F. Supp. 2d 146 (D.D.C. 2004) ..................................................................................22

Lesar v. Department of Justice,


636 F.2d 472 (D.C. Cir. 1980) ...........................................................................................18

Mayer Brown LLP v. IRS,


562 F.3d 1190 (D.C. Cir. 2009) ........................................................................................24

McCutcheon v. HHS,


30 F.3d 183 (D.C. Cir. 1994) .............................................................................................10

Miscavige v. IRS.,


2 F.3d 366 (11th Cir. 1993) ..................................................................................................7

National Record Archives & Records Admin. v. Favish,


541 U.S. 157 (2004) ...........................................................................................................17

Nation Magazine v. U.S. Customs Serv.,


71 F.3d 885 (D.C. Cir. 1995) .............................................................................................10

New York Times Co. v. NASA,


920 F.2d 1002 (D.C. Cir. 1990) .........................................................................................10

New York Times Co. v. U.S. Dep’t of Justice,


872 F. Supp. 2d 309 (S.D.N.Y. 2012) ..................................................................................6

NLRB v. Sears, Roebuck & Co.,


421 U.S. 132, 95 S. Ct. 1504 (1975) ..................................................................................20

Perlman v. U.S. Department of Justice,


312 F.3d 100 (2d Cir. 2002) .............................................................................................11

Soghoian v. U.S. Dep’t of Justice,


885 F. Supp. 2d 62, 2012 WL 3090309 (D.D.C. July 31, 2012) .......................................24

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 5 of 32

Spirko v. U.S. Postal Service,


147 F.3d 70 (D.C. Cir. 1998) .................................................................................13, 14, 15

Tax Analysts v. IRS,


117 F.3d 607 (D.C. Cir. 1997) ...........................................................................................20

Tigue v. U.S. Dep’t of Justice,


312 F.3d 70 (2d Cir. 2002).................................................................................................20

Tran v. Dep’t of Justice,


No. 01-0238, 2001 WL 1692570 (D.D.C. Nov. 20, 2001) ...............................................23

U.S. Department of Defense v. FLRA,


510 U.S. 487 (1994) ...........................................................................................................12

U.S. Department of State v. Washington Post Co.,


456 U.S. 595 (1982) ...........................................................................................................10

U.S. Department of the Air Force v. Rose,


425 U.S. 352 (1976) ................................................................................................... passim

U.S. Department of the Interior v. Klamath Water Users Protective Association,


532 U.S. 1 (2001) .................................................................................................................7

United States Department of Justice v. Reporters Committee for Freedom of the Press,


489 U.S, 749, 109 S. Ct. 1468, 103 L. Ed 2d 774 (1989) .......................................... passim

United States of Department of State v. Ray,


502 U.S. 164 (1991) ...........................................................................................................17

Vaughn v. Rosen,


484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974) ......................................6

Weisberg v. U.S. Department of Justice,


745 F.2d 1476 (D.C. Cir. 1984) .......................................................................14, 18, 19, 20

Wood v. FBI,


432 F.3d 78 (2d Cir. 2005).................................................................................................19

Zadvydas v. Davis,


533 U.S. 678 (2001)) ...................................................................................................1, 3, 4

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 6 of 32

STATUTES AND REGULATIONS

8 C.F.R. §241.4, 241.13 & 241.14 .............................................................................................1, 23

8 U.S.C. § 1231 ............................................................................................................................1, 3

5 U.S.C. § 552(a) .............................................................................................................................8

5 U.S.C. § 552(b) .............................................................................................................................6

5 U.S.C. § 552(b)(5) .............................................................................................................. passim

5 U.S.C. § 552(b)(6) .............................................................................................................. passim

5 U.S.C. § 552(b)(7)(C) ......................................................................................................... passim

5 U.S.C. § 552(b)(7)(E) ......................................................................................................... passim

RULES

Fed. R. Civ. P. 56(a) ........................................................................................................................7

MISCELLANEOUS

DHS Privacy Incident Handling Guidance, ¶ 1.4.9 ............................................................... passim

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 7 of 32

PRELIMINARY STATEMENT

In 2001, the Supreme Court held that individuals who have been found to be

unlawfully present in the United States and who are scheduled for removal may not be

detained for a period of more than six months where there is no significant likelihood of

removal in the reasonably foreseeable future. See Zadvydas v. Davis, 533 U.S. 678, 701

(2001). Generally, the Government has until ninety days after initial removal

proceedings are concluded to arrange for the deportation of an alien. See 8 U.S.C. §

1231. Thereafter, aliens detained beyond the ninety day “removal period,” are subject to

a Post-Order Custody Review (“POCR”) process, which, pursuant to Zadvydas, presumes

that individuals should not generally be detained longer than six months.1

In the sole remaining claim in this action, Plaintiffs American Civil Liberties

Union and the American Civil Liberties Union Foundation (collectively, “ACLU” or

“Plaintiffs”) requested, pursuant to the Freedom of Information Act (“FOIA”), that the

United States Department of Homeland Security (“DHS” or the “Government”) produce

the collection of documents that DHS maintains for aliens detained beyond the ninety day

removal period, known as POCR “files.” As specified by 8 C.F.R. § 241.4, 241.13 &

241.14, POCR files contain DHS’s documentation of its determinations regarding the

review process for continued custody of an alien. Each POCR “file” represents a singular

case file for a specific detained foreign national, and therefore contains unique

information associated with that individual.

