American Civil Liberties Union Foundation v. Department of Justice

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 AMERICAN CIVIL LIBERTIES UNION Case No. 19-cv-00290-EMC

FOUNDATION, et al.,

8

Plaintiffs, ORDER GRANTING IN PART AND

9 DENYING IN PART CROSS-MOTIONS

v. FOR PARTIAL SUMMARY

10 JUDGMENT

U.S. DEPARTMENT OF JUSTICE, et al.,

11 Docket Nos. 98, 108

Defendants.

12

13

14 Plaintiffs American Civil Liberties Union Foundation and American Civil Liberties Union

15 Foundation of Northern California filed requests pursuant to the Freedom of Information Act

16 (FOIA), 5 U.S.C. § 552, to obtain records from seven federal agencies regarding those agencies’

17 surveillance and monitoring of persons through social media. See Docket No. 1. (“Compl.”).

18 After the agencies allegedly failed to respond as FOIA requires, Plaintiffs filed this action to

19 compel the agencies to produce records responsive to Plaintiffs’ requests. Id.

20 Pending before the Court is Defendants’ motion for partial summary judgment with respect

21 to the adequacy of the searches and withholdings of U.S. Immigration and Customs Enforcement

22 (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizen and Immigration Services

23 (USCIS) (collectively, “Defendants”).1 See Docket No. 98 (“Defs.’ Mot.”). Also pending before

24 the Court is Plaintiffs’ cross-motion for partial summary judgment. See Docket No. 108 (“Pls.’

25 Mot.”). For the following reasons, the Court GRANTS in part and DENIES in part Plaintiffs

26

27

1 Plaintiffs also seek records from the Department of Justice (DOJ), the Federal Bureau of

1 and Defendants’ motions.

2 I. BACKGROUND

3 A. Factual Background

4 Plaintiffs contend Defendants “are taking steps to monitor social media users and their

5 speech, activities, and associations” and the agencies are pursuing the ability to engage in

6 “programmatic and sustained tracking of U.S. citizens and noncitizens alike.” Compl. Plaintiffs

7 also allege Defendants have specifically “ramped up the monitoring and retention of immigrants’

8 and visa applicants’ social media information, including for the purpose of conducting what the

9 Trump administration has called ‘extreme vetting’ or ‘visa lifecycle vetting.’” Id.

10 B. Procedural Background

11 On May 24, 2018, Plaintiffs submitted identical FOIA requests to Defendants “for records

12 pertaining to social media surveillance, including the monitoring and retention of immigrants’ and

13 visa applicants’ social media information for the purpose of conducting ‘extreme vetting.’” See

14 Docket No. 98-6 (White Decl., Ex A (“FOIA Requests”)) at 2. Plaintiffs sought five categories of

15 records:

16 (1) social media surveillance-related policies and guidance;

17 (2) records concerning the purchase or acquisition of social media

surveillance technologies;

18

(3) communications to or from private businesses concerning social

19 media surveillance products;

20 (4) communications to or from social media platforms concerning

surveillance of social media content; and

21

(5) records concerning the use or incorporation of social media

22 content within systems or programs that make use of algorithms,

machine-learning processes, or predictive analytics applications.

23

24 Id. at 6–7. After Defendants allegedly failed to produce responsive documents, Plaintiffs

25 exhausted their administrative remedies and filed this lawsuit seeking to compel production on

26 January 17, 2019. See Compl.

27 On September 6, 2019, Defendants filed a motion for partial summary judgment with

1 see Docket No. 39 (“FBI Order”).

2 Eventually the agencies produced some records. CBP produced 358 pages of records in

3 five tranches between June and October of 2019, and it withheld four pages entirely. Defs.’ Mot.

4 at 3. ICE produced records between May and August of 2019, with a supplemental production in

5 February 2020, for a total of 2,169 pages. Id. USCIS produced 2,645 pages of records in July and

6 August 2019, and April 2020. Id. It produced reprocessed versions of these records in October

7 2020. Id. Thereafter and in preparation for summary judgment, Defendants produced draft

8 Vaughn2 indices and Plaintiffs narrowed the redactions and withholdings challenged by their

9 cross-motion. Pls.’ Mot. at 6.