1 There are exceptions to the six-month detention period, some of which are discussed in
Plaintiff’s Motion for Summary Judgment (“Pls. Mot.”) at 3, 18.

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 8 of 32

Plaintiffs filed this lawsuit two years ago. Three-fourths of the case was resolved

via the Stipulation and Order of Settlement and Partial Dismissal (the “Stipulation”),

entered by the Court on September 6, 2012 (Dkt. Item No. 21). Since that time, in

compliance with the Stipulation, the U.S. Immigration and Customs Enforcement Agency

(“ICE”), a component of DHS, produced 1,101,967 individual lines of anonymous data in

response to Plaintiffs’ requests for information concerning Zadvydas-related issues.

The only remaining claim is Plaintiffs’ request for the hardcopy or electronic

POCR files that ICE created to adjudicate the detention status of specific individual

aliens. The parties disagree on the extent to which these POCR files should be redacted.

Plaintiffs maintain that, with some exceptions, the files do not generally contain FOIA-

exempt information, and should be produced with minimal redactions. The Government

believes that without written individual privacy waivers signed by each alien who is the

subject of a requested POCR file, the Government must redact all information that would

be an invasion of the personal privacy of the detainees whose information is contained

within the POCR files (see FOIA Exemptions 6 and 7(C)). The Government also seeks

to redact the contents of its POCR files for potential privileges (see FOIA Exemption 5),

and for information that is law enforcement protected (see FOIA Exemption 7(E)).

Pursuant to prior agreement in the Stipulation, the parties have provided the Court

with one representative sample POCR file to enable the Court to resolve these conflicting

claims. This, in turn, will allow the parties to decide whether the Government will

undertake a larger production of its POCR files, and how many total POCR files should

be produced.

2

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 9 of 32

Because DHS’s proposed withholdings are proper pursuant to the FOIA, the

Court should deny Plaintiffs’ motion for summary judgment and grant the Government’s

cross-motion for summary judgment.

STATEMENT OF FACTS

Detained Individuals

When an individual found to be in the United States illegally is ordered removed,

DHS, and specifically ICE, generally places that individual in administrative detention

until removal is effected. See 8 U.S.C. § 1231; Second Declaration of Ryan Law

(“Second Law Decl.”) ¶ 5. During the detention period, an ICE officer works to procure

travel documents from the individual’s home country. See id. ¶ 6. Without the necessary

travel documents, the individual cannot be removed. See id.

Occasionally, ICE is unable to obtain such documents. See id. ¶ 7. This occurs

for a variety of reasons, including, for example, the state of U.S. diplomatic relations with

the individual’s home country or an individual’s medical condition. See id. Per the

Supreme Court’s decision in Zadvydas, in the event that ICE cannot obtain the necessary

documents to allow an individual to be removed within six months of detention, and

where there is no significant likelihood of removal in the reasonably foreseeable future,

ICE can no longer detain the individual.2 See id. ¶ 8; 533 U.S. at 701.

Plaintiffs’ FOIA Request and ICE’s Search and Response

Plaintiffs filed their FOIA complaint on June 3, 2011. Amended Law Decl. ¶ 6

(Ex. 3 to Leland Decl.). The parties entered into settlement negotiations. Id. ¶ 7. On

2 During Fiscal Year 2012, ICE released a total of 3,216 such individuals pursuant to
Zadvydas (and removed 409,849 aliens during that same time period). See Second Law
Decl. ¶ 9.

3

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 10 of 32

September 6, 2012, the Court entered the Stipulation, which superseded the Complaint by

negotiating four “New Requests.” Id. Three of the four requests were resolved by a data

production (the “Data Production”) that ICE delivered to Plaintiffs on November 13,

2012. See Second Law Decl. ¶ 11. The Data Production totaled nearly 7.5 megabytes,

which included 1,101,967 individual data points on Zadvydas-related issues. Id. ¶ 12.

As reflected in the exhibit appended to the Stipulation, and the Plaintiffs’

Declaration of Michael Tan (“Tan Declaration”), the Data Production consisted of three

voluminous excel spreadsheets, each of which provided on average 14 separate categories

of anonymous detainee-related information from the ICE database, including information

that enabled Plaintiffs to see—anonymously—how many detainees have been held

beyond the six month Zadvydas detention period. See Stipulation (Leland Decl. Ex. 1);

see also Tan Declaration ¶¶ 3, 4 (noting that spreadsheet 1 “contains tens of thousands of

individual rows”). The Tan Declaration further acknowledges that each spreadsheet

contains a range of information for each anonymous detainee, including the date they

were booked into custody, whether or not they had a final order of removal, and how long

they were held. Tan Decl. ¶¶ 6-9 (listing specific examples, e.g.: “a Russian man held at

the Northwest Detention Center in Tacoma, Washington had been detained 2 years, 4

months, and 8 days.”)