10 On January 28, 2021, Defendants filed their motion for partial summary judgment with

11 respect to CBP, ICE, and USCIS. See Defs.’ Mot. On March 25, 2021, Plaintiffs filed their cross-

12 motion for partial summary judgment. See Pls.’ MSJ.

13 During oral argument on the cross-motions for summary judgment, the Court ordered the

14 Defendants to submit unredacted versions of all the documents at issue for in camera review. See

15 Docket No. 137. Defendants complied shortly thereafter. After reviewing the documents, the

16 Court determined that it needed clarification on Defendants’ position regarding the applicability of

17 the deliberative process privilege under FOIA Exemption 5. See Docket No. 139. Accordingly,

18 on September 17, 2021, the Court conducted an ex parte, in camera hearing with Defendants’

19 counsel to go over all the redactions related to the deliberative process privilege so that

20 Defendants could explain with specificity how they contend that privilege applies to each

21 redaction. The transcript of this hearing was filed under seal such that only Defendants’ counsel

22 and the Court have access to it.

23 ///

24 ///

25

26

2 A “‘Vaughn index’ identifies each document withheld and the FOIA exemption claimed and

explains how disclosure would damage the interests protected by the claimed exemption.” Am.

27

Civ. Liberties Union of N. Cal. v. Fed. Bureau of Investigation (“ACLU v. FBI”), 881 F.3d 776,

1 II. LEGAL STANDARD

2 Federal Rule of Civil Procedure 56 provides that a “court shall grant summary judgment

3 [to a moving party] if the movant shows that there is no genuine dispute as to any material fact and

4 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is

5 genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party.

6 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). “The mere existence of a

7 scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could

8 reasonably find for the [nonmoving party].” Id. at 252. At the summary judgment stage, evidence

9 must be viewed in the light most favorable to the nonmoving party and all justifiable inferences

10 are to be drawn in the nonmovant’s favor. See id. at 255.3

11 FOIA is animated by “the fundamental principle of public access to Government

12 documents.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1989). It is “broadly

13 conceived,” and “disclosure, not secrecy” is its dominant objective. Id. at 151–52. At the same

14 time, Congress has exempted some information “under clearly delineated statutory language.” Id.

15 at 152 (citing Dep’t of Air Force v. Rose, 425 U.S. 352, 360–61 (1976)). These exemptions are

16 “limited” and “must be narrowly construed.” Rose, 425 U.S. at 361. “Furthermore, ‘the burden is

17 on the agency to sustain its action.’” John Doe Agency, 493 U.S. at 152 (citing 5 U.S.C. §

18 552(a)(4)(B)). In other words, “[g]iven FOIA’s overarching purpose, ‘the strong presumption in

19 favor of disclosure places the burden on the agency to justify the withholding of any requested

20 documents.’” Civil Beat Law Ctr. for the Pub. Int., Inc. v. Centers for Disease Control &

21 Prevention, 929 F.3d 1079, 1084 (9th Cir. 2019) (citing U.S. Dep’t of State v. Ray, 502 U.S. 164,

22 173 (1991)).

23 The Ninth Circuit has observed that “[g]enerally, FOIA cases should be handled on

24 motions for summary judgment.” Lane v. Dep’t of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008)

25

3 Evidence may be presented in a form that is not admissible at trial so long as it could ultimately

26

be capable of being put in admissible form. See Fed. R. Civ. P. 56(c)(2) (“A party may object that

the material cited to support or dispute a fact cannot be presented in a form that would be

27

admissible in evidence”); Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 846 (9th Cir.

1 (quoting Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir.1993)); see also Animal Legal Def. Fund v.

2 U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016) (“Most FOIA cases are resolved by

3 the district court on summary judgment.”). Given the limited nature of discovery typically

4 permitted in FOIA cases, district courts routinely “enter summary judgment on the basis of agency

5 affidavits.” Lane, 523 F.3d at 1134. Reliance on government affidavits is permissible “so long as

6 the affiants are knowledgeable about the information sought and the affidavits are detailed enough

7 to allow the court to make an independent assessment of the government’s claim.” Id. at 1135–36

8 (quoting Lion Raisins, Inc. v. U.S. Dep’t of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004)); see also

9 Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 772 (9th Cir. 2015) (“[W]e also give considerable

10 deference to agency affidavits made in apparent good faith where the affidavits reasonably

11 describe the justifications for nondisclosure and show that the content withheld falls within one of

12 FOIA’s exemptions.”). “Ultimately, an agency’s justification for invoking a FOIA exemption is

13 sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. C.I.A., 473 F.3d 370, 374–75 (D.C. Cir.

14 2007). In order to satisfy this burden, government declarations in support of withholding “must

15 describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the

16 information withheld logically falls within the claimed exemptions, and show that the

17 justifications are not controverted by contrary evidence in the record or by evidence of bad faith.”

18 Hamdan, 797 F.3d at 769.

19 III. DISCUSSION

20 This order will address, in turn, Plaintiffs’ contention that Defendants’ redactions and

21 withholdings under Exemptions 7(E) and 5 are improper.

22 A. Exemption 7(E)

23 Exemption 7(E) protects from disclosure

24 “records or information compiled for law enforcement purposes, but

only to the extent that the production of such law enforcement

25 records or information . . . would disclose techniques and

procedures for law enforcement investigations or prosecutions, or

26 would disclose guidelines for law enforcement investigations or

prosecutions if such disclosure could reasonably be expected to risk

27 circumvention of the law.”

1 accomplishing a desired aim,” a “procedure” is “a particular way of doing or of going about the

2 accomplishment of something,” and a “guideline” is “an indication or outline of future policy or

3 conduct.” Allard K. Lowenstein Int’l Hunan Rts. Project v. Dep’t of Homeland Sec., 626 F.3d

4 678, 682 (2d Cir. 2010) (quoting Webster’s Third New International Dictionary (1986)). The

5 statutory requirement that the government show disclosure “‘could reasonably be expected to risk

6 circumvention of the law’ applies only to guidelines for law enforcement investigations or

7 prosecutions, not to techniques and procedures.” Am. Civ. Liberties Union of N. Cal. v. U.S. Dep’t

8 of Justice (“ACLU v. DOJ”), 880 F.3d 473, 491 (9th Cir. 2018) (emphasis added) (citing Hamdan,

9 797 F.3d at 778 and Allard K. Lowenstein Int’l Human Rts. Proj., 626 F.3d at 681).

10 “[T]echniques and procedures” refers to “how law enforcement officials go about

11 investigating a crime.” Allard K. Lowenstein Int’l Hunan Rts. Project, 626 F.3d at 682. The

12 Ninth Circuit has repeatedly held that “Exemption 7(E) only exempts investigative techniques not

13 generally known to the public.” ACLU v. DOJ, 880 F.3d at 491 (quoting Rosenfeld v. U.S. Dep’t

14 of Justice, 57 F.3d 803, 815 (9th Cir. 1995). Moreover, if a record discusses “the application of [a

15 publicly known technique] to . . . particular facts,” the document is not exempt under 7(E); if it

16 “describes a ‘specific means . . . rather than an application’ of deploying a particular investigative

17 technique, the record is exempt.” Id. (quoting Hamdan, 797 F.3d at 777–78). Likewise, records

18 that provide a “‘detailed, technical analysis of the techniques and procedures used to conduct law

19 enforcement investigations’ may properly be withheld under Exemption 7(E).” Id. (quoting

20 Bowen v. U.S. Food and Drug Admin., 925 F.2d 1225, 1228–29 (9th Cir. 1991)).

21 Considering these standards, the Court reviewed the documents at issue in camera and

22 determined that Exemption 7(E) applies as follows:

23 1. CBP Documents

24

Document Application of Exemption 7(E)

25

Policy on Operational Use of Exemption 7(E) does not apply because the redacted portions

26 Social Media (the “Policy”) are simply procedures for obtaining authorization to use

masked monitoring and undercover engagement. This

27 (CBP 125-136) information cannot reasonably be expected to risk

circumvention of the law. See ACLU v. DOJ, 880 F.3d at 492

Document Application of Exemption 7(E)

1

obtaining location information” and “provid[ing] instructions

2 to investigators and prosecutors regarding how to lawfully

obtain electronic location information . . . provide no

3 information that would assist criminals in conforming their

behavior to evade detection or circumvent the law”).

4

CBP is instructed to re-produce the Policy without

5

redactions within fourteen (14) days of this order.