The parties agreed that the sole remaining request, known as New Request No. 2,

would be resolved by cross-motions for summary judgment, see Stipulation ¶ 3 (Ex. 1 to

Leland Decl.); Amended Law Decl. ¶ 7-8 (Ex. 3 to Leland Decl.), and that ICE would

furnish a declaration to initiate that process:

Within a reasonable time after entry of this Stipulation and
Order, Defendants shall produce to Plaintiffs one (1)

4

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 11 of 32

sample redacted Post Order Custody Review (“POCR”)
file, and an accompanying declaration and Vaughn index
for the sample file (collectively the “Declaration”),
detailing the representative types of FOIA exemptions it
would claim over all such POCR documents called for by
New Request No. 2 in Exhibit A.

Amended Law Decl. ¶ 8 (Ex. 3 to Leland Decl.). The Stipulation further contemplated

that production of the single sample redacted POCR file (“POCR Sample”) was intended

to allow the parties to determine, after seeking the Court’s guidance, “whether any further

[POCR] production is warranted, and if so, the size and scope of the production to be

made,” as governed by the Court’s ruling on the exemptions at issue in this motion.

Stipulation ¶ 6 (Ex. 1 to Leland Decl.).

On January 30, 2013, the Government furnished Plaintiffs with the final version

of the declaration required by the Stipulation (e.g., the Amended Law Declaration). The

Amended Law Declaration (Leland Ex. 3) explained the basis for the Government’s

proposed withholdings, and contained (a) ICE’s production to Plaintiffs of a randomly

selected redacted POCR file (Leland Ex. 2), (b) an explanatory cover letter provided to

the Court on January 7, 2013, for purposes of the parties’ proposed summary judgment

motions (Leland Ex. 5), and (c) an accompanying Vaughn Index for the POCR Sample.

The Government agrees with Plaintiffs that this dispute is now limited to thirty-

four remaining data points as numbered in the POCR Sample. Leland Decl., Ex. 5. The

claimed FOIA exemptions are:

(cid:120)

(cid:120)

(cid:120)

The “privacy exemptions” under 5 U.S.C. § 552(b)(6) (“Exemption 6”)
and 552(b)(7)(C) (“Exemption 7(C)”);

The deliberative process and attorney client privilege under 5 U.S.C. §
552(b)(5) (“Exemption 5”);

The law enforcement privilege under 5 U.S.C. § 552(b)(7)(E)

5

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 12 of 32

(“Exemption 7(E)”).

I.

LEGAL STANDARD

ARGUMENT3

The Freedom of Information Act, 5 U.S.C. § 552, represents a balance struck by

Congress “‘between the right of the public to know and the need of the Government to

keep information in confidence.’” John Doe Agency v. John Doe Corp., 493 U.S. 146,

152 (1989) (quoting H.R. Rep. 89-1497, 89th Cong., 2d Sess. 6 (1966)). The statute

requires each federal agency to make available to the public an array of information, and

sets forth procedures by which requesters may obtain such information. See 5 U.S.C. §

552(a). At the same time, FOIA exempts nine categories of information from disclosure,

while providing that “[a]ny reasonably segregable portion of a record shall be provided . .

. after deletion of the portions which are exempt under this subsection.” 5 U.S.C. §

552(b). FOIA “calls for broad disclosure of [g]overnment records, while maintaining a

balance between the public’s right to know and the government’s legitimate interest in

keeping certain information confidential.” Associated Press v. U.S. Dep’t of Justice, 549

F.3d 62, 64 (2d Cir. 2008) (citations and quotation marks omitted).

Thus, while FOIA requires disclosure under certain circumstances, the statute

recognizes “that public disclosure is not always in the public interest,” CIA v. Sims, 471

3 The Government has not submitted a Local Rule 56.1 statement, as “the general rule in
this Circuit is that in FOIA actions, agency affidavits alone will support a grant of
summary judgment” and a Local Rule 56.1 statement “would be meaningless.” Ferguson
v. FBI, No. 89 Civ. 5071 (RPP), 1995 WL 329307, at *2 (S.D.N.Y. June 1, 1995), aff’d,
83 F.3d 41 (2d Cir. 1996); see also New York Times v. U.S. Dep’t of Justice, 872 F. Supp.
2d 309, 314 (S.D.N.Y. 2012).

6

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U.S. 159, 166-67 (1985), and mandates that records need not be disclosed if “the

documents fall within [the] enumerated exemptions,” U.S. Dep’t of the Interior v.

Klamath Water Users Protective Ass’n, 532 U.S. 1, 7 (2001) (citations omitted); see also

John Doe Agency, 493 U.S. at 152 (FOIA exemptions are “intended to have meaningful

reach and application”). Furthermore, the redaction of records “is expressly authorized

by FOIA, which indicates that Congress recognized that the policy of informing the

public about the operation of its Government can be adequately served in some cases

without unnecessarily compromising individual interests in privacy.” Associated Press v.

U.S. Dep’t of Defense, 554 F.3d 274, 284 (2d Cir. 2009) (citations omitted).