6

Information Issue Papers; CBP Exemption 7(E) applies because the redacted portions of these

7 Use of Social Media Papers; documents “describe a ‘specific means . . . of deploying a

Social Media Briefing Papers particular investigative technique.” ACLU v. DOJ, 880 F.3d

8 (collectively, the “Papers”) at 491 (quoting Hamdan, 797 F.3d at 777–78).

9

(CBP 1-22)

10

Privacy Threshhold Analyses Exemption 7(E) applies because the redacted portions of these

11 (PTAs) documents “describe a ‘specific means . . . of deploying a

particular investigative technique.” ACLU v. DOJ, 880 F.3d

12

(CBP 23–39, 48–57, 149–60, at 491 (quoting Hamdan, 797 F.3d at 777–78).

13 296–306, 337–48, 349–58)

These documents also contain the names and descriptions of

14 “investigative techniques not generally known to the public.”

Id.

15

Social Media Use Templates Exemption 7(E) applies because the redacted portions of these

16

(SMOUTs) documents refer to “investigative techniques not generally

17 known to the public.” ACLU v. DOJ, 880 F.3d at 491.

(CBP 161–69, 170–77, 178–

18 91)

19 Contract Documents Exemption 7(E) applies because the redacted portions of these

documents refer to “investigative techniques not generally

20

(CBP 197-249) known to the public.” ACLU v. DOJ, 880 F.3d at 491.

21

22 2. ICE Documents

23

Document Application of Exemption 7(E)

24 Visa Lifecycle Vetting Exemption 7(E) applies because the redacted portions of these

Initiative (VLVI) documents “describe a ‘specific means . . . of deploying a

25

particular investigative technique.” ACLU v. DOJ, 880 F.3d

26 (ICE 1680-81) at 491 (quoting Hamdan, 797 F.3d at 777–78).

27 Open Source/Media

Exploitation

Document Application of Exemption 7(E)

1

(ICE 1812–13)

2

Counterterrorism and Criminal

3 Exploitation Unit Open

Source/Social Media

4 Exploitation

5

(ICE 1818–26)

6

Email Communications Exemption 7(E) applies because the redacted portions of these

7 documents are a list of U.S. government oversees posts that

(ICE 921, 1017) use the Visa Lifecycle Vetting Initiative (VLVI) to track non-

8 immigrant visitor’s social media. The Court concludes that

this information is “a ‘specific means . . . of deploying a

9

particular investigative technique” that can be used to

10 circumvent law enforcement. ACLU v. DOJ, 880 F.3d at 491

(quoting Hamdan, 797 F.3d at 777–78).

11

Open Source Collection Tools Exemption 7(E) applies because the redacted portions of this

12

(PowerPoint presentation) document are a list of symbols ICE uses to identify specific

13 terrorist groups on social media. The Court concludes that

(CBP 432–48) this information is “a ‘specific means . . . of deploying a

14 particular investigative technique” that can be used to

circumvent law enforcement. ACLU v. DOJ, 880 F.3d at 491

15 (quoting Hamdan, 797 F.3d at 777–78).

16

3. USCIS Documents

17

18

Document Application of Exemption 7(E)

19 Guidance for Use of Social Exemption 7(E) applies because the redacted portions of these

Media in Field Operations documents are a list of social-media-related questions asked to

20 Directorate Adjudications visa applicants under specific circumstances. The Court

concludes that this information describes “a ‘specific means

21 (USCIS 1267–78) . . . of deploying a particular investigative technique” that can

be used to circumvent law enforcement. ACLU v. DOJ, 880

22

Guidance for Use of Social F.3d at 491 (quoting Hamdan, 797 F.3d at 777–78).

23 Media in Syrian Refugee

Adjudications by the USCIS’s

24 Refugee Affairs Division

25

(USCIS 2344 – 53)

26

Protecting the First Exemption 7(E) does not apply to the redactions on USCIS

27 Amendment in Social Media 1878 to USCIS 1887. These pages do not describe with any

Research specificity the means of deploying any particular investigative

Document Application of Exemption 7(E)

1

2 (USCIS 1878–1906) Exemption 7(E) does apply to the redactions on USCIS 1886

to USCIS 1906 because those pages “describe a ‘specific

3 means . . . of deploying a particular investigative technique.”

ACLU v. DOJ, 880 F.3d at 491 (quoting Hamdan, 797 F.3d at

4 777–78).

5

USCIS is instructed to re-produce this presentation without

6 redactions on USCIS 1878 to USCIS 1885 within fourteen

(14) days of this order.

7

8 B. Exemption 5

9 Exemption 5 authorizes an agency to withhold “inter-agency or intra-agency

10 memorandums or letters that would not be available by law to a party other than an agency in

11 litigation with the agency.” 5 U.S.C. § 552(b)(5). The Supreme Court has held that Exemption 5

12 encompasses records “normally privileged in the civil discovery context.” NLRB v. Sears,

13 Roebuck & Co., 421 U.S. 132, 149 (1975). “These include records that would be protected in

14 litigation by the attorney work-product, attorney-client, and deliberative process privileges.”

15 ACLU v. DOJ, 880 F.3d at 483 (quoting Sears, 421 U.S. at 150–54).

16 1. Deliberative Process Privilege

17 The Supreme Court recently reiterated that the deliberative process privilege “protects

18 from disclosure documents generated during an agency’s deliberations about a policy, as opposed

19 to documents that embody or explain a policy that the agency adopts.” U.S. Fish & Wildlife Serv.

20 v. Sierra Club, Inc., 141 S. Ct. 777, 783 (2021). More specifically, the deliberative process

21 privilege protects from disclosure “documents reflecting advisory opinions, recommendations and

22 deliberations comprising part of a process by which governmental decisions and policies are

23 formulated.” Id. (quoting Sears, 421 U.S. at 8–9). Conversely, the privilege “does not apply . . .

24 to documents that embody a final decision, because once a decision has been made, the

25 deliberations are done.” Id. The key distinction is between “predecisional, deliberative

26 documents”—which are covered by the privilege—and “documents reflecting a final agency

27 decision and the reasons supporting it”—which are not. Id. at 785–86 (citing Renegot. Bd. v.

1 “Documents are ‘predecisional’ if they were generated before the agency’s final decision

2 on the matter.” Id. at 786. Additionally, “[a] ‘predecisional’ document is one prepared in order to

3 assist an agency decisionmaker in arriving at his decision, and may include recommendations,

4 draft documents, proposals, suggestions, and other subjective documents which reflect the

5 personal opinions of the writer rather than the policy of the agency.” Lahr v. Nat’l Transp. Safety

6 Bd., 569 F.3d 964, 979 (9th Cir. 2009).

7 On the other hand, a document reflects a final agency decision and the reasons supporting

8 it if “it communicates a policy on which the agency has settled.” Id. Importantly, “[a] document

9 is not final solely because nothing else follows it” because during agency deliberations “some

10 ideas are discarded or simply languish.” Id. Instead, to determine if a document is final, Courts

11 must evaluate “whether the agency treats the document as its final view on the matter.” Id. If so,

12 the document will have “real operative effect” and will not be subject to the privilege because it

13 “reflects ‘the consummation of the agency’s decision-making process’ and not a ‘merely tentative’

14 position.” Id. (first quoting Sears, 421 U.S. at 161; then quoting Bennett v. Spear, 520 U.S. 154,

15 177–178 (1997)). On the other hand, the document is not subject to the privilege if it “leaves the

16 agency decisionmakers ‘free to change their minds.’” Id. (quoting Grumman, 421 U.S. at 189–

17 190).

18 Documents “are ‘deliberative’ if they were prepared to help the agency formulate its

19 position.” Sierra Club, 141 S. Ct. at 786 (emphasis added). In other words, a document is

20 deliberative if it “is a part of the ‘deliberative process,’ if the disclosure of the materials would

21 expose an agency’s decision-making process in such a way as to discourage candid discussion

22 within the agency and thereby undermine the agency’s ability to perform its functions.” Lahr, 569

23 F.3d at 979–90. A document cannot be deliberative unless it is predecisional. Sierra Club, 141 S.

24 Ct. at 786.

25 The first step in the inquiry into whether materials are part of the deliberative process “is to

26 examine the context in which the materials are used.” Petroleum Info. Corp. v. U.S. Dep't of

27 Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (quoting Wolfe v. Department of Health & Human