Most FOIA actions are resolved by summary judgment. See, e.g., Miscavige v.

IRS, 2 F.3d 366, 369 (11th Cir. 1993). Summary judgment is warranted if “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). In a FOIA case, the agency bears the burden of showing

that exemptions have been properly applied. See Carney v. U.S. Dep’t of Justice, 19 F.3d

807, 812 (2d Cir. 1994). “Affidavits or declarations . . . giving reasonably detailed

explanations why any withheld documents fall within an exemption are sufficient to

sustain the agency’s burden.” Id.

II.

THE GOVERNMENT PROPERLY REDACTED THE NAME, ALIEN
NUMBER, AND OTHER PERSONALLY INDENTIFIABLE
INFORMATION OF THE INDIVIDUAL IN THE POCR SAMPLE
PURSUANT TO FOIA EXEMPTIONS (6) AND (7)(C)

ICE’s determination to protect the personally identifiable information (or “PII”)

of alien detainees or third party individuals referenced within its POCR files was proper.

DHS defines personally identifiable information as:

7

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 14 of 32

Any information that permits the identity of an individual
to be directly or indirectly inferred, including any other
information which is linked or linkable to that individual
regardless of whether the individual is a United States
citizen, legal permanent resident, or a visitor to the U.S.
PII includes any item, collection, or grouping of
information about an individual that is maintained by an
agency, including, but not limited to, education, financial
transactions, medical history, and criminal or employment
history.

See DHS Privacy Incident Handling Guidance, ¶ 1.4.9. at 9, January 26, 2012 (Ex. A to

Second Law Declaration). DHS further identifies examples of PII as including: names,

date of birth, mailing address, telephone number, Social Security number (SSN), email

address, zip code, biometric identifiers (e.g., fingerprints), photographic facial images, or

any other unique identifying number or characteristic, and any information where it is

reasonably foreseeable that the information will be linked with other information to

identify the individual. Id.

The Privacy Act of 1974, 5 U.S.C. § 552a, generally bars disclosure of PII, absent

consent of the individual affected. See e.g., American Fed. of Gov. Employees, Local

1760 v. FLRA, 786 F.2d 554, 556 (2d Cir.1986) (“Local 1760”); see also United States

Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 766

(1989) (“Reporters Committee”) (Privacy Act passed out of concern over impact of

computer data banks on individual privacy). The Privacy Act excepts from its

prohibition against disclosure, however, information that must be made available under

the FOIA. FLRA v. U.S. Dept. of Veterans Affairs, 958 F.2d 503, 505 (2d Cir. 1992).

Consequently, whether ICE must disclose the PII contained in the POCR Sample requires

a determination of whether such information would have to be disclosed under FOIA.

8

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 15 of 32

See Local 1760, 786 F.2d at 556; FLRA v. United States Dept. of Treasury, Fin. Mgt.

Serv., 884 F.2d 1446, 1450 (D.C. Cir. 1989).

A.

The Government Properly Applied Both Exemptions 6 and 7(C) to
the POCR Sample

Exemption 6 exempts from disclosure information from personnel, medical, or

other “similar files” whose release “would constitute a clearly unwarranted invasion of

personal privacy,” 5 U.S.C. § 552(b)(6),4 while Exemption 7(C) exempts from disclosure

“records or information compiled for law enforcement purposes” where disclosing them

“could reasonably be expected to constitute an unwarranted invasion of personal

privacy,” 5 U.S.C. § 552(b)(7)(C). Once a privacy interest is established, both

exemptions require the Court to balance the privacy interests at stake against the public’s

interest in disclosure. See Reporters Comm., 489 U.S. at 755-56; Amnesty Int’l USA v.

CIA, 728 F. Supp. 2d 479, 524 (S.D.N.Y. 2010) (“With respect to Exemption 7(C), a

similar balancing of interests [as to Exemption 6] occurs.”); Pls. Br. at 11 n. 8 (“Because

the analyses for Exemptions 6 and 7(C) are so similar, this memorandum will analyze the

application of both exemptions within the same discussion.”).

The purpose of Exemption 6 is to “protect individuals from the injury and

embarrassment that can result from the unnecessary disclosure of personal information.”

U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 599 (1982). The Supreme

Court has interpreted Exemption 6 broadly, making clear that all information that

4 ICE’s POCR files constitute “similar files” within the meaning of Exemption 6. “The
phrase ‘similar files’ has a broad meaning and encompasses the government’s ‘records on
an individual which can be identified as applying to that individual.’” Associated Press,
554 F.3d at 291 (citing U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602
(1982)).

9

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 16 of 32

“applies to a particular individual” meets the threshold requirement for protection under

this exemption. Washington Post Co., 456 U.S. at 602; see also New York Times Co. v.

NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (finding voice tapes from the space shuttle

Challenger to be “similar files” because they identified crew members by the sound and

inflection of their voices).