1 within the deliberative process privilege, materials must bear on the formulation or exercise of

2 agency policy-oriented judgment.” Id. at 1435; Habeas Corpus Res. Ctr. v. U.S. Dep't of Just.,

3 2008 WL 5000224, at *1 (N.D. Cal. 2008) (“The deliberative process privilege ‘does not protect a

4 document which is merely peripheral to actual policy formation; the record must bear on the

5 formulation or exercise of policy-oriented judgment.’”) (citing Tigue v. U.S. Dep't of Justice, 312

6 F.3d 70, 80 (2d Cir. 2002) (quoting Ethyl Corp. v. EPA, 25 F.3d 1241, 1248 (4th Cir. 1994)). The

7 D.C. Circuit further explained the importance of framing the deliberative process inquiry around

8 whether a document is related to the agency’s policy-oriented judgment to the purpose of

9 Exemption 5:

10 Homing in on, and sheltering material implicating officials' exercise

of judgment about policy matters secures the internal agency “give-

11 and-take” Congress meant to protect when it enacted Exemption 5.

Our decisions recognize that the process of selecting among

12 alternative policies can be delicate and audience-sensitive,

susceptible to distortions and vulnerable to fudging when the

13 deliberators fear or expect public reaction. Inquiring whether the

requested materials can reasonably be said to embody an agency's

14 policy-informed or -informing judgmental process therefore helps us

answer the “key question” in these cases: whether disclosure would

15 tend to diminish candor within an agency.

16 Petroleum Info. Corp., 976 F.2d at 1435 (citations and footnote omitted). Accordingly, “the

17 deliberative process privilege has been held to cover all ‘recommendations, draft documents,

18 proposals, suggestions and other subjective documents which reflect the personal opinions of the

19 writer rather than the policy of the agency,’ as well as documents which would ‘inaccurately

20 reflect or prematurely disclose the views of the agency.’” Nat'l Wildlife Fed'n v. U.S. Forest Serv.,

21 861 F.2d 1114, 1118–19 (9th Cir. 1988) (quoting Coastal States Gas Corp. v. Department of

22 Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)

23 Considering these standards, the Court reviewed the documents at issue in camera and

24 determined that the deliberative process privilege in Exemption 5 applies as follows:

25 ///

26 ///

27 ///

1 a. CBP Documents

2

Document Application of Exemption 5

3

Privacy Threshold Analyses The deliberative process privilege applies to the redacted

4 (PTAs) portions of this document because they discuss CBP’s draft

plans, policy recommendations, and pilot programs.

5 (CBP 23–39, 48–57, 149–60,

296–306, 337–48, 349–58)

6 Issue Papers The deliberative process privilege does not apply to the

portions of CBP 2, 17 and 19 that list the acronyms of sub-

7

(CBP 1-22) agencies that reviewed the Social Media Working Group’s

8 draft Social Media Strategy. The redacted language identifies

sub-agencies involved in the review of the draft strategy. The

9 materials are devoid of any description of the substance of the

draft or the views of any of the sub-agencies (let alone “the

10 personal opinions” of any particular “writer,” see Nat’l

Wildlife Fed’n, 861 F.2d at 1118). The fact that sub-agencies

11

were involved in reviewing the draft strategy cannot, at least

12 in the absence of any explanation by the government,

“reasonably be said to embody [CBP’s] policy-informed or -

13 informing judgmental process[.]” Petroleum Info. Corp., 976

F.2d at 1435 (quotation marks omitted).

14

The identity of participants in a discussion of draft policy may

15

be appropriately subject to the deliberative process privilege if

16 disclosure of the fact of a participant’s involvement “would

tend to diminish candor within an agency.” Id. It is

17 Defendants’ burden to make such a showing in order to assert

the deliberative process privilege under Exemption 5 and

18

overcome FOIA’s “strong presumption in favor of

19 disclosure[.]” Civil Beat Law Ctr., 929 F.3d at 1084.

Defendants have not met their burden here. They provide no

20 rationale for why the disclosure that sub-agencies within DHS

were involved in reviewing DHS’s draft policy for Social

21 Media Strategy would chill honest discussion within the

agency. And the redacted materials are certainly not based

22

upon “personal opinions” of an agency official. National

23 Wildlife Fed’n, 861 F.22d at 1118.

24 Defendants’ Vaughn Index asserts the deliberative process

privilege for these materials principally to protect

25 “[d]escriptions of analyses” and “[d]escriptions of content and

status of a draft . . . report.” Docket No. 127-1. The

26

government does not justify why the fact of the participation

27 of particular sub-agencies in the review of the draft policy is

privileged. Indeed, elsewhere in these same materials,

Document Application of Exemption 5

1

Task Force, collaboration between the Task Force, CBP and

2 DHS Oversight bodies, and the creation of a CBP-wide

working group to assess social media strategy. CBP 2-3, 16-

3 17. Defendants fail to explain why the nature of the redacted

information is different from the information Defendants

4 already disclosed about sub-agency involvement in the

crafting of the Social Media Strategy. Defendants do not

5

describe why the fact of the involvement of the sub-agencies

6 mentioned in CBP 2, 17 and 19 warrant exemption under the

deliberative process privilege. Thus, the deliberative process

7 privilege does not apply.

8 CBP is instructed to remove redactions from the following

text at CBP 2, 17 and 19 within fourteen (14) days of this

9

order:

10

CBP 2 and 19: Remove redactions from the

11 following: “The Social Media Working Group drafted

a Social Media Strategy which has been reviewed and

12 signed by OI, OFO, USBP, AMO, PDO, OIT, OPR,

and OTD and is currently under final review with CBP

13

OCC. This draft strategy proposes paths forward to

14 advance the operational use of social media”

15 CBP 17: Remove redactions from the following: “The

Social Media Working Group drafted a Social Media

16

Strategy, which has been reviewed by OI, OFO,

17 USBP, AMO, PDO, OIT, OPR and OTD” and “This

draft strategy highlights the areas of focus and

18 proposes paths forward to advance the operational use

of social media”

19

The deliberative process privilege applies to the remaining

20

redacted portions of this document because they discuss

21 CBP’s draft plans, policy recommendations, and pilot

programs.

22

23 b. ICE Documents

24

Document Application of Exemption 5

25 Contract Email The deliberative process privilege applies to the redacted

portions of this document, which appear to be draft language

26

(ICE 62-63) for a potential contract for a particular project.

27

Tasking Request Emails The deliberative process privilege applies to the redacted

Document Application of Exemption 5

1

(ICE 1012–14) recommendations for inclusion in a request for information to

2 develop an internal briefing paper regarding DHS’s use of

Facebook data. The redacted emails relate to an internal

3 request for information in order to develop an internal

briefing.

4

The documents in question are unlike early-stage compilations

5

of facts that have been found to be insufficiently substantive

6 to qualify as “deliberative.” See Citizens for Resp. & Ethics in

Washington v. U.S. Dep't of Homeland Sec., 648 F. Supp. 2d

7 152, 159 (D.D.C. 2009).

8

Procurement Sensitive: The deliberative process privilege applies to the redacted

9

Performance Work Statement portions of this entire document because it appears to be a

10 Visa Lifecycle Vetting draft of policy.

Initiative

11

(ICE 596–640)

12

13 c. USCIS Documents

14

15 Document Application of Exemption 5

First Amendment Email (Subject The deliberative process privilege applies to the redacted

16 Line: “USCIS authority to portions of this email, which appear to be draft responses to

collect/use social media potential questions about a USCIS policy on the use of social

17 information relating to the media.

exercise of First Amendment

18

protected activities (draft).”)

19

20 (USCIS 1571)

21

Procurement Email (Subject line: USCIS reprocessed and disclosed previously redacted portions

22 “DHS procurement of SM of USCIS 1711-12. Docket No. 143-1.

services in Enhanced Vetting

23

initiative”) The deliberative process applies to the remaining redacted

24 portions of these emails, which appear to include the opinions

of agency officials involved in policymaking and upcoming

25 (USCIS 1711–12) decisions regarding the policy discussed, the Enhance Vetting

Initiative. See Docket No. 129 § 9.