Similarly, Exemption 7(C) protects from disclosure “records or information

compiled for law enforcement purposes” if disclosure “could reasonably be expected to

constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Like

Exemption 6, Exemption 7(C) “call[s] for a balancing of the privacy interests that would

be compromised by disclosure against the public interest in release of the requested

information.” McCutcheon v. HHS, 30 F.3d 183, 185 (D.C. Cir. 1994) (internal quotation

marks omitted). But as the Supreme Court explained, Exemption 7(C)’s privacy

language is broader than that of Exemption 6 because the adverb “clearly” is omitted

from Exemption 7(C), and Exemption 7(C) encompasses any disclosure that “could

reasonably be expected to constitute” an invasion of privacy. Reporters Comm., 489 U.S.

at 756. Construing the public interest component of Exemption 7(C), courts have noted

that the public interest “must be assessed in light of FOIA’s central purpose,” and that

this purpose “is not fostered by disclosure of information about private citizens that is

accumulated in various governmental files but that reveals little or nothing about an

agency’s own conduct.” Nation Magazine v.U.S. Customs Serv., 71 F.3d 885, 894 (D.C.

Cir. 1995) (quotation marks and citation omitted). Rather, the information must

“contribute significantly to public understanding of the operations or activities of the

government . . . .” Reporters Comm., 489 U.S. at 775 (emphasis added).

10

Case 1:11-cv-03786-RMB Document 34 Filed 05/17/13 Page 17 of 32

Exemptions 6 and 7(C) therefore protect the same privacy interests; the difference

between them lies in “the degree of invasion . . . that will be tolerated before disclosure is

prohibited.” FLRA, 958 F.2d at 503 (rejecting the argument that Exemption 6 requires a

greater privacy interest to trigger the balancing test). Where both exemptions are

implicated, a court appropriately applies the “stricter [Exemption 7(C)] evaluation of

privacy interests.” Perlman v. U.S. Dep’t of Justice, 312 F.3d 100, 106 (2d Cir. 2002).5

B.

The Redacted Information Contained in the POCR Sample Implicates
a Clear Privacy Interest in Avoiding Public Disclosure of PII

The majority of redactions in this case involve ICE’s decision to (a) redact PII in

the POCR Sample, and (b) produce the remaining portions of the POCR Sample that it

deemed segregable. Documents have not been entirely withheld.6 Rather, ICE applied

Exemptions 6 and 7(C) to protect the privacy of the individual detainee’s PII. The

Amended Law Declaration explains that “ICE applied Exemptions 6 and 7(C) to protect

from disclosure the names, phone numbers, alien registration numbers, indentifying

aspects of the alien’s case, (such as case history, chronology, employment prospects and

history, education, and lists of convictions), of the alien who was the subject of the POCR

review . . .”. Amended Law Decl. ¶ 23 (Leland Decl., Ex. 3). Therefore, ICE redacted:

(cid:120)

(cid:120)

(cid:120)

details of the alien’s criminal history (Data Points 6, 7, and 8);

the location of the detainee’s facility (Data Points 2 and 5);

arrival details concerning the detainee’s entry into the United States (Data
Points 3, 4);

5 The parties agree that the disputed records under Exemption 6 have been compiled for
law enforcement purposes, bringing them within the ambit of Exemption 7(C) as well.
Pls. Br. at 11, n. 9.
6 See Pls. Br. at 6 (“An agency may not withhold entire documents or broad categories of
documents when only a segreagable portion is exempt from disclosure.”).

11

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(cid:120)

(cid:120)

(cid:120)

(cid:120)

information regarding the detainee’s travel document status and history
(Data Points 10, 11, 20, 25, 26, 30, 31);

information regarding medical or psychological issues (Data Points 12, 18,
23, 28); and

agency comments or discussion concerning the alien (Data Points 1, 9, 15,
16, 17, 21, 22, 27, 32, 33, 34);

special circumstances, such as national security concerns (Data Points 13,
14, 19, 24, 29).7

See Amended Law Decl. ¶¶ 21-25 (Leland Decl. Ex. 3); Vaughn Index (Leland Decl. Ex.

4); Data Points Chart, Exh 6. ICE redacted this information because it “reasonably

expected” that disclosure of this information could constitute an invasion of privacy.

Vauhgn Index (Leland Decl. Exh 4, at 1); U.S. Dep’t of Defense, 510 U.S. at 496-97 n.6.

This is consistent with ICE guidance—which defines PII as “[a]ny information that

permits the identity of an individual to be directly or indirectly inferred, including any

other information which is linked or linkable to that individual regardless of whether the

individual is a United States citizen . . .” (emphasis added), DHS Privacy Incident

Handling Guidance, ¶ 1.4.9. at 9, January 26, 2012 (Ex. A to Second Law Declaration)—

which, in turn, is consistent with Supreme Court jurisprudence, see U.S. Dep’t of the Air

Force v. Rose, 425 U.S. 352, 380-81 (1976) (requiring that “personal references or other

7 The Government acknowledges that this individual POCR Sample itself does not
implicate PII concerns with respect to certain of the categories listed above such as
medical condition, agency comments, or national security concerns. But the redactions
on the POCR Sample signify that ICE will need to redact this category of information for
any individual that does have medical information, agency comments or national security
information in his POCR file that reveals PII. See Stipulation ¶ 6 (Leland Decl. Exh. 1)
(POCR Sample intended to detail the representative types of FOIA exemptions ICE
would claim over any future production called for by the Plaintiffs’ remaining request).
If the Government were to reproduce the POCR Sample to Plaintiffs on a “production”
basis it would not have redacted this information, but it did so here to preserve its right to
redact PII in any future production where PII would be revealed.

12

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identifying information” be redacted from cadet discipline files); see also Spirko v. U.S.

Postal Service, 147 F.3d 992, 997 (D.C. Cir. 1998) (finding a privacy interest in criminal

histories, computer generated print outs of criminal activities of former suspects, and

information from state, local and federal law enforcement agencies pertaining to suspects

and former suspects); Davis v. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992)

(private citizens mentioned in investigatory files enjoy a privacy interest).

Plaintiffs do not dispute that ICE must redact the name and alien number of the

individual in the POCR Sample. See POCR Sample at 000001 (Leland Decl. Ex. 2).

Plaintiffs also generally agree that a privacy interest exists where personally identifying

information would be disclosed. Pls. Br. at 18 (citing Rose, 425 U.S. at 380). But

Plaintiffs do not agree that PII goes beyond just names and social security numbers, and

should be considered broadly to include any identifying information that permits the

identity of the individual to be discovered. See DHS Privacy Incident Handling

Guidance, ¶ 1.4.9. at 9, January 26, 2012 (Ex. AA to Second Law Declaration); Rose,

425 U.S. at 380-81. Here, Plaintiffs are incorrect.

The categories of information that ICE redacted under Exemptions 6 and 7(C) are

information which, if revealed, would be reasonably expected to implicate the alien’s

privacy interests. For example, the individual in the POCR Sample is Liberian. See

POCR Sample at 000001 (Leland Decl. Ex. 2). If that individual is the only Liberian to

have crossed into the United States through a small Arizona border town,8 or if he were

the only Liberian with a rare or unusual medical condition,9 or the only Liberian with a

8 Data Points 3, 4 (Leland Decl., Exh. 2).
9 Data Points 12, 18, 23, 28, Id.

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particular criminal history,10 it would be relatively easy for someone to specifically

identify that person, or for the alien himself to recognize the public disclosure of his own

file and sue ICE for privacy act violations, even though his name was not specifically

disclosed.11 See Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1491 (D.C. Cir. 1984)

(fact that FOIA requester was able to piece together the identities of informants from

disparate information “in no way undermine[d]” the privacy interests of those

individuals).

The redacted information in these files, including the medical files (Pls. Br. at 17),

arrival dates and locations (id.), and special circumstances such as national security (id. at

18), cannot be examined without reference to their overall connection to an alien’s PII.

For example, if Plaintiffs’ Motion is granted, the public will learn (a) the arrival date and

entry point of the alien, (b) the facility at which he is being held, (c) his nationality

(which ICE has not redacted), (d) his medical condition, (e) his criminal history, (f) any

national security implications, and (g) further agency comments which may reveal

additional personally identifiable information. See Data Points Chart (Leland Decl., Ex.

6). This type of information is so collectively unique that even without a name or alien

10 Data Points 6, 7, 8, Id.
11 Other details, like the location where the detainee is being held, agency comments
concerning the particular disposition of his case, or the detainee’s connection to terrorism
or national security issues could also reveal the identity of the detainee, particularly
where those comments are combined with the unique nationality of the detainee. See
Rose, 425 U.S. at 380-81 (recognizing privacy interest in identifying information about
cadets redacted from case summaries of ethics hearings at the Air Force Academy);
Spirko,147 F.3d at 997.

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number, it is still a personally identifying characteristic, which implicates a classic

privacy interest—the right of an individual to control access to his own data.12

In Reporters Committee, the Supreme Court held that “[t]he privacy interest in a

rap sheet”—which is very similar to the criminal and detainee histories contained in the

POCR files requested here—“is substantial.” 489 U.S. at 771. Likewise in Rose, which

is frequently cited by Plaintiffs, the Supreme Court held that a request for cadet discipline

histories required that “personal references or other identifying information” be redacted.

Rose, 425 U.S. at 380-81 (emphasis added). That decision squarely supports ICE’s

redactions here, because ICE did as the Rose court instructed: employed redaction, a

“familiar technique,” to insure that the balance between disclosure and the privacy

exemptions in the FOIA remain “workable concepts.” Rose, 425 U.S. 381-82. Indeed,

the Rose court went much further than ICE did in the present case, holding that, if in the

opinion of the lower court the redaction of personal references and other identifying

information in Air Force cadet files “is not sufficient to safeguard privacy,” then the

summaries “should not be disclosed” at all. Id.

12 The Second Circuit presciently recognized the problem that vast collections of PII
posed for personal privacy more than twenty years ago, long before mobile phones or the
internet had taken root in American households:

It used to be thought that citizens had a right to pass
through this world without their successes and failures or
comings and goings being the subject of comment,
discussion or publication. But the advent of the data
computer bank has nearly swept away that long-held notion
[and] has virtually stripped from the individual’s grasp
control of information concerning his or her person . . .