26

27

1 2. Attorney-Client Privilege

2 Not all communications with lawyers are privileged. See United States v. Martin, 278 F.3d

3 988, 999–1000 (9th Cir. 2002), as amended on denial of reh’g (Mar. 13, 2002) (citing United

4 States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996)). “Because it impedes full and free discovery

5 of the truth, the attorney-client privilege is strictly construed” to the following circumstances: “(1)

6 When legal advice of any kind is sought (2) from a professional legal adviser in his or her capacity

7 as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client,

8 (6) are, at the client's instance, permanently protected (7) from disclosure by the client or by the

9 legal adviser (8) unless the protection be waived.” Id. (first quoting Weil v. Inv. Indicators,

10 Research & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981); then quoting 8 Wigmore, Evidence §

11 2292, at 554 (McNaughton rev.1961)); see also United States v. Plache, 913 F.2d 1375, 1379 n. 1

12 (9th Cir. 1990) (same elements). The burden is on the party asserting the privilege to establish all

13 these elements. Id.

14 Considering these standards, the Court reviewed the documents at issue in camera and

15 determined that the attorney-client privilege in Exemption 5 applies as follows:

16 a. USCIS Documents

17

Document Application of Exemption 5

18

Summary Paper The attorney-client privilege applies because the withheld

19 document is a memorandum with legal advice about potential

(USCIS 1475–77) constitutional issues that might arise from USCIS’s use of

20 social media.

21 First Amendment and The attorney client privilege applies to USCIS 1571, which is

Procurement Emails an email communication with legal advice about the first

22

amendment implications of USCIS’s use of social media.

23 (USCIS 1571, 1711–12)

USCIS reprocessed and disclosed previously redacted portions

24 of USCIS 1711-12. Docket No. 143-1. The attorney-client

privilege does not apply to USCIS 1711 to 1712 because there

25 is no legal advice at issue in those emails. As discussed

above, the remaining redactions are appropriate under the

26

deliberative process privilege.

27

1 C. CBP’s Vaughn Index

2 “Specificity is the defining requirement of the Vaughn index.” Wiener, 943 F.2d at 979. It

3 “afford[s] the FOIA requester a meaningful opportunity to contest, and the district court an

4 adequate foundation to review [de novo], the soundness of the withholding.” Id. at 977; see also

5 Lahr, 569 F.3d at 989 (a Vaughn index “must be detailed enough for the district court to make a de

6 novo assessment of the government’s claim of exemption”). To serve that purpose, it must contain

7 “a particularized explanation of how disclosure of the particular document would damage the

8 interest protected by the claimed exemption.” Wiener, 943 F.2d at 977–78. “Categorical

9 description of redacted material coupled with categorical indication of anticipated consequences of

10 disclosure is clearly inadequate.” King v. Dep’t of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987).

11 Similarly, “boilerplate explanations,” that do not “tailor the explanation to the specific document

12 withheld,” are insufficient and pose an “obvious obstacle to effective advocacy.” Wiener, 943

13 F.2d at 978–79. On the other hand, an agency “must disclose as much information as possible

14 without thwarting the purpose of the exemption claimed.” Citizens Comm’n on Human Rts. v.

15 Food & Drug Admin., 45 F.3d 1325, 1328 (1995); see also Hamdan, 797 F.3d at 775 (“Wiener

16 demands that the government disclose what it can without ‘thwarting the claimed exemption’s

17 purpose.’” (quoting Weiner, 943 F.2d at 979)).

18 Plaintiffs bring a general challenge to CBP’s Vaughn index because it “repeats non-

19 specific recitations of the standard for the FOIA exemptions at issue, followed by multiple non-

20 specific bullets drawn from a master list of reasons for withholding content that are set forth in

21 [Mr. Howard’s declaration].” Pls.’ Mot. at 33. Indeed, the CBP’s Vaughn index is unworkable.

22 That being said, after conducting an in camera review of the documents, the Court need not ask

23 CBP to update its Vaughn index in order to rule on the parties’ disputes.

24 ///

25 ///

26 ///

27 ///

1 IV. CONCLUSION

2 For the foregoing reasons, the Court GRANTS in part and DENIES in part the parties

3 cross-motions for summary judgment. Defendants are instructed to produce unredacted versions

4 of certain documents identified above within fourteen (14) days of this order.

5 This order disposes of Docket Nos. 98 and 108.

6

7 IT IS SO ORDERED.

8

9 Dated: September 22, 2021

10 ______________________________________

EDWARD M. CHEN

11 United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27