FLRA, 958 F.2d at 504 (holding that disclosure of federal employees’ names and
addresses were prohibited under FOIA); see also Reporters Comm., 489 U.S. at 763 (an
individual has an interest in controlling information concerning his or her person).

15

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Here, each POCR “file” relates to one specific, individual detainee. Second Law

Decl. ¶ 13. That fact, plus the unique personal information contained in each file (id. ¶

14), means that ICE must view the information in the file as a whole and redact more

broadly than just names and alien numbers to ensure that privacy is protected. PII

includes “any item, collection, or grouping of information about an individual . . .

including . . . education, financial transactions, medical history, and criminal or

employment history.” DHS Privacy Incident Handling Guidance, ¶ 1.4.9. at 9 (Ex. A to

Second Law Declaration). The Government’s Amended Declaration and Vaughn index

further explains that this individual’s criminal history, arrival dates and port of entry, and

medical and psychological issues were redacted because inter alia (a) the detainee

identified in the POCR Sample did not consent to disclosure of his information, (b) the

disclosure of his PII could lead to identify theft, and (c) disclosure could also lead to

embarrassment, harassment, or undue public attention. Vaughn Index (Leland Decl. Ex.

4 at 1).13

The more significant the type of privacy interest (as in the case of information

related to law enforcement proceedings) the lighter the burden is to preclude disclosure.

See FLRA, 958 F.2d at 509 (“disclosure only need be reasonably expected to result in an

unwarranted invasion”). “FOIA requires only a measurable interest in privacy to trigger

the application of the disclosure balancing tests.” FLRA, 958 F.2d at 510. Thus, “once a

more than de minimis privacy interest is implicated the competing interests at stake must

be balanced in order to decide whether disclosure is permitted under FOIA.” Id.

13 An agency’s declarations in support of its determination must be “accorded a
presumption of good faith.” Carney, 19 F.3d at 812.

16

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C.

The Detainee’s Privacy Interests Outweigh Any Public Interest in the
Disclosure of His Personally Identifiable Information

“Where the privacy concerns addressed by Exemption 7(C) are present, the

exemption requires the person requesting the information to establish a sufficient reason

for the disclosure.” Nat’l Record Archives & Records Admin. v. Favish, 541 U.S. 157,

172 (2004). The Supreme Court has made clear that only one interest is relevant: “to

open agency action to the light of public scrutiny.” Reporters Comm., 489 U.S. at 772

(internal quotation omitted). But in balancing the privacy interests, Plaintiffs cannot

establish that the disclosure of the redacted information in the POCR files would “shed

any additional light on the Government’s conduct of its obligation,” U.S. Dep’t of State v.

Ray, 502 U.S. 164, 178 (1991), or that the PII in the files will “spark debate” (Pls. Br. at

14) in a way that is sufficient to merit the public disclosure of the wealth of PII in ICE’s

POCR files.

The minimal value of learning how personal criminal histories, medical histories

or other factors affect ICE’s implementation of Zadvydas (Pls. Br. at 14-17) is far

outweighed by the deeply invasive personal nature of Plaintiffs’ request,14 combined with

the relative ease with which the public may be able to potentially use PII in the POCR

files to uncover the true identity of the individual in question. Plaintiffs’ request would

publicly expose the most intimate private details, including (from among many real-

world examples) whether the detainee is HIV positive, suffers from a sexually

14 As has been mentioned, Plaintiffs have failed to demonstrate that they obtained written
third party authorizations to request these POCR files from ICE, as they are required to
do. See 6 C.F.R. § 5.3(a) (“If you are making a request for records about another
individual, [DHS requires] a written authorization signed by that individual permitting
disclosure of those records”); 6 C.F.R. § 5.21(f) (You must provide “a statement from the
individual certifying the individual’s agreement that records concerning the individual
may be released to you”).

17

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transmitted disease, is a victim of genital mutilation, was detained under suspicion of

terrorism, is seeking asylum, was tortured by a foreign regime, was arrested for child

abuse, pedophilia, or sexual assault of a child, or is a victim of domestic violence.15 See

Weisberg, 745 F.2d at 1491 (holding that despite public interest, balance of harms tilts in

favor of protecting privacy interest in law enforcement files); Lesar v. Dep’t of Justice,

636 F.2d 472, 486-88 (D.C. Cir. 1980) (public interest in assassination of Dr. Martin

Luther King did not outweigh privacy interest in individuals named in law enforcement

files). That the Plaintiffs’ goal is to assist aliens like the individual in the POCR Sample

is not relevant to the analysis. Compare Pls. Br. at 16 (citing “concerns about uniformity

in the POCR process”) with Associated Press, 554 F.3d at 287 (even though “a detainee

might want to voluntarily disclose information publicly[, that] does not authorize the

government to disclose that information, and the district court cites no law to support that

proposition, nor do we find any”).

On the contrary, the individual named in the Government’s POCR Sample has a

strong interest in avoiding any embarrassment or retaliation that may be caused by the

Government publicly identifying him as an illegal alien and, for example, exposing his

prior criminal record, the county in which the crime occurred and the nature of the

conviction. Such a public disclosure could result in serious consequences for that

individual in his community. See Rose, 425 U.S. at 377 (upholding the Air Force’s

decision to withhold the names of cadets accused of disciplinary infractions because

identification “could expose the formerly accused men to lifelong embarrassment,

perhaps disgrace”).

15 Among the Data Points that would potentially contain this type of information are 6, 7,
8, 9, 11, 12, 13, 14, 15, 16, 17. 18, 19, 22, 23, 24, 27, 28, 29, and 34.

18

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The individual in the POCR Sample also has a privacy interest in avoiding

unwanted attention or public scrutiny. See Reporters Comm., 489 U.S. at 769

(recognizing a “privacy interest in keeping personal facts away from the public eye”).

Release of this individual’s PII in connection with his immigration status implicates this

interest because these facts are “the type of information that a person would ordinarily

not wish to make known about himself or herself.” Associated Press, 554 F.3d at 292.

Plaintiffs’ request is deeply invasive and fails to surmount the high hurdle

required to obtain law enforcement-related PII. “It is well established that identifying

information such as names, addresses, and other personal information falls within the

ambit of privacy concerns under FOIA.” See Associated Press, 554 F.3d at 274;

Weisberg, 745 F.2d at 1491 (finding that privacy balance favored non-disclosure where it

was clear that collection of third-party records sought “were compiled for law

enforcement investigatory purposes”). Because the public interest that Plaintiffs claim

over the POCR Sample does not outweigh the privacy interests of the detained individual,

the balance of harms tilts in favor of the Government’s withholding of PII pursuant to

Exemptions 6 and 7(C). See Associated Press, 554 F.3d at 289.

III.

PURSUANT TO THE STIPULATION, THE GOVERNMENT RESERVES
THE RIGHT TO APPROPRIATELY REDACT FOR PRIVILEGE

FOIA Exemption 5 shields from disclosure “inter-agency or intra-agency

memorandums or letters which would not be available by law to a party . . . in litigation

with the agency.” 5 U.S.C. § 552(b)(5). “This exemption encompasses traditional

discovery privileges, such as the attorney-client and work-product privileges.” Wood v.

FBI, 432 F.3d 78, 83 (2d Cir. 2005). “[A]gency documents which would not be

obtainable by a private litigant in an action against the agency under normal discovery

19

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rules (e.g., attorney-client, work-product, executive privilege) are protected from

disclosure under Exemption 5 . . . .” Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d

Cir. 2002) (quoting Grand Cent. P’ship, 166 F.3d at 481).16

By citing Exemption 5 in the Amended Law Declaration, the Government did not

intend to “indiscriminately shield all decision-making by [its] public officials.” Pls. Br.

at 7. In fact, the Government acknowledges that the POCR Sample does not contain

Exemption 5-related material. However, as agreed to by the parties in the Stipulation, the

POCR Sample was intended to detail the representative types of FOIA exemptions that

ICE would claim over any future production called for by the Plaintiffs. Stipulation ¶ 6

(Leland Decl. Ex. 1).17 The Government redacted the POCR Sample at thirteen “data

points” simply to illustrate the places where it anticipated encountering a privilege issue

in its future POCR production.18

Because a POCR “file” is a collection of documents and information concerning a

detainee (Second Law Decl. ¶ 13), each POCR file may differ from the POCR Sample.

For example, “Data Point” 1 in the POCR Sample contains a space for “additional

comments or information.” See POCR Sample (Leland Decl., Ex. 2). Data Points 9, 10

16 The attorney-client privilege protects confidential communications from clients to
their attorneys made for the purpose of securing legal advice of services.” Tax Analysts
v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997) (citation omitted). Similarly, the deliberative
process privilege, applies to materials that are part and parcel of the process of internal
agency decision-making. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)
(privilege protects documents comprising part of a process by which policies are
formulated).
17 See also Amended Law Decl. (Exh. 3 to Leland Decl.) at n. 3 (“[The POCR Sample]
is intended to be representative”); ¶ 16 (“While the particular sample provided . . . did not
contain attorney-client privileged information, an individual’s POCR ‘file’ could contain
such information”).
18 The Data Points applicable to this Exemption are 1, 9, 10, 11, 12, 15, 16, 20, 26, 31,
32, 33, 34. See Data Point Chart at Leland Decl., Exh. 6.

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and 11 are large “free-text” boxes in which an ICE case agent is instructed to enter

“discussions at interview,” the alien’s “attempts to get travel documents and status,” and

“ICE’s attempts to obtain a travel document and status,” respectively. Id. Likewise, the

POCR Sample contains an informational email attached to the back of the file. See

POCR Sample (Law Decl. Ex. 2) at 000022.

Other files will no doubt contain other unique information, including the likely

possibility that legal memoranda will be appended to certain files. Thus, while this

particular POCR Sample did not contain privileged information, other files likely will.

See, e.g., Amended Law Decl. ¶ 14 (“an individual’s POCR ‘file’ may contain

recommendations from ICE’s Office of the Principal Legal Advisor”